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

Public Document 



No. 12 



®l^p (EnmrnmiUTralth nf iHaasarhuHrtts 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1976 




Publication of this Documlnt Approved by Alkred C. Holland. State Purchasing Agent 



Public Document 



No. 12 



(5ljp (Unmmmiutraltli nf iHaflBarhuBrttfl 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1976 




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

1500-8-77-142375 .. , ,, „ 

hstimated Cost Per Copy $2.66 



(Liw (Cummnmuralth nf iHaaiiarhuiirtlij 

Boston, July 12, 1977 

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, 1976. 

Respectfully Submitted, 

FRANCIS X. BELLOTTI 
Attorney General 



P.D. 12 



aUtr CUummnnmralth nf iHainiarlnuirttii 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
FRANCIS X. BELLOTTI 

First Assistant Attorney General 
Robert M. Bonin 



James R. Adams " 
Phyllis H. Allen 
Nicholas P. Arenella 
Kenneth M. Barna 
W. Channing Beucler 
Margot Botsford 
Jonathan Brant 
James A. Clayton, Jr. ' 
Garrick F. Cole 
John P. Corbett - 
Kathleen Ryan Dacey 
Maureen Dewan '' 
Paul Donaher 
Michael C. Donahue 
Eleanor A. Dwyer 
Michael Eby '" 
Catherine Farrell 
Lisa Fitzgerald ^ 
Charles P. Gamer 
Brian F. Gilligan 
Paula W. Gold 
Joseph P. Gordon, Jr. * 
Robert V. Greco 
William F. Green ■* 
Richard A. Gross 
Patricia C. Gunn ^ 
L. Scott Harshbarger 
William E. Howell 
John F. Hurley 
John J. Irwin 
Carolyn A. Kelliher ^ 
Thomas M. Kiley '- 
Thomas R. Kiley 
Dennis LaCroix " 
Timothy J. Lane, Jr. 
Steven M. Leonard 
William F. Linnehan 
Bernard Manning 
Andrew J. McElaney, Jr. 
Barton J Menitove 



Assistant Attorneys General 

Michael B. Meyer 
Stephen Miller "* 
Thomas H. Miller ^ 
David A. Mills " 
Anton T. Moehrke ' 
John T. Montgomery ^ 
Henry F. O'Connell, Jr. 
Terence P. O'Malley 
Kathleen K. Parker ' 
Alan K. Posner 
Paula Rosen 
Steven A. Rusconi 
S. Steven Rosenfeld 
Barbara J. Rouse 
Anthony P. Sager ^ 
Frank J. Scharaffa 
William A. Schroeder 
Stephen Schultz 
Marc S. Seigle 
Terry Seligmann' 
Paul W. Shaw" 
Mitchell Sikora 
Bruce Singal "* 
Susan K. Sloane 
Barbara A. Smith 
Deborah S. Solomon 
Piroska Soos 
Donald Stern 
Paul J. Swartz 
Terence M. Troyer ^ 
Bruce D. Twyon '^ 
Frank K. Upham 
John J. Ward 
Ellen R. Weiss 
Wade M. Welch '> 
Howard Whitehead 
Robert A. Williams '^ 
Timothy J. W. Wise 
Donald P. Zerendow 
Stephen Ziedman 



Assistant Attorney General; Director, Division of Public Charities 
Francis V. Hanify 



P.D. 12 



Assistant Attorneys General Assigned to Department of Public Works 



Jerold E. Berman ' 
Elizabeth A. Bowen 
Jacob Brier '^ 
John P. Davey 
Paul A. Good 
Allan Gottlieb 
James J. Haroules 
Michael J. Marks 
Michael J. McCormack 
Leo S. McNamara 
Edward J. McCormack III 
Robert Mulligan 



Howard R. Palmer 
Joseph A. Pelligrino 
Edward J. Quinlan 
Richard Rafferty 
T. David Raftery 
Robert Rodophele 
Herbert L. Schultz 
John W. Spencer 
John J. Twomey 
Gerald Van Dam ' 
Christopher H. Worthington 



Assistant Attorneys General Assigned 
to the Division of Employment Security 
Joseph S. Ayoub William D. Jackson 

Chief Clerk 
Russell P. Landrigan 

Assistant Chief Clerk 
Edward J. White 



Appoinled 
Appointed 
Appointed 
Appointed 
Appointed 
Appointed 
Appointed 
Appointed 



July 1975 
August 1975 
September 1975 
November 1975 
December 1975 
January 1976 
February 1976 
June 1976 



' Terminated September 1975 
" Terminated November 1975 
' Terminated December 1975 
■ Terminated January 1976 
' Terminated March 1976 
■" Termmated May 1976 
^ Terminated June 1976 



P.D. 12 



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P.D. 12 

(Ihr (rnmmmiutraltb nf iHaiiiiarhuBrttis 



DEPARTMENT OF THE ATTORNEY GENERAL 

Boston, July 12, 1977 
To the Honorable Senate and House of Representatives: 

Pursuant to the provisions of section 1 1 of chapter 12 of the General Laws, 
as amended. I herewith submit my report. 

This Annual Report, my second as Attorney General of the Common- 
wealth, is submitted as required by Chapters 30 and 32 of the General Laws 
and covers the fiscal year from July 1, 1975 to June 30, 1976. 

During the past year, I have redoubled my efforts to improve the adminis- 
tration of the office. Those efforts have taken several forms. First, the staff 
has been consolidated and, with the exception of the Division of Employ- 
ment Security, all of the divisions of the Department have been relocated in 
a single building. Second, an independent Civil Service Management Survey 
was completed and staff salaries throughout the Department have been 
balanced based on the information provided by the survey. Third, we are in 
the process of developing a personnel manual as well as computerized docket 
control and consumer complaint systems. These improvements in manage- 
ment techniques have made it possible for us to develop new, programatic 
approaches to the legal problems of the Commonwealth while permitting us 
to maintain high standards of representation in our traditional functions. 

One innovative program deals with the problems posed by violent crime. 
In conjunction with the Governor and the district attorneys, we have devel- 
oped a program for the identification and prompt prosecution of violent 
offenders. A pilot project is in place in Norfolk County. In order to better 
assure a coordinated attack against all crime, a system has also been estab- 
lished whereby the district attorneys and local police provide me with infor- 
mation and intelligence concerning known or suspected criminal activity. 

In the consumer field, this Department has identified the major areas of 
complaints and developed ongoing programs in each area. In addition, the 
Department has successfully encouraged over twenty-five local groups to 
form complaint handling organizations thus freeing personnel in this office 
to focus on broad-based, illegal trade patterns and practices. 

One of my most important goals in the past year has been to establish a 
Department which acts to protect and aid the Commonwealth and its citi- 
zens rather than one which reacts to events and the influence of others. To 
further this goal, I have established a Division of Affirmative Litigation and 
undertaken strong programs of affirmative litigation and investigation in the 
fields of consumer and environmental protection. In addition, and maybe 
even of more importance, I have tried to encourage and instill in the Depart- 
ment's staff an attitude of taking strong, aggressive positions to protect the 
collective and individual rights of the Commonwealth's citizens. The con- 
tents of this Report will reflect favorably on the commitment of the staff to 
the concept of affirmative litigation. 



10 P.D. 12 



This Department's accomplishments in the past year extend far beyond 
the development of these new programs, however. The Department's four 
Bureaus have had successes in their traditional roles as well. The Civil 
Bureau, through the efforts of its Eminent Domain, Employment Security, 
Industrial Accidents, Public Charities and Torts, Claims and Collection 
Divisions, recovered over $2,014,000 for the Commonwealth during this past 
year. Attorneys from the Criminal Bureau successfully prosecuted two cases 
and successfully defended a third case before the United States Supreme 
Court. Government Bureau attorneys successfully appeared before the 
United States Supreme Court to defend the constitutionality of the Com- 
monwealth's mandatory retirement statute for state police officers. They 
preliminarily enjoined a $1.2 billion cutback in the Federal food stamp 
program and obtained the release of millions of dollars to Massachusetts for 
the provision of nutrition and prenatal care for women. 

The Public Protection Bureau also brought several significant legal 
actions. Its Consumer Protection Division filed a petition with the Federal 
Communications Commission to ban drug advertising on television between 
the hours of 6:00 a.m. and 9:00 p.m. The Civil Rights Division brought or 
intervened in litigation attacking sex and race discrimination and seeking to 
uphold individual's right to privacy and a patient's right to die. The Environ- 
mental Protection Division, in a case which received national attention, 
successfully closed Boston's municipal incinerator, which was the largest 
uncontrolled source of air contaminants in the Commonwealth. 

Of course more is involved in representing the Commonwealth than 
appearing in litigation. The Opinions of the Attorney General issued last 
year, including important opinions on civil rights, campaign laws, public 
records and personnel policies, will have a lasting impact. Similarly the 
regulations drafted by the Consumer Protection Division dealing with nurs- 
ing homes, automobiles and advertising may prove more significant than 
any single case we have handled. In those areas, as in all others, this past year 
was one of progress for the Department. The extent of our accomplishments 
are chronicled in a limited way in the succeeding pages. 



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 litiga- 
tion 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 Common- 



P.D. 12 11 

wealth 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 a hearing. 

At present, there are 260 active cases in the Division. Eighty-eight were 
closed out this year. 

These cases involve state highway, building or public work construction 
claims. Most of these cases involve contract or specification interpretation 
and entail extensive preparation and investigation. Discovery, principally 
depositions and interrogatories, are mandated on all cases. Consultation 
with engineers and architects is routine in every instance. Trials are pro- 
longed, not only because of the complexity of issues, but also because most 
cases involve at least three or four parties. 

The general economic picture has generated litigation contesting the 
award of contracts. This year there have been many more allegations of 
failure to meet public bidding requirements. 

There has also 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 Com- 
monwealth, its agencies and officers. The allowance of such relief delays 
normal contract procedure and results in increased costs. 

To date, we have succeeded in defeating all attempts at securing injunctive 
relief 

B.AD VICE A ND CO UNSEL TO STATE A GENCIES 

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 interpretation, and a 
myriad of other matters. Many of these agencies have no counsel or are sub- 
divisions of Administration and Finance. 

All materials, supplies, and equipment purchased by the state (except 
military and legislative) must be advertised, bid, and awarded by the Pur- 
chasing Agent. We receive, each week, new requests for assistance in pur- 
chasing matters. Economic conditions have heightened competition. Bid 
awards are bitterly contested. Members of the Division counsel the Purchas- 
ing Agent and his staff interpret regulations, and attend informal protest 
hearings. 

We also have an equivalent relationship with the Department of Public 
Works, Metropolitan District Commission, Bureau of Building Construc- 
tion, Group Insurance Commission, Secretary of Transportation, Regional 
Community Colleges, Data Processing Bureau, Mental Health, Youth Ser- 
vices, Water Resources, etc. 

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, 031 such 
contracts. In many cases. 325 to be exact, we rejected the documents and 
approved them when the deficiencies were eliminated. 



12 P.D. 12 



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

The monthly count for the fiscal year was: 

July, 1975 398 

August 173 

September 379 

October 177 

November 115 

December 236 

January, 1976 171 

February 219 

March 185 

April 215 

May 219 

June 544 

3,031 

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

The work of the Division has been greatly facilitated by the addition to the 
staff of a professional engineer. His assistance in investigation and in inter- 
pretation of contract documents and plans has been of considerable assist- 
ance to the trial attorneys. 

Four of the attorneys were involved in important appellate matters in 
which the Commonwealth prevailed. The cases are: 

(a) Maddocks v. Contributory Retirement Appeal Board 76 A.S. 107 
(1/7/76) 

(b) Marlow v. New Bedford & Department of Public Works 76 A.S. 127 
(1/9/76) 

(c) Lotto V. Commonwealth 76 A.S. 530 (3/1/76) 

(d) Essex County Preservation Association v. Bruce Campbell, Commis- 
sioner No. 75-1392 U.S. Court of Appeals for the First Circuit 

The Maddocks case is important for its clarification of the Retirement 
Law, G. L. c. 32, for delineating the functions of an administrative tribunal 
under G. L. c. 30A, and for defining "substantial evidence" under G. L., c. 
30 A, section 1(6). 

Marlow is important for all construction projects which span the effective 
date of the Massachusetts Environmental Protection Act. 

Lotto is important in the area of procedural due process, defining the 
circumstance when a private party is entitled to an agency hearing and the 
extent of such hearing. 

Essex was an attempt to enjoin the widening of interstate route 1-95. 

EMINENT DOMAIN DIVISION 

The major function of the Eminent Domain Division is the representation 
of the Commonwealth in the defense of petitions for the assessment of 
damages resulting from land takings by eminent domain. The Common- 
wealth acquires land for among other purposes, rights of way for roads, State 



P.D. 12 13 

Colleges, recreation and parks, flood control, and easements. The Division 
deals primarily with the Department of Public Works, the Metropolitan 
District 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 taking 
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 reason- 
able, but reserves to the owners the right to proceed through the courts to 
recover more money. In years past, during the road building boom of the 
fifties and sixties, land damage matters caused congestion in the civil ses- 
sions of the Superior Court. Special land damage sessions were set up to 
accommodate the trial of these cases and cases were referred to auditors for 
findings. The auditor system was not entirely satisfactory because too many 
cases previously tried to auditors were retried to juries. In 1973, ihe Legisla- 
ture passed Section 22 of Chapter 79 which provides for the trial of land 
damage matters before a judge in the Superior Court jury- waived session in 
the first instance. 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. 

The Eminent Domain Division, with the assistance of a Rent Administra- 
tor on loan or on detail from the Department of Public Works, also collects 
rent on occupied buildings situated on parcels taken by eminent domain. 

The Division consists of a Chief, nine trial attorneys, five secretaries, three 
investigators, one legal engineer, one rent administrator and one administra- 
tive trial 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. 

Pending Cases-Eminent Domain Division as of June 30, 1976 

Eminent Domain Cases 799 

Land Court Cases 23 1 

Rent Court Cases 538 

Total Cases Pending 1,568 



14 P.D. 12 



Breakdown of Pending Eminent Domain Cases by County (June 30, 1976) 

Barnstable 19 

Berkshire 7 

Bristol 56 

Essex 145 

Franklin 4 

Hampden 42 

Hampshire 22 

Middlesex 145 

Norfolk 52 

Plymouth 38 

Suffolk 137 

Worcester 132 

799 



Record of Activities, Eminent Domain Division, July 1, 1975 thru June 30, 

1976 

Rental Receipts $154,609.53 

Land Court Cases Received 103 

Land Court Cases Closed or Withdrawn 56 

Land Damage Petitions Received 126 

Land Damage Cases Closed by Trial or Settlement 111 



EMPLOYMENT SECURITY DIVISION 

The Employment Security Division works closely with the Massachusetts 
Division of Employment Security. It prosecutes employers who are delin- 
quent in paying employment security taxes and employees who file and 
collect on fraudulent claims for unemployment benefits. The vigorous prose- 
cutions made by this Division have resulted in the recovery of substantial 
sums of money for the Commonwealth. 

During the fiscal year ending June 30, 1976, 1,802 cases were handled by 
this Division. 1,223 cases were on hand at the start of the year and 579 new 
cases were received during the year, of which 161 were employer tax cases, 
403 were fraudulent claims cases, 4 were appeals to the Supreme Judicial 
Court, and 1 1 were court actions brought by or against the Director. 

475 cases were closed during the fiscal year, of which 179 were employer 
tax cases, 286 were fraudulent claims cases, 5 were appeals to the Supreme 
Judicial Court, and 5 were court actions brought by or against the Director, 
leaving a balance of 1,327 cases on hand at the end of the fiscal year. Monies 
collected totaled $609,754.57 from employer tax cases and $213,509.33 from 
the fraudulent claims cases, making a total recovery of $823,263.90 for the 
Commonwealth. Increased criminal prosecutions and work study programs 
have been responsible for substantial sums of money being reclaimed by the 
Commonwealth. 

The Division is charged with the duty of pursuing those individuals found 



P.D. 12 15 



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 indi- 
vidual, corporation or business entity every opportunity to make settlement 
out of court. Concentrated office conferences were conducted with the prin- 
cipals involved to determine whether or not criminal proceedings should be 
initiated. Criminal prosecutions were taken against those failing to show 
cooperation with the terms of agreement made by this office, but only after 
they had received an opportunity to discuss the matter thoroughly. During 
this fiscal year the Division brought 171 complaints against 129 employers, 
involving 1,085 counts of tax evasion and totaling $880,252.52 in monies due 
the Commonwealth. 85 complaints involving 1,317 counts of larceny were 
brought against 83 individuals found collecting unemployment benefits 
under fraudulent claims totaling $104,043.00 in monies taken from the 
Commonwealth. 42 complaints involving 507 counts of larceny by C.E.T.A. 
claimants were brought against 42 individuals found collecting unemploy- 
ment benefits under fraudulent claims totaling $42,348.00 in monies taken 
from the Commonwealth, all together making a total of 125 larceny claims. 
Pending in various courts of the Commonwealth, including the United 
States District Court are the following 16 actions brought against the Direc- 
tor of the Division of Employment Security, namely: 

Robert Calef, Plaintiff vs. Eileen Lovett, Review Examiner & John Crosier, 
Director 
Please 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 dismiss. 

Maria De Jesus vs. John D. Crosier, Director 

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

Assigned to Administrative Division. 

Minnie S. Green PPA, Randolph E. Green vs. Commonwealth of Massachu- 
setts, D.E.S. 

Actions contending that the petitioners' unemployment benefits were ter- 
minated in violation of the due process clause of the Fourteenth Amend- 
ment. The Division's contention is that the interviews given the claimants 
in the processing of their claims satisfy all due process requirements. 

Gerald Harrison, et al v. A. Buchyn, et al, D.E.S. and Richard C Gilliland, 
D.E.S. 

Petitioner contends that a decision by the Board of Review upholding his 
disqualification from benefits by an initial decision of the D.E.S., but 
upon different grounds, violates his Fourteenth Amendment due process 
rights, specifically notice. The D.E.S. contends 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. 



16 P.D. 12 



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 F. Nicholson, D.E.S. 
This is a petition asking the Court to order the Director to give a copy of 
the transcript of a hearing held on June 18, 1973. D.E.S. permitted peti- 
tioner to make a recording of our record. No further action has been taken 
in the case which is still pending in court. 

Malinda M alone vs. Richard C. Gilliland, D.E.S. and Thalia Felton, D.E.S. 
Same issues that are involved in Minnie S. Green case. 

Massachusetts Bar Association and Berge C. Tashjian vs. Weaver Associates, 
Inc. and Francis Perfetto and Richard C. Gilliland, D.E.S., and Mary B. 
Newman, Exec. Office of Manpower Affairs 

A petition contending 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 & Somerville Legal Services, Inc. vs. Massachusetts Division of 
Employment Security and John Crosier, D.E.S. 

An action requesting that the corporation be allowed to reverse a decision 
under Sec. 14A of Ch. 151 A wherein they elected to pay contributions to 
the Division. Had they not so elected, they would have saved approxi- 
mately $2,500. The Division contends that such an election may not be 
reversed. 

Konstantine C. Bazakas vs. The Commonwealth of Massachusetts Division of 
Employment Security 
Matter closed. Complaint withdrawn. 

Phyllis K. Prussin vs. Director, D.E.S. 

Matter pending, should be concluded without further court action. 

D.E.S. vs. Andrew M. Gordon and Ruben L. Stern, Defendants 
Appealed 

The B. F. Goodrich Company vs. Director, D.E.S. 
Petitioner asks for a refund to its employer account of $43,448.42. Peti- 
tioner contends it has been double charged. 

Hector Rivera, et al vs. John D. Crosier, et al 
Assigned to Administrative Division 

Stacey Peters & Milton Prye vs. John D. Crosier, Director 
Assigned to Administrative Division. 

In addition, this Division has appeared on behalf of various representa- 
tives of the D.E.S. Director in assault and battery complaints brought by this 
Division against the claimants involved, and members of this Division have 
attended formal conferences with the Director of D.E.S., Chief Counsel of 
the Legal Department of D.E.S., and various assistant Directors and D.E.S. 
officials, primarily for the purpose of providing informal opinions regarding 
direction and control of the Division of Employment Security. 

It should be noted that due to the increased criminal prosecutions and 
various work-study programs, substantial sums of money have been 
reclaimed for the Commonwealth by this Division. 



P.D. 12 17 

REPORT OF ASSISTANT A TTORNEYS GENERAL 

(Employment Security Division) 

FOR FISCAL YEAR ENDING JUNE 30, 1976 
Cases on Hand July 1, 1975: 1223 

Employer tax cases: 542 

Employee overpayment fraud cases: 669 

Supreme Judicial Court Cases- 

(On appeal from the Board/Review decision): 2 

D.E.S. Director Actions - 
(Brought in Superior Courts and U.S. District 
Courts by /or against the Director): 10 

Additional Referrals: 579 

Employer tax cases: 161 

Employee overpayment fraud cases: 403 

Supreme Judicial Court Cases - 

(On appeal from Board/Review decision): 4 

D.E.S. Director Actions - 
(Brought in Superior Courts and U.S. District 
Courts by/or against the Director): 

1802 
475 



Total Cases During Fiscal Year: 




Cases closed: 




Employer tax cases: 




1. Paid in full 


51 


2. Retransferred - pending final disposition 




of probation matters 


97 


3. Uncollectible 


18 


4. Partial payment, balance uncollectible 


13 




179 



Employee overpayment fraud cases: (including C.E.T.A. Fraud) 

1. Paid in full 147 

2. Returned to Claims Investigation 

Department for Administrative Action 139 

286 

Supreme Judicial Court Cases - 
(On appeal from Board/Review decision): 

1. Director's position upheld " 2 

2. Petition denied 1 

3. Remanded to District Court and returned 

to Legal Department for further action 2 

5 

D.E.S. Director Actions - 
(Brought in Superior Courts and U.S. District 
Courts by /or against the Director) 

1. Director's position upheld 2 

2. Action withdrawn 3 

5 

Cases Remaining on hand June 30, 1976 1327 

Employer tax cases: 524 

Employee overpayment fraud cases: 786 



18 P.D. 12 



Supreme Judicial Court Cases - 
(On appeal from Board/Review decision): 1 

D.E.S. Director Actions - 
(Brought in Superior Courts and U.S. District 

Courts by /or against the Director) 16 

Total Monies Collected: $823,263.90 

From Employers: $609,754.57 

From Employees: $213,509.33 
Criminal Complaints Brought: 

Tax Cases: 171 Complaints, involving 1085 Counts brought against 129 employers re delin- 
quent taxes totaling $880,252.52. 

Larceny Cases: 127 Complaints, involving 1824 Counts brought against 125 individuals re 
unemployment benefits fraudulently collected in the amount of $146,391.00. 

INDUSTRIAL ACCIDENTS DIVISION 

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

There were 9,796 First Reports of Injury filed during the last fiscal year for 
State employees with the Division of Industrial Accidents, an increase of 155 
over the previous fiscal year. Of the lost time disability cases, this Division 
reviewed and approved 1,642 new claims for compensation, and 117 claims 
for resumption of compensation. In addition to the foregoing, the Division 
worked on and disposed of 84 claims by lump sum agreements and 2 1 by 
payments without prejudice. 

This Division appeared for the Commonwealth on 605 formal assign- 
ments before the Industrial Accident Board and before the Courts on appel- 
late matters. In addition to evaluating new cases, this Division continually 
reviews the accepted cases; that is, those cases which require weekly pay- 
ments of compensation, to bring them up to date medically and to determine 
present eligibility for compensation. 

Total disbursements by the Commonwealth for State employees' indus- 
trial accident claims, including accepted cases. Board and Court decisions 
and lump sum settlements, for the period July 1, 1975 to June 30, 1976, were 
as follows: 

General Appropriation 

(Appropriated to the Division of Industrial Accidents) 

Incapacity Compensation $2,865,165.92 

Medical Payments 787,906.56 

Total Disbursements - $3,653,072.48 

Metropolitan District Commission 

(Appropriated to M.D.C.) 

Incapacity Compensation $316,629.40 

Medical Payments 117,085.19 

Total Disbursements $433,714.59 



P.D. 12 19 



This Division also has the responsibility of collecting payments due the 
"Second Injury Fund" set up by Chapter 152, section 65, and defending the 
fund against claims for reimbursement made under Chapter 152, section 37 
and 37 A. During the past fiscal year this Division appeared on 31 occasions 
to defend this fund against claims for reimbursement by private insurers. As 
of June 30, 1976, the financial status of this fund was: 
Unencumbered Balance $104,372.51 

Invested in Securities 824,754.58 

Total $929,127.09 

Payments made to fund $ 1 70,434. 1 

Payments made out of fund 123,282.14 

Pursuant to Section 1 lA (Acts of 1950, C. 639, as amended), the Chief of 
this Division represents the Attorney General as a sitting member on the 
Civil Defense Claims Board. This involved reviewing and acting upon 
claims for compensation to unpaid civil defense volunteers who were injured 
while in the course of their volunteer duties. During the past fiscal year the 
Chief of this Division appeared at both sittings of this Board and acted on 13 
claims. 

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 Accident 
Board on behalf of the Industrial Accident Rehabilitation Board. During the 
past fiscal year this Division assisted the Industrial Accident Rehabilitation 
Board in 10 cases, eight of which were adjusted amicably with the insurer 
involved, and two of which resulted in hearings before the Industrial Acci- 
dent Board. 

During the past fiscal year the attorneys of this Division were called upon 
numerous times to assist workers in private industry who contacted this 
Division regarding problems they were having with their compensation 
claims against private industry and their insurers. Every effort was made to 
assist these employees in resolving their difficulties or in referring them to 
persons or agencies wherein the solution to their particular problems lay. 

DIVISION OF PUBLIC CHARITIES 

FUNCTIONS - 

General Laws Ch. 12, §8 charges the Attorney General with the responsi- 
bility to 

"enforce the due application of funds given or appropriated to 
public charities within the Commonwealth, and prevent breaches 
of trust in the administration thereof." 
There are several aspects to the work of the Division of Public Charities: 
litigation involving the use or administration of charitable monies; supervi- 
sion of charitable organizations operating within the Commonwealth; and 
review of wills and accounts with charitable interests. In addition, under 
G.L. Ch. 194, relating to Public Administrators, the Attorney General repre- 
sents the State Treasurer in matters involving intestate estates with no heirs. 



20 P.D. 12 

The staff of the Division consists of four attorneys and six clerical person- 
nel. There is one investigator who is available part-time. 

1. LITIGATION 

The Attorney General is a necessary party to all judicial proceedings 
involving charities, or monies given to charity (Ch. 12, §8G). Thus, the 
Division handles a variety of matters. The greatest volume of cases con- 
cerned construction of wills, and application of the cy pres doctrine. These 
cases arise where the language of the will or trust instrument is ambiguous, 
or the specific charitable beneficiary has ceased to exist. Often, heirs will 
contest the charitable bequests. 

Representative cases include First Bank and Trust Company of Hampden 
County V. Attorney General where the Hampden County Probate Court held 
that certain bequests to the Unitarian Church of Chicopee failed because of 
a merger of the church with the Third Congregational Society of Springfield. 
The Society and the Attorney General appealed the decision, and the 
Supreme Judicial Court granted direct appellate review. The case will be 
argued this fall. 

In another matter, Samuels v. Bellotti, the Suffolk Probate Court upheld 
the Attorney General's contention that monies held by the Massachusetts 
Grand Lodge Knights of Pythias as a relief fund constituted a charitable 
trust, and could not be used for the general purposes of the Lodge. 

Two cases which had been pending for several years were settled, favoring 
the charitable interests. In White v. Nyman, Norfolk Probate, the questions 
were the interpretation of the term "issue" in the will of Grace G. White and 
construction of the 1969 adopted child statute. In First National Bank of 
Boston V. Bellotti, Norfolk Probate, the testatrix provided that certain trust 
funds were to be used for an "old ladies' home" after termination of life 
estates. The heirs of the last life tenant contended that the gift failed, as the 
project could not be accomplished with the present trust corpus. The Attor- 
ney General maintained the position that the cy pres doctrine should be 
applied, and the monies used for aid to the elderly. 

The Division handled many other cases of a similar nature construing the 
language or intent of the testator or settlor. Representative cases were: Estate 
of Thomas M. Shepherd, (will compromise); Congregation Ansha Sphard v. 
Bellotti, (cy pres petition); Affiliated Hospital Center v. Attorney General, 
(petition to apply trust funds for new medical facility); Estate of Joseph 
Lazerquist, (petition to increase annuity to life tenant). 

The Tax Reform Act of 1969, directed at curbing abuses by private 
foundations, has generated extensive litigation, especially where the creating 
instrument provided for accumulation of income. Many of these cases, pend- 
ing for several years, are presently being resolved. In addition, the favorable 
tax consequences of modifying trusts to create charitable remainder trusts, 
uni-trust and annuity trusts has resulted in litigation. 

Several cases involving large Massachusetts trusts illustrate the problem. 
First National Bank of Boston v. The A ttorney General concerns the Jacob 
Schaellkopf Foundation Trust which mandates the accumulation of income 
until 2028. Such provisions, if continued, would expose the trust to penalty 
taxes under IRC §4942. Mass. G.L. Ch. 68A §§1-3 provides for judicial 



P.D. 12 21 

determination as to whether the provision is mandatory. The beneficiaries. 
New York Charities, seek to terminate the trust as "illegal or invalid". The 
indenture provides for termination on those grounds. The trustee has sug- 
gested an annual distribution to avoid the tax. 

In another situation, the National Shawmut Bank of Boston v. The Trustees 
of Boston Public Library, the trustees of the Deferrari trust for the benefit of 
the Boston Public Library, have filed a petition which would modify the 
trust provisions and avoid private foundation status. Ames v. Town ofEaston 
presents a similar issue with an accumulation provision. 

The Attorney General is also a party to the dissolution of any charitable 
corporation. With the diminution of charitable funding, especially from 
governmental sources, many charities have been faced with dissolution or 
merger. This Division must assure that the charity has complied with all 
statutory provisions, and is applying any remaining assets to a similar chari- 
table purpose. A problem arises when the charity becomes insolvent and a 
receiver is appointed to liquidate the assets. Where government funds have 
been mis-applied, the issues are even more complex, as creditors may receive 
almost nothing in satisfaction for the debts of the corporation. 

During 1976, two charities declared bankruptcy. One, THE ORGANI- 
ZATION FOR SOCIAL AND TECHNOLOGICAL INNOVATION, was 
able to act as its own receiver and distribute a quarter on each dollar to 
creditors. MASSACHUSETTS RESIDENTIAL PROGRAMS, dependent 
upon federal funding, petitioned for the appointment of a receiver. This 
matter will be much more complicated as separate grant funds were com- 
mingled, and there are several substantial creditors. 

Approximately 230 new litigation matters were handled by the attorneys 
in Fiscal 1976. 

II. RE VIE W OF WILLS AND A CCO UNTS 

Another aspect of the work of the Division is the review of new wills and 
executor and trustee accounts, and responding to petitions to sell real estate 
or appoint trustees. Any estate which establishes a charitable interest, even a 
contingent interest, is subject to the general supervisory powers of the Attor- 
ney General. 

The purpose of this review process is to assure the proper use of charitable 
monies. For example, the review of accounts requires a thorough reading of 
the instrument, past accounts and any court papers. Professional fees, distri- 
butions and investments are scrutinized. 

FISCAL 1976: 

New Wills 809 

Trustee Accounts 2508 

Executor's Accounts 572 

Trustee Appointments 28 

Real Estate Matters 70 

Miscellaneous 96 

III. CHA RITIES REGISTRA TION 

Over 12,000 charities are registered with this Division. Obviously, supervi- 



22 P.D. 12 



sion of these numerous trusts, corporations and unincorporated associations 
is a large task. 

To facilitate this work, and identify the noncharitable organizatons and 
delinquent charities, we sent a mailing to all charities presently registered by 
Form 12 (financial reporting form), and a request for copies of charter and 
by-laws. All charities have been cross-checked for correct addresses, and a 
new mailing list is being prepared. Each file was reviewed to determine if the 
organization is, in fact, engaged in charitable activities. Where the actual 
purposes and activities are not apparent from the materials in our files, the 
organization was requested to clarify the nature of its activity. The charters 
of new non-profit corporations were reviewed to determine if they are chari- 
table. When this process is completed, we should have a complete and 
accurate listing of charities operating within the Commonwealth. 

Each charity is required to file annual financial statements (Form 12), an 
audited financial report or probate account (G.L. Ch. 12, §8F). During May 
and June 1976, the staff processed approximately 200 pieces of mail daily — 
opening; date-stamping; posting and reviewing the statements for compli- 
ance with the statute. As the filing fee was increased to $15.00, effective 
March 20, 1976, there was inevitable confusion and insufficient payment, 
and some forms were returned and reprocessed. Each accompanying check 
must be processed — "FEE-PAID" stamped; name of charity written on 
check; list of checks prepared; and checks and copies of list sent to the Chief 
Clerk's Office. 

Pursuant to G.L. Ch. 68, §§16-31, the Attorney General also supervises 
the solicitation of funds by charitable organizations. Organizations, exclu- 
sive of those exempt by Ch. 68, §20, must apply to this Division for a 
certificate of registration (Form 1 1). This certificate is issued only where the 
organization has filed proper financial statements within the prior six 
months, or is newly established. 

FISCAL 1976: 
Form 12's 6166 

Form IPs 570 

FO UN DA TION DIRECTOR Y 

Several years ago, the Attorney General's office published the Foundation 
Directory in response to the public need for a complete listing of grant- 
making organizations. Due to changes which have affected charitable fund- 
ing, we have undertaken to revise and augment the listing. A questionnaire 
was sent to all charities in the March general mailing, which should provide 
more adequate data for the individuals and organizations seeking grants. 

A FFIRMA TI VE A CTION 

Charitable fraud is not a new phenomenon, but consumer awareness, 
present economic conditions, and the activities of unscrupulous solicitors 
and charities, have caused increased concern with this problem. 

The Division received numerous requests for information regarding chari- 
ties in 1976. Consumers inquire as to whether charities are registered, and 
often ask to see records filed here. Many legal questions are presented to the 
attorneys by individuals wishing to form charitable organizations, or 



P.D. 12 23 



requesting advice on the proper administration of charitable funds. The staff 
of the Division responded to many questions regarding unregistered chari- 
ties. We succeeded in locating many such groups, and apprised them of the 
statutory regulations regarding charities. 

Street solicitation by unregistered organizations is yet another problem. 
G.L. Ch. 68, §16 authorized the Attorney General to request the records of 
any organization or individual soliciting for a charitable purpose on the 
public ways. The Attorney General has requested the solicitation records of 
the Unification Church (Holy Spirit Association for the Unification of 
World Christianity). 

IV. PUBLIC ADMINISTRATION 

A public administrator is an official provided for in G.L. Ch. 194 to 
administer the property of intestates in certain cases. If a person dies intes- 
tate and there is no known husband, widow, or heir of the deceased living in 
the Commonwealth, a public administrator for the county wherein the per- 
son dies leaving property to be administered, may file a petition in the 
Probate Court for such county, setting forth the facts and requesting 
appointment. Even though the person dies outside of the county, such 
administrator may be appointed so long as the intestate left property in that 
particular county to be administered. In granting such administration, the 
Court exercises substantially the same jurisdiction and authority as that 
exercised in the grant of administration in ordinary cases. These laws have 
no application to testate estates. 

The rights and duties of public administrators are purely statutory. Every 
public administrator must file a bond under Section 2. He must also file an 
inventory as a condition of the bond, and file his account under Section 11. 
Yet, as a practical matter, the Probate Court does not require the annual 
accounting as mandated by Section 1 1 . The only reference to this office is 
contained in Section 12 — that each Register of Probate notify the Attorney 
General concerning any breach of duty on the part of a public administrator. 
The Attorney General also represents the State Treasurer in these matters. 



On October 6, 1975, the State Auditors examined the public administra- 
tion records of the Division of PubUc Charities. In February of 1976 they 
submitted their report, stating that there were 7i 7 outstanding public admin- 
istrator accounts. This number is one which we inherited from previous 
administrations. In fact, some date back to "1962 or prior". We have suc- 
ceeded, in seven months, in closing 434 of these accounts — most of which 
are appointments prior to January 1975. 

The accompanying chart (APPENDIX A) gives a year-by-year break- 
down of the accomplishments of the Division since receipt of the Auditor's 
Report. The chart is divided into two component parts: estates from 1975 
and 1974, which are not delinquent, and the delinquent estates from the 
period 1973 through "1962 or prior". 

It should be noted that the 1975 figure of 7i 7 outstanding estates has been 
reduced to 303 in the span of seven months. 

Evidently prior administrations did not keep copies of past Auditor's 



24 P.D. 12 



reports, showing the number of outstanding estates. However, we have 
obtained these figures. A record of the outstanding estates, as detailed in the 
State Auditor's Report, is listed below: 

Date of Audit No. of Outstanding Estates 

1967 715 

1970 627 

2/11/71 588 

3/6/72 586 

5/7/73 959 

2/11/74 899 

10/2/74 837 

10/6/75 737 

When compared to these past figures, the present figure of 303 demon- 
strates the amount of activity expended by the Division. Despite these 
achievements, we are continuing our efforts to lessen this number. A break- 
down of our efforts to correct these matters follows: 

A. 1975 and 1974 

Original 380 

Closed 228 

Remaining 152 

The administration of these estates presents no problem. Each public 
administrator has contacted this office and the administration of each is 
proceeding smoothly. In estates that have not been closed, we have been 
advised of current action, such as: litigation, petitions to sell real estate, 
location/proof of heirs, etc. All of the aforementioned are bona-fide reasons, 
which prevent the public administrator from filing a final account to close 
the estate. We expect that all of the remaining estates will be closed subject to 
inevitable delays, i.e., trial dates, etc. 

B. 1973 through "1962 OR PRIOR" 

Original 357 

Closed 206 

Remaining 151 

Of the remaining 151, 56 accounts are held by public administrators, who 
have either been disbarred, deceased, or have refused all reasonable requests 
to furnish information. The remaining 95 estates do not present significant 
problems. The administrators, while grossly negligent in winding these up, 
have kept this office informed of the status of the estates. 

FISCAL 1976: 

Appointments (New) 207 

Litigation 33 

Real Estate License 14 

Miscellaneous 123 

PUBLIC A DMINISTRA TION ESCHEA TS - 

FISCAL 1976: 
Estates Closed with Escheats 169 

Amount of Escheats $285,35 1 .87 



P.D. 12 



25 



A great deal has been accomplished. The present number of estates — 303 
— is a great deal lower than any number contained in previous Auditor's 
Reports. Also, at the inception of our investigation, the Division records 
contained absolutely no information of the whereabouts of the hard-core 
delinquents. The progress as detailed in this report is the product of much 
concentrated effort. 

CONCLUSION: 

During fiscal 1976, the staff of the Division made a concerted effort to deal 
more effectively with the task of supervising charities, in the various aspects 
discussed in this report. The primary results were achieved in the public 
administration area, and the registration of charities operating within the 
Commonwealth. 

This was accomplished without affecting the quality of work in the litiga- 
tion handled by the Division, with the support of the Chief of the Civil 
Bureau. 

APPENDIXA 



228 



;ar of Appointment 


No. of 




No. Closed 


of Administrator 


Estates 




As of 8/ 12/76 


1975 


216 \ 380 


110 \ 
118 / 


1974 


164 J 


\ 


1973 


93 i 




64 S 


1972 


58 




38 


1971 


31 




17 


1970 


24 




16 


1969 


31 




21 


1968 


33 




14 


1967 


24 


K 357 


10 y 


1966 


15 




6 


1965 


13 




2 


1964 


15 




6 


1963 


7 







1962 or prior 


8 




7 


Unassigned 


5 




5 




1^1 




434 



206 



TORTS DIVISION 

The Torts Division operates in three areas — Torts, Collections, and 
Claims for Compensation for Victims of Violent Crimes. 

The Division handles tort cases against the Commonwealth and officers 
and employees of the Commonwealth. Although the majority of tort actions 
continue to be motor vehicle cases, we do defend employees charged with 
false arrest, malicious prosecution, assault and battery, medical malpractice, 
slander and, negligent maintenance of highways and state facilities. 

The number of tort cases opened during fiscal 1975-1976 was 352 and 
during the same period there were 141 tort actions brought in the various 
courts of the Commonwealth and the United States District Court. The 
amount of money payable on releases and executions during the period was 
$192,479.78. 



26 P.D. 12 



Payments under Chapter 12, section 3 A, the so-called Moral Claims Act, 
are continuing to be kept at a minimum. 

The number of claims received and the amount of the awards made under 
the Violent Crimes Act, Chapter 258A, continues to increase. During fiscal 
1975-1976 there were 403 claims received. There were hearings held on 162 
cases and there were twenty-eight cases dismissed. In this same period the 
Treasurer received notice of 178 awards from the various district courts 
totalling $767,497.36. These awards are paid by the Treasurer as his appro- 
priations allow. 

We are placing considerable emphasis on the investigation of these cases 
so that unwarranted awards are not made. 

The Collections Section which handles care and support claims against 
patients of state hospitals, claims for tuition at state colleges and universities, 
as well as damage claims to state property, etc. collected $351,968.48 from 
these various sources. In addition, unclaimed bank deposits standing in the 
name of First Judge of Probate in the various counties were recovered under 
the provisions of Chapter 168, section 31 in the amount of $229,177.79. 

A report of the Collections Section for fiscal 1975-1976 follows. 

The Torts Division consists of a Chief, five trial attorneys, four investiga- 
tors, one legal assistant and eight secretaries. 



Departments 
Mental Heahh 
Public Health 
Public Safety 
Public Welfare 
Public Works 
M.D.C. 
Education 
State College 
Civil Defense Agency 
Commission for Blind 
Community Affairs 
Correction Department 
Industrial Accidents Div. 
Fisheries & Wildlife 
Mass. Rehabilitation 
Military Division 
Natural Resources 
Retirement Board 
Secretary of State 
Treasury Department 
(Probate Collections) 

TOTAL 

NOTE: 608 Number of Completed Claims (Paid and Closed) 

1458 Number of Claims disposed of as being uncoUectable 

5 1 3 Number of Claims being Paid on Account 

1551 Number of Claims Opened this year 





No. of Claims 


Amount Collected 


Processed 


$110,716.44 


37 


101,878.72 


245 


7,168.12 


22 


1,750.00 


6 


50,929.96 


213 


12,631.50 


45 


28,339.97 


369 


9,839.92 


148 


295.00 


1 


500.65 


11 


1,090.06 


2 


2,360.46 


4 


14,779.07 


9 


275.50 


7 


140.43 


1 


1,918.00 


2 


115.45 


4 


3,923.73 


1 


3,315.50 


48 


229,177.79 


— 


$581,146.27 


1175 



P.D. 12 



27 



Springfield Office 

ANNUAL REPORT- FISCAL YEAR 1976 

The Springfield office handles matters of concern to the Attorney General 
in the four Western counties: Hampden, Hampshire, Franklin and Berk- 
shire. The primary function of the office has been to handle all division 
references and requests for assistance pretaining to Eminent Domain, Torts, 
Contracts, Administrative, Environmental, Collections, Public Charities, 
Victim of Violent Crime cases and election law violations. Only Consumer 
Protection matters originate in the Springfield office. 

The office supplies personnel to the Board of Insurance Cancellation and 
the License Board of Appeals for monthly sittings which consider approxi- 
mately 20 cases per sitting. 

Listed below are cases which have been worked on in the Springfield 
office. 



EMINENT DO MA IN TOR T 



4 Pending 

5 Closed 

CONTRACT 
1 Closed 

VICTIM OF 
VIOLENT CRIME 
18 Pending 
7 Closed 



10 Pending 
9 Closed 

ENVIRONMENTAL 

4 Closed 



CRIMINAL 
3 Pending 



ADMINISTRATIVE 
22 Pending 

1 On Appeal 
18 Closed 
COLLECTIONS 
15 Pending 

2 Closed 

PUBLIC CHARITIES 
1 Closed 



Beginning July 1, 1975 a concerted effort was made to satisfactorily clear a 
backlog of some 1,300 consumer protection cases. As of April 1, 1976 this 
task was completed with the following results: 

OPENED CLOSED PENDING SAVINGS 

1,226 1,743 220 $160,428.34 

Period from April 1, 1976 to June 30, 1976: 

OPENED CLOSED PENDING SAVINGS 

16 194 42 $3,607.12 

A full-time Assistant Attorney General assigned to Consumer Protection 
was added to the staff on February 1, 1976. Since that time, the following 
cases have been worked on. 

ASSURANCE 
CONSENT OFDIS- 

LAWSUITS JUDGMENTS CONTINUANCE SAVINGS 

5 2 1 $8,045.00 

The two investigators in addition to working on the above cases have also, 
since January 1, 1976, visited 1 18 nursing homes to insure compliance with 
the rules and regulations which became effective February 1, 1976. They 
also completed 45 investigations pertaining to odometer turnbacks. In addi- 



28 P.D. 12 



tion, they have worked on numerous cases pertaining to all aspects of the 
Consumer Protection laws. 

On June 3, 1976 a public hearing was held in Springfield regarding the 
draft of Motor Vehicle Regulations. 

The staff also fulfills speaking engagements concerning consumer 
protection. 

The office gives legal assistance to various State agencies upon request. 

Our total correspondence on various matters and inquiries other than 
consumer complaints averages over 150 letters per month. 

The staff consists of one Administrative Assistant, two Assistant Attorneys 
General, two Investigators in Consumer Protection and two Secretaries. 



II. CRIMINAL BUREAU 

In fiscal 1975-1976, the Criminal Bureau operated in four separate sec- 
tions: trials, appeals, organized crime, and drug abuse. 

The trial section has primary responsibility for the investigation and pros- 
ecution of criminal activities within the Commonwealth. Trial section attor- 
neys continued to perform this function and investigated many diverse 
activities which could not appropriately be left to the local district attorneys. 
Among the prosecutions was a case involving a misapplication of credit 
union funds, in which three officials of the credit union were convicted. In 
another banking case, two more bank officials pleaded guilty to misapplica- 
tion of funds. 

The trial section continued to be active in the field of welfare fraud, 
investigating and prosecuting many cases. In one notable case, more than 
$5,000 in restitution was obtained for the Commonwealth. In other litiga- 
tion, two State health inspectors were convicted of accepting bribes, and 
another Commonwealth employee was convicted of larceny from the Com- 
monwealth and ordered to make restitution of more than $1,000. The direc- 
tor of a half-way house was convicted in a district court of larceny of the 
house's funds. His case has been appealed to the Superior Court and should 
be brought to trial in the fall. 

The trial section prosecuted two cases involving the importation into the 
Commonwealth of untaxed beer. Convictions were obtained and more than 
700 cases of beer were forfeited to the Commonwealth. Near the end of the 
year, an investigation into gaming activities in Plymouth County resulted in 
the indictment often individuals on conspiracy charges. Their cases are still 
pending. Another investigation is continuing before the Suffolk County 
grand jury. This involves campaign financing in the city of Boston. 

The organized crime section continued to be involved in such diverse 
areas as gaming, cigarette smuggling, and theft from State agencies. The 
section cooperates with other agencies in combatting the activities of crimi- 
nal organizations and provides technical assistance to law enforcement offi- 
cers and district attorneys. Included in the technical assistance supplied are 
photographic aid and advice and expert testimony in such novel areas as 
voice print identification. The section provided assistance to law enforce- 



P.D. 12 29 



ment agencies both within the Commonweahh and in other states on more 
than 300 occasions. 

The appellate section this year received some relief from its high case load 
by means of an agreement with the Department of Correction. By that 
agreement, attorneys from the Department of Correction are defending new 
civil rights claims made against employees of the Department in the Federal 
courts. The appellate section has continued, however, to defend such claims 
brought in the State courts, as well as those brought against non-correction 
employees of the Commonwealth in any court. It also continued to oppose 
post-conviction relief petitions, and to deal with sundry other claims of an 
out-of-the ordinary nature. The criminal post-conviction process has grown 
to such an extent that appellate section attorneys routinely deal with cases 
long forgotten by other law enforcement agencies and by the public. This 
year, for example, the section dealt with claims arising out of the Boston 
Common parking garage scandal and out of a murder case which was tried 
in 1968. The parking garage case (which was tried in 1963) may have been 
laid finally to rest by this year's decision in the Massachusetts Appeals 
Court. The Court upheld the convictions. The murder case, however, will 
continue because the decision which the United States Court of Appeals 
made in the Commonwealth's favor has been challenged in the Supreme 
Court. 

The appellate section had an unusually productive year before the United 
States Supreme Court. Attorneys for this section presented two cases to the 
Court and defended a third before that body. In all three cases, Criminal 
Bureau attorneys were successful and obtained significant rulings in the 
Commonwealth's favor. The two cases in which the appellate section sought 
and obtained Supreme Court review arose out of unfavorable decisions in 
the United States Court of Appeals. Both decisions would have had a signifi- 
cant adverse impact on the administration of justice within the Common- 
wealth. The first would have required the reversal of many criminal convic- 
tions because jurors had not been asked whether or not they were racially 
prejudiced. The Supreme Court prevented that result by ruling that such 
questions need be asked only in exceptional circumstances. The second case 
involved the procedures to be followed prior to the transfer of an inmate of a 
correctional institution. Again, the appellate section succeeded in obtaining 
a reversal of the United States Court of Appeals, and a ruling that the 
Commonwealth's procedures were adequate. 

The appeal which Criminal Bureau attorneys defended before the 
Supreme Court involved a challenge to the Commonwealth's two-tier trial 
system. For the second time in two years, the Supreme Court was presented 
with the question of whether the system was constitutional. On this occasion, 
they reached the merits of the claim and made a definitive ruling that the 
system was acceptable. With this ruling, the question may be considered 
closed. 

The appellate section also processes demands for the rendition of fugitives 
from justice. The section examines demands both from law enforcement 
officials of the Commonwealth and from the governors of other States and 
renders an opinion as to the legal adequacy of each. In addition, an appellate 



30 P.D. 12 



section attorney must appear in court whenever a rendition warrant is chal- 
lenged. More than 100 rendition demands were processed during fiscal 
1975-76. The appellate section also administers the Commonwealth's crimi- 
nal usury laws. 

The drug abuse division continued to perform the three primary functions 
in which it has engaged since its creation: drug education seminars, drug 
intelligence, and the speaker's program. 

The drug education seminar is a two-week program which addresses the 
problem of drug abuse through the means of education. It is geared primar- 
ily for police, but also serves other professionals working in drug-related 
areas. This program works to educate the people involved who deal directly 
with drug-related matters, and, on a broader scale, trains these professionals 
to train others in their respective field. 

During fiscal 1976, the drug abuse division held twelve two- week seminars 
throughout the Commonwealth, from which approximately 450 persons 
graduated. The seminars were held in conjunction with the Massachusetts 
State Pohce Academy in Massachusetts state colleges. All of these colleges 
agreed to award three college credits for successful completion of the course. 

For the operation of these seminars the services of experts in various drug- 
related fields are obtained. These individuals donate their time to lecture and 
hold discussion groups. They come from a wide range of agencies and 
institutions, including the mayor's office, the Treasury Department, the 
United States Customs Bureau, the Department of Public Safety, the 
Department of Mental Health, the Drug Enforcement Administration, var- 
ious courts throughout the Commonwealth, hospitals and detoxification 
units, and drug rehabilitation programs in half-way houses. 

These lectures and discussions cover many areas, such as the psychologi- 
cal and pharmacological aspects of drug abuse, current legislation affecting 
the area, present State and Federal statutes, informant development, search 
and seizure, organized crime involvement, local drug problems, achievement 
in rehabilitation by drug-dependent persons, and different preventative 
techniques. 

During the upcoming year, the drug abuse division is also planning to 
present four one-week advanced seminars for those who have successfully 
completed the basic drug education seminar. This will be an intensive drug 
education course for police officers only. 

The drug intelligence unit was in complete operation throughout the fiscal 
year, with seven police officers assigned to it full-time. Each of the officers 
covered a designated area of the Commonwealth and made a personal visit 
to each police office in his area at least once every two weeks. These meetings 
were held with either the chief of police or an assigned haison officer. 

The purpose of the drug intelligence unit is to gather, analyze, and dissem- 
inate information regarding persons dealing in the illegal trafficking of 
narcotics. The unit uses a complex filing system for this information and 
notifies all departments and agencies concerning up-to-date information in 
their areas. 

Since the unit's inception, the agents have contacted and cultivated many 



P.D. 12 31 



informants who have supplied them with valuable information regarding 
both the illegal traffic of narcotics and other criminal activities. The drug 
intelligence unit is contacted daily by local. State, and other enforcement 
agencies requesting information on suspected drug traffic and dealers. It also 
offers aid ranging from assistance in investigations to legal advice in the 
preparation of affidavits in support of search warrants. 

The drug abuse division has several people who are available for speaking 
engagements. Many requests for speakers are received from various seg- 
ments of the community, including civic groups, professional organizations, 
and school systems. The majority of these requests entail commitments 
during the evening hours, and it is not unusual for members of the drug 
abuse division to spend 15 hours a week of their own time to perform these 
obligations. 

III. GOVERNMENT BUREAU 

The Government Bureau includes the following divisions: 

( 1 ) The Administrative Division, responsible for defending state agencies; 

(2) The Affirmative Litigation Division, responsible for initiating affirma- 
tive litigation on behalf of state agencies; 

(3) The Attorney General Opinions Division, responsible for both the Opi- 
nions of the Attorney General and Opinions concerning Conflicts of 
Interests pursuant to G.L. c. 268A, §10; and 

(4) The By-Laws Division, responsible for passing on the legality of all 
newly enacted municipal by-laws pursuant to G.L. c. 40, §32. 

A report on each of the separate divisions follows. 

ADMINISTRATIVE DIVISION 

The Administrative Division continues to be responsible for defending the 
Commonwealth and its various agencies in defensive litigation in state and 
federal court, raising issues of public, administrative, and constitutional law. 
With the help of newly instituted systems for maintaining statistics on the 
work of the Division, we are now able to report with greater precision on the 
new cases which the Division has defended during the fiscal year. The new 
cases in FY 1976 numbered 601. The quarterly breakdown is as follows: 

(1) July-September 1975 (estimated) 175 

(2) October-December 1975 151 

(3) January-March 1976 133 

(4) April-June 1976 142 

TOTAL 601 

The litigation of the Administrative Division spans a broad range of 
government activity. The agencies most frequently represented are the Alco- 
holic Beverages Control Commission, the Civil Service Commission, the 
Department of Education, the Commissioner of Corporations and Taxation, 
the Department of Public Welfare, the Registry of Motor Vehicles and 
Registry Board of Appeals, the Rate Setting Commission, the Department of 
Public Utilities, and the Division of Insurance. The Division also received a 



32 P.D. 12 



number of cases requiring the representation of various state judges, who 
were named directly as defendants in cases challenging their adjudicatory 
decisions. 

The time spent representing particular agencies cannot be measured 
exclusively by number of cases. The representation of certain agencies 
involves a substantial commitment to complex, major litigation. For exam- 
ple, the Division committed extraordinary amounts of time to (1) representa- 
tion of the Department of Mental Health in litigation seeking to improve the 
living conditions and level of treatment at the state institutions for the 
mentally retarded, (2) defense of rate setting decisions by the Department of 
Public UtiUties, which are appealed directly to the Supreme Judicial Court 
and inevitably raise complex and potentially far-reaching economic and 
regulatory issues, (3) representation of the Division of Employment Security 
in suits claiming inordinate delays in both the initial processing of unem- 
ployment insurance claims and the scheduling and determinations of 
appeals from compensation denials, (4) defense of the Department of Public 
Welfare, whose changes in policies and programs have been subjected to a 
number of broad class action challenges during the year, and (5) the continu- 
ing representation of many state agencies whose hiring practices are sub- 
jected to attack on grounds of de facto race and sex discrimination. 

In this last category of discrimination cases, as in many other areas, the 
Division's representation may include, as circumstances warrant, not only a 
vigorous defense but often an effort to work toward a settlement between the 
parties that serves all the relevant interests. The breadth of this responsibility 
for representation as well as the variety of strategies employed by Division 
attorneys in the course of litigation inevitably brings the Division into 
important areas of economic and social concern, with scores of cases each 
year raising public questions substantially affecting 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 
was argued before the United States Supreme Court in December, 1975, and 
on June 24, 1976, the Supreme Court upheld the statute. Defending the 
statute against a claim of age discrimination, the Division's lawyers argued 
successfully that mandatory retirement laws, together with their related 
pension provisions, are a rational and humane means for preserving effi- 
ciency in state employment while at the same time rewarding those who have 
served the state for many years. 

A second case before the United States Supreme Court was Bellotti v. 
Baird. In this case, the Attorney General defended a statute found to be 
unconstitutional by the U.S. District Court, calling for involvement of par- 
ents in the abortion decision of their pregnant daughters. The Attorney 
General argued that this statute was capable of a narrow construction that 
would both preserve the primacy of the family unit and protect the privacy 
interests of pregnant minors. The Supreme Court agreed that a narrowing 
construction of the statute was possible and ordered that the Massachusetts 
Supreme Judicial Court be given the opportunity to determine whether this 
interpretation was the appropriate one. The outcome of this case will have a 
major impact in the area of family law. 



P.D. 12 33 



A third case that will be argued before the United States Supreme Court in 
FY 1977, involves a state statute that restricts fishing in Massachusetts 
waters to Massachusetts residents. This statute was struck down by the 
Supreme Judicial Court on the grounds that it violated the Privileges and 
Immunities clause of the Fourteenth Amendment to the United States Con- 
stitution. Because many other states have a similar statute, the outcome of 
this litigation will have a significant impact on state legislative prerogatives 
as well as the fishing industry itself 

The Attorney General has appealed to the United States Supreme Court a 
decision of the U.S. District Court striking down a state statute giving 
veterans a preference in state employment. The lower court found that this 
statute operated to exclude women from the more attractive jobs in state 
service and therefore violated the Equal Protection Clause of the Fourteenth 
Amendment to the United States Constitution. It is the argument of the 
Attorney General that, whatever disagreements there may be with the stat- 
ute on policy grounds, the statute is a rational means of rewarding veterans 
and, because the legislature had no intention of discriminating against 
women in passing the veterans preference statute, it satisfies the standards of 
constitutionality. 

The single greatest commitment of Division resources during FY 1976 
went toward the negotiation of consent decrees in five cases seeking 
improvement in the conditions and treatment at state institutions for the 
mentally retarded. Five lawyers in the Division have had responsibility for 
these cases. The first consent decree generated by this litigation concerns the 
Monson State School and was signed just after the end of the fiscal year. It 
calls for a substantial increase in the personnel providing direct care to 
patients, and it outlines a process of capital improvement that will signifi- 
cantly enhance the living conditions of patients at Monson. Negotiations 
looking toward consent decrees at the other institutions, Fernald, Wren- 
tham, Dever, as well as continuing monitoring of the consent decree at 
Belchertown, signed in 1972, will continue to be a major commitment of the 
Division in FY 1977. 

Another important case involving the mentally retarded raises the issue of 
special education. The Division is representing the Bureau of Institutional 
Schools, which is responsible for providing special education to all persons 
between the ages of three and twenty-one years who reside in state institu- 
tions. A class action filed during the fiscal year claims that the current 
programs are inadequate to the task. The Administrative Division has been 
attempting to work with the various state officials responsible for treatment 
and education of the retarded. With the agreement of the Governor we are 
pursuing a strategy that looks to providing quality programs rather than 
following a traditional defense posture in the lawsuit. 

The Division has continued to carry on the function of representing all 26 
Boards of Registration who are responsible for Hcensing and policing var- 
ious service professions such as pharmacy, nursing, and medicine. Represen- 
tation consists primarily of court litigation. However, the Division's lawyers 
also advise the Boards in the conduct of adjudicatory proceedings for the 
discipline of members of the profession. Because these Boards of Registra- 



34 P.D. 12 



tion have no legal staff of their own, this daily process of advice and assist- 
ance consumes a significant part of the Division's resources. To enhance 
these Board proceedings, the Division during the fiscal year developed a set 
of Rules of Procedure that will, once adopted, provide uniformity and clarity 
in all proceedings before the Boards. The Division also prepared an exten- 
sive manual illustrating the use of the Rules, together with a set of model 
forms for use by the Boards. 

During the year the Government Bureau continued in its efforts to 
improve internal management and to modernize its operations. Nowhere 
have these efforts been felt more strongly and with greater effect than in the 
Administrative Division. Extensive law files and form files have been estab- 
lished to permit lawyers to retrieve papers from past litigation more easily for 
use in current cases. An enormous backlog of cases, numbering more than a 
thousand, and often dating back many years, has been resolved. A system 
that calls on every lawyer to prepare an inventory of all current cases has 
been instituted; this permits control of our case load of almost two thousand 
cases, and provides a system for monitoring the progress of all litigation in 
the Division. Further, a series of training seminars was initiated during the 
fiscal year. These seminars deal with those phases of litigation most impor- 
tant to Division lawyers, including issues of court procedure and jurisdic- 
tion, discovery, and the drafting of pleadings and motions. 

An important new facet of the Government Bureau, connected principally 
to the Administrative Division, is the sponsorship of an Attorney General's 
Law Clinic in cooperation with Boston College Law School. Under this 
program, fifteen students receive substantial academic credit for participat- 
ing in the litigation of the Division, supervised by a member of the Boston 
College Law faculty and by lawyers within the Division. The program 
includes a series of seminars in various phases of the lawyering process. 
During the fiscal year, students worked on literally every part of the Divi- 
sion's work, often appearing in court, and participating in the preparation of 
cases ranging from state superior court to the United States Supreme Court. 



AFFIRMATIVE LITIGATION DIVISION 

The Attorney General established the Affirmative Litigation Division in 
April, 1975, in order to expand the scope of the Government Bureau's 
activities to include affirmative representation of state agencies on a continu- 
ing, programmatic basis. While defensive representation of the Common- 
wealth and its agencies obviously remains an essential function of the Attor- 
ney General, there are many instances when aggressive and thorough 
representation includes affirmative litigation against other governmental 
bodies such as the federal government or against private parties. Affirmative 
litigation permits the Attorney General to take the initiative and focus on 
matters of widespread and general importance to citizens of the Common- 
wealth in order to protect the public interest. 

Because affirmative litigation represents an opportunity for the Attorney 
General to set priorities for the use of his limited resources, these cases tend 



P.D. 12 35 



to be broad in scope. During FY 1976, the Affirmative Litigation Division 
became involved in twelve such cases. A brief summary follows. 

The first lawsuit which the Division brought was a suit in federal court 
which challenged President Ford's imposition of the oil import license fee. 
This case attacked increased fuel costs to consumers of over $1 billion and 
raised important questions concerning the power of the President to impose 
such fees. Relief was denied by the United States District Court in Washing- 
ton, D.C., but the Attorney General's argument prevailed before the United 
States Court of Appeals. Unfortunately, the United States Supreme Court 
reversed the Court of Appeals and found in favor of the Federal 
Government. 

While the case was ultimately unsuccessful on the legal merits, the litiga- 
tion focused public attention on the inequities of the oil license fee and, as a 
result, the fee was voluntarily withdrawn by President Ford shortly after the 
favorable Court of Appeals decision. Finally, the Oil case was the first of 
what was to become many joint efforts between Massachusetts and other 
neighboring states. It created a precedent for many states to join together in 
litigation to protect their interests. This joint effort has evolved into a contin- 
uing federation called the Eastern States' Affirmative Litigation Committee 
(ESALC). 

Another major effort was Massachusetts' involvement in challenging the 
imposition of the 13 cents first class postage requested by the Postal Rate 
Service. This complex and multifaceted case has included litigation before 
the Court of Appeals in Washington, D.C., challenging the immediate 
imposition of the 13 cent stamp, as well as complicated and lengthy hearings 
before the Postal Rate Commission. The Postal Rate Commission finally 
approved the 13 cent stamp rate. Because of the burden which this places 
both on individual citizens as well as the states themselves, numerous states 
have joined with Massachusetts to appeal the Commission's decision to the 
United States Court of Appeals. 

The Attorney General also filed affirmative litigation against the federal 
government challenging illegal governmental activity in the human services 
area. For example, Massachusetts joined with 26 other states and numerous 
private individuals and organizations to challenge new food stamp regula- 
tions promulgated by the United States Department of Agriculture. These 
regulations had the effect of eliminating or reducing food stamp benefits to 
10.8 million people by a total of $1.2 billion. In Massachusetts alone, approx- 
imately 1 16,000 people would have been affected. In June, 1976, a complaint 
was filed against the Department of Agriculture, and both a temporary 
restraining order and a preliminary injunction were obtained, preventing 
implementation of the restrictive regulations. 

Similarly, the Attorney General intervened as a plaintiff in a case in the 
federal court attacking the failure of the United States Department of Agri- 
culture to spend approximately $685 million under a federal program 
designed to provide nutrition and prenatal care to women. The court found 
for the plaintiff and the result forced the release of millions of dollars to 
Massachusetts which it otherwise would not have received. 

Finally, the Government Bureau and the Civil Rights Division worked 



36 P.D. 12 



together to file suit challenging certain reporting requirements under Title 
XX of the Social Security Act, which violated individual privacy. Imme- 
diately after the complaint was filed, the federal government withdrew the 
challenged regulations. 

In some cases the Attorney General has deemed it in the public interest to 
support certain activities of the federal government. In the case of American 
Medical Association v. Matthews, the Attorney General intervened on the 
side of HEW to support the legality of regulations issued by HEW which set 
maximum cost ceilings on drugs under the Medicaid and Medicare program. 
These regulations were designed to place reasonable cost limitations on the 
rapidly expanding medical services programs, while at the same time pro- 
tecting the welfare of patients. 

There are also instances where resort to the courts is the only available 
means to resolve disputes with neighboring states. Maine and Vermont 
joined with Massachusetts in filing an original action in the U.S. Supreme 
Court against New Hampshire. The purpose of the lawsuit was to recover 
taxes paid to New Hampshire under a New Hampshire statute previously 
declared unconstitutional. The effort proved unsuccessful and the Court 
denied the request. 

Another important type of affirmative litigation has been in the Massa- 
chusetts state courts on behalf of state agencies. The Attorney General has 
brought suit where informal efforts by the agency to resolve disputes have 
failed. One such case involved the City of Springfield's failure to place 
special education students in private schools under c. 766. Also, a number of 
cases were brought against nursing home operators who fail to comply with 
statutory requirements and who operate in disregard of the public interest. 

A series of 50 suits were brought against corporations who failed to file 
annual reports as required by statute. Finally, an effort to enforce an order of 
the Division of Animal Health in order to prevent the spread of equine 
infectious anemia raised the important question of the State's authority to 
properly regulate and prevent serious outbreaks of animal diseases. 

Occasionally, affirmative litigation can be pursued by intervening in liti- 
gation between other parties in order to present arguments that relate specifi- 
cally to the interests of the Commonwealth. Sometimes, intervention as a 
defendant rather than as a plaintiff is appropriate. For example, in the case 
Zarek v. Attleboro Area Human Services, Inc., the Attorney General inter- 
vened as a defendant on behalf of the Department of Mental Health to 
thwart a building inspector's attempt to close down a private, non-profit 
residential facility for individuals who had been released from a DMH 
institution. We were successful in arguing that the town's ordinances were 
precluded by state law, which exempts "educational" facilities from local 
zoning regulation. This case is now a fundamental part of the DMH effort to 
emphasize community placements for individuals confined to institutions 
despite their ability to function as a part of the local community. 

The notion that the Attorney General is available and prepared to repre- 
sent state agencies in affirmative litigation is a novel one. Accordingly, 
agencies have sometimes been slow to recognize those instances where such 
litigation might prove effective. We expect that over the next few years the 



P.D. 12 37 



affirmative litigation brought by the Attorney General will expand as the 
awareness of its usefulness increases. Further, the Eastern States' Affirma- 
tive Litigation Committee (ESALC) will very likely take on a more impor- 
tant role as the eastern states continue to work together to define and protect 
a mutual interest. 



OPINIONS OF THE ATTORNEY GENERAL 

The Attorney General issues formal legal opinions to (a) State agencies 
and officials, (b) the Governor, and (c) either branch of the General Court or 
legislative committees with respect to pending legislation. Opinion requests 
range from those affecting a small number of people to issues of statewide 
importance. In all instances, however, the Attorney General is asked to 
perform a quasi-judicial function and to exercise his independent legal 
judgment. This process has been strengthened during the fiscal year by 
screening out unnecessary or inappropriate opinion requests, by requiring 
that agency counsel prepare a memorandum of law supporting their 
requests, and by creating an internal structure within the office of the Attor- 
ney General which insures the highest quality product. 

Approximately 230 requests were received for Attorney General opinions 
during FY 1976. Many of these requests came from private citizens, individ- 
ual legislators, private organizations or municipal governments. Since these 
entities are not entitled to an opinion of the Attorney General, those requests 
were declined. 

During FY 1976, 77 opinions of the Attorney General were issued. Some 
were in response to a backlog of opinion requests which had built up over a 
period of years. A crash effort was undertaken during the past year to reduce 
these outstanding opinion requests from approximately 120 at the beginning 
of the fiscal year to 20 which remained open at the close of the fiscal year. 

Virtually every opinion of the Attorney General resolved a legal question 
of some significance and, in many cases, provided guidance to agency offi- 
cials concerning statutes which have rarely, if at all, been interpreted by the 
courts. 

The fiscal problems of the Commonwealth prompted opinion requests 
resolving problems of legislative appropriation and the lay-off of state 
employees. For example, an opinion issued to the Secretary of Administra- 
tion & Finance found that civil service employees could not be terminated 
for lack of funds until a budget supporting this basis for termination was 
passed by the legislature. The budget request itself, without legislative 
approval, was not sufficient reason for termination. In addition, the Attor- 
ney General, after carefully surveying court cases in the area, found that a 
last hired/first fired policy does not constitute racial or sex discrimination. In 
another opinion, the Attorney General found that the Governor had the 
power to refuse to recommend an appropriation for an agency and to veto 
any such appropriation. 

Another important set of Attorney General opinions was concerned with 
election problems. The Attorney General issued five opinions which clari- 



38 P.D. 12 



fied the function of the Commission on Campaign and Political Finance, 
resolved ambiguities under state law with respect to the impending presiden- 
tial primary, and clarified the Secretary of State's powers regarding certifica- 
tion of signatures for election purposes. 

Recent attention to the areas of public records and privacy prompted three 
Attorney General opinions. The Attorney General found that an individual, 
under state law, should have access to his criminal record identification 
information and should be able to receive a copy. However, in interpreting 
the specific statute governing the Massachusetts Rehabilitation Commis- 
sion, the Attorney General found that the Commissioner had the power to 
provide a summary of the record to a person, rather than releasing the entire 
record. 

A number of Attorney General opinions were issued in the area of civil 
rights. In an opinion issued to the Division of Registration, the Attorney 
General found that numerous statutes which require citizenship before a 
person can be licensed were unconstitutional. The Attorney General also 
found that the statutory requirement that an assistant commissioner of the 
Division of Labor and Industries be a woman violated state and federal 
statutes, as well as the Massachusetts and the United States Constitution. 

Some requests in the civil rights area questioned the power of the agency 
officials to take certain steps to eliminate or reduce discrimination. In one 
such opinion, the Attorney General found that the Governor's Executive 
Order relating to discrimination applies to the Department of Education's 
School Board Assistance Bureau and that the Bureau may require contrac- 
tual assurance of compliance with nondiscrimination laws. Further, the 
Attorney General found that c. 622 of the Acts of 1971, granted the Depart- 
ment of Education sufficient authority to promulgate regulations concerned 
with equal opportunity for women in extracurricular athletics. Finally, the 
Attorney General found that the Urban Lending Program, designed by the 
Banking Commissioner and various Boston banks to eliminate redlining 
practices in mortgage lending, did not violate state or federal statutes. 

A few requests were received from agencies who desired to purchase land 
for environmental purposes. The Attorney General opinions dealt with the 
specific procedures which must be followed for such acquisition and the 
limitations imposed on the agency. Specifically, the Attorney General found, 
in an opinion issued to the Metropolitan District Commission, that legisla- 
tive approval was required before a parcel of land could be acquired in East 
Boston. Also, the Attorney General advised the Secretary of Environmental 
Affairs as to the proper procedure with respect to the acquisition of a piece of 
property in the Walden Pond area and found that such acquisition was 
proper, if the approval of the Governor was received, as is required by state 
statute. 

The issue of whether publicly supported transportation of nonpublic 
school students violates the state Anti-Aid Amendment has resulted in a 
number of Attorney General opinions over the years. The Attorney General 
attempted to clarify the relevant statute, G.L. c.76, §1, and found that it did 
not violate either the Massachusetts or the United States Consititution. In a 
lengthy opinion the Attorney General provided guidance to the Department 



P.D. 12 39 



of Education in dealing with the specific problems arising under the imple- 
mentation of this statute. 

Finally, two opinions were issued in areas which clarified the role of 
agencies with respect to their internal decision-making. In an important 
opinion, the Attorney General made clear that the Division of Hearing 
Officers, although formally a division of Administration & Finance, could 
nevertheless hear appeals within Administration &. Finance so long as the 
hearing officers were insulated from bias or prejudice. The opinion clarified 
the role of the hearing officer and strengthened his independent decision- 
making status. Also, the Attorney General determined, in response to a 
request from the Alcoholic Beverages Control Commission, that when one of 
the Commissioners was unavailable, the "rule of necessity" permitted the 
two remaining Commissioners to make an agency determination, even when 
a claim of bias has been raised with respect to one of the two remaining 
members. 

Part of the reason for a large number of opinion requests stems from 
efforts by many agencies to have a large number of their legal problems 
resolved by the Attorney General. While such an approach may have once 
had merit, the Attorney General believes that with the advent of large 
numbers of agency counsel many of the opinion requests can be resolved by 
in-house counsel. Where this is not appropriate or where an opinion of the 
Attorney General is genuinely required to resolve a disputed legal question, 
agency counsel will be required to provide background research to assist the 
Attorney General in preparation of his opinion. In this manner, the number 
of opinions actually rendered can be kept within reasonable bounds thereby 
permitting the Attorney General to give close attention to important and 
pressing requests. 

The Government Bureau devoted substantial resources to a zone of activ- 
ity falling between litigation and the formal opinion writing described 
above. This involves day to day advice to various state agencies and public 
officials with the objective of resolving legal problems before they reach the 
stage of a formal controversy requiring either litigation or an Attorney 
General's opinion. This function grows out of the knowledge gained in 
litigation and in preparing formal opinions. For example. Bureau attorneys 
advised the Division of Insurance as to the legality of proposed regulations 
requiring annual audits of regulated companies by a certified public accoun- 
tant. Acting on the advice, the Insurance Commissioner issued the regula- 
tions in modified form. 

An important continuing function of the Bureau is to provide legal advice 
as the state moves through the process of issuing limited obligation and 
general obligation bonds. Bureau attorneys determine whether or not the 
bonds are in conformity with all relevant state statutory and constitutional 
law. One such question requiring a close reading of state statutes is whether 
in particular bond issues the full faith and credit of the Commonwealth 
stands behind the bond, or whether by contrast, the debt obligation may be 
paid only from limited and special revenues. 

The lawyers in the Bureau inevitably spend a substantial amount of time 
advising the Departments of Public Welfare, Public Health, and Mental 



40 P.D. 12 

Health. The Welfare Department is responsible for the largest single part of 
the state budget. The Department of Public Health has wide ranging regula- 
tory power over both public and private providers of health care, and the 
Department of Mental Health is the single largest state employer and is 
responsible for maintenance of a number of public hospital faciUties. 

Conflicts of Interests 

Under G.L. C.268A, §10, the Attorney General is directed to issue conflict 
of interest opinions to state employees and officials when requested. During 
this fiscal year, 70 formal conflict of interest opinions were issued. These 
opinions evaluated the factual information surrounding the possible conflict 
and reached a judgment based upon a reading of the conflict statute, G.L. 
C.268A, §1 et seq. While often the factual circumstances are such that the 
opinion is useful only as guidance for the individual making the request; the 
Attorney General has often written the conflict opinions so as to provide 
general guidance to other similarly situated employees. For example, some 
opinions dealt with the continuing problem of state employees who may 
have conflicts of interest on account of their participating in community- 
based advisory boards. The Attorney General has interpreted C.268A so as to 
prohibit those activities which represent a genuine conflict of interest, but 
otherwise to permit these useful volunteer activities to continue. 



BY-LAWS DIVISION 

The By-Laws Division is responsible for reviewing all newly enacted 
municipal by-laws to determine whether they conform to statutory and 
constitutional limitations. During the fiscal year 1976, 1301 by-law submis- 
sions were reviewed. In addition, the Division reviewed six home rule char- 
ters and amendments, and one historic district designation. Of the 1301 by- 
laws submitted, 735 were general by-laws, and 566 were zoning by-laws. In 
each of these two categories approximately 5 percent of the submissions were 
disapproved for nonconformance with various legal requirements, the pri- 
mary defect being a failure to follow statutorily mandated procedures in the 
adoption of the by-law. Another 5 percent of the submissions were disap- 
proved in part. In this situation the objectionable language in the by-law is 
deleted and the remaining part of the by-law approved. Of the 351 cities and 
towns in the Commonwealth, the Division received by-law submissions from 
272. 

Among the significant municipal legislation requiring Division approval 
were a number of general by-laws which prohibit the drinking of alcoholic 
beverages in public places within a town. These by-laws are adopted under 
the general police powers of the town and are aimed at the increasing 
problem towns have encountered with youthful drinkers who frequently 
leave schoolyards and parks littered with beer cans and bottles. 

Approximately eight towns submitted general by-laws which sought to 
estabhsh procedures for the recall of elected officials. The public officials 
toward whom the provisions were directed were the Board of Selectmen and 
the School Committee. While it is true that there are municipal home rule 



P.D. 12 41 



charters which provide for similar procedures, the general town by-laws 
submitted to this office were disapproved. Such by-laws conflict with Article 
LXXXIX of the Amendments to the Massachusetts Constitution which 
prohibit municipalities from regulating elections. 

During FY 1976 towns continued to submit zoning by-laws which regu- 
late the use of wetlands and floodplains. Such by-laws are apparently 
designed to meet the qualification guidelines for HUD flood insurance as 
well as to conserve land which provides a watershed for the town's water 
supply. 

Towns submitted both general and zoning by-laws which either prohib- 
ited or sought to regulate self-service gas stations. The zoning by-laws were 
approved, because they were viewed as a regulation of the type of business to 
be conducted in the town and were thus within the scope of the Zoning 
Enabling Act. The general by-laws, however, regulating self-service stations 
were disapproved on the basis that they were in conflict with extensive 
regulations adopted by the Board of Fire Prevention pursuant to G.L. c. 148, 
§9. Currently, the Town of Milton is challenging in the Supreme Judicial 
Court the Division's disapproval of its general by-law regulating self-service 
stations. 



IV. PUBLIC PROTECTION BUREAU 

CIVIL RIGHTS DIVISION 

I. INTRODUCTION 

Established by G.L. c. 12, §1 lA, the Civil Rights Division is one of three 
divisions contained in the Public Protection Bureau of the Department of the 
Attorney General. Generally, the Division operates to protect the civil rights 
and civil liberties of citizens in the Commonwealth. Specifically, the Divi- 
sion initiates affirmative litigation on behalf of citizens, citizen groups, agen- 
cies and departments of the Commonwealth in matters involving constitu- 
tional protections; and, defends government agencies in cases which raise 
constitutional issues. In addition, staff of the Division advise the Attorney 
General of developments and issues in the area of civil rights, draft legisla- 
tion and investigate complaints of violations of civil rights brought to the 
attention of the Division by citizens of the Commonwealth. 

Finally, through the provisions of G.L. c. 15 IB, §5, the Division is given 
the authority to initiate complaints before the Massachusetts Commission 
Against Discrimination (MCAD) and to represent that agency before trial 
and appellate courts when judicial review of the MCAD decisions are 
sought. 

At present, the Division is staffed by a Chief, four Assistant Attorneys 
General, one of whom staffs a Women's Rights Unit, and one of whom 
heads a Privacy Section, and appropriate support personnel, including a 
paraprofessional in the Women's Rights Unit. In addition, two Special 
Assistant Attorneys General are located physically within the Division and 
are available for specific case assignments in areas consistent with their 



42 P.D. 12 



expertise. One of these Special Assistant Attorneys General serves as counsel 
to the Criminal History Systems Board. The other serves as counsel to the 
Security and Privacy Council. 

II. DESCRIPTION OF ACTIVITIES 

Through Fiscal Year 1976, the activities of the Division were catalogued 
generally according to nature of the Division's involvement in any one of 
fourteen separate areas of legal problems involving the protection of civil 
rights and civil liberties. 

A. THE NATURE OF THE INVOLVEMENT 

Activity on the part of Division attorneys generally took the form of 
litigation, non-litigation activity, or affirmative action. 

Cases in litigation were those cases in which a Division attorney repre- 
sented a plaintiff or a defendant in a legal cause of action before a court or an 
administrative hearing. Many of these matters involved the Department's 
representation of the Massachusetts Commission Against Discrimination 
(MCAD), or the representation of an individual before the MCAD. 

Among the non-Utigation activities were cases disposed of through prelim- 
inary negotiations, or activities not of a litigation nature, such as the drafting 
of legislation or position papers. 

Affirmative actions, generally, involved law suits or administrative mat- 
ters initiated by the Division in response to perceived patterns and practices 
of discrimination. Such patterns were generally found to exist following self- 
initiated investigations or were brought to the Division's attention through 
citizens' complaints. 

B. AREAS OF INVOLVEMENT 

Generally, matters in which staff of the Division were involved, either 
through litigation, non-litigation or affirmative action, occurred in the fol- 
lowing areas: 

Housing 

Education 

Employment 

Sex Discrimination 

Privacy 

Voting 

Public Accommodations 

Health 

Corrections/Youth Services 

Age 

Police 

Developmentally Disabled 

Migrant Workers 

Municipal Services 
A representative description of cases in each of the several areas of 
involvement is contained in Section IV below. 

III. STA TISTICAL SUMMARY OF CASES 

Active cases in litigation, June 30, 1975 43 



P.D. 12 • 43 

Litigation initiated in Fiscal Year, 1976 

(July 1, 1975- June 30, 1976) 12 

Litigation terminated in Fiscal Year, 1976 

(July 1, 1975- June 30, 1976) 36 

Active cases in litigation, June 30, 1976 19 

IV. REPRESENTA TI VE DESCRIPTION OF LITIGA TION 

A. EDUCATION 

Morgan v. Kerrigan. The Division continues to represent the State Board 
of Education in the implementation of Phase II and Phase IIB of the United 
States District Court's decision and order requiring the establishment of a 
unitary school system in the City of Boston. 

Board of Education v. School Committee of Springfield. In this case, the 
Division successfully argued in the Massachusetts Supreme Judicial Court 
that the City of Springfield had not adequately provided for the educational 
needs of Spanish-speaking students. 

This was the fourth in a series of cases involving the effort of the state 
board to insure compliance of the Springfield School Committee with the 
racial imbalance law. In addition, the decision recognized the authority of 
the State Board to consider constitutional issues in framing administrative 
orders. 

Kelly V. Anrig. The Division successfully represented the Defendants 
before the United States Court of Appeals for the First Circuit in two 
collateral attacks on the orders in Morgan v. Kerrigan. 

Chaisson v. School Committee of Orange, Mass. In this case, the Division 
represented the state Commissioner of Education who intervened as a 
Defendant in a challenge to the constitutionality of the state compulsory 
education law. After the Defendants had filed for summary judgment, the 
Plaintiffs successfully sought dismissal of the case because they could not 
afford to pay their attorneys. 

Department of Education v. New Bedford School Committee. On behalf of 
the Commissioner of the Department of Education, the Attorney General 
brought an administrative action against the New Bedford School Commit- 
tee for failure to implement M.G.L. c. 71 A, the Transitional Bilingual Edu- 
cation Act. The suit's objective was to ensure that every student within the 
New Bedford School system had access to education in his or her dominant 
language, as required by law. A consent judgment has been obtained. The 
case is currently in the remedy stage, with the parties attempting to design 
and implement a bilingual program which will fully comply with state law. 

B. CORRECTIONS/YOUTH SERVICES 

Inmates of the John Connallv Detention Center \. Dukakis. Youth incarcer- 
ated at the Department of Youth Services Detention Center in Roslindale 
brought a class action suit alleging that unconstitutional conditions existed 
at the Detention Center. After numerous hearings, the parties were able to 
negotiate a consent decree which remedied the alleged abuses and which 
also provided the Commonwealth with the flexibility necessary to adminis- 
ter the detention center. 



44 » P.D. 12 

The consent decree in Inmates v. Dukakis has been used as a model in 
assessing the needs of other detention facihties. 

C. EMPLOYMENT 

Wheelock College v. MCAD. The Massachusetts Commission Against 
Discrimination found that Wheelock College had discriminated against a 
woman professor by refusing to renew her contract because of her sex. The 
Commission awarded the woman back pay for a four year period, during 
which she had been demoted from a full to a part-time professor, and 
ordered her reinstatement. The MCAD decision was appealed and was 
argued before the Supreme Judicial Court in May, 1976. A decision is 
pending. 

NAA CP V. Beecher. In a suit brought against the Civil Service Commis- 
sion, the Court found that the examination for firefighters given by the 
Commission discriminated against minorities. Attorneys from this Division 
are now participating in the remedy phase of the suit. Difficult and involved 
negotiations between the plaintiffs and government officials have led to the 
giving of a new examination. Extensive recruiting of minority applicants was 
undertaken prior to the examination and has resulted in the largest number 
of minorities ever to take a firefighter exam in the Commonwealth. At the 
present time, hsts of eligible applicants are being certified to cities and towns, 
with an increased number of qualified minority applicants available for 
appointment. 

Bellotti, et al. v. Allyn & Bacon, Addison- Wesley, and Houghton Mifflin. 
Three employment cases based on sex and race discrimination were filed 
with the EEOC after extensive investigation. The issues concern equal pay, 
promotional opportunities, job segregation and an under- representation of 
minorities in the work force. Thousands of employees are involved in the 
class action. Right to sue letters have been received and filing in Federal 
District Court will occur in the near future. 

Garden, et al. v. Houghton Mifflin. In this case, the Department of the 
Attorney General was allowed to intervene and file a complaint alleging sex- 
based employment discrimination in the publishing industry. The Depart- 
ment's motion was allowed over opposition by defendant, providing prece- 
dental value to the proposition that the Attorney General has standing as 
parens patriae on behalf of the citizens of the Commonwealth to enforce their 
right to equal employment opportunities. 

Commonwealth v. Waltham Police. Pursuant to its authority under c. 
15 IB, §5, the Division brought a complaint before the Massachusetts Com- 
mission Against Discrimination alleging that the Waltham Police Depart- 
ment hiring practices discriminate against minorities. At the conclusion of 
the fiscal year, the case was in the discovery stage. 

Construction Industries of Massachusetts v. Salvucci. The complaint in this 
case challenged special contract specifications designed by the Department 
of Public Works and included in highway construction contracts for the 
purpose of assuring adequate employment of minority workers. After a 
hearing, a decision of the Suffolk County Superior Court upheld the affirm- 
ative action specifications of the Department. 



P.D. 12 45 



D. PRIVACY 

Penmvlvania v. HEW. Massachusetts, with Pennsylvania and Maryland, 
brought suit in the Federal District Court for the District of Columbia 
challenging the validity of regulations of HEW implementing the Title XX 
programs, designed to provide federal reimbursement for a large number of 
social service programs including day care, homecare, family planning, and 
drug and alcohol treatment. The specific regulations challenged were those 
which required state agencies to maintain detailed files about each recipient. 
The challenge was based on the argument that the regulations violated 
statutory and Constitutional rights to privacy. 

Soon after the lawsuit was filed, HEW withdrew the challenged regula- 
tion. The lawsuit has been continued pending the development of new 
regulations. 

Commonwealth v. William Filene and Sons. Protection Services, Inc. a 
Boston investigative firm, had an arrangement with major department stores 
in which they were given names of persons caught shoplifting but against 
whom the stores did not wish to initiate criminal prosecution. The stores, 
when hiring persons, would then check with PSI to see if a prior incident had 
occurred. If PSI had a report on an individual, the person would be 
discharged. 

Complainant in this case had been caught allegedly shoplifting some six 
years earlier. She had thought the incident was resolved and forgotten. 
Filene's hired her and then terminated her employment within a month 
without telling her that they were going to check with PSI, or that the PSI 
report was responsible for her discharge. An attorney from the Division 
threatened suit pursuant to G.L. c. 93A, the statute providing for consumer 
protection. In lieu of suit, the attorney accepted an Assurance of Discontinu- 
ance, pursuant to §5 of c. 93 A, that Filene's would no longer use PSI or any 
similar agency and would compensate the woman for her troubles. 

As the result of Filene's termination with PSI, the latter corporation has 
been forced out of business. 

DiGrazia v. The Justice of the Municipal Court of the Dorchester District. 
The Division is representing the Defendant Justice in this case before the 
Supreme Judicial Court. His Order for the expungement of a juvenile's 
arrest record is being challenged in the Supreme Judicial Court. At the close 
of the fiscal year, the Division was preparing its brief for filing in August and 
for argument in the Fall of 1976. 

Commonwealth v. Credit Bureau of Nashua, Inc. The Division threatened 
suit, pursuant to G.L. c. 93A, against the Credit Bureau of Nashua, Inc. for 
attempting to coerce its customers into buying back credit reports with the 
threat of selling those reports to a computerized agency. 

At the close of the fiscal year, the Division agreed to accept an Assurance 
of Discontinuance that the Credit Bureau would cease the practice com- 
plained of, would refund all monies collected, and would permit the Attor- 
ney General to review all proposed mass mailings into Massachusetts. 



46 P.D. 12 



E. AGE 

Frietchie v. Dukakis. This case concerned a challenge to the procedures of 
the Department of Elder Affairs for implementing a homecare program 
under Title XX of the Social Security Act. The Division worked with the 
Department to draft regulations on privacy of personal data and procedures 
on handling of appeals. At the close of the fiscal year, the case was still 
pending, but the new regulations had rendered many of the issues moot. 

F. HOUSING 

MCAD V. 220 Beacon Street. The Division successfully obtained mone- 
tary damages in Superior Court for a black woman who was refused an 
apartment on account of her race. 

G. MIGRANT LABOR 

Consolidated Cigar Corporation v. Department of Public Health. This case 
involved a challenge to the validity of the statute and regulations in Massa- 
chusetts which require growers to permit access to migrant labor camps. The 
Division defended the action and counterclaimed for enforcement of the 
statute, since the plaintiff admitted violation of the statute and regulation 
with regard to its camps for adolescent workers in the Connecticut River 
Valley. 

The Superior Court of Hampden County granted summary judgment for 
the defendant. At the end of the fiscal year, the case was on appeal. 

H. SEX DISCRIMINATION 

Wetzel V. Liberty Mutual. In this case, the Division filed Sin Amicus brief in 
the United States Supreme Court urging the inclusion of pregnancy related 
disabilities in income protection plans sponsored by defendant insurance 
companies. 

I. DEVELOPMENTALLY DISABLED 

Jones V. Saikewicz. Defendant in this case was a 67 year old profoundly 
retarded resident of a state school for the mentally retarded. He was found to 
have acute terminal leukemia and was given only months to live. 

Following the recommendation of a guardian ad litem, appointed by the 
Probate Court, a probate judge ordered that chemotherapy treatment not be 
administered because the toxic side effects of the treatment would outweigh 
any benefits. The Judge concluded that such treatment would have serious 
debilitating consequences for the patient, might prolong his life for a short 
time but would not cure him of the disease, and would cause severe pain and 
suffering for the patient. 

On petition to the Supreme Judicial Court, the order of the Probate Court 
was upheld in an unusual case in which the Division filed the Amicus brief 
supporting the guardian and another bureau of the Department was allowed 
to represent the petitioning superintendent. At the close of the fiscal year, the 
Court issued a brief Order sustaining the Division's position and indicating 
that a full Opinion would follow. The Court also has asked the Division to 
recommend procedures for the handling of similar cases in the future. 

J. PUBLIC ACCOMMODATIONS 

Commonwealth v. Sopcar, Inc. The Division brought a complaint before 



P.D. 12 47 



the Alcoholic Beverages Control Commission against owners of several 
liquor establishments alleged to have refused to serve black patrons. The 
ABCC found no probable cause and refused to take action against the 
owners. 

K. OTHER 

Liberty Mutual v. MCAD. The Massachusetts Commission Against Dis- 
crimination subpoenaed employment records from the Liberty Mutual 
Insurance Company in connection with an investigation of hiring and pro- 
motion practices of various large employers within the Commonwealth. 
Liberty Mutual moved to have the subpoena quashed, arguing that the 
MCAD was not empowered by statute to serve pre-hearing, investigatory 
subpoenas. The case was argued before the Supreme Judicial Court and is 
awaiting decision by that court. 

The decision will have great impact on the ability of the Commonwealth 
to investigate allegations of discriminatory practices. 

MCAD V. Cambridge Housing Authority. In this case, the Division repre- 
sented a complainant before the MCAD in an employment discrimination 
case. The attorney successfully settled the claim for $35,000.00 in back pay, 
including an award of damages for humiliation, pain and suffering. That 
award, and the authority of the Commission to order compensation for 
humiliation, pain and suffering has and will be briefed and argued in the 
Fall of the Fiscal Year 1977. 

V. REPRESENTATIVE DESCRIPTION OF NON-LITIGATION 
MA TTERS, FISCA L YEA R 1976 

A. CASES RESOLVED THROUGH NEGOTIATION 

Hospital Fees 

An attorney from the Division threatened suit and subsequently reached 
agreement with 25 major Massachusetts hospitals regarding the fees they 
charge patients to obtain copies of their records, a right provided for in G.L. 
c. Ill, §70. After negotiations, all hospitals agreed to lower iheir fees to 30 
cents per page or less, a figure derived from a study done for us by one of the 
hospitals. 

Prisoners' Right To Vote 

Attorneys in the Division developed strategies with the State Secretary of 
the Commonwealth to provide access to voting on the part of prisoners. 
Employment Records 

The Division developed a model application form to demonstrate to 
employers how they could comply with Massachusetts law which limits the 
type of questions prospective employers may ask concerning past criminal 
history. After a survey of major Massachusetts employers indicated that 
nearly all violated existing law, the Division threatened to sue 65 employers 
unless they adopted the model application form or otherwise came into 
compliance with Massachusetts law. After some negotiation, all employers 
have settled with the Division. 

HUD Foreclosure of Housing Project 

Attorneys of the Division entered into negotiations with the Justice 



48 P.D. 12 

Department to prevent foreclosure by HUD of a housing project in the 
South End. Intervention became unnecessary as HUD withdrew its action 
from the Federal District Court. 

Lie Detectors 
The Division reached agreement with a number of businesses who prom- 
ised to comply with Massachusetts laws forbidding use of he detectors by 
employers. 

Petition to H EW Concerning Representative Payees 

Together with the State of Connecticut, the Division petitioned the United 
States Department of HEW to amend its regulations which estabhsh proce- 
dures for persons who hold the monies of incompetent persons (representa- 
tive payees). 

The Commission on Civil Rights of the Developmentally Disabled had 
compiled facts indicating that there were many incidents where representa- 
tive payees used retarded persons' monies for their own benefit rather than 
for the retarded person. We urged changes in the regulations to tighten the 
procedures for appointment of the representative payees and to provide for 
closer scrutiny of the activities of the payees. As a result of the petition, HEW 
has extensively revised its procedures. 

Credit Discrimination 
Through the use of G.L. c. 93 A letters, the Division was able to end the use 
of discriminatory application forms of over fifty finance and loan 
companies. 

Redlining of Service Areas 
Through negotiation, the Division was able to reach a settlement with the 
General Electric Company requiring the Company to provide appliance 
services in all areas of the City of Boston. 

B. LEGISLATION AND LEGISLATIVE ACTIVITIES 

In Fiscal Year 1976, attorneys from the Civil Rights Division: 

1. Drafted the Fair Information Practices Act, St. 1975, c. 776, for the 
Legislative Privacy Commission. 

2. Drafted later revisions in the Fair Information Practices Act, St. 1976, 
c. 249. 

3. Drafted revisions of the Criminal Offender Records Information Act 
for the Securities and Privacy Council. 

4. Drafted amendments to Child Abuse legislation for the Department 
of Public Welfare, later enacted into law, St. 1975, c. 528. 

5. Drafted legislation to protect the privacy of bank and telephone 
company records. 

6. Assisted in the drafting of legislation establishing no-fault divorces in 
the Commonwealth. 

7. Drafted regulations for the Department of Mental Heahh estabUshing 
standards for human experimentation. 

8. Drafted legislation to limit the admissibiUty of certain evidence in 
prosecutions for rape. 



P.D. 12 49 

9. Drafted privacy sections of the legislation reforming the Massachu- 
setts Automobile Insurance law. 

C. ATTORNEY GENERAL OPINIONS 

In Fiscal Year 1976, attorneys from the Civil Rights Division prepared 
various opinions on behalf of the Attorney General, including: 

1. An opinion concerning the application of Chapter 622, laws of 1972, 
to athletic programs in public schools. 

2. An opinion concerning the layoffs of state employees according to the 
traditional seniority system and the adverse impact of such layoffs on 
women and blacks. 

3. An opinion as to whether a state statute which mandates employment 
of a woman is discriminatory. 

4. An opinion regarding the propriety of the Department of Youth 
Services loaning juvenile records to the Harvard Center for Criminal 
Justice. 

5. An opinion as to whether records of the Clerks of Court are Criminal 
Offender Record Information (CORI). 

6. An opinion as to whether non-compliance with election expenditure 
reporting can be made public. 

7. An opinion stating that the anti-discrimination Executive Order 
applies to school construction projects. 

8. An opinion as to whether gun permit applications are public records. 

9. An opinion interpreting the statute regarding access to personal 
records held by the Massachusetts Rehabilitation Commission. 

10. An opinion concerning the applicability of antidiscrimination statutes 
to the Boards of Registration. 

11. An opinion concerning access to records held by the Boards of 
Registration. 

12. An opinion regarding modification of birth certificates of post-opera- 
tive transsexuals. 

D. OTHER NON-LITIGATION ACTIVITIES 

During Fiscal Year 1976, staff of the Division have also participated in the 
following non-litigation activities: 

1. Sustained a major coordinating and monitoring role, at times involv- 
ing the entire staff of the Division, in efforts to alleviate racial tensions 
which arose in the City of Boston following implementation of Judge 
Garrity's order in the Boston school case. 

The Division's primary contribution was coordinating and working 
with federal, state and local law enforcement authorities. 

2. Participated in extensive negotiations with the administration of the 
Massachusetts Maritime Academy resulting in the admission of 
women students to the Academy. 

3. Investigated allegations that campus police at Boston State College 
had engaged in improper surveillance of students and faculty. On the 
basis of the Division's recommendation, the Attorney General wrote 



50 P.D. 12 

to the Chairman of the Trustees of State Colleges recommending 
major administrative changes in the operation of the campus poUce 
force at Boston State College. 

4. Participated in the inquest of the death of a Puerto Rican youth, shot 
by a Springfield police officer. 

5. Drafted a statement for the Attorney General in opposition to pro- 
posed mandatory sentencing laws. 

6. Drafted correspondence for the Attorney General informing the 
Governor that the Privacy Act of 1974 precludes mandatory require- 
ment of revealing one's social security number for the purpose of 
obtaining a driver's license. The Registry of Motor Vehicles has since 
amended its policy in this regard. 

7. Worked with several task forces on rape to explore funding for the 
establishment of a central clearing house and resource center for rape 
victims and for payment of personnel involved with treating rape 
victims. 

8. Participated actively in the ERA coalition, and served by gubernato- 
rial appointment on the Committee to study the effect of the passage 
of ERA on State statutes. 

9. Participated in a task force dealing with problems of women in the 
criminal justice system. 

10. Served on the Security and Privacy Council and represented the 
Attorney General on the Records Conservation Board and the Crimi- 
nal History Systems Board. 

11. Served as co-chairman of the Privacy Project of the Lawyers Bicen- 
tennial Committee sponsored by the Massachusetts Bar Association 
and Boston 200. 

12. Served by gubernatorial appointment on the Advisory Committee for 
Juvenile Delinquency Prevention. 

13. Served on a Department of Mental Health Task Force on experimen- 
tation on human subjects. 

14. Served as ex-officio member of Governor's Commission on the Status 
of Women. 

15. Wrote articles on privacy for the Massachusetts Law Quarterly and the 
National Journal of Criminal Defense. 

16. Wrote and co-sponsored the publication oi A Compilation of Massa- 
chusetts Law Relating to Privacy and Personal Data. 

THE CONSUMER PROTECTION DIVISION 

During the past year, we have concentrated our efforts on developing a 
systematic approach toward enforcement of the consumer laws of the Com- 
monwealth of Massachusetts. We have brought law suits in every major area 
of consumer concern and have pleadings which serve as models for litigation 
in those areas. We have also established a system for monitoring our Consent 
Judgments on a periodic basis. With respect to litigation, we have identified 



P.D. 12 51 



major areas of consumer problems and have developed an on-going program 
in each of them. All of the actions which the Consumer Protection Division 
took in the past year have dealt with patterns and practices which affect a 
significant number of consumers. From July 1, 1975 to June 30, 1976, we 
took legal action in over 125 matters. We obtained 18 Consent Judgments 
and 26 Assurances of Discontinuance, while many cases remain in litigation. 
Our joint litigation efforts include a suit filed against The Department of 
Health, Education and Welfare in conjunction with four other states to force 
HEW to promulgate disclosure regulations with regard to Professional 
Standards Review Organizations. We also filed a petition with the Federal 
Communications Commission with 18 other states to ban drug advertising 
on television between the hours of 6:00 in the morning and 9:00 in the 
evening. 

The Investigation Section of the Consumer Protection Division operates 
now in a manner fundamentally different from that of prior years. Investiga- 
tors of the Consumer Protection Division investigate consumer complaints 
which indicate a pattern of deceptive trade practice. Much of their action 
now, however, is affirmative in the sense that investigators no longer wait for 
complaints to come in; they seek out problems and potential trouble areas in 
various industries. The past year demonstrated how a systematic approach to 
investigations has benefited consumers. 

Our investigators have been to 1432 auto dealers to check whether they 
have used car record books. We have conducted 61 extensive raids for 
odometer spinning. We are also compiling an automobile dealer book which 
will contain a listing for every dealer in the state. 

Of the 873 nursing homes in the state, our investigators have been to 861 
homes at least once, and to 584 homes twice, to determine whether (a) our 
regulations were posted and distributed, (b) a daily rate disclosure had been 
made in compliance with the regulations. 

We have also begun extensive investigations of the hearing aid and funeral 
industries. 

Since Attorney General Bellotti assumed office in January of 1975, the 
Consumer Protection Division has approached the handling of consumer 
complaints in a manner that involves reliance on volunteers and local com- 
munity groups. Representatives of the Division have visited various parts of 
the state to encourage local groups to form complaint handling organiza- 
tions. Approximately 25 such agencies exist throughout the state and, 
together with the Attorney General's Office, now offer consumers in all 
areas of the state effective complaint handling service. We will continue to 
handle complaints in these areas of the state where there are no local groups 
organized for this purpose. As part of our program to assist these local 
consumer groups, we conduct seminars in consumer affairs monthly. Topics 
recently discussed include Consumer Legislation, Auto Registration Law, 
Unfair and Deceptive Advertising, and Landlord-Tenant Problems. 

The Consumer Protection Division of the Office of the Attorney General 
continues to maintain an active Consumer Complaint Handling Section. In 
the past year, the section has logged in 9,885 consumer complaints and has 
closed 7,899 complaints. The complaints are handled by at least 50 volun- 



52 P.D. 12 



teers (including students and others) and the program is administered by 
four full-time staff members. 

The Consumer Complaint Section refers complaints to other consumer 
agencies when the complaints can be handled more expeditiously by those 
agencies. In the past year, we have referred over 2,000 cases to local con- 
sumer groups, approximately 850 complaints to out-of-state consumer agen- 
cies, and more than 1,000 to other Massachusetts State agencies, commis- 
sions and departments. 

As of June 30, 1976, the staff of the Consumer Protection Division totaled 
59 people. This includes 16 attorneys and 16 investigators. Our support staff 
consists of 27 persons. We also have one attorney and two investigators in the 
Springfield office working solely on consumer protection matters. 

In response to Attorney General Bellotti's desire to focus on broad-based 
illegal trade patterns and practices, the major efforts of the Consumer Pro- 
tection Division have been geared toward class action type suits, seeking 
injunctions against patterns of illegal behavior and restitution for all affected 
consumers. 

ADVERTISING 

In the area of advertising, we have continued to systematically review the 
advertising of record and stereo dealers and have taken legal action where 
appropriate. We are in the process of drafting advertising regulations under 
Chapter 93A. We plan to hold hearings on these regulations in October. We 
are also planning a conference on advertising for the business community 
with the Massachusetts Merchants Association in the fall. Our major suit in 
the advertising area is against Volkswagen of America. The litigation is still 
in the discovery stage. We initiated 23 other suits regarding advertising, and 
have thus far obtained 10 Assurances of Discontinuance and 2 Consent 
Judgments. 

A UTOMOBILES 

The largest number of complaints received in the Consumer Protection 
Division concern automobiles. In December, 1975, the Attorney General 
named an Advisory Committee to work with the Division in drafting auto- 
mobile regulations. We have held public hearings in Boston and Springfield 
on our proposed regulations, and hope to promulgate the advertising section 
this summer and the remainder in the fall. We have continued our on-going 
odometer and used car record book investigations. Also, we have filed 
additional suits regarding repair and warranty problems while at the same 
time proceeding with cases already in litigation. In November, 1975, we sent 
a letter to every automobile dealer in Massachusetts, notifying them that 
disclaimers of the implied warranty are a violation of the Consumer Protec- 
tion Act. In the past year we filed 13 suits against automobile dealers. We 
obtained 2 Assurances of Discontinuance, 2 Consent Judgments, and 2 Final 
Judgments. The remaining cases are still in litigation. 

BA NKR UPTC Y COURT 

For the first time the Attorney General's Office has involved itself in the 
Bankruptcy Court. We have a strong interest in acting on behalf of consum- 
ers in appropriate matters in the Bankruptcy Court and have appeared in a 



P.D. 12 53 



number of cases. After one year of work we succeeded in having the Bank- 
ruptcy Court confirm a plan of arrangement for the Land Auction Bureau. 
This plan affects 500 consumers who have purchased land through the 
company. Also, we have proposed a set of amendments to the Bankruptcy 
Act which we hope to have introduced shortly in the United States Congress. 
These amendments will insure that state Attorneys General can appear in 
Bankruptcy Court to aid consumers. 

BUSINESS/EMPLO YMENT OPPORTUNITY 

This year for the first time we have involved ourselves with a number of 
business opportunity schemes. In one situation, consumers who purchased 
franchises lost over $250,000. We are establishing a procedure to monitor all 
business opportunity ads placed in major newspapers throughout the state. 
We brought 5 cases in this area in fiscal 1976. We obtained 2 Assurances of 
Discontinuance and 1 Consent Judgment. The remainder are in litigation. 

CAREER SCHOOLS 

We have continued our efforts in the area of career schools. Most of the 
schools with serious problems have closed and refunds have been made to 
students. We are continuing to work with the Department of Education in 
this area and are concentrating our efforts now on assuring that all schools 
are licensed and in compliance with all applicable statutes. 

FOOD AND ANTI-TRUST A CTIVITIES 

In the area of Food and Anti-Trust violations, our activities have focused 
primarily on investigating and filing suits against companies with unit pric- 
ing, item pricing, and short-measuring violations. We have worked in con- 
junction with the Division of Standards with respect to short-measure viola- 
tions. We are also continuing our investigations of anti-trust violations in the 
food areas of milk, bread, fish, chicken and sugar. 

THE HEA L TH SPA IND USTR Y 

We have continued monitoring the Health Spa industry. The major prob- 
lem - selling long term memberships that a health spa cannot perform - is 
still in litigation in the Supreme Judicial Court. We have been successful, 
however, in avoiding disaster for 8,000 consumers when a health spa went 
bankrupt by arranging sale of the spas to new companies. We have also 
begun to act affirmatively by monitoring cases and actng before spas reach 
insolvency. 

HOME IMPROVEMENT AREA 

We have brought 10 suits in the home improvement area and obtained one 
consent judgment. We will continue to systematically monitor home 
improvement problems. 

LANDLORD-TENANT 

In the Landlord-Tenant area, we have continued to work with the state 
Lead Paint Program to enforce the state's lead paint laws. We have obtained 
4 Consent Judgments while one other case is still in litigation. We have 
brought 13 suits with respect to security deposit problems with two resulting 
in Consent Judgments. In other landlord-tenant areas, we have obtained two 
Consent Judgments and one Assurance of Discontinuance. 



54 P.D. 12 



NURSING HOMES 

Our nursing home reglations, promulgated under Chapter 93 A, went into 
effect on February 1, 1976. These are the first in the country under a 
consumer protection statute. In an effort to enforce these regulations, our 
investigators have visited nursing homes throughout the state in the past 
year. Of the 873 nursing homes in the state, our investigators have been to 
861 homes at least once and to 584 homes twice. During the investigations, 
we checked to see whether our regulations were posted, distributed, and 
whether a daily rate disclosure had been made in compliance with our 
regulations. We have found a 98% compliance rate with regard to both the 
distribution of summaries and regulations and a 70% compliance rate in 
regard to rate disclosure. We have compiled a book which contains reports 
on each nursing home. We will be meeting with and training the investiga- 
tors from the Department of Public Health, who will in the future, as part of 
their yearly inspection, check for compliance with the provisions of our 
regulations regarding posting, distribution, and rate disclosures. We will 
now attempt to enforce other aspects of our regulations where compliance 
may be different. 

REAL ESTATE 

In the area of real estate, our major efforts have been aimed at establishing 
the warranty of habitability in the sale of residential lots and homes. In one 
important case, we obtained a preliminary injunction for the first time in 
Massachusetts requiring a developer to assure the public that his land was fit 
for residential use. We obtained a Consent Judgment in another such case 
brought by this office, returning $5,000 to consumers. 

MOBILE HOME PARKS 

In December of 1975, a letter was sent to all mobile home park owners 
regarding compliance with various sections of the mobile home statute. In 
the latter part of 1975, a substantial number of parks whose rules and 
regulations were not in compliance with the law revised them in order to 
obtain our approval. One suit has resulted in a Supreme Judicial Court 
decision upholding the constitutionality of the mobile home statute. (Com- 
monwealth v. Gustafsson, 1976 Adv. Sh. 1073). 

We are also involved in the problems of retaliatory evictions of tenants, 
and restrictions on the age of the trailers. 

TRAVEL 

During the past year we have become involved with consumer abuses in 
the travel industry. The major problems include failure to return deposits for 
cancelled trips, and misrepresentations as to the nature of the tour. We have 
filed several suits in this area. We have also worked on possible legislation 
and explored the possibility of filing a petition before the Civil Aeronautics 
Board. 

TR UTH-IN-LENDING 

We have continued to work with the Department of Banking in regard to 
Truth-in-Lending violations and have brought seven law suits. Of these 
seven, we obtained 4 Consent Judgments and 2 Assurances of Discontinu- 
ance. 



P.D. 12 55 



HEALTH 

It is important that health be viewed as a consumer matter so that the 
public will be able to make informed judgments in regard to choosing a 
physician and other medical needs. This office, in conjunction with 4 other 
states, filed suit against HEW to compel that agency to promulgate disclo- 
sure regulations for Professional Standards Review Organizations (PSRO). 
PSRO's are federally-funded, physician peer-review organizations. They 
were established to contain the cost and assure the quality of health care 
services. Release of the information which they collect could be helpful to 
consumers, and it could be done in such a manner to keep the privacy rights 
of patients and physicians secure. 

In regard to the hearing aid industry, we have conducted thorough investi- 
gations and have filed suits to protect consumers. 
M ISC ELLA NEO US A CTIONS 

We have filed eleven other suits in various areas. Some of these include the 
pool industry, the furniture industry, and the television repair industry. 
UTILITIES AND RA TE REGULA TION 

This office has an active interest in matters pertaining to utilities and rate 
regulations. We have intervened in every utility rate case before the Depart- 
ment of Public Utilities. The total amount of money requested by the com- 
panies was approximately one billion dollars. The D.P.U. granted the com- 
panies only 250 million dollars. We appeared for the first time to represent 
consumers in the 1976 Automobile Rate case. We have also filed an appeal 
of the 1976 Auto Rate case which is pending in the Supreme Judicial Court. 
Finally, we have intervened in proceedings before the Small Loans Regula- 
tory Board in which the maximum rate of small loans will be determined for 
the first time in 15 years. It is the first time consumers have been represented 
in this type of matter. The hearings are now concluded and briefs have been 
filed. 
LEGISLA TION 

We review every consumer bill that comes before the Legislature. An 
example of one such bill is House 4771, which we supported, establishing 
rent control for mobile home park tenants in the Peabody area. We sug- 
gested that it be enacted statewide. We are also hopeful that our amend- 
ments to Chapter 93 A to improve the discovery powers of the Attorney 
General and to clarify penalties will be passed. We are also supporting an 
executory contract escrow bill to protect consumers who pay for services in 
advance at health spas, travel agencies, etc. 
FUTURE PLANS 

We will continue our on-going programs in the traditional areas of con- 
sumer complaints. We are developing a computer system to enhance our 
ability and speed in determining patterns of deceptive trade practices. We 
will collect consumer complaint information from local consumer groups, 
other state agencies and our own complaint section. We are confident that 
this system will be in operation within the next six months. We have also 
been working jointly with the Criminal Bureau to develop an economic 
crime program within the Attorney General's Office. We expect that this will 
be operational by early 1977. 



56 



P.D. 12 



LEGAL ACTIONS 



I. ADVERTISING 

Able Rug Cleaners 
Atlantis Sound Inc. 
Brigham's Division, 

Jewel Co., Inc. 
Discount Records 
Harvard Coop 
Huston, Nathan 
Hyannis Hi-Fi, Inc., d/b/a 

Nantucket Sound 
Jordan Marsh 
Kaplan Furniture Co. of 

New Bedford 
Lechmere 

Minute Man Radio Co., Inc. 
Music Land 
Music Smith 
New England Audio Co., Inc. 

d/b/a. Tweeter, Inc. 
New England Music City 
Old Colony Services & Sales, 

d/b/a, Olde Colony Stereo 
Precision Motors 
Record Warehouse 
Stereo Component Systems, 

Inc., d/b/a, Tech Hi-Fi 
Strawberries, Inc. 
Volkswagen of America 

IL AUTOMOBILES 

Abel Ford 
Compact Auto Inc. 
D & J Auto Sales 
Duddie's of Worcester, Inc., 

d/b/a, Duddie Ford, Inc. 
David Eck 
Joseph Fiori, d/b/a Joe 

Fiori's Auto Sales 
Fleischer Auto Sales, Inc., 

d/b/a, Bob's Auto Sales 
Hamilton Motor Sales 
Harold Kent Ford, Inc. 
Middleboro Auto Sales 
Pete's Chrysler - Plymouth 
Toyota of Falmouth 



Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Middlesex 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Suffolk 


In Litigation 


Barnstable 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Norfolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


In Litigation 


Suffolk 


In Litigation 


Suffolk 


In Litigation 


Worcester 


In Litigation 


Suffolk 


Final Judgment 


Worcester 


In Litigation 


Norfolk 


Final Judgment 


Essex 


Consent Judgment 


Barnstable 


In Litigation 


Suffolk 


Consent Judgment 


Hampden 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Suffolk 



III. BANKRUPTCY 

Land Auction Bureau 

Plan of arrangement filed in the Bankruptcy Court: 2,000 consumers notified: $300,000 
will be returned to consumers. 



IV. B USINESS/EMPLO YMENT OPPOR TUNITIES 



Automated Industries Int. 



Continental Employment Agency 
Medical Home Care Services, Inc. 
Mold Specialists Int., Inc. 



Temporary restraining 
Order Granted - Inter- 
locutory Order Granted Bristol 
Assurance of Discontinuance Suffolk 
Consent Judgment Hampden 
In Litigation Norfolk 



P.D. 12 



57 



Overseas Employment Research 
Bureau 

V. SCHOOLS 

ITT 

St. Mary's College 

VI. FOOD 

Yankee Milk 



VII. HEALTH SPAS 

Allen Keene, et al 

(International Health Spas) 
New England Spas, Inc. 



Assurance of Discontinuance 

Settlement 
Injunction 

In Litigation 



In Litigation 
In Litigation 



VIII. HOME IMPROVEMENT 

Domingos Batista Trucking 

& Contracting, Inc. 
Colby Roofing Company 

d/b/a Richard Cass 
Colony Home Products d/b/a 

Earl C. Pentland 
Ventura S. Correia 
Anthony Luisi, Robert Luisi, 

d/b/a Caesaro Construction 

Co., Luisi Contractors 
Thomas O'Connor, d/b/a 

O'Connor Bros. 
Harry Pina, d/b/a Pina 

Drywall & Repair Service 
Paul Bunyan Fence 
San-Mac Industries 
United Vinyl, Inc., Seacoast 

Home Improvement, Inc., 

Vincent R. Hale, Individually 

and as an officer and director 

of United Vinyl, Inc. and of 

Seacoast Home Improvement, 

Inc. 

IX. LANDLORD-TENANT 

Lead Paint 

Julian Frattalone 

Howard Kershaw 

Gertrude Spanos 

Framingham Housing Authority 

Wish Realty Associates 

Security Deposits 

Little & Co. 

Rannan Katz, Ind. & as he is 

Trustee of Victory Realty 
Chatham Development Co. 
Miscellaneous 
Mass. Rentals, d/b/a 

Citywide Rentals, 

City R.E., and 

Barry Levine 
Loring Towers 



In Litigation 

In Litigation 

In Litigation 
In Litigation 

In Litigation 

In Litigation 

In Litigation 
Contempt Petition 
Consent Judgment 



In Litigation 



Consent Judgment 
In Litigation 
Consent Judgment 
Consent Judgment 
Consent Judgment 

Consent Judgment 

In Litigation 
Consent Judgment 



Consent Judgment 
Consent Judgment 



Suffolk 



Suffolk 
Suffolk 



Supreme Judicial 
Court 



Suffolk 
Middlesex 



Bristol 

Norfolk 

Barnstable 
Bristol 

Suffolk 

Middlesex 

Bristol 

Suffolk 

Essex 



Suffolk 



Suffolk 

Plymouth 

Middlesex 

Middlesex 

Plymouth 

Suffolk 

Suffolk 
Middlesex 



Suffolk 
Suffolk 



58 



P.D. 12 



Brandywine Village Co. 

V. Tenants First 

Coalition 
Home-Like Apartments 

XI. REAL ESTATE 

Murphy (Bird, Inc.) 
Bull Finch Realty 
Skyline Manors, Inc. 

XII. TRAILER PARKS 

Garden Mobilehome Park 
Gustafson, Evert 



XIII. TRAVEL 

International Leisure Services, 
d/b/a, Irwin Berman 

Quality Travel Corporation 
of America 



Dadian Associates, Inc. 

Dorchester Weyport Trust 

R.J. Ferioli, Inc. 

Little & Co., Inc. 

Page Realty, d/b/a, Roger 

C. Rao, Inc. 
Dan Potter, d/b/a, Dan 

Potter Insurance Agency 
Realty Sales Co., d/b/a 

Arthur LaFranchise, Jr. 
John Federoff, d/b/a The 

Federoff Agency 

XV. HEALTH 

Hearing A ids 
Accousticon of Worcester 
d/b/a Richard Ostrander 



E & S Enterprises, Inc., 
d/b/a Beltone Hearing 



Motion to Intervene 
Assurance of Discontinuance 



Temp. Rest. Order 
In Litigation 
Complaint Filed 



Discovery 

Supreme Judicial Court 
came down with a deci- 
sion regarding the Mass. 
mobilehome statute. 



Defendant assessed a 
Civil penalty of 
$5,000 for non- 
compliance of a Civil 
Investigative Demand 



Suffolk 
Suffolk 



Middlesex 

Suffolk 

Hampden 

Plymouth 



Plymouth 



In Litigation 


Suffolk 


In Litigation 


Norfolk 


VIOLA TIONS 

In Litigation 

Assurance of Discontinuance 
Consent Judgment 
Consent Judgement 


Middlesex 
Suffolk 
Plymouth 
Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Norfolk 


Consent Judgment 


Plymouth 


Contempt Petition 


Suffolk 



Worcester 



Aid Service 


Final Judgment 


Suffolk 


Health Information 






Bellotti, et al v. F. 




U.S. District 


David Matthews, Secretary 




Court of the 


ofHEW(PSRO Complaint) 


In Litigation 


District of 
Columbia 


VI. MISCELLANEOUS 






Apex Pools 


In Litigation 


Hampden 


Associated Pools 


In Litigation 


Norfolk 


Emerson Rug Co. 


Assurance of Discontinuance 


Suffolk 


International Computer 






Match of Boston, Inc. 


Complaint Filed 


Suffolk 


International Magazine 


In Litigation 


Suffolk 



P.D. 12 



59 



In Litigation 



Essex 



Consent Judgment 
Complaint Filed 
Master's report 
In Litigation 

Complaint Filed 
In Litigation 
In Litigation 

In Litigation 



In Litigation 



Suffolk 
Hampden 
Norfolk 
Suffolk 

Middlesex 
Hampden 
Suffolk 

Suffolk 



SJC 



Jack's Radio & TV 
Kings Row Fireplace, Inc. 

Vincent J. Hewitt, Hewitt 

Associates, Inc. 
Marquise China Co. 
Paul J. Woods Pools 
Seamless Flooring 
Sheldon Butler, d/b/a, 

AAA Rental 
Town & Country Pools 
Town T.V. 
Supreme Furniture, d/b/a 

Summerfields 

XVII. RATE REGULATION 

Insurance 

Bellotti V. Comm. of Insurance 
1976 Auto Insurance Case 
1976 Blue Cross/Blue Shield Case 
Utility rate cases before the 
Department of Public Utilities 
Baystate Gas 
Boston Edison (2) 
Boston Gas 
Brockton Edison 
Cambridge Electric 
Cape Cod Gas 
Commonwealth Gas 
Fall River Gas 
Fitchburg Electric 
Haverhill Gas 
Lawrence Gas 
Lowell Gas 

Massachusetts Electric (2) 
New Bedford Gas & Electric 
New England Telephone 
Western Mass. Electric (2) 
Other A ctions 

New England Telephone - Billing and Termination Regulations 
Montaup Power Co. - Motion to Intervene - Federal Power Commission 
New England Power Company - Motion to Intervene-Federal Power Commission. 



ENVIRONMENTAL PROTECTION DIVISION 



I. INTRODUCTION 

The Environmental Protection Division is established by statute, G.L. 
C.12, §11D, which also authorizes the Attorney General to take all necessary 
affirmative action to prevent or remedy damage to the environment. 

The Division is presently staffed by a Chief, four Assistant Attorneys 
General, four secretaries and a Natural Resource Economist. The Secretary 
of Environmental Affairs and the Departments within her jusidiction gener- 
ate the bulk of the enforcement cases and defenses handled by the Division. 
In addition to following the mandate of G.L. c.l2, §11D, the Division 
initiates ca.ses on behalf of the Attorney General in many areas of environ- 
mental concern. 



60 P.D. 12 

Massachusetts has a relatively long-standing and well-established struc- 
ture of environmental legislation covering, inter alia, air and water pollution, 
coastal and inland wetlands protection, solid waste disposal regulation and 
outdoor advertising control. The Division is also the legal representative of 
the Energy Facilities Siting Council, which regulates the siting and construc- 
tion of electrical generating facilities, oil pipelines and facilities associated 
with oil refining and production. 

The Commonwealth's commitment to environmental protection is rein- 
forced by the Massachusetts Environmental Policy Act and Article 97 of the 
Amendments to the Massachusetts Constitution, the "Environmental Bill of 
Rights." 

During the past year, the Division has for the first time since its establish- 
ment in 1972, been the recipient of federal grant funds. In recognition of the 
central role performed in Massachusetts by the Attorney General in the 
enforcement of federal and state air and water pollution standards, the U.S. 
Environmental Protection Agency granted the Division $86,000 in FY76. 
These monies have been used primarily for additional staffing, including 
several new attorneys who will join the office in September. 

In addition to conventional legal responsibilities. Attorneys for this Divi- 
sion sit as hearing officers in adjudicatory hearings held pursuant to the 
procedures of the Department of Environmental Quality Engineering. 

II. DESCRIPTION OF CA TEGORIES OF CASES 

A. AIR 

Air pollution cases are usually referred from the Department of Envi- 
ronmental Quality Engineering, Division of Air Quality Control, for 
violations of the state Air Pollution Regulations. The most frequent 
violations of these Regulations at the present time seem to be munici- 
pal incinerators. The statutory authority is M.G.L. c. 1 1 1, §42. 

B. WATER 

Water pollution cases are referred from the Division of Water Pollu- 
tion Control. These cases generally involve a violation of discharge 
permits issued jointly by the Commonwealth's Division of Water Pol- 
lution Control and the United States Environmental Protection Divi- 
sion. Other water pollution cases involve seeking the recovery of costs 
expended in order to clean up oil spills. The statutory authority is 
M.G.L. C.21, §§26-53. 

C. WETLANDS 

Wetland cases are generally referred from the Department of Environ- 
mental Quality Management, Wetlands Section; the Department of 
Environmental Quality Engineering; or by citizen complaints. These 
cases fall into two categories: (1) cases involving the permit program 
for altering of wetlands under M.G.L. c. 13 1 §40 and (2) cases challeng- 
ing the development restrictions which the State is authorized to 
impose on inland and coastal wetlands pursuant to M.G.L. c. 130, §150. 



P.D. 12 61 



D. SOLID WASTE 

Solid waste cases originate from the Department of Environmental 
Quality Engineering, Division of General Environmental Control. 
These cases involve the manner in which refuse is disposed and the 
enforcement of the state's sanitary landfill regulations. The statutory 
authority is M.G.L. c.l 1 1, §150A. 

E. BILLBOARD 

Billboard cases are referred from the Outdoor Advertising Board. 
These cases are governed by M.G.L. c.93, §§29-33, which regulate and 
restrict outdoor advertising and authorize a permit program. A major- 
ity are defenses to petitions for judicial review from decisions of the 
Outdoor Advertising Board. 

F. NON-CATEGORICAL 

A number of matters are handled by this Division each year which do 
not fall into the categories above. These are often those initiated or 
pursued by the Attorney General in areas of broad environmental 
policy, including, for example, nuclear power plant siting and con- 
struction, amicus curiae briefs to the SJC and the Supreme Court, 
NEPA and MEPA cases, administrative interventions, and energy 
policy. 



III. DISPOSITION OF CASES 

A. During FY76 (July 1, 1975 through June 30, 1976) this Division 
opened the following number of cases in each of the listed categories: 

AIR 9 

WATER 41 

WETLANDS 32 

SOLID WASTE 21 

BILLBOARDS 23 

NON-CATEGORICAL 12 
Total number of cases 

opened during FY76 = 138 

B. During FY76 (July 1, 1975 through June 30, 1976) this Division closed 
the following number of cases in each of the listed categories: 

AIR 24 

WATER 21 

WETLANDS 18 

SOLID WASTE 8 

BILLBOARDS 8 

NON-CATEGORICAL 3 
Total number of cases 

closed during FY 76 = 82 



62 P.D. 12 

C. As of June 30, 1976, the following number of cases remained open in 
this office in each of the listed categories: 

AIR 20 

WATER 51 

WETLANDS 104 

SOLID WASTE 34 

BILLBOARDS 47 

NON-CATEGORICAL 16 
Total number of cases 
remaining active as of 

June 30, 1976 = 272 

IV. SOME SIGNIFICANT CASES 
A. AIR 

WILLIAM J. BICKNELL/DEPARTMENT OF PUBLIC HEALTH 
vs. CITY OF BOSTON 

This case was referred by the Department of Public Health. The 
City's municipal incinerator, which was the largest uncontrolled 
source of air contaminants in the State, was in violation of the State's 
Air Pollution Control Regulations. After a lengthy and very compli- 
cated trial. Judge Hallisey ordered the Boston municipal incincerator 
closed immediately. After argument, the Supreme Judicial Court 
denied the City's request to stay the Superior Court's order pending 
appeal, but granted a maximum three-week stay to allow the City to 
burn refuse already trucked to the site. This was the first and most 
significant air pollution control case to be litigated in the Common- 
wealth. The results and the Court's opinion in the case were published 
in national journals. The decision held, inter alia, that lack of funds is 
no answer in equity for failure to meet pollution standards. 

DEPARTMENT OF ENVIRONMENTAL QUALITY ENGI- 
NEERING vs. CITY OF FALL RIVER 

This case was referred by the Department of Environmental Qual- 
ity, Division of Air Quality Control. The City of Fall River was operat- 
ing its municipal incincerator in violation of State Air Pollution Con- 
trol Regulations. This Division entered into a Consent Order with the 
City of Fall River, which provided for the closure of the incinerator by 
June of 1976. On May 27th the closure date was extended to July 15, 
1976. 

WILLIAM J. BICKNELL/DEPARTMENT OF PUBLIC HEALTH 
vs. CITY OF HOLYOKE 

This case was referred by the Department of Public Health. The 
City of Holyoke was operating its municipal incinerator in violation of 
the State's Air Pollution Control Regulations. This Division sought a 
Preliminary Injunction which would prohibit the defendant from 



It should be noted that during FY76 this Division recovered $38,314.80 in civil penalties and in the recovery of costs 
incurred by the Division of Water Pollution Control during oil spill clean up operations. 



P.D. 12 ^ 63 



operating its municipal incincerator. The Motion for Preliminary 
Injunction was denied and the case was scheduled for trial. After 
lengthy negotiations, a Consent Order was worked out providing for 
the closure of the incinerator by July 31, 1976. 

B. WATER 

DIVISION OF WATER POLLUTION CONTROL vs. WORCES- 
TER SPINNING AND FINISHING COMPANY 

This case was referred by the Division of Water Pollution Control, 
which requested that EPD take action against the Worcester Spinning 
and Finishing Company for its violation of a final decision rendered 
after an adjudicatory hearing proceeding. The EPD filed a Consent 
Judgment in this matter, which provided for an $8,000 civil penalty, a 
mandatory injunction requiring the construction of pollution control 
equipment, and fines for the failure to meet the construction schedule. 

DIVISION OF WATER POLLUTION CONTROL vs. W. R. 
GRACE CHEMICAL COMPANY and the CITY OF NORTH 
ADAMS 

This case was referred by the Division of Water Pollution Control. 
Suit was filed against the W. R. Grace Company for illegally dumping 
hazardous waste materials into a landfill site and against the City of 
North Adams for allowing the dumping of these hazardous materials 
into a landfill site owned and operated by the City. A Consent Judg- 
ment was filed in this matter, which provided for a $2,000 civil penalty 
against the company and a $1,000 civil penalty against the City. 

DIVISION OF WATER POLLUTION CONTROL vs. CARLING 
NATIONAL BREWERIES, INC. 

This case was referred by the Division of Water Pollution Control 
because of Carling Breweries' violation of its NPDES permit, issued 
jointly by the Division of Water Pollution Control and the United 
States Environmental Protection Agency. The defendant's plant was 
discharging industrial wastes into the waters of Lake Cochituate. This 
Division filed an Order for Judgment, which provided for a $1,000 civil 
penalty and a cessation of violation. 

DIVISION OF WATER POLLUTION CONTROL vs. CITY OF 
REVERE 

This case was referred by the Division of Water Pollution Control. 
This suit was brought to enforce a joint federal - state discharge permit. 
The problems which have resulted in sewage being introduced into the 
storm drainage system after reaching the beach have been known for 
many years. However, it was not until EPD brought suit that any 
progress was made toward rectifying them. In April of 1976 a Consent 
Judgment was filed which provided schedules for initiating and com- 
pleting the necessary engineering work, an escrow account to be 
administered by EPD for use in the event that the City did not contract 
to have the work performed and a liquidated damages clause. 



64 P.D. 12 



DIVISION OF WATER POLLUTION CONTROL vs. ROCH- 
DALE FUEL COMPANY 

This case was referred by the Division of Water Pollution Control. 
The Division of Water Pollution Control was seeking to recover money 
it had expended to clean up an oil spill caused by the Rochdale Fuel 
Company. A tentative agreement was reached and the company will 
pay the sum of $26,000 to cover the costs incurred by the Division of 
Water Pollution Control during the oil spill clean up process. 

C. WETLANDS 

BRUCE MacGIBBON vs. BOARD OF APPEALS OF THE TOWN 
OF DUXBURY 

This Division entered this case as amicus curiae on a motion for 
reconsideration after the SJC had issued a decision in ruling against 
the Town of Duxbury which contained language on the "taking" issue 
damaging to the Commonwealth's and federal government's wetlands 
control programs. Two modifications to the decision were subse- 
quently issued by the SJC which severely limited the decision's effect 
and explicitly removed any inference that a constitutional issue had 
been decided. 

D. SOLID WASTE 

WILLIAM J. BICKNELL/DEPARTMENT OF PUBLIC HEALTH 
vs. TOWN OF BRIDGEWATER 

This case was referred by the Department of Public Health. The 
Town of Bridgewater had been in violation of the State's Sanitary 
Landfill Regulations for years and had become a symbol of municipal 
resistance to environmental standards. This Division's Motion for 
Summary Judgment was granted and the Town was ordered to close 
its dump. This was probably the first Summary Judgment enforcing an 
administrative order in the Commonwealth, and put teeth into our 
enforcement posture statewide. 

WILLIAM J. BICKNELL/DEPARTMENT OF PUBLIC HEALTH 
vs. TOWN OF NEWBURY 

This case was referred by the Department of Public Health. The 
Town of Newbury was in violation of the Sanitary Landfill Regula- 
tions. On a Motion for Preliminary Injunction the Town was ordered 
to take affirmative steps to comply with the Regulations, including 
hiring an engineer submitting plans, and implemention. In order to 
insure that this is carried out, the Division has set up an escrow 
account, which will total $23,000. We have received the first install- 
ment of $3,000. The funds will be jointly administered by this Division 
and the Town of Newbury, and will be used to pay for the engineering 
work required to draw up the plans and for their implementation. 

DEPARTMENT OF ENVIRONMENTAL QUALITY ENGI- 
NEERING vs. RUBCHINUK 

This case was referred by the Department of Environmental Quality 
Engineering. Mr. Rubchinuk was dumping large volumes of refuse 



P.D. 12 65 

and was in violation of an administrative order requiring cessation. It 
had developed into a local "cause celebre." A hearing was held before 
Judge Adams,who entered an Interlocutory Order restricting much of 
the dumping and ordering a speedy trial, which was held in November 
of 1975. A Consent Order was reached whereby the defendant agreed 
to comply with the final decision of the Department, after a hearing on 
its administrative order. 

In November of 1975 a fire broke out at the site which burned for 
three months and was visible for miles. Because of the noxious fumes 
and smoke, an Air Pollution Emergency was declared by Governor 
Dukakis. When Rubchinuk was unwilling to take the necessary steps 
to put out the fire, it required a several week combined effort of the 
National Guard, Department personnel and the local fire department, 
to put out the fire. Because Mr. Rubchinuk interfered with the fire- 
fighting efforts, we obtained a restraining order and preliminary 
injunction against such interference in Suffolk Superior Court. 

A final agency decision was issued after a hearing in March, which 
ordered the defendant to cease all dumping and submit a closing plan 
in thirty days. A Motion for Stay Pending Appeal was denied by the 
Superior Court. When the defendant failed once more to submit a 
closing plan or to allow inspections of his property, we obtained a 
contempt order for his violation of the Consent Order discussed above. 
The defendant has again started dumping on his property, so we are 
now seeking a further contempt order and fines. 

E. BILLBOARD 

JOHN DONNELLY & SONS vs. OUTDOOR ADVERTISING 
BOARD - (Brookline) 

Donnelly was denied renewal of 22 permits issued by the Outdoor 
Advertising Board (OAB) for off-premise signs in business and indus- 
trial districts of Brookline pursuant to an OAB regulation committing 
the state agency to enforcement of local by-laws and ordinances. The 
action of the Board effected a prohibition of off-premise billboards in 
Brookline. This case proceeded to the SJC which issued a nationally 
noted landmark decision holding inter alia that land use and zoning 
based on aesthetic considerations alone are within the scope of permis- 
sible public purpose. An appeal to the U.S. Supreme Court was 
withdrawn. 

F. NON-CATEGORICAL CASES 

HOLYOKE WATER POWER COMPANY/WESTERN MASS 
ELECTRIC COMPANY - CONNECTICUT RIVER FISHWAYS 
CASE 

This Division represented the fishery agencies of all the States in the 
Connecticut River Basin (Massachusetts, Connecticut, Vermont, and 
New Hampshire) in hearings before the Federal Power Commission to 
require the Western Massachusetts Electric Company to install fish 
passage facilities at its dam at Turners Falls, Massachusetts. After 



66 P.D. 12 



evidence was presented, an agreement was reached which will require 
the company to complete two sets of facilities by 1981 and 1983. This 
result is a major milestone in the states' program to restore salmon, 
shad and other anadromous species to the Connecticut River. 

TENNECO vs. COMMONWEALTH, et al 

The Division is defending the Massachusetts Energy Facilities Siting 
Council against a federal court suit challenging the state's authority to 
regulate the siting of gas pipelines on grounds preempted by the federal 
government. The case involves issues of first impression. 

PETITION TO THE CONSUMER PRODUCTS SAFETY 
COUNCIL 

The Attorney General joined a petition of the Natural Resources 
Defense Council asking for a hearing on whether certain fluorocarbon 
compounds should be banned as hazardous products. 

NON-CATEGORICAL — NUCLEAR POWER PLANTS 

SEABROOK, NEW HAMPSHIRE NUCLEAR REACTOR PRO- 
CEEDINGS 

The Attorney General intervened as an interested state in the NRC 
licensing proceedings for two nuclear plants in Seabrook, New Hamp- 
shire, which is three miles from the Massachusetts border. Along with 
regional and local environmental groups, and the state of New Hamp- 
shire, the Attorney General presented evidence in the hearings on energy 
policy issues of importance to Massachusetts, such as siting consideraton, 
evacuation plans, etc. After almost three years, a decision was issued July 
1, 1976, granting the permits but containing an unprecedented dissent by 
the "environmental member" of the licensing board. We have appealed. 

BOSTON EDISON/PILGRIM GENERATING STATION 
UNIT #2 

As a party to the pending licensing proceedings for a second reactor at 
Plymouth, the Attorney General has presented a full affirmative case of 
ten expert witnesses and has participated in some eleven weeks of eviden- 
tiary hearings since October of 1975. During the two and one-half years 
pendency of this proceeding, the applicant, Boston Edison Company has 
dropped its original application for a third reactor. In addition, the licen- 
sing board in an unprecedented ruling pursuant to our motion, ordered 
the NRC staff to write its Environmental Impact Statement on the need 
for power. A decision in this matter is not expected for months. 

MONTAGUE POWER PLANT 

This proceeding concerns the application of the Northeast Utilities 
Company to construct nuclear power plants in Montague, Massachusetts. 
The Commonwealth has moved and argued that the entire proceeding be 
suspended because of the applicants announcement of a five-year delay in 
its construction schedule. The utility vigorously maintains its right to 
convene the proceedings essentially at its own convenience and would like 
to sit on a license until it decides it should be built. The proceedings have 



P.D. 12 67 



been de facto suspended since the Board has had the Commonwealth's 
motion before it since May 5, 1976. 

V. VETERANS' DIVISION 

The Veterans' Division continues to function primarily as an informa- 
tional agency, referring private citizens to appropriate federal and state 
officials and agencies so that they may obtain the benefits to which they are 
entitled. The Division provides day-to-day counsel to the Office of the 
Commissioner of Veterans' Services and the Veterans' Affairs Division of 
the Department of the Treasury. 

The Division is currently handling litigation in the Supreme Court of the 
United States concerning the validity of the Massachusetts Veterans' Prefer- 
ence statute. Other significant cases handled include an equal protection 
challenge to the validity of the system of tuition waivers at state colleges for 
qualified veterans. 



The Following Pages 
Contain Opinions Rendered 
by the Attorney General 
during the Year. 



68 P.D. 12 

Number 1 July 3, 1975 

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 whether certain employees of the St. 
Basil's Seminary for the Eastern Rites and the Salvatorian Center for Ecu- 
menical Studies may be appointed to serve as "special police officers" for 
certain properties of the Melkite Exarchate (in Methuen and other localities) 
pursuant to G.L. c. 147, § lOG. Section lOG provides, imer alia, as follows: 
"The commissioner may at the request of an officer of a college, 
university or other educational institution appoint employees of 
such college, university or other institution as special police 
officers . . . ." ■ 
The essential requirement for appointment under § lOG is that it relates to 
an educational institution. Such an institution need not be exclusively educa- 
tional to qualify under § lOG; however, a substantial proportion of the 
institution's activities must be focused upon the formal and vocational edu- 
cation of its members. 1967-1968 Op. Atty. Gen. 75. The Supreme Judicial 
Court has classified institutions as educational where its stated purpose is 
"clearly educational" and the work actually done is "dominantly 
educational . . . and not merely incidental to some other dominant pur- 
pose." Assessors of Boston v. Garland School of Home Making, 296 Mass. 
378, 386-87 (1937). See also, 1970-1971 Op. Atty. Gen. 17. 

The request which prompted your inquiry is made by the Apostolic Exar- 
charte for the Melkite whose purpose, according to its corporate by-laws, is 
to: 

". . . promote and support public worship; to establish, acquire, 
take over, manage, direct, conduct, promote and contribute to 
any religious, benevolent, charitable, educational, or missionary 
undertaking or undertakings. . . ." 
While part of the Exarchate's goals include the furthering of education, it 
does not appear that education is the dominant purpose of the Exarchate; 
rather, education seems merely to be incidental to the primary purpose of 
promoting and furthering religious activities. On this basis, then, the 
Exarchate is not an institution which qualifies under G. L. c. 147, § lOG. 

Moreover, the request itself specifically refers to such Exarchate proper- 
ties as a diocesan chancery, a cathedral, two churches, and a chapel, which 
are not generally defined as educational institutions. The request for 
appointments is, therefore, too broad. A more narrow request concerning 
particular properties would permit appointment under § lOG should you 
determine, in your discretion, that such request pertained to an educational 
institution, as defined above, and was presented by an officer of that 

institution. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 69 



Number 2 July 8, 1975 

John R. Buckley 

Secretary of Administration and Finance 

State House 

Boston, Massachusetts 02133 

Dear Secretary Buckley: 

By letter of May 23, 1975, you have requested an opinion on the following 
questions: 

(1) Whether lack of funds, as demonstrated by the Governor's FY 1976 
budget recommendations to the General Court, is sufficient basis for 
termination of permanent civil service employees in light of M.G.L. 
Chapter 31, Section 43 (a) or 

(2) Whether there would be sufficient basis for termination of permanent 
civil service employees because of "lack of money" only after the 
Legislature has acted on the Governor's proposed budget in light of 
M.G.L. Chapter 31, Section 43(a) (emphasis added). 

(3) Given Federal law, specifically the 14th Amendment and Federal 
EEOC requirements, as well as the Governor's Executive Order No. 
1 16, is Section 46G of M.G.L. Chapter 31 constitutional given the fact 
that there will be a disproportionate percentage of minorities and/or 
women representing the most recent groups to enter state service who 
ultimately will be laid off (Footnote omitted). 

I shall address these questions in order. 
L Lack of Funds or Money 

I shall treat the first and second questions together (as suggested by the use 
of the conjunction "or" at the end of the first question). They form the 
following issue: 

May permanent civil service employees be terminated for "lack 
of money" solely on the basis of the Governor's FY 1976 budget 
recommendations or, rather, must such terminations await legis- 
lative action on the Governor's proposed budget — presumably 
action by the passage of an appropriation act? 
It is my opinion that the Governor's FY 1976 Budget recommendations do 
not constitute "lack of money" as that phrase is used in G.L. c.31, §43(a). 
Permanent civil service Employees may not be so terminated, in accordance 
with this statute, until and unless the Legislature has failed or refused to 
provide the necessary funds for such positions.* 

The second sentence of Mass. G.L. c. 31, §43(a), provides that a perma- 
nent civil service employee's office or position may not be terminated 
"except for just cause and for reasons specifically given him in writing". A 
lack of work or "lack of money" is cited in the next sentence of that section as 
one basis for establishing the requisite "just cause". 

In responding to your questions, I will assume, without deciding the point, 



•This conclusion is reached without reference to any specific budget statute, either enacted or now pending before the 
Legislature. 



70 P.D. 12 



that the anticipated terminations would be within the scope of Mass. G.L. c. 
31, § 43(a). 

The appropriation of funds is an exclusively legislative function, to be 
exercised only by the General Court. Mass. Const., Part II, c.l, §1, art. 4; 
Mass. Const. Amendments, art. 63, §3; Baker v. Commonwealth, 312 Mass. 
490, 493, 45 N.E. 2d 470, 472 (1942); Opinion of the Justices, 302 Mass. 605, 
612-13, 19 N.E. 2d 807, 813 (1939). The Governor has the power and duty to 
recommend that appropriations be made by the General Court. Mass. 
Const., Amendments, art. 63, §§2 and 3. The Governor cannot determine the 
actual level of appropriations, since that is a legislative function. There is no 
"lack of money" merely because the Governor, in his FY 1976 budget 
recommendations, may propose reduced levels of expenditure. Whether or 
not there is a "lack of money" must be determined by reference to the actual 
levels of appropriation by the General Court. 

Therefore, I answer your first and second questions "No" and "Yes" 
respectively. 

II. The Constitutionality of G.L. c.31,§46G 
Section 46G of M. G.L. c.31 provides that: 

If the separation from service of persons in the official or labor 
service results from lack of work or lack of money or from 
abolition of positions, they shall be separated from service by 
class and grade, except as hereinafter provided, and be reinstated 
therein in the same position or in a similar position as that 
formerly held by them, according to their seniority in the service, 
so that the senior officers or employees in length of service shall 
be retained the longest and reinstated first and before any certifi- 
cation of new names. Before any action is taken to effect such a 
separation from service of any officer or employee, seven days' 
written notice thereof shall be given to him by the appointing 
authority. 

This Section pertains only to one class of state employees — those classi- 
fied in civil service. The layoff and recall procedure for classified civil 
servants is governed by an employee's inverse seniority on the job so that the 
last employee hired would be the first employee laid off Section 46G does 
not apply to tenured non-civil service employees, non-tenured employees 
appointed on a provisional, probationary or temporary status, or persons 
employed in positions not subject to G.L. c. 31. Layoffs for non-tenured or 
non-civil service employees are not covered by the seniority limitations of 
G.L. c. 31, § 46G. Thus, this section of the opinion concerns itself only with 
the state employees classified in civil service. 

We turn now to those instances where a layoff might affect classified civil 
service employees. At the outset we make explicit three crucial points. First, 
we recognize that there has been no finding that the Commonwealth or Civil 
Service has engaged in past discrimination in hiring. Second, this opinion 
assumes the absence of such discrimination. Finally, implicit in your ques- 
tion, is the assumption that layoffs of state employees would have an adverse 
impact on minorities and women since those persons would have dispropor- 



P.D. 12 ' 71 



tionately low seniority among classified civil service state employees. 

The constitutionality of the traditional seniority system, the "last hired- 
first fired" system as a standard of layoffs and recalls with disproportionate 
impact on minorities and women, has not been conclusively resolved. 
Although it may do so in the next year, the Supreme Court has not reached 
this issue in any decision. The lower federal courts are divided as to whether 
layoffs consistent with "last hired, first fired" would unlawfully perpetuate 
the effects of past discrimination and thereby violate Title VII, 42 U.S.C. 
Sec. 2000e et seq. The courts which have sustained challenges to the seniority 
system have done so upon a finding that there was past discrimination which 
was perpetuated by the seniority system. Watkins v. United Steel Workers, 
369 F. Supp. 220 (E.D. La. 1974), appeal docketed no. 74-2604, 5th Cir., June 
17, 1974. Loy v. City of Cleveland, 8 FEP Cases 614, dismissed as moot at 8 
PEP Cases 617 (N.D. Ohio 1974). Other federal courts have found that 
layoffs conducted in reverse order of seniority are racially neutral and do not 
perpetuate the effects of past discrimination. Waters v. Wisconsin Steelwork- 
ers of International Harvester Co., 502 F. 2d 1309 (7th Cir. \91 A) petition for 
cert, filed, 43 U.S.L.W. 3476 (U.S. Feb. 24, 1975) (No. 74-1064); Jersey 
Central Power and Light Co. v. Local Unions 327 et al. of the International 
Brotherhood of Electrical Workers, 508 F.2d 687, 9 FEP Cases 1 17 (3rd Cir. 
1975). 

State courts have not addressed the issue of seniority systems as they 
perpetuate past discrimination. 

The split of authority among the federal courts and the absence of author- 
ity in the state courts leave unsettled the precise issue raised by your 
question. 

In these circumstances, certain axioms of constitutional law must be our 
guide. First, a statute enjoys a presumption of constitutionality. See, e.g., 
McCulloch V. Maryland, 17 U.S. (4 Wheaton) 316, 421 (1819); Ashwander v. 
Tennessee Valley Authority, 297 U.S. 288, 341 (Brandeis, J., concurring); 
James v. Strange, 407 U.S. 128, 133 (1972); Pinnick v. Cleary, 361 Mass. 1 
(1971); 42 A.L.R. 3d 194, 208, 218 (cases collected). 

Second, a statute must be interpreted to avoid a conclusion of unconstitu- 
tionality when the law supports such a conclusion. See, e.g., Crowell v. 
Benson, 285 U.S. 22, dl {\9'}>2)\ Ashwander \ . Tennessee Valley Authority, 297 
U.S. 288, 348-349 & n.8 (cases collected) (Brandeis, J., concurring); Com- 
monwealth 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. Massachusetts Bay Trans- 
portation Authority, 1974 Mass. Adv. Sh. 1447, 1453. 

Finally, under our explicit assumption of no prior discriminatory hiring of 
civil service state employees, one assailing the statute on constitutional 
grounds bears the burden of proving the absence of any conceivable grounds 
upon which the statute could be supported. See, e.g.. Commonwealth v. 
Henry's Drywall Co., Inc., 1974 Mass. Adv. Sh. 2377, 2380; Colella v. State 
Racing Commn., 1971 Mass. Adv. Sh. 1317; Anton's of Reading, Inc. v. 
Reading, 346 Mass. 575, 576 (1974); McQuade v. New York Cent. R.R., 320 



72 P.D. 12 



Mass. 35 (1946); Merit Oil Co. v. Director of the Division on the Necessaries of 
Life, 319 Mass. 301, 306 (1946). 

In light of these principles, I conclude that G.L. c. 31, § 46G, is constitu- 
tional and that its operation would not conflict with federal EEOC require- 
ments or Executive Order No. 1 16. 1 answer your third question "Yes". 

Very truly yours 

FRANCIS X. BELLOTTI 

Attorney General 



Number 3 July 9, 1975 

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

Dear Commissioner Kehoe: 

You have requested my opinion with respect to the payment of witness 
fees to officers of the State Police. The propriety of such payments was the 
subject of opinions issued by previous Attorneys General (see Op. Atty. Gen. 
Sept. 20, 1960, p. 53; Op. Atty. Gen. Nov. 3, 1967, p. 129), but intervening 
legislation has caused you to question the continuing validity of these opi- 
nions. You now ask the following specific questions: 

1. What is the effect of Chapter 1004 of the Acts of 1971 (now 
G. L. c. 149, § 30C) granting State Police a forty hour work week 
with overtime compensation on the September 20, 1960 and 
October 18, 1967 Opinions of the Attorney General interpreting 
G. L. c. 262, § 53C, which requires the payment of witness fees to 
State Police officers on duty at night? 

2. Under G. L. c. 262, § 53C and G. L. c. 149, § 30C is a State 
Police officer, whose normal tour of duty on a day or court 
appearance is a day shift, entitled to a witness fee even though the 
Commonwealth is compensating him for being on duty and pay- 
ing him for the time he is spending in court? 

The opinion issued by Attorney General McCormack on September 20, 
1960 dealt with the question of when a state officer is "on duty at night" 
within the meaning of G. L. c. 262, § 53B. At the time of the opinion the 
officers followed a "military routine" whereby they were subject to twenty 
four hour call, spent their off hours in the state police barracks and received 
a day of furlough each four days. After examining the pertinent state and 
federal case law, the Attorney General concluded that spending off hours in 
the barracks did not constitute being "on duty." Thus, an officer was on duty 
at night only if any part of the shift he worked occurred during the night 
time. 

Chapter 1004 of the Acts of 1971, now G. L. c. 149, § 30C, eliminated the 
military routine. State Police officers no longer spend their off hours in the 
barracks. This change eliminated the occasion for the original request, but 



P.D. 12 73 



did not affect the underlying validity of the opinion's reasoning. I reaffirm 
the conclusion of that opinion that a State Police officer is eligible for a 
witness fee under G. L. c. 262, § 53B only when his tour of duty includes 
night time hours. 

Your request for an opinion also calls into question the current applicabil- 
ity of the 1967 opinion of then Attorney General Richardson. In that opinion 
the Attorney General stated that officers of the State Police were not covered 
by G. L. c 262, § 53C. They were, therefore, ineligible to receive either 
compensatory time off or additional hourly compensation in lieu of witness 
fees, as provided by that Section. The opinion then went beyond the ques- 
tions posed and attempted to advise municipalities of the scope of Section 
53C. 

Chapter 664 of the Acts of 1970 amended Section 53C so as to negate that 
portion of the 1967 opinion of the Attorney General dealing with the applic- 
ability of Section 53C to the State Police. Section 53C now explicitly covers 
officers of the State Police within the Department of Public Safety. While the 
legislature altered the applicability of Section 53C, it did not significantly 
amend the balance of the statute. Thus, that portion of the 1967 opinion 
which purports to explain the workings of the statute remains valid. Because 
Section 53C now applies to the State Police, the advisory section of the 1967 
opinion pertains to your administration of the statute. I have enclosed a copy 
of that opinion for your information. 

Your second question concerns the payment of witness fees to officers of 
the State Police who are working day shifts. It is my opinion that such 
payments are unlawful. General Laws, c. 262, § 50 makes it a criminal 
offense for any police officer receiving a salary from the Commonwealth or 
a political subdivision thereof to accept witness fees or additional compensa- 
tion for appearances as a Commonwealth witness - except as provided in the 
succeeding sections. Witness fees are authorized by Section 53 B to be paid 
only to State Police officers "on duty at night, or on vacation or furlough, or 
on a day off" I, therefore, answer your second question in the negative; if an 
officer is on duty in the day time and must also go to court on that day, he is 
not entitled to a witness fee. 

Respectfully submitted, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 4 July 10, 1975 

John E. Harrington, Jr. 

Assistant Chief of Fire Training 

Massachusetts Firefighting Academy 

P. O. Box 948 

Framingham, Massachusetts 01701 

Dear Mr. Harrington: 

Your letter of April 7, 1975 has posed the following question: 

Is the signature of an individual student sufficient to release the 



74 P.D. 12 



Massachusetts Firefighting Academy from liability resulting 
from accidental injury to the student or must his Department 
Head sign the release? 
A right which has not yet arisen may be released. Such releases have been 
held valid provided that the student is given sufficient opportunity to read 
the release prior to signing and the release is clearly worded to avoid any 
misunderstanding. A release obtained under these circumstances and in the 
absence of fraud, duress or misrepresentaton or violation of a statutory 
requirement is a bar to an action by the signer. Henry v. Mansfield Beauty 
Academy, 353 Mass. 507 (1968); Lee v. Allied Sports Associates, Inc., 349 
Mass. 544(1965). 

It is my opinion that an individual student may release the Academy from 
liability for injury to himself and that the signature of the student is sufficient 
for that purpose. There is no apparent reason why the Department Head's 
signature would make a release effective on behalf of the student. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 5 July 10, 1975 

Nicholas Roussos, Commissioner 

Executive Office of Manpower Affairs 

Department of Labor and Industries 

100 Cambridge Street 

Boston, Massachusetts 

Dear Commissioner Roussos: 

Pursuant to your request, I have examined a draft of H-2422, legislation 
proposed to be enacted in order to carry out the Commonwealth's responsi- 
bilities under the Occupational Safety and Health Act of 1970, 84 Stat. 1590. 
The legislation has been proposed in connection with a state plan to be 
submitted under section 18 (c) (1) of said federal Act. My review of H-2422 
has been in accordance with your advice that, pursuant to the requirements 
of 29 CFR §1902-2 (b), such a plan must be accompanied by a legal opinion 
of this Department. 

Having reviewed the draft bill, it is my opinion that there is no impedi- 
ment to its enactment under either the Constitution of the Commonwealth or 
the General Laws. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 75 

Number 6 July 10, 1975 

Mr. John R. Buckley, Secretary 

Executive Office of 

A dministration and Finance 

State House 

Boston, Massachusetts 02133 

Dear Secretary Buckley: 
You have requested my opinion with respect to the following questions: 

1. May the Director of Civil Service, in the exercise of his discre- 
tion, determine that there is a special need shown by the City 
of Somerville, that may be met by hiring disadvantaged 
(unemployed) residents as police officers which can be satis- 
fied through the use of CETA funds and, if so, may he selec- 
tively certify a list of CETA eligible candidates for appoint- 
ment to the Somerville Police Department who are on the 
existing certified civil service lists for police officers? 

2. If your answer to the preceding question is in the affirmative, 
in what manner shall the selective certification list be prepared 
so as to harmonize with current decisions of the Federal and 
State courts. 

Chapter 828 of the Acts of 1974 provides that certain temporary positions, 
created pursuant to CETA, shall be exempt from the Civil Service provisions 
of G.L. c. 31. However, Section 2 of Chapter 828 specifically states that this 
exemption shall not apply to law enforcement officers. Thus, if CETA- 
eligible candidates are to be certified for the position of police officer, the 
certifications must conform to G.L. c. 3 1, and to the regulations promulgated 
thereunder. 

Section 23 of c. 31 provides that the names of persons who pass examina- 
tions for appointment to any position classified under the civil service shall 
be placed upon the eligible lists in the following order. 

( 1 ) Disabled veterans as defined in section twenty-three A, in the 
order of their respective standing; (2) veterans in the order of 
their respective standing; (3) persons described in section twenty- 
three B in the order of their respective standing; (4) other appli- 
cants in the order of their respective standing. Upon receipt of a 
requisition, names shall be certified from such lists according to 
the method of certification prescribed by the civil service rules. A 
disabled veteran shall be retained in employment in preference to 
all other persons, including veterans. 
When an appointment is to be made, the Director certifies three names for 
one vacancy, four names for two vacancies and so forth. (See Civil Service - 
Rule 14). 

All appointments to positions classified under the Civil Service are to be 
made in the foregoing manner except that, under Civil Service Rule 14, 
separate eligible lists may be kept of those seeking to enter any part of the 
service in which "special qualifications" are required. In this way candidates 
having such special qualifications can be certified separately. For example, 



76 P.D. 12 



Rule 10 would allow creation of a separate eligible list of Spanish-speaking 
candidates for a position involving public contact in a largely Spanish- 
speaking area. 

There is no indication in your request of any job-related special qualifica- 
tion possessed by CETA-eligibles. Therefore, it is my opinion that the Direc- 
tor of Civil Service may not selectively certify CETA-eligible candidates for 
appointment to the Somerville Police Department. It is, thus, not necessary 
to reach the second question you have presented. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number? July 11, 1975 

Mr. Robert Q. Crane 

Treasurer & Receiver General 

Chairman, State Board of Retirement 

73 Tremont Street 

Boston, Massachusetts 02108 

Dear Treasurer Crane: 

You have requested an opinion as to whether an Industrial Instructor 
qualifies as a "corrections officer" for purposes of G.L.c. 32, §100, which 
provides in pertinent part that: 

Notwithstanding any provision of this chapter or 
otherwise ... if a corrections officer while in the performance 
of duties and as a result of an assault on his person is killed or 
sustains injuries which result in his death, there shall be paid to 
the widow of such . . . corrections officer an annual amount of 
pension which shall be equal to the amount of salary which 
would have been paid to such . . . corrections officer had he 
continued in service in the position held by him at the time of his 
death. 
Your request relates to a claim by the widow of the late Alfred J. Bara- 
nowski, Industrial Instructor at MCI Norfolk, for payment of benefits under 
§100 of c. 32. 1 find that Mr. Baranowski was such an officer. 

Chapter 32 does not contain a definition of the term "corrections officer." 
Additionally, there is no definition of the term "corrections officer" in the 
statutes governing the Department of Corrections or the Civil Service Com- 
mission.' An analysis of the language and history of §100 indicates that its 
purpose is to give a full pension to widows of those employees of the fire 
department, police department, and correction agencies who, as a result of 
their duties, are exposed to the risk of danger on a day-to-day basis. In this 
regard, it is important to note that the amending legislation to G.L.c.32, §100 
has been expansive in nature.^ 



'The use of the term corrections officer appears to be limited to c. 32, §100. Section 2 of c. 27, the enabling statute of the 
Department of Corrections, gives the Commissioner the power to appoint "officers." Section 46 of c. 32, which brings prison 
employees within the Massachusetts retirement and pension system uses the term "officer" and indicates that it shall include 
"prison officer, correction officer and matron." 

'For example, the 1969 amendment expanded its coverage of firemen by including those killed while "returning from" in 
addition to those killed while "responding to an alarm of fire." St. 1971, c. 1012. 



P.D. 12 77 

Since, as noted above, there is no statutory definition which would indi- 
cate whether an industrial instructor qualifies as a corrections officer for 
purposes of c. 32, § 100, a consideration of the scope of the duties and 
authority of industrial instructors becomes important. There are both rele- 
vant statutory and administrative guidelines. 

Section 52 of c. 127 provides that industrial instructors "shall have the 
same authority relative to prisoners as the subordinate officers of the institu- 
tion where they are employed." This statutory authority is reinforced by the 
published and unpublished policies of the Department of Corrections and of 
the Labor Relations Commissions of the Commonwealth. 

The Riot Control plan (1957, as amended in 1961) of the Department of 
Corrections indicates that in emergency situations industrial instructors are 
given the same responsibilities - and exposed to the same dangers - as 
correction officers. Industrial personnel are given "full security, authority 
and responsibility," regarded as "security personnel," and provided with 
"training ... in firearms." 

I have been informed that the Department of Corrections does not limit 
the industrial instructors' assumption of the duties of correction officers to 
emergency situations. Rather, on a day-to-day basis, industrial instructors 
carry many of the same security responsibilities and hence, are exposed to 
similar risks as correction officers. Letter from Robert A. Thomas, Assistant 
to the Commissioner, Industries to Attorney General's office, June 26, 1975. 

The co-mingling of the duties of industrial instructors and correction 
officers was the basis for the inclusion of industrial instructors in the same 
bargaining unit as corrections officers by the Labor Relations Commission 
of the Commonwealth. As indicated by an opinion of a hearing officer of the 
Labor Relations Commission, members of this bargaining unit are grouped 
together because they have "frequent and direct contact with the inmate 
population." As a consequence, "they face a continuing risk of physical 
harm." Other classes of institutional employees are not included in this 
bargaining unit because they have "no custodial responsibilities." Hearing 
Officers Decision, Case Nos. SCR- 1 10, 1 18, 2063, June 13, 1975. 

In conclusion, because of the close similarity between the authority and 
duty of industrial instructors and correction officers, I find that the late 
Alfred L. Baranowski, an industrial instructor, was a "corrections officer" 
within the meaning of G.L.c. 32, §100. Therefore, his widow is entitled to the 
benefits authorized by that section, provided the State Board of Retirement 
determines that his death occurred as a result of an "assault on his person" 
while in the performance of his duties. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



78 P.D. 12 



Numbers July 11, 1975 

Ms. Ann S. Ramsay 

Assistant Secretary, E.O.A.F. 

Personnel Administrative 

P.O. Box 2650 

Boston, Mass. 02208 

Dear Ms. Ramsay: 

You have requested my opinion as to whether Director Powers' adminis- 
trative definition of the word "department" for purposes of layoff, demotion 
and reinstatement is consistent with the provisions of G.L. c. 31. 

By letter dated May 23, 1975, Secretary of Administration and Finance 
Buckley requested my opinion concerning five questions. Questions three 
and four related to the issue you have raised — the definition of 
"department" for purposes of layoff, demotion, and reinstatement. By letter 
dated May 29, 1975, Secretary Buckley withdrew his request for opinions 
concerning questions three and four. 

Because the Secretary of Administration and Finance has withdrawn his 
request for an opinion concerning the definition of the word "department", I 
decline to respond to an indentical question posed by an agency under the 
jurisdiction of the Secretary of Administration and Finance. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 9 July 18, 1975 

Paul A. Chernoff, Chairperson 

Commonwealth of Massachusetts 

Parole Board 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Chernoff: 

The members of the Parole Board have requested my opinion concerning 
the interpretation of the final sentence of G.L. c. 27, § 4 which provides that: 
Members shall devote full time to their duties, and no member 
shall hold any other salaried public office or engage in any busi- 
ness or profession for profit during his incumbency. 
Your request for an interpretation of this sentence is sought with reference 
to the types of activities (teaching, consulting, the ministry, and writing for 
publication) in which Parole Board members have traditionally participated 
outside of working hours. 

The words "business", "profession" and "for profit" are not defined in 
Chapter 27. Since they are not technical terms and there is no contrary 
indication in the statute, they are to be construed according to their ordinary 



P.D. 12 79 



meaning as applied to the subject matter of the act. Randall's case, 33 1 Mass. 
383 (1954); Franki Foundation v. State Tax Commission, 1972 Mass. Adv. 
Sh. 785. 

An analysis of the recent legislative history indicates that this last sentence 
of c. 27, § 4 was part of an effort to professionalize the Parole Board.' The 
language prohibiting outside activity by Parole Board members, therefore, 
was part of an overall statutory scheme designed to increase the responsibili- 
ties and improve the qualifications of the Parole Board and insure that 
members devoted full time to their duties. In this regard, it is interesting to 
note that the prohibitory languge of c. 27, § 4 is more specific than that 
restricting activities of members of other Boards.^ 

Within this context, "business" and "profession" assume their broadest 
meaning. Inasmuch as the two terms are used separately, it is presumed that 
"business" refers to "commercial, manufacturing or service" dealings. The 
Random House Dictionary of the English Language, 201 (1966). The term 
"profession", although originally limited to the three learned professions of 
law, medicine and theology, has come to mean any "vocation requiring 
knowledge of some department of learning or science." The Random House 
Dictionary of the English Language, 1 148 (1966). Based on these definitions, 
I find that the types of activities about which you have inquired (teaching, 
consulting, the ministry, writing for publication) are within the common and 
ordinary meaning of "profession." 

My next inquiry is directed towards the meaning of the phrase "for 
profit." Although profit can connote a broad definition of any advantage, 
benefit or gain, I find that its ordinary dictionary meaning is the receipt of 
monetary compensation. The Random House Dictionary of the English Lan- 
guage, 1149(1966). 

Finally, there is no general requirement that Parole Board members 
restrict their activities exclusively to Parole Board business. Indeed, the time 
requirement is that they devote "full time" to their duties. The ordinary 
meaning of "full time" is the "number of hours in a period . . . considered 
customary for pursuing an activity." The Random House Dictionary of the 
English Language, 573 (1966). 

Using these definitions, I respond to your specific questions as follows: 
1. The teaching of a college course during nonbusiness hours for 
a modest stipend is engaging in a business for profit within the 
meaning of the statute. The language of the statute does not 
permit me to draw distinctions between "modest" and "other" 
stipends. 



'In 1970, the Legislature significantly extended the jurisdiction of the Parole Board. St. 1970. c. 29X. The language of c. 27. §4 in 
question was added by chapter 994 of the Acts of 1971 which increased the qualifications required for appointment to the 
Parole Board .\ significant salary increment for members of the Board, included in earlier drafts of c 994. was deleted prior to 
final passage of the legislation. 

-Prior to the 1971 enactment, the requirement for Parole Board members was that "each shall devote his full lime during 
business hours to the duties of his office " Inserted by St 1963, c XOI Section 15 of c 27 governing the industrial Accident 
Board, provides that "the members shall devote their whole lime to the work of the Board and shall not engage in any 

profession, practice or business " Section 9P of c. 23. which governs the Labor Relations Commission of the Department of 
Labor, provides that "members shall devote their whole time to the work of commission and shall not engage in any 
profession, practice or business." 



80 P.D. 12 



2. The occasional providing of consultant or professional eval- 
uation services is similarly prohibited by the statute. 

3. If the monies received from teaching and/or consulting were 
donated to a charitable or nonprofit organization, the activi- 
ties would not be "for profit" and, therefore, not prohibited by 
c.27,§4. 

4. A member who is also a member of the clergy may receive 
money in the form of a housing allowance from a parish. A 
rental allowance furnished to a minister, to the extent it is used 
as rent or to provide a home, is not included in gross income. 
INTERNAL REVENUE CODE of 1954, § 107. I, therefore, 
find that the member of the clergy is not engaging in a profes- 
sion "for profit" by accepting a housing allowance. 

5. A member who is also a member of the clergy may not receive 
nonsubsistence income from his parish as compensation for 
clerical work. 

6. Members may not receive financial return for published writ- 
ing, if the financial return is in an amount greater than that 
necessary to compensate for their out-of-pocket expenses. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 10 July 22, 1975 

Charles J. Dinezio 

Executive Director 

State Building Code Commission 

141 Milk Street 

Boston, Massachusetts 02109 

Dear Mr. Dinezio: 

You have requested my opinion relative to an apparent conflict between 
the State Building Code, which was promulgated pursuant to Chapter 802 of 
the Acts of 1972, and the provisions of the so-called "Tenement Housing 
Acts," G.L. c. 144 and c. 145. Chapter 144 deals with tenement houses in cities 
other than Boston and Chapter 145 applies to tenement houses in towns. 
Both statutes require local acceptance before becoming effective. 

Your request does not enumerate specific instances in which the building 
code and tenement housing acts conflict. Instead you have stated that "there 
are few matters covered by Chapters 144 and 145 which are not in conflict 
with the State Building Code." You have asked me to give my opinion as to 
whether "in all cases of conflict . . . the State Building code takes preced- 
ence over the Tenement Housing Acts in cities or towns which have adopted 
them." 

The Code was not intended to repeal or pre-empt Chapters 144 and 145. 
Therefore, I am of the opinion that no conflict exists between the Code and 



P.D. 12 81 



the statutes cited and that both are fully operative. I reach this conclusion by 
applying three standard rules of statutory construction. 

The first rule is that when two statutes are alleged to be inconsistent with 
each other, whether in whole or in part, they are to be construed harmoni- 
ously if possible. See Goldsmith v. Reliance Insurance Company, 353 Mass. 99 
(1969). Only where the two statutes cannot be reconciled, will one statute 
give way to the other. I am of the opinion that the acts in question can both 
be given effect. The purpose of the tenement housing acts was not to create a 
comprehensive code but was instead to establish minimum standards for 
tenement houses. Section 4 of Chapter 144 provides (in language substan- 
tially similar to that contained in Section 5 of Chapter 145): 

This chapter shall be held to provide the minimum requirements 
adopted for the health and safety of the community. Nothing in 
this chapter shall be construed as prohibiting any city from enact- 
ing from time to time supplementary ordinances imposing fur- 
ther restrictions, but no city authority shall have power to mini- 
mize, avoid or repeal any provision of this chapter. 
While the tenement housing act merely establishes minimums, and even 
then only for multiple unit residential real estate, the State Building code 
provides a comprehensive set of construction rules. Because I am con- 
strained to interpret the statutes harmoniously, I conclude that, to the extent 
practicable, tenement houses must conform to both the general requirements 
of the Code and the specific requirements of Chapters 144 and 145. Where 
the requirements differ, the stricter of the two must be met. 

The second rule I have applied is that the implied repeal of one statute by 
another is not to be lightly inferred. To hold that the State Building code 
supersedes the tenement housing acts would be the equivalent of a statement 
that Chapter 802 of the Acts of 1972 repealed those acts. No section of 
Chapter 802 explicitly repeals them, and I find no implied repeal of the 
tenement acts in Chapter 802. The doctrine of implied repeal is not a favored 
doctrine. The test of its applicability is whether the earlier statute is so 
repugnant to and inconsistent with the later enactment that both cannot 
stand. In re Gregoire, 355 Mass. 399 (1969). A system whereby multiple unit 
residences are subject to two sets of regulations does not necessarily amount 
to repugnancy and inconsistency. The two bodies of regulation could well be 
mutually reinforcing. In the absence of any specific allegations of repug- 
nancy, I decline to invoke the doctrine of implied repeal. 

The third maxim of statutory construction which leads me to the conclu- 
sion that Chapters 144 and 145 continue in effect is the rule that the expres- 
sion of one thing is the exclusion of another. See General Electric Co. v. 
Commonwealth, 329 Mass. 661 (1953); Richard T. Green Co. v. City of 
Chelsea, 149 F.2d 927 (1st Cir. 1947). In enacting Chapter 802 the Legisla- 
ture expressly repealed more than fifteen sections of General Laws Chapter 
143 which dealt with the inspection and regulation of buildings. The subject 
matter of Chapters 143, 144 and 145 is substantially the same, and there is a 
natural association of the ideas contained in those statutes. Thus, if the 
Legislature had intended to repeal Chapters 144 and 145 it could have done 
so explicitly, not by implication. I therefore conclude that there is no legisla- 



82 P.D. 12 



tive intent to repeal Chapters 144 and 145 manifested in Chapter 802 of the 
Acts of 1972. 

Section 75 of Chapter 802 of the Acts of 1972 (as amended by Section 20 of 
the Acts of 1974) which states that all "... by-laws and ordinances of 
cities and towns or any special acts in conflict with the State Building Code 
shall cease to be effective . . ." does not require a contrary result. The 
acceptance of a statute is accomplished by G.L. c.4, § 4 and is neither a by- 
law, ordinance, or special act. 

For the foregoing reasons, I conclude that there is no overall conflict 
between the statutes. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 11 July 22, 1975 

Ms. Lola Dickerman 
Secretary of Consumer Affairs 
One Ashburton Place 
Boston, Massachusetts 02108 

Dear Secretary Dickerman: 

You have requested my opinion as to the applicability of G. L. c. 4, § 7, cl. 
26, which defines "public records" for the purpose of public disclosure, with 
respect to such items as letters of complaint, investigatory materials, applica- 
tions for licensure and examination papers. 

The 1973 Amendments to G. L. c. 4, § 7, cl. 26 substantially changed the 
Public Records Law in Massachusetts by making a presumption that govern- 
mental records are public, unless they fall into one of the specific exemptions 
contained in the statute. Thus, in order to determine whether a particular 
record is a "public record", it is necessary to determine whether the record 
falls within any of the specific exemptions contained in G. L. c. 4, § 7, cl. 26. 
If not specifically exempted, the record is deemed to be public. 

In this instance, I lack sufficient factual information to determine whether 
any of the exemptions contained in section 7 are applicble to the particular 
records you have cited. For example, you have asked whether Clause Twen- 
ty-six requires disclosure of matters of complaint which mention specific 
individuals. It is impossible to answer such a question without knowing the 
precise nature of a particular complaint letter. Does it contain medical 
information? Cl. 26(c). Would its disclosure constitute an invasion of per- 
sonal privacy? Id Does it contain investigatory materials the disclosure of 
which would probably so prejudice the possibility of effective law enforce- 
ment that such disclosures would not be in the public interest? Cl. 26(f). 

At this point, I confront a series of hypothetical questions which are not 
appropriate for an Attorney General opinion. I Op. Atty. Gen. 273, 275 
(1895). I, therefore, must respectfully decline to answer. If you are faced with 



P.D. 12 83 



a problem involving factual situations which actually confront your agency, 
I shall be happy to respond to a formal request containing specific questions. 
See 1966-1967 Atty. Gen. Rep. 1 12, 1 14. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 12 July 22, 1975 

Mrs. Evvajean Mintz, Director 

Division of Registration 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mrs. Mintz: 

Your predecessor requested my opinion as to whether Chapter 582, Sec- 
tion 3 of the Acts of 1962, which amended G. L. c. 141, §§ 1 and 8, permits a 
licensed journeyman electrician, who is also a licensed instructor of the 
Department of Education, to supervise electrical work performed by stu- 
dents in public or nonprofit institutions if such work is performed without 
financial remuneration. My opinion is that the statute permits such activity. 
The students involved are enrolled at local vocational high schools and, as 
part of their curriculum, do on-the-job training without pay, for example, at 
the local town hall or Y.M.C.A. The journeyman electrician acts as an 
instructor and supervisor of the students while on the job. 
Section 3 of Chapter 582 provides as follows: 

"The provisions of sections one and eight of chapter one hundred 
and forty-one of the General Laws, as amended by sections one 
and two, respectively, of this act, in so far as they restrict the 
working by learners or apprentices with and under the direct 
personal supervision of journeymen electricians shall not apply 
to employees while they are engaged in an on-the-job training 
program, so called, conducted in cooperation with an accredited 
university, college or secondary school . . . ." 
The provisions of the General Laws referred to in the quoted passage limit 
the number of apprentices who may work for a master electrician and a 
journeyman electrician. See 13 Op. Atty. Gen. 70 (1963); 4 Op. Atty. Gen. 
496 (1915). However, Chapter 582 of the Actsof 1962 created an exception to 
such limitations by permitting the employment of any number of appren- 
tices if they are supervised by a journeyman electrician and are engaged in 
the on-the-job training program of an accredited .school. It is my opinion that 
the exception applies to this situation. 

Since the instructor is licensed by the Department of Education and the 
program is presumably operated in conjunction with an accredited state 
vocational high school, the only possible objection to the operation of this 



84 P.D. 12 



type of program would be the contention that the students are not 
"employees," under Chapter 582. Since Chapter 141 itself does not require 
licensure for work done without remuneration, Op. Atty. Gen., Sept. 5, 1973, 
G. L. c. 141, § 1, it would be pardoxical to require that persons covered by 
Chapter 582 be employees. Therefore, it is my opinion that the term 
"employees" does not restrict the operation of Chapter 582, as long as the 
other requirements of the chapter are met. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 13 July 28, 1975 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

You have requested my opinion concerning the relationship between the 
Director of Campaign and Political Finance and the Commission of Cam- 
paign and Political Finance. As Secretary of the Commonwealth you serve 
as Chairman of the aforementioned Commission, and, therefore, your 
request is directly related to the performance of your duties. Cf.2 Op. Atty. 
Gen. 100 (1899). Specifically you have asked: 

"What responsibilities and powers does the Commission have, 
short of removal of the Director of Campaign and Political 
Finance, to require reports from the Director and to monitor, 
investigate and otherwise review and assess performance by the 
Director of functions assigned to the Director under Chapter 55 
of the General Laws?" 
After examination of the statutes and pertinent cases, I conclude that the 
Commission has the power to review and assess the performance of the 
Director of Campaign and Political Finance, and may request information 
from the Director for the purpose of carrying out these responsibilities. 
However, the Commission does not have the power to supervise his 
activities. 

The starting point for any inquiry into the relationship between the Direc- 
tor and the Commission is Chapter 55 of the Massachusetts General Laws. 
Chapter 1 173 of the Acts of 1973, which rewrote Chapter 55, became effec- 
tive on January 1, 1974. Significantly, it added Section 2 A which created the 
Office of Campaign and Political Finance. The Office was to be headed by a 
Director, chosen by the Commission. Earlier this year, the Governor signed 
into law Chapter 151 of the Acts of 1975. This act sought to clarify and 
resolve certain conflicts that existed within the election laws of this Com- 
monwealth. Both the Commission and the Director retained substantially 
the same powers they had been granted under Chapter 1 173. 



P.D. 12 85 



The law now provides in pertinent part: 

The state chairman of each of the two leading poHtical parties, 
the state secretary, and a dean of a law school located in the 
Commonwealth, to be appointed by the governor as provided 
hereinafter, shall serve as a commission for the purpose of select- 
ing the director of campaign and political finance . . . The state 
secretary shall act as chairman of said commission. Selection of 
the director, who shall be a resident of the Commonwealth, shall 
be by unanimous vote of the members of the 
commission . . . Removal of the director shall be at the discre- 
tion of the commission, and shall not be reviewable. 
General Laws Chapter 55, Section 3. 
The Commission, of which you are chairman, is wholly a creature of 
statute. It may exercise not only the powers conferred upon it by express 
legislative enactment, but also those necessarily implied from its express 
responsibilities. See City of Cambridge v. Commissioner of Public Welfare, 
357 Mass. 183 (1970). The Supreme Court of the United States has made it 
clear that powers are necessarily implied only where no contrary legislative 
intent is possible and not merely where the power would be convenient. 
Detroit Citizens' Street Railway Company v. Detroit Railway, 171 U.S. 48 
(1897). While it is not the function of the Department of the Attorney 
General to provide by interpretation for possible legislative omissions, Opi- 
nion Attorney General October 10, 1966, p. 95, it is proper for me to 
determine what powers, if any, the Commission possesses. 

The statute clearly provides that the purpose of the Commission is the 
selection of a qualified Director. Equally clear is the power of the Commis- 
sion to remove the Director; such removal is discretionary and ostensibly 
non-reviewable. Nevertheless, due process requirements indicate that the 
Commission should not take purely arbitrary action in this area. See Lucia v. 
Duggan, 303 F.Supp.ll2 (D. Mass. 1969). It is, therefore, incumbent upon 
you to obtain solid information as a basis for your action or inaction. Thus, 
the necessary implication of Section 3 of Chapter 55 is that the Commission 
has the right to review and assess the performance of the Director. This right 
does not include power to supervise the Director's actions. 

Chapter 55 of the General Laws as most recently amended by Chapter 151 
of the Acts of 1975 does not explicitly authorize the Commission to require 
reports from the independent Director; however, it does provide a source for 
the type of information the Commission needs to intelligently perform its 
function. Section 3 now provides, inter alia. 

The director shall . . . respond with reasonable promptness to 
requests for information, interpretations and advice presented by 
candidates, state committees, political committees and members 
of the public. 
This provision is extremely broad and clearly encompasses the Commis- 
sion. Therefore, the Commission may present requests for information to the 
Director and he is directed by statute to respond with reasonable promptness 
to those requests. In responding, however, the Director may not divulge 
privileged information nor material from hearings conducted pursuant to 



86 P.D. 12 



Section 3, which is subject to a rule of grand jury secrecy. 

I wish to stress the fact that the Director has independent status. Chapter 
55 does not contemplate interference with his functions either by the Com- 
mission or any other body poUtic. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 14 July 28, 1975 

Mr. James M. Shepard, Director 

Division of Fisheries and Game 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Sir: 

You have requested my opinion with respect to the proposed full-time use 
of surplus federal vehicles, which would be driven by your personnel 
throughout the life of the vehicles. Title and registration, however, would 
remain with the U. S. Department of Interior. Specifically, you have asked: 

What are the legal ramifications with respect to state liability and 
to personal liability for injury or property damage in the event 
one of our drivers is involved in an accident? 

It is my opinion that the arrangement you described would not affect the 
liability of the Commonwealth; but it would affect the ability of an employee 
to be indemnified by the Commonwealth, as provided for in G. L. c. 12, § 3B, 
for tortious acts committed while operating those vehicles. 

The Commonwealth is not liable for the tortious acts of its agents, employ- 
ees, public officers, or agencies committed in the performance of their duties. 
Glickman v. Commonwealth, 244 Mass. 148 (1923); Burroughs \. Common- 
wealth, 224 Mass. 28 (1916). While the doctrine of sovereign immunity has 
been recently criticized by the Supreme Judicial Court, Morash & Sons, Inc. 
V. Commonwealth, 1973 Adv. Sh. 785, 296 N.E.2d 461 (1973), it would 
presently protect the Commonwealth from suit in the event of tortious acts 
caused by an accident in the vehicles you described. Ownership of the 
vehicles would have no effect on the outcome of such litigation. 

The employee's personal liabihty is also not affected by ownership of the 
vehicle. The employee remains responsible for his own torts. However, the 
employee's rights to indemnification under certain circumstances for his 
torts will be affected by ownership of the vehicles. Section 3B of G. L. c. 12 
provides for limited indemnification (up to $10,000) for state officers or 
employee's right to indemnification under certain circumstances for his torts 
will be affected by ownership of the vehicles. Section 3B of G. L. c. 12 
personnel performing lawfully ordered military duty. Further, "owner" is 



P.D. 12 87 



generally defined by title to the vehicle, G. L. c. 90,§ 1 and G. L c. 90D, § 1, 
which in this case would not be the Commonwealth. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 15 July 28, 1975 

Mr. Irving J. Risi 

Board of State Examiners of Plumbers 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Risi: 

Because of the recent increase in the construction of new water and sewage 
treatment plants, you have requested my opinion on the authority of the 
Board of Plumbing Examiners to issue rules and regulations for the con- 
struction, alteration, repair and inspection of said plants. The Board does not 
presently inspect or supervise any of the piping or fixtures located within or 
without the buildings which comprise the water pumping stations and water 
and sewage treatment plants, but believes that the public welfare may be in 
jeopardy by the absence of any supervision over the construction, alteration 
and repair of these buildings. My opinion is that any new rules or regulations 
in this area require compliance with G.L. c. 30A. 

The definition of plumbing, Uniform Plumbers Code at p. 23, and the 
subsequent interpretations by the Board are in accord with recognized defi- 
nitions found in Trade publications (Plumbing Dictionary, 1st Ed. 1971, 
American Society of Sanitary Engineering; National Plumbing Code Hand- 
book, 1st Ed. 1957) and with case law (See People v. Osborne, 269 N.Y.S. 
409, 149 Misc. 676; Ex parte Nichols, 241 P. 399, 400; 74 Cal. App. 504). 
However, the supervision of piping and fitting in the buildings associated 
with water and sewage treatment plants has not, to date, been regulated by 
any state agency. 

The term "regulation" is defined in G.L. c. 30A, § 1 (5) to include "the 
whole or any part of every rule, regulation, standard or other requirement of 
general application and future effect, including amendment or repeal 
thereof, adopted by an agency to implement or interpret the law enforced or 
administered by . . ." Clearly, the interpretation of the word "plumbing" to 
encompass the activity you described is a "regulation." 

The procedures mandated by Chapter 30A for rule-making, including a 
public hearing, are particularly appropriate here. The area proposed to be 
regulated is technical and there may be disagreement among those in the 
various affected industries as to the necessity or appropriateness for such 
regulation by the Board. Chapter 142, § 13 requires that such rules and 
regulations shall be "reasonable, uniform, and based on generally accepted 
standards of plumbing practice . . . ." Further, G.L. c. 142, § 13 and § 21, 



88 P.D. 12 



the enabling statute for the promulgation of rules and regulations by the 
Board, requires approval by the Department of Public Health. 

Any opinion which attempts to define the Board's authority in this area 
would be premature and would require a difficult fact-finding process — a 
task deemed inappropriate for an Attorney General opinion. 1 Atty. Gen. 
Op. 273 (1895). I advise you, however, to follow the requirements of Chapter 
30A, if you wish to initiate regulation in this area. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 16 July 30, 1975 

James M. Shepard, Director 

Division of Fisheries and Game 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Shepard: 

You have requested my opinion as to an apparent conflict between section 
80A and sections 4, 5 and 37 of G. L. c. 131. Section 80A, which was added to 
c. 131 by c. 796 of the Acts of 1974, restricts the use of steel jaw leghold traps 
and certain other devices for the capture of fur bearing mammals. Specifi- 
cally, you have asked the following questions: 

1. As presently worded, do any of the four sections (4, 5, 37, 80A) 
supersede the others? 

2. Does the passage of the statutory legislation which dictates 
open seasons, status of game animals, method of taking, etc. 
operate so as to subvert the intent of the laws which have 
traditionally vested the administrative responsibility for 
resource management and regulation in professional resource 
people acting as a result of inputs considered at public 
hearings? 

It is my opinion that section 80A clearly takes precedence over the other 
more general provisions of c. 131. I decline to answer your second question 
for reasons set forth below. 

Section 80 A prohibits a person from using a steel jaw leghold trap for the 
capture of fur bearing mammals except in limited circumstances in or under 
buildings and in water under certain circumstances.' This section seems to 



'Section 80A states in pertinent part: 

No person shall use, set, place, or maintain any steel jaw leghold trap on land for the capture of fur-bearing mammals except 
in or under buildings on land owned, leased or rented by him. The steel jaw leghold trap may be used for the capture of fur- 
bearing mammals in water only if set in such a manner that all reasonable care is taken to insure that the mammal dies by 
drowning in a minimum length of time. No other device which is set in such a manner that it will knowingly cause 
continued suffering to such a mammal caught therein, or which is not designed to kill such a mammal at once or take it alive 
unhurt shall be used, set, placed or mamtained for the capture of fur-bearing mammals; provided however, that a person or 
his duly authorized agent may apply to the director for a special permit to use such traps, other than the steel jaw leghold 
trap, on property owned by such person. 



P.D. 12 89 



be in conflict with other, more general, provisions of c. 131 which delegate 
considerable discretion to the Director with respect to the trapping of 
animals.- 

It is a long standing principle of statutory interpretation that an "earlier 
statute has no higher standing than the later and may be superseded thereby 
wholly or in part when such is the clear legislative intent." Boston Elevated 
Ry. V. Comm., 310 Mass. 528, 551 (1942). This principle is particularly 
applicable where the earlier statute is of general application and the later of 
specific application. Pereira v. New England Lng. Co., 1973 Mass. Adv. Sh. 
1207, 1216; Clancy \. Wallace, 288 Mass. 557, 564 (1934); Copelandv. Mayor 
and Aldermen of Springfield, 166 Mass. 498, 504 (1846). When a later enacted 
statute conflicts with earlier enacted provisions, the priority must be to give 
effect to the legislative intent 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 (1963). 

Insofar as there is a conflict between various sections of c. 131, the later 
and more specific provisions of § 80A govern. I find that § 80A adds limits to 
those imposed by § 37 on the means by which an owner, tenant or any other 
person may capture a fur bearing mammal. Similarly, the specific provisions 
of § 80A limit the broad discretion vested in the Director by § 4(2) and § 5. 
Section 80A, in delineating the narrow circumstances when otherwise 
prohibited traps may be used or when these traps may be used with the 
approval of the director is more specific than the general provisions of 
sections 4 and 5. The clear intention of the legislature was to ban the use of 
steel jaw leghold traps and similar devices, except as specifically provided in 
G. L. c. 131, § 80A. Neither the Director nor anyone else may use or 
authorize the use of such devices except as provided for in that section. 

Your second question is inappropriate, since it does not present a legal 
question but rather a policy question traditionally resolved by the legisla- 
ture. Your view that such "recent bills filed dealing with matters tradition- 
ally reserved to the appropriate state agency officials, constitutes a deliberate 
attempt to circumvent the normal regulatory process . . .," overlooks the 
important principle that the legislature, which delegates responsibility to 
your agency in the first instance, has the power to pass specific statutes which 
limit or even eliminate your discretion, unless the statute violates some 
provision of the Massachusetts or United States Constitution. 

The Supreme Judicial Court has consistently upheld statutes which fur- 
ther a policy against causing unnecessary suffering to animals. "The general 
subject of suppression of cruel treatment of animals being within legislative 
competency, the details in the main must be regarded as within the discretion 



'Seclion 4. clause 2 empowers the director "notwithstanding any other provisions of this chapter . . . (to) take or in writing 
authorize other persons to take and possess, . . . mammals at any lime or in any manner for purposes of observation, 
research, control or management and, in his discretion, excuse certain persons so authorized from any licensing provisions of 
this chapter." 

5eciion 3 directs the director to ". . . make rules and regulations relating to . . . methods of taking. . . ." 
Section 37 provides that "An owner or tenant of land . . |may| hunt or take by any means, except by poison or snare, any 
mammal which he finds damaging his property." 



90 P.D. 12 



of the law making power." Commonwealth v. Higgins, 277 Mass. 191, 195 
(1931). While you may disagree with the wisdom of legislation, such as 
section 80A, it is your duty to enforce it. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 17 July 31, 1975 

Mr. Thomas C. McMahon, Director 

Division of Water Pollution Control 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Director McMahon: 

You have requested my opinion as to whether a city or town can require 
the issuance of building permits for the construction of water pollution 
control plants now being erected in various water districts throughout the 
Commonwealth. I have been informed that the factual situation which 
prompted your inquiry has become the subject of litigation. Perini Construc- 
tion Co. V. Foster, Middlesex Superior Court No. 751642, presents precisely 
the same issues as the issues presented in your opinion request. Since this 
matter is now the subject of litigation, it would be inappropriate for the 
Attorney General to render the opinion which you have requested. See 6 Op. 
Atty. Gen. 438(1922). 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 18 August 1, 1975 

Ms. Evvajean Mintz 

Director of Registration 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Ms. Mintz: 

You have asked whether various sections in G. L. c. 112, which require 
applicants to certain boards of registration either to be citizens and/or 
declare an intention to become citizens, should be enforced in light of the 
Attorney General's Opinion of June 6, 1975, which concluded that a similar 
provision regarding pharmacists was unconstitutional. 

I have examined the language in the sections you have cited: G. L. c. 112 
§ 45 (dental); § 73E (dispensing opticians); § 83 (embalming); § 87A (public 



P.D. 12 91 



accountants); § 87NN (sanitarians); § 87TT (real estate); § 87GGG (elec- 
trologists); § 101 (landscape architects); and § 109 (nursing home administra- 
tors). While there are some minor differences in language, all sections, 
except for § 87NN, prohibit a non-citizen from being licensed. Those sec- 
tions of c. 1 12 are, therefore, unconstitutionally defective and should not be 
enforced with respect to the requirement of citizenship. Section 87NN makes 
no mention of any citizenship requirement, but permits the Board of Regis- 
tration of Sanitarians to adopt rules and regulations establishing the mini- 
mum qualifications which applicants must possess. If any such rules and 
regulations exclude non-citizens they are similarly unconstitutional. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 19 August 5, 1975 

Mr. Ronald J. Fitzgerald 

Director of Research 

Advisory Council on Education 

13th Floor 

182 Tremont Street 

Boston, Massachusetts 02 1 1 1 

Dear Mr. Fitzgerald: 

You have advised me of the Secretary of Education's announced intention 
not to recommend any Fiscal Year 1976 appropriation for funding the 
Massachusetts Advisory Council on Education (MACE). In that context, 
you have requested my opinion with respect to the following two questions: 

1. So long as the General Court has not acted to abolish the 
Advisory Council, does the Executive Branch have the power to 
refuse to recommend any appropriation for an agency mandated 
by and established pursuant to statute or must it recommend an 
appropriation in an amount reasonably calculated to enable it to 
carry out its statutory functions? 

2. So long as the General Court has not acted to abolish the 
Advisory Council, does the Governor have the power to veto an 
appropriation made by the General Court to enable the Advisory 
Council to carry out its statutory functions? 

It is my opinion and you are so advised that the Executive Branch may 
refuse to recommend any Fiscal Year 1976 appropriation for MACE and 
that, if an appropriation is passed by the General Court, the Governor may 
veto such an appropriation. 

The appropriation of funds is an exclusively legislative function, to be 
exercised only by the General Court. Mass. Const., Part II, c. 1, §1, art. 4; 
Mass. Const., Amendments, art. 63, §3; Baker v. Commonwealth, 312 Mass. 
490, 493, 45 N. E. 2d 470, 472 (1942); Opinion of the Justices, 302 Mass. 605, 
612-13, 19 N. E. 2d 807, 813 (1939). The Governor has the power and the 



92 P.D. 12 



duty to recommend what appropriations should be made by the General 
Court. Mass. Const., Amendments, art. 63, §§2 and 3. However, the Gover- 
nor cannot determine the actual level of appropriations, since that is a 
legislative function. 

The Massachusetts Constitution is explicit in defining the role of the 
Executive Branch in the appropriation process. The Governor has the 
authority and responsibility to recommend a budget to the General Court, 
containing "a statement of all proposed expenditures of the commonwealth 
for the fiscal year." Mass. Const., Amendments, art. 63, §2. Second, the 
Governor has the Constitutional authority to veto any bill which has been 
passed by the General Court. Mass. Const., Part II, c.l, §1, art. 2. Third, with 
respect to a money bill, the Governor may exercise either an item veto or a 
partial item veto. Mass. Const., Amendments, art. 63, §5. 

Thus, our Constitution gives the Governor the power to take the actions 
which you have questioned. It should be noted, however, that the budget 
recommendation of the Governor is merely a recommendation to the Gen- 
eral Court and a veto by the Governor may be overridden by the General 
Court. The power to appropriate funds remains solely in the hands of the 
General Court. 

The Executive Branch does have the power to refuse to recommend any 
appropriation for your agency. In refusing to recommend an appropriation 
for MACE or in vetoing such an appropriation, the Governor would be 
exercising his constitutionally-granted prerogative. Furthermore, he would 
be violating no laws, since it is within the power of the General Court to 
determine levels of appropriation, not the Governor. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 20 August?, 1975 

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

Dear Commissioner Kehoe: 

You have requested my opinion on six interrelated questions of law, each 
of which deals with the employment of licensed engineers or firemen in 
steam plants. The six questions you have posed are: 

1 . Is it permissible for a licensed engineer or fireman to be desig- 
nated as the person in direct charge of a steam plant and to be 
in direct charge of two or more separate plants which are 
isolated from each other? 

2. If the answer to the above question is "yes", in which steam 
plant shall the designated engineer or fireman in charge post 



P.D. 12 93 



his license as required by Section 51 of Chapter 146 of the 
General Laws? 

3. Is it permissible for an engineer or fireman designated as the 
person in direct charge of a particular steam plant, to also be 
the designated shift engineer or fireman in charge of a regular 
tour of duty in another steam plant which is isolated and 
physically separated from the steam plant in which the person 
is designated as being in direct charge? 

4. If the question posed in question three is permissible, in which 
steam plant shall the engineer or fireman post his license as 
required by Section 51 of Chapter 146? 

5. Is a xerox or other type of a copy of a license considered a 
genuine license and as such permitted to be posted as required 
by Section 51 of Chapter 146? 

6. When an engineer or fireman has been designated as the 
person in charge of a particular steam plant by the owner of 
the plant, what should be the frequency of his visits to the 
plant? 

The answers to these six individual questions are set out below. However, 
some general observations about the regulation of steam plants are a neces- 
sary prelude to the specific answers. 

Since steam is a potentially dangerous agency, courts have consistently 
held that the production and use thereof are subject to governmental regula- 
tion and that such regulation is a valid exercise of the police power. See 
Louisville and Nashville Railroad Company v. Hughes, 201 F. 727 (D. Ohio, 
1912); Commonwealth v. Breakwater Co., 214 Mass. 10 (1913). Massachu- 
setts has chosen to exercise that police power by enacting statutes dealing 
with both the inspection and operation of steam boilers. See General Laws 
Chapter 146. The purpose of these statutes is to protect the public by ensur- 
ing that steam engines are in proper operating condition and that those 
operating them have the necessary skill for safe operation. 1962 Op. Atty. 
Gen. p. 73. The licensing provisions are contained in G.L. c. 146 §§ 43 et seq. 
Violation of any of those licensing provisions is a criminal offense made 
punishable by fine or imprisonment, G.L. c. 146, Section 55, and, therefore, 
these statutes can be classified as being penal in nature. 

A fundamental proposition of statutory construction is that statutes which 
are penal in nature must be strictly construed. Wood v. Commission of 
Correction, 1973 Mass. Adv. Sh. 225. Where a statute subjects an individual 
to penalties and is capable of two constructions, the construction which 
operates in favor of liberty is to be adopted. Commonwealth v. Kenniston, 22 
Mass. 420 (1827). Furthermore, penal statutes are not to be extended by 
mere implication. Davey Bros., Inc. v. Stop & Shop, Inc., 35 1 Mass. 59 (1969). 
While I have attempted to give effect to the statutory purpose in answering 
your questions, I have been guided at all times by this rule of construction. I 
turn now to your specific questions. 

I answer your first question in the affirmative. Chapter 146 contains no 
provision exphcitly prohibiting one fireman or engineer from being desig- 



94 P.D. 12 



nated as in charge of two facilities. Licenses issued to firemen or engineers 
pursuant to Chapter 146, Section 64 fall into two categories: special licenses 
which are valid only for one specific plant and licenses of general apphca- 
tion. It is my opinion that a person who holds a license of the second class 
can be in charge of two plants, but that he is subject to twenty-four hour call 
at both plants. 

Your second question asks where the person in charge of two or more 
plants is to post his license. You have cited Chapter 146, Section 51 for the 
proposition that such a license must be posted, but I am of the opinion that 
that statute is not apt authority for such a posting requirement. That section 
provides in part: 

"An engineer's or fireman's license shall be so placed in the 
engine or boiler room of the plant operated by the hcensee as to 
be easily read . . ." 
The manifest purpose of those posting provisions is to facilitate enforcement 
of the Chapter's substantive licensing sections. In turn, the purpose of these 
statutes is to ensure that a qualified operator is running the steam mecha- 
nism whenever it is in use. An earlier Attorney General, citing that purpose, 
stated that a practice whereby the operating engineer was away from the 
boiler room on regular inspection tours for fifteen minutes at a time was 
inconsistent with the purpose of Chapter 146. See 1962 Op. Atty. Gen. p. 73. 
Similar considerations lead me to conclude that the hcense referred to in 
Section 5 1 is that of the engineer or fireman currently on duty and operating 
the facility, not that of the person in charge. 

The third question you have asked is whether or not a person in charge of 
one plant can work as an engineer (not in charge) at another. I answer it 
affirmatively for the same reasons that caused me to respond in a positive 
fashion to the first question. I do so with the warning that under no circum- 
stances may such a person leave a facility running and unattended for any 
meaningful period without subjecting himself to criminal penalties. 

In response to question number four, and for the reasons stated in answer 
to question two, I conclude that a licensed engineer or fireman who is 
employed at two or more facilities should post his license in the facility in 
which he is actually working. Under such circumstances an individual would 
require only one copy of his license and the use of a xerox copy would not be 
necessary. However, while a literal reading of c. 146, §51 indicates that the 
law is satisfied only by posting the license itself rather than a duplicate 
thereof, posting of a copy would not seem to violate the statute if all other 
requirements are met and the use of copy involves no fraud or other abuse. 

Your sixth and final question deals with the frequency and duration of 
visits to a particular steam plant by the engineer or fireman in charge. I am of 
the opinion that visits to plants, as described below, should be made on a 
daily basis but that they need not be of any fixed duration. As authority for 
the first proposition, I refer to the second sentence of Chapter 146, Section 5 1 
which provides: 

The person in charge of a stationary steam boiler upon which the 
safety valve is set to blow off at more than twenty-five pounds 
pressure to the square inch, except boilers in private residences. 



P.D. 12 95 



boilers in apartment houses of less than five apartments, boilers 
under the jurisdiction of the United States, boilers used for agri- 
cultural purposes exclusively, and boilers of less than nine horse- 
power, shall keep a daily record of the boiler, its condition when 
under steam, and of all repairs made and work done on it upon 
forms to be obtained upon application to the department. 
(emphasis added) 
While the Legislature appears inferentially to have acquired daily attend- 
ance of the person in charge, it has not seen fit to specify the length of those 
visits. It is not the functon of the Attorney General to provide for legislative 
omissions when issuing advice to department heads, except in the most 
obvious cases. 1966 Op. Atty. Gen. p. 95. 1, therefore, decline to answer your 
question pertaining to the hours an engineer need remain in the plant. 

In issuing this opinion, I have been concerned only with the legality of the 
practices you enumerated and have been constrained by a rule of strict 
construction. The wisdom of particular practices is a matter for the Legisla- 
ture in a general sense and for the appointing authority in specific cases. I 
trust that those bodies will exercise their powers in a manner consistent with 
the purposes of Chapter 146 — protection of the public. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 21 August 7, 1975 

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

Dear Commissioner Kehoe: 

You have requested my opinion concerning the applicability of several 
Massachusetts laws to nonresidents coming into Massachusetts with flint- 
lock or long arm rifles for purposes of participating in the Bicentennial 
Celebration. Essentially you have made five inquiries: 

1. Is the type of weapon to be used, namely flintlocks, muskets, 
or long arm rifles, exempted from all gun control regulation 
by G. L. c. 140, § 121(A) and (B)? 

2. If not, are the provisions of G. L. c. 269, § 10(a), as most 
recently amended by c. 113 of the Acts of 1975, applicable to 
such weapons being carried in the Commonwealth by 
nonresidents? 

3. If G. L. c. 269, § 10(a) is applicable, how is it affected by G. L. 
c. 140, § l29C(r)and(s)? 

4. Is a nonresident coming into Massachusetts with a flintlock, 
musket, or long arm rifle required to obtain a temporary 
license to carry firearms under the provisions of G. L. c. 140, 
8 131F? 



96 P.D. 12 



5. Is the firing of said weapons and the storage of ammunition 
for them by a nonresident subject to the provisions of G. L. c. 
149, § 9 and the Board of Fire Prevention Regulations? 
In response to your first question, G. L. c. 140, § 121 exempts certain 
weapons [hereinafter antique weapons] from regulation under G. L. c. 140, 
§§ 122-129D and §§ 131A, 131B, 131E, if they were manufactured before 
1899 or are replicas of weapons manufactured prior to 1899 and if they meet 
the other specific requirements in section 121(A) or (B). The exemption 
allows antique firearms, rifles, or shotguns to be kept at home or in one's 
place of business without any special permit, license or card being required. 
However, this exemption for purposes of possession or ownership of a fire- 
arm, shotgun or rifle does not satisfy the provisions of G. L. c. 269, § 10(a), 
which regulates the carrying of firearms, shotguns, rifles and the antique 
weapons which are the subject of your inquiry (as discussed below). Thus, G. 
L. c. 140, § 121(A) or (B) does not exempt antique weapons from all gun 
control regulation. 

With regard to your second question, the coverage provisions of G. L. c. 
269, § 10(a), as most recently amended by c. 113 of the Acts of 1975, 
essentially provides that whoever carries on his person or under his control 
in a vehicle, a firearm, a rifle or shotgun, loaded or unloaded, shall be subject 
to the regulatory provisions of the section. It is my opinion, based upon 
section 10(a) and upon the language of G. L. c. 140, § 121, that G. L. c. 269, 
§ 10(a) is applicable to flintlocks, muskets, and long arm rifles. 

With respect to your third question, G. L. c. 140, § 129C (r) and (s) provide 
for exemptions from the provisions of G. L. c. 140, §§ 129B-129C in the case 
of: 

(r) Possession by a veterans' organization chartered by the Con- 
gress of the United States or included in clause (12) of section five 
of chapter forty and possession by the members of any such 
organizations when on official parade, duty or ceremonial 
occasions; 

(s) Possession by federal, state and local historial societies, 
museums, and institutional collections open to the public, pro- 
vided such firearms, rifles or shotguns are unloaded, properly 
housed and secured from unauthorized handling. 

These exemptions apply, on their face, only to ownership or possession of 
firearms and not to their transportation. Therefore, they do not, by them- 
selves, affect carrying questions under G. L. c. 269, § 10(a) except as pointed 
out in the answer to your fourth question. 

In answer to your fourth question, the nonresident is required by G. L. c. 
269, § 10(a) to obtain a "temporary license to carry" issued under G. L. c. 
140, § 131F unless he meets the requirements of G. L.c. 140, § 131G and falls 
within the exemptions of G. L. c. 140, § 129C(r) or (s). Please note that this 
exception applies only to firearms as defined in G. L. c. 140, § 121 and not to 
shotguns and rifles. 

With respect to your fifth question, it is my understanding that the antique 
weapons in question utilize both black and smokeless gunpowder and inert 



P.D. 12 97 



projectiles. It is my opinion that the firing of these weapons is a "use" of 
gunpowder within the contemplation of and thus regulated by G. L. c. 148, 
§ 9. Similarly, to the extent the gunpowder used for firing these weapons is 
kept for future use or after past use, it is "stored" for purposes of regulation 
under G. L. c. 148, § 9. Specifically, I refer you to the applicable Department 
of Public Safety Board of Fire Prevention Regulations. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 22 August 18, 1975 

Honorable William F. Hogan 

Chairman, Committee on Public Safety 

House of Representatives 

Room 482, State House 

Boston, Massachusetts 02133 

Dear Representative Hogan: 

As Chairman of the House Committee on Public Safety, you have 
requested my opinion as to whether eight branch offices of the Registry of 
Motor Vehicles may be terminated by executive action. In particular, you 
refer to "a recommendation made by Secretary of Public Safety, Charles V. 
Barry and Governor Michael Dukakis." 

The Attorney General is required to "give his opinion upon questions of 
law submitted to him by the governor and council or by either branch of the 
general court." G. L. c.l2, §9. Upon request of a legislative committee, the 
Attorney General also may be required to give his advice concerning the 
legal effect of proposed legislation pending before such committee. Id. See 
also, 1941 Op. Atty. Gen. 56; § Op. Atty. Gen. 75 (1926). 

Because your request does not presently meet these requirements, I must 
respectfully decline to answer. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 23 September 8, 1975 

Mr. Edward A. McColgan 

Executive Director 

Massachusetts Bicentennial Commission 

10 Tremont Street 

Boston, Massachusetts 02108 

Dear Mr. McColgan: 

You have requested my opinion concerning the legal ability of the Com- 
mission to purchase insurance for articles of property it obtains in light of 
G.L. c.29, §30, which provides: 



98 P.D. 12 

No officer or board shall insure any property of the Common- 
wealth without special authority of law. 
Specifically, you have asked: 

1. Does this statute prohibit the Massachusetts Bicentennial 
Commission, a special legislative commission established by 
Chapter 71 of the Resolves of 1964, from insuring the items of 
equipment it purchases and/or is given in connection with the 
Bicentennial observances? 

2. Does this statute prohibit the Massachusetts Bicentennial 
Commission from insuring equipment and property which is 
only loaned to it in connection with the Bicentennial obser- 
vances, and which is therefore not "property of the 
Commonwealth?" 

I shall consider your questions in the order presented. 

1 . Purchased and /or donated property. The Commission was established 
by the Legislature and is an agency of the state. Title to property purchased 
by the Commission or unconditionally donated to it vests in the Common- 
wealth. 6 Op. Atty. Gen. 636 (1922). Therefore it seems clear that such 
property constitutes "property of the Commonwealth" within the scope of 
G.L. C.29, §30. 

The meaning of G.L. c.29, §30 was considered by the Attorney General in 
1964-1966 Op. Atty. Gen. 100, 101 (1966). That opinion involved a request 
by the Massachusetts Executive Committee for Educational Television as to 
whether it could insure the Committee's furniture and equipment. The 
Attorney General concluded that it could not, stating: 

The General Court has clearly determined that the Common- 
wealth is to be a self-insurer of its property. The authority to 
insure the Commonwealth's property must be specifically 
granted by the Legislature. Authorization of this nature does not 
appear in the statutes which govern the Executive Committee. 
.... Chapter 29, Section 30 can only be limited by the enactment 
of a specific provision authorizing a given officer or board to 
purchase insurance; absent such special authorization, the 
expenditure of funds for insurance by officials of the Common- 
wealth is precluded. 

An examination of the enabling statute for the Massachusetts Bicenten- 
nial Commission reveals no special authorization for the purchase of insur- 
ance by the Commission. Chapter 71 of the Resolves of 1964 established the 
"commission ... to devise plans and programs for the observance by the 
commonwealth of the bicentennial .... Said commission may receive and 
expend such funds as may be donated to it for its purposes." This language 
merely empowers the Commission to expend funds to devise plans and 
programs for the Bicentennial. It cannot be construed as a specific authoriza- 
tion to purchase insurance. 

Because the property referred to in your first question is property of the 
Commonwealth and because the Commission lacks specific legislative 
authorization to purchase insurance, it is my conclusion that M.G.L. c.29, 



P.D. 12 99 



§30 prohibits the Commission from insuring said property. 1967-1970 Op. 
Atty. Gen. 124, 126 (1966); 1957-1962 Op. Atty. Gen. 46 (1961). 

2. Loaned property. Title to such property remains in the owner rather 
than the Commonwealth, and hence, such property does not appear to fall 
within the express scope of G.L. c.29, §30. Furthermore, as the Opinion of 
the Attorney General quoted above states, §30 represents a determination by 
the Legislature that the Commonwealth shall act as a self-insurer for its own 
property, absorbing losses caused by damage to or destruction of such prop- 
erty rather than obtaining commercial insurance to cover them. This ratio- 
nale is inapplicable to property loaned to the Commonwealth. Any loss 
resulting from damage to or destruction of loaned property while in the 
temporary possession of the Commonwealth would continue to fall on its 
owner if insurance is not purchased. 

Because neither the express language of the statute nor its underlying 
rationale support a construction that would include loaned property within 
its scope, I conclude that the Massachusetts Bicentennial Commission is not 
prohibited by G.L. c.29, §30 from purchasing insurance for such property. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 24 September 8, 1975 

Joseph Serio, Chairman 

Board of Trustees of the University of Lowell 

One Boston Place 

Boston, Massachusetts 02108 

Re: Collective Bargaining Agreement with Professional and Non-Pro- 
fessional Employees 

Dear Mr. Serio: 

In your capacity as Chairman of the Board of Trustees of the newly 
established University of Lowell, you have requested my opinion as to the 
legality of certain existing collective bargaining agreements originally 
entered into between professional and non-professional employees of Lowell 
State College and Lowell Technological Institute and the respective Boards 
of Trustees of the two institutions. The three agreements which you have 
asked me to review are the following: 1 ) agreement between the Lowell State 
College Faculty Federation and the Board of Trustees of State Colleges, with 
expiration date of June 30, 1976 (professional); 2) agreement between Mas- 
sachusetts Society of Professors at Lowell Technological Institute and the 
Board of Trustees of Lowell Technological Institute which also expires June 
30, 1976 (professional); and 3) agreement between the National Association 
of Government Employees, Local R 1-233 and the Board of Trustees of 
Lowell Technological Institute, which expired June 30, 1975 (non- 
professional). 



100 P.D. 12 



The University of Lowell was established by the merger of Lowell State 
CoUege and Lowell Technological Institute pursuant to St. 1973, c. 1175. 
The effective date of the merger was June 9, 1975. Section 10 of c. 1175 
provides that upon completion of the merger, the University's Board of 
Trustees "shall be vested with all the powers, rights and privileges and shall 
be subject to all the duties of the trustees" of the two merged institutions. 
"All property, real or personal and all rights" held by the Trustees of the 
former institutions are transferred to the University's Board. This section 
plainly contemplates that the Board of Trustees of the University will suc- 
ceed automatically to any on-going contracts entered into by their predeces- 
sors, including the three collective bargaining agreements involved here. 
Moreover, § 12 of c. 1 175, which provides for the transfer of "[t]he adminis- 
trators, faculty, professional, and non-professional employees" of the two 
merged institutions to the University's staff, expressly states that all the 
rights and benefits of these employees shall not be affected by the merger. 
The specific "rights" listed in the statute include salary level, tenure, retire- 
ment, insurance and workmen's compensation coverage, all of which are 
treated within and governed by the terms of the three agreements. Comph- 
ance with § 12 of c. 11 75 thus implies — and indeed, appears to require — 
the continued validity of the collective bargaining agreements. 

In summary, on the basis of my review of the three collective bargaining 
agreements and of the governing merger statute, it is my opinion that the two 
"professional" agreements have continued in effect beyond the effective date 
of the merger and are currently binding on the Board of Trustees of the 
University of Lowell. Similarly, the "non-professional" agreement consti- 
tuted a valid and binding obligation of the University's Trustees until its 
expiration date of June 30, 1975. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 25 September 9, 1975 

Senator Walter J. Boverini 

Chairman, Committee on Education 

Massachusetts Senate 

State House 

Boston, Massachusetts 02133 

Re: Senate Bill No. 2030 

Dear Senator Boverini: 

The Committee on Education has requested my opinion as to whether the 
provisions of Senate Bill No. 2030 conflict with the Conflict of Interest 
Statute, G. L. c. 268A. 

The Bill would amend G. L. c. 15, § 20A, which establishes the Board of 
Trustees of State Colleges and prescribes the qualifications of the Board 



P.D. 12 101 

members, to provide that such Board shall also include as a member "a 
president of a state college chosen annually by the presidents of state 
colleges." 

I have concluded that the proposed amendment conflicts with G. L. c. 
268A, § 23A. That section provides in relevant part: 

No trustee of any public institution of higher education operated 
by the commonwealth shall be eligible to be appointed to or 
hold any other office or position with said institution for a period 
of three years next after the termination of his services as such 
trustee .... 
Under the express terms of the section, a member of the Board of Trustees 
of State Colleges could not serve as the president of any state college for 
three years following his or her term of office as Trustee. Clearly, implicit in 
the section is also a prohibition against a Trustee's holding the office of 
president during his or her term. My opinion is that the provisions of Senate 
Bill 2030, which permits the president of a state college to serve on the Board 
of Trustees of State Colleges, conflicts with G. L. c. 268A, § 23 A. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 26 September 10, 1975 

Mr. Arthur Sweeney 

Fleet Administrator 

Motor Vehicle Management Bureau 

Executive Office of Administration 

and Finance 
State House 
Boston, Massachusetts 02133 

Dear Mr. Sweeney: 

You have requested my opinion with respect to who may be permitted to 
operate state-owned vehicles for authorized travel on official business. Spe- 
cifically, you have asked: 

1. What is the definition of an 'officer or employee of the 
Commonwealth'? 

2. Are the following within the definition of being an 'officer or 
employee of the Commonwealth'? 

a. Legislators 

b. Constitutional Officers and their staffs 

c. Legislative personnel 

d. Persons employed by the Judiciary Branch 

e. Persons appointed to various commissions and their 
staffs. 

The words "officer" and "employee" are found in G. L. c. 12, § 3B which 



102 P.D. 12 



provides limited (up to $10,000) indemnificaton for such persons if driving a 
motor vehicle owned by the Commonwealth. Permission to drive a state- 
owned vehicle does not, however, bind the Commonwealth under Section 
3B to indemnify the driver. However, since uncertainty as to coverage of that 
section may well present practical problems, I will attempt to provide some 
clarification. 

An officer of the Commonwealth is a person "whose duties are in their 
nature public, that is, involving . . . the exercise of some portion of the 
sovereign power . . . ." Attorney General v. Drohan, 169 Mass. 534, 535 
(1897); accord Attorney General v. Tillinghast, 203 Mass. 539, 543 (1909). 
Obviously, legislators and constitutional officers are officers of the 
Commonwealth. 

The definition of employee is much broader. Generally, if a person is 
subject to control and supervision, he is an employee of the person for whom 
he is performing the service. Griswold v Director, Division of Employment 
Security, 135 Mass. 371 (1944). There are, however, specific statutes which 
define "employee" for particular purposes. General Laws c. 268 A (1) (con- 
flict of interest), G. L. c. 178G (labor relations law) and G. L. c. 152, § 1(4) 
(workmen's compensation) all define "employee" somewhat differently. 
Compare, Commonwealth v. Antonelli, 345 Mass. 518, 521 (1953). 

Since there are no statutes concerning the question you raised, I must 
compare the positions you listed with the general common law definition. 
The staff of constitutional officers and legislative personnel seem to clearly 
fall within the definition of "employee". However, with respect to judicial 
personnel and persons appointed to various commissions and their staffs, I 
would require their precise job descriptions, titles and salary sources before 
rendering an opinion as to their status as officers or employees of the 
Commonwealth. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 27 September 24, 1975 

Malcolm E. Graff, P.E. 

Associate Commissioner 

Department of Public Works 

100 Nashua Street 

Boston, Mass. 021 14 

Dear Mr. Graff 

You have requested my opinion with regard to your duty as Commis- 
sioner of Public Works, to examine all dams to insure that they do not pose a 
threat to the public's safety pursuant to C. 595 of the Acts of 1970. 

You have examined and found unsafe and in need of immediate repair the 
Great Barrington-Monument Mills Dam, owned by Richard S. Pope. You 
have mailed a certified letter to him, return receipt requested, stating the 



P.D. 12 103 

condition of the dam and your duties should he fail to comply. He did not 
respond. You have recorded the results of the examination and the notices 
sent to Mr. Pope in the official records of the Division of Waterways in the 
Department of Public Works and at the Southern Berkshire Registry of 
Deeds. 

Based on the above facts and due to the potentially dangerous situation 
involved, you have requested my opinion as to whether all the procedural 
requirements of C. 595 of the Acts of 1970 have been followed. Specifically, 
you pose the following questions: 

1 . The most upstream mill building which is unused and must be 
entered appears to be unsafe. The use of equipment and 
explosives are needed to accomplish our purpose and may 
cause damage to the building itself or other property owned by 
Mr. Pope. What is the Department's responsibility under the 
circumstances? 

2. Since the Department is without the owner's permission to 
enter upon the property and take the necessary action, your 
opinion and guidance is requested in this regard. 

Section 46 of Chapter 595 of the Acts of 1970 in pertinent part states: 

If upon such examination the structure is not, in the judgment of 

the Commissioner, sufficiently strong to resist the action of the 

water under any circumstances which may reasonably be 

expected to occur, he shall determine and direct what alterations 

or repairs are required to make the structure permanent and 

secure and shall in writing order the owners thereof to make such 

alterations or repairs within a reasonable time . . . 

The statute requires that notice be given to the owner of the structure 

determined to be unsafe. Due process requires notice and an opportunity to 

raise objections. Strange v. Powers, 358 Mass. 126, 260 N.E.2d 704 (1970); 

Sullivan v. Croquette, 420 F,2d (1st Cir. 1969); Mullane v. Central Hanover 

Bank and Trust Co., 339 U.S. 306 (1950). In emergency situations the formal 

hearing can be held afterward. Wall v. King, 206 F.2d 878 (1st Cir. 1953). 

Your question is whether the notice you have given Mr. Pope fulfills due 

process requirements for such emergencies. 

Adequate notice should be given to the owner of the conditions of the dam 
and the necessary repairs. Your letter to Mr. Pope, dated February 20, 1975, 
differs materially from the action you intend to take, as indicated in your 
letter to the Attorney General requesting an opinion and, therefore, a court 
might find it to be inadequate notice. For example, in the letter to Mr. Pope, 
you did not mention the intended use of explosives to repair the dam. 
Instead, you instructed him to "open the gates wide and clear the water 
passages there and downstream, through the mill to the return outlets to the 
river." Because Mr. Pope may not be aware of the extent of the repairs you 
intend to make, you should mail another certified letter, return receipt 
requested, to Mr. Pope. It should contain a description of the condition of the 
dam, a more specific statement of the repairs and alterations necessary to 
return the dam to a secure and safe condition, the action you are required to 
take should he fail to comply, his obligation to pay for such repairs and 



104 P.D. 12 



alterations and the effect your actions may have on his surrounding prop- 
erty. You should then allow him a reasonable time to reply to your letter or 
repair the dam. 

In summary, my answer to your first question is that if Mr. Pope fails to 
respond within the time allotted, you may perform the necessary repairs and 
alterations and assess the cost to him. Second, since this is an emergency 
situation, once adequate notice has been given, the express permission of the 
owner is not necessary and you may proceed with the necessary work. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 28 _ September 24, 1975 

Ms. Anne Prell 

Secretary 

Milk Price Control Commission 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear. Ms. Prell: 

You have requested my opinion concerning the procedures to be followed 
by the Milk Control Commission in order to discharge the Director of the 
Division of Milk Control, who is a veteran as defined by M.G.L. c. 31, § 21, 
and who has held such position for not less than three years, when said 
Director has refused to resign after having been requested to do so by an 
official vote of the Commission. 

The Director of the Division of Milk Control is appointed by the 
". . . commission, subject to the approval of the governor and 
council . . ." G.L. c. 20, § 8. The approval of the council is no longer 
required as St. 1964, c. 740, § 3, repeals so much of c. 20, § 8, as requires such 
approval and the approval of the council to the appointment or removal of 
the Director is not required by the constitution of the commonwealth. While 
other employees of the commission are subject to civil service, the Director is 
not. St. 1941, c. 691, § 4. He can only be removed by the original appointing 
authority, which is the commission, subject to approval by the governor. See 
1946 Op. Atty. Gen. 75; St. 1964, c. 740, § 3. The extent, if any, which the 
Veterans' Tenure Act, G.L. c. 30, § 9A, alters this situation is the issue raised 
by your request. G.L. c. 30, § 9A, provides civil service protection to veter- 
ans, as defined by G.L. c. 31, § 21, who hold: 

... an office or position in the service of the Commonwealth 
not classified under chapter thirty-one, other than an elective 
office, an appointive office for a fixed term or an office or a 
position under section seven of this chapter, and has held such 
office or position for not less than three years . . . 
The position of Director is neither subject to chapter thirty-one, an elec- 



P.D. 12 105 



tive office, an appointee for a fixed term, nor a confidential secretary under 
c. 30, § 7. "It has already been decided that the protection of the act does not 
necessarily extend to every position which is not expressely excluded from its 
provisions." Cieriw. Commissioner of Insurance, 343 Mass. 181, 185 (1961); 
also, see Sullivan v. Committee on Rules of the House of Representatives, 331 
Mass. 135, 137 (1954). Furthermore, c. 30, § 9A, does not apply to those 
positions authorized by a statute whose provisions manifest an intention on 
the behalf of the Legislature that c. 30, § 9A, should not apply. Hanley v. 
Commissioner of Insurance, 355 Mass. 784 (1969). 

The language of the appointing statute, G.L. c. 20, § 8 is similar to G.L. c. 
26, § 7, which was interpreted in Hanlev v. Commissioner, supra, so as to 
make veterans' tenure inapplicable. Although G.L. c. 20, § 8 does not refer to 
removal, it has been interpreted to implicitly do so. 1946 Op. Atty. Gen. 75. 
While other statutes specifically preclude the application of § 9A (e.g., G.L. 
c. 16, § 4; G.L. c. 16, § 3A, these provisions were all passed after the 
enactment of § 9A; G.L. c. 20, § 8 was promulgated in 1941, five years before 
the Veterans' Tenure Act. The lack of a specific reference to § 9A is proba- 
bly, therefore, without significance. In any event, as noted above, the inquiry 
must go beyond the language of the enabling statute. 

The Supreme Judicial Court has interpreted § 9A to be inapplicable in 
circumstances similar to those presented by your request. For example, the 
court in Cieri, supra, found it improbable that the legislature intended by 
§ 9A to make permanent a position which had been created to serve at the 
pleasure of the Commissioner of Insurance. Nor did the court in the Sullivan 
case believe § 9A clothed the employee from the ability of a legislative 
committee to replace him and, therefore, have its policies reflected in its 
internal management. 

The position of Director arguably fulfills similar functions. It is the chief 
administrative position of the Milk Control Commission and has the pri- 
mary responsibility for carrying out its policies. The legislature may not have 
intended to forever bind the Commission with a Director and require that 
the detailed procedures of civil service be utilized for removal. Absent "good 
cause" for removal this would result in the inability of future Commissioners 
to fully implement its policies. See Hanley, supra; Cieri, supra; Sullivan v. 
Committee on Rules of the House of Representatives, supra. See also, Regan v. 
Commissioner of Insurance, 343 Mass. 202 (1961). 

However, while it may be that Veterans' Tenure Act is inapplicable, the 
legal issue is, quite frankly, extremely close and one where prior opinions of 
the Supreme Judicial Court might be factually distinguished. 

The most conservative and sound course for the appointing authority to 
follow, would be to grant a hearing of the type referred to in c. 3 1, § 43, even 
though it may not be a strict legal necessity. While there is substantial 
authority which indicates that such a hearing might not be required, the 
issue is not free from doubt. (See cases cited, supra.) For this reason, my view 
is that in the commission's written notice of the hearing, it should explain to 
the Director that this hearing should not be construed as an admission by the 
commission that the Director is covered by c. 30, § 9A, that the commission 
expressly reserves the right to challenge in any future administrative or 



106 P.D. 12 



judicial proceeding any allegation that the Director is covered by c. 30, § 9 A, 

and that the hearing was provided by the commission only as a matter of 

grace. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 29 September 29, 1975 

Elton B. KUbanoff, Director 
Office for Children 
120 Boylston Street 
Boston, Massachusetts 021 16 

Dear Mr. Klibanoff: 

You have requested my opinion on whether the investigator appointed in 
care and protection proceedings under M.G.L. c. 119, § 24, has the same 
responsibilities as a guardian ad litem for purposes of federal regulations 
issued pursuant to the federal Child Abuse Prevention and Treatment Act 
(P.L. 93-247).' I understand that you have sought my opinion because 
clarification of this point is a necessary pre-condition to your office receiving 
a federal grant under said Act. 

In Massachusetts, the guardian ad litem is appointed by the Probate Court 
pursuant to General Laws c.215, § 56 A, in cases involving the care, custody 
or maintenance of minor children. Investigators are appointed in care and 
protection proceedings under General Laws, c. 119, § 24 and perform a 
similar role. Since the federal regulations offer no definition of "guardian ad 
litem", it is necessary to examine the functions of both positions in order to 
answer your question. 

The function of the guardian ad litem in Probate Court proceedings is set 
out principally in General Laws c.215, § 56 A: 

... to investigate the facts in any proceeding pending in said 

court 

. . . said guardian ad litem shall, before final decree in such 

proceeding, report in writing to the court the results of the 

investigation . . . 

The report of the guardian ad litem is entitled to such weight as the court 

sees fit to give it. Jones v. Jones, 349 Mass. 259, 297 N.E.2d 922 (1965). While 

the role of the guardian ad litem is obviously somewhat different in a case 

involving a minor's interest in real or personal property and then where the 



'The regulations promulgated by the US Department of Health. Education and Welfare require: 

The State must provide that in every case involving an abused or neglected child which results in a judicial proceeding, a 
guardian ad litem shall be appointed to represent the child in such proceedings The requirement of this clause may be satisfied 
by a State law or by a legal opinion of the State's Attorney General holding that such appointments can be made, and by a 
statement from the Governor that such appointments are made, in all cases. Such guardian ad litem need not be an attorney; 
however, such representative may be an attorney charged with the presentation in a judicial proceeding of the evidence alleged 
to amount to the abuse and neglect, so long as his legal responsibility includes representing the rights, interests, welfare and 
well-being of the child; where such appointments are made the legal opinon of the State Attorney General must specify that 
such attorney has said legal responsibiity. (45CFR section 1340 3-3(d) (7) published at 34 Federal Register P. 43940. December 
19. 1974). 



P.D. 12 107 



guardian is representing the minor (see Tyson v. Richardson, 103 Wis. 397, 79 
N.W. 439 (1899)) in a proceeding involving the care and custody of a minor, 
the guardian's duties clearly include the investigation of facts. 

When a care and protection petition if filed. General Laws c. 1 19, § 29 
requires the appointment of counsel for the child if the court determines that 
the interests of justice require it. Most courts do, in fact, appoint counsel for 
the minor in care and protection proceedings. Even where counsel is not 
appointed, there are adequate safeguards for the minor's interest which 
satisfy and, even go beyond, the requirements of the federal regulations you 
cite. 

When the Department of Welfare initiates a judicial proceeding to protect 
a child who has been the subject of an abuse and neglect, petition under 
General Laws c. 1 19, § 51 A, Section 5 IB provides for the filing of care and 
protection petitions in the appropriate district and juvenile court, pursuant 
to General Laws c. 1 19, § 24. The interests of the child are protected, in the 
first instance, by the duty imposed on the Department of Welfare. See 
General Laws c. 1 19, § 5 IB. In fact, the entire thrust of the recently amended 
legislative scheme is to 

. . . insure that the children of the Commonwealth are protected 
against the harmful effects resulting from the absence, inability, 
inadequacy, or destructive behavior of parents or parent 
substitutes . . . General Laws c. 119, §1. 
The duty of the Department in such proceedings, therefore, includes 
"representing the rights, interests, welfare and well-being of the child." 45 
C.F.R. 1340 3-3(d) (7). But, as an additional protection for the child, the 
court is required to appoint an investigator (General Laws c. 1 19, § 24). Such 
an investigator is usually trained as an expert on child welfare and is an 
agent of an approved charitable corporation or agency substantially engaged 
in the protection of children, as provided in M.G.L. c. 1 19, § 21. In addition 
to reporting purely factual information obtained during the investigation, 
the investigator also makes a recommendation as to what he or she believes 
to be the best course for the court to pursue in protecting the welfare and 
well-being of the child. The report of the investigator, which is made under 
oath, is entitled to such weight as the judge considers appropriate. This is the 
same standard that applies to the report of the guardian ad litem under c. 
215, § 56 A. Compare Jones v. Jones, supra. Because of the qualifications of 
the investigator under c. 1 19, § 21, the findings of fact and the recommenda- 
tion of the investigator are accorded great weight by the juvenile courts. In 
short, the central function of the investigator is to present facts and recom- 
mendations to the court to protect the rights, welfare, well-being and inter- 
ests of the child. 

Upon examination of the role of the investigator in care and protection 
proceedings under c. 1 19. § 24, and the purpose of chapter 119, it is my 
opinion that the investigator is the equivalent of a guardian ad litem for 
purposes of such proceedings under the laws of this Commonwealth. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



108 P.D. 12 



Number 30 September 30, 1975 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

You have requested my opinion on the proper construction of Chapter 139 
of the Acts of 1975. Specifically, you ask: 

Does the phrase "signed by a majority" as used in Sections 1 and 
2 of Chapter 139 of the Acts of 1975 require that a majority of the 
individual registrars in each city and town each personally sign 
their names by hand to certification of voters on nominaton 
papers and to the enrollment certificates (of voters), or may 
signature facsimile stamps, bearing one or more signatures of the 
registrars, be used for these purposes? 

I am of the opinion that Chapter 139 requires that a majority of the 
registrars personally certify signatures, but that it does not alter the mode of 
certification. I, therefore, conclude that facsimile stamps may be used by the 
registrars and that the personal handwritten signatures of individual regis- 
trars are not required. 

The word "signed" is a word of art and should, therefore, be interpreted 
according to its technical, legal meaning. See School Committee of Spring- 
field V. Board of Education, 1972 Mass. Adv. Sh, 1543. The leading case on 
the meaning of the term is Finnegan v. Lucy, 157 Mass. 439 (1892), in which 
the Supreme Judicial Court stated the general rule that a handwritten signa- 
ture is not required whenever a statute uses the word "signed." On the 
contrary: 

... a signature in the proper handwriting of a person (is 
required) only in those cases where, by express language, or by 
usage, or by implication arising from the nature of the document 
to be signed, a written signature is required by law . . . 

This standard has been repeatedly followed in this Commonwealth not only 
in cases involving official acts of state officers, but also in contract cases. See 
Assessors of Boston v. Neal, 311 Mass. 192 (1942); Irving v. The Goodimate 
Co., 320 Mass. 454(1946). 

Your request indicates both that the long-standing practice has been to 
accept facsimile stamps and that to hold otherwise would impose a severe 
burden on the registrars. Therefore, under the standard imposed by Finne- 
gan V. Lucy, only express statutory language would warrant a finding that a 
handwritten signature is required. There is no such express statutory lan- 
guage in Chapter 139 of the Acts of 1975. In fact, an examination of the 
legislative history of that chapter reveals an intent not to require such a 
handwritten signature. 

On April 17, 1975, the Governor signed House Bill 5698 into law as 
Chapter 139. That Bill has been substituted in the House for Bill 557. The 
earlier House Bill provided in substance: 



I 



P.D. 12 109 



All certifications on nomination papers and enrollment of voters 
certificates shall be signed personally by a majority of the board 
of registrars of voters or election comissioners. (emphasis added). 
Chapter 139 as enacted differs from the earlier bill, primarily in the fact that 
the word "personally" was deleted. Had the legislature intended to require a 
handwritten signature, they could have done so either by leaving the term 
"personally" in the statute or by other express language. They did neither, 
and I, therefore, conclude that a facsimile stamp is a valid signature for the 
purposes of Chapter 139. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 3 1 September 30, 1 975 

Dr. William E. Perrault 

Executive Director 

Massachusetts State Lottery Commission 

15 Rockdale Street 

Braintree, Massachusetts 02184 

Dear Dr. Perrault: 

You have informed me that a question dealing with the issuance of licen- 
ses for "beano" games was not submitted to the voters in eight Massachusetts 
towns in 1975. Failure to submit that question in 1975 is apparently a 
violation of Section 4 of Chapter 486 of the Acts of 1971, as amended by 
Chapter 244 of the Acts of 1974 which required that the question of beano 
licenses be placed on the ballot in 1975. You have posed four specific 
questions raised by the failure to submit the question on beano games to the 
public. I shall treat those questions separately and in the order you presented 
them. 

Your first question is whether or not the eight towns which failed to 
submit the matter to their local voters are required to hold a special election 
in 1975 on the "beano" question. Section 4 of Chapter 486 provides that the 
matter shall be presented to the voters in Cities and Towns "in the same 
manner" as in 1971. 1 interpret this phrase to mean not only that the question 
is to be in the form prescribed by statute, but also that it is to be submitted at 
a "regular city or annual town election." The General Laws recognize a 
distinction between special and regular elections. (See e.g. G.L.c. 54, §103 A, 
c. 55, §16) and in this case the General Court has declared that the beano 
question is to be decided at a regular election. I, therefore, answer your first 
queston in the negative — the eight towns are not required to hold a special 
election in 1975. 

I also answer "no" to your second question, which asks in substance 
whether the beano question must be submitted at the next annual town 
election. The legislature apparently failed to contemplate the possibility that 
the beano question would not be before the voters in some municipalities in 
1975 and, therefore, failed to provide specifically for such an eventuality. 



110 P.D. 12 



While the best approach to the problem may well be to require these eight 
towns to consider beano at their next annual election, the law as it currently 
exists does not contain such a requirement. The function of an Opinion of 
the Attorney General is to interpret existing law and not to provide for 
legislative omissions. (See 1966 Opinion, Attorney General p. 95). If the 
legislature now desires to impose such a requirement they can do so by 
amendment, but I will not insert such a requirement by this opinion. 

Although Chapter 486 states that the beano question can be resubmitted 
starting in 1979, 1 am of the opinion that the matter may be submitted at the 
1976 annual town elections. I, therefore, answer your third question, whether 
or not the beano question "may be submitted at the next annual town 
election," in the affirmative. I reach this conclusion for two reasons. First, 
Chapter 486 manifests an intent to have the licensing of beano games 
approved or disapproved by local voters. Second, that chapter affects normal 
initiative procedures only in that the question can be submitted no more 
often than every four years. Given these two basic facts, I conclude that the 
beano question may be submitted to the voters at 1976 annual town 
elections. 

Your fourth question asks whether or not licenses granted on November 1, 
1975 for beano games in the eight involved towns are effective for a full year 
until October 31,1 976. 1 answer this question "no", because the vote taken in 
those towns in 1971 only authorized beano games until December 31, 1975. 
Games held after that date would not be duly licensed because underlying 
authority for the games would be lacking. If this result seems unduly harsh 
and licensees appear to be punished because of the inadvertance of town 
clerks in failing to place the beano question before the voter in 1975, I can 
only suggest that a legislative response may be appropriate. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 32 October 1, 1975 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

You have requested my opinion on several interrelated questions of law, 
each dealing with the steps you may take to implement Chapter 600 of the 
Acts of 1975. That act was approved by the Governor on September 1 1, 1975 
and further regulates the presidential primary. 

Your request is occasioned by the fact that although Chapter 600 contains 
no emergency preamble and will not take effect until December 10, 1975, it 
contains several provisions which would require action prior to that date. 
Your specific questions are: 



P.D. 12 HI 

1. May I properly send the attached letter with enclosures to all 
municipal clerks and election commissioners? 

2. May I properly send the attached letter with enclosures to all 
city and town committee chairmen? 

3. May I properly award a contract for the printing and delivery 
of ballots to be used at the presidential primary? 

4. May I properly take such other steps as are presently neces- 
sary in order to administer and implement the provisions of 
Chapter 600 of the Acts of 1975 when it becomes effective? 

I answer each of your questions affirmatively, but qualify each with the 
following caveat. The determination of the effective date of a statute is a 
function of either the General Court or the Governor under the 48th 
Amendment of the Massachusetts Constitution. Neither the Secretary of 
State, in administering the election laws, nor the Attorney General, in ren- 
dering opinions, may provide for legislative errors of omission or commis- 
sion. While you may take all steps necessary to implement Chapter 600 when 
it becomes effective, you may therefore take no steps which would advance 
the effective date of that statute. 

Furthermore, during the brief period which has elapsed since you 
requested this opinion, an action has been commenced in Suffolk Superior 
Court bearing the caption Sears, et al v. Secretary of the Commonwealth, 
Civil Action 9693. Among the issues raised by the complaint is the effective 
date of Chapter 600. It is ordinarily deemed inappropriate to issue an Opin- 
ion of the Attorney General dealing with matters currently in htigation. See 
6 Op. Atty. Gen. 438 (1922). I issue this opinion, however, because it is 
consistent with the position of the plaintiffs and an actual controversy may 
not exist between the parties. To the extent that the court enters contrary 
orders regulating your conduct in this matter, those orders will be binding 
upon you. 

I arrive at these conclusions only after a review of the pertinent statutory 
and case law. As the Secretary of the Commonwealth, you are the state 
official ultimately charged with the administration of election laws. Chapter 
10, Massachusetts General Laws, Socialist Workers Party v. Davoren, 378 F. 
Supp. 1245 (D. Mass. 1974). Consequently, you are empowered to imple- 
ment the "details of legislative policy" not specifically spelled out in Chapter 
600. Cleary v. Cardullo's, Inc., 347 Mass. 337 (1964). I am of the opinion that 
you have the inherent authority to inform the public of the steps necessary to 
comply with an election law which will take effect in December. You may do 
so by letter along the lines suggested in Questions (1) and (2). Moreover, the 
award of a contract for printing contemplated in Question (3) is a "detail of 
legislative policy" and is also permissible. 

To the extent that your fourth question does not specify the steps you 
intend to take to administer and implement Chapter 600, it is in the nature of 
a hypothetical question. 1 cannot respond to this abstract question in a 
specific fashion. I therefore answer only by saying that while you may not set 
policy, you may implement the implicit details of that policy. 

The effective date of a statute is not a mere detail of legislative policy. 



112 P.D. 12 

Kagan v. United Vacuum, 357 Mass. 680 (1970); Coylev. Swanson, 345 Mass. 
126 (1962). Until the time arrives when a statute is effective, all acts purport- 
ing to have been done under its authority are void. To the extent that the 
political parties and individuals voluntarily comply with the new filing dates 
as well as the old, their actions will be under the authority of pre-existing 
statutory scheme and will be valid. This further underscores the fact that it is 
the pre-existing statutory scheme which is controlling until December 10, 
1975. You may take no steps to implement Chapter 600 which are inconsist- 
ent with this proposition. 

I recognize that this opinion may leave you on the horns of a dilemma; as 
a practical matter it may be impossible to conduct a presidential primary on 
March 2, 1976 unless the effective date of Chapter 600 is advanced. The 
mailings you suggest are one possible solution to the problem posed, but any 
real solution is a matter for further law-making. It is my opinion that only an 
additional act, either by the Governor or the General Court, advancing the 
effective date of Chapter 600, will alleviate the problem. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 33 October 3, 1975 

Charles J. Dinezio 

Executive Director 

State Building Code Commission 

141 Milk Street 

Boston, Massachusetts 02109 

Dear Mr. Dinezio: 

By letter dated June 13, 1975 you have requested my opinion on two 
questions relative to the relationship between the State Building Code, the 
Local inspection statutes (G. L. c. 166, § 32, c. 142, §§11,13 and c. 25, § 12H) 
and the rules and regulations promulgated by such State Administrative 
boards as the Examiners of Electricians, the State Examiners of Plumbers, 
the Gas Regulatory Board, and the Board of Fire Prevention Regulation. 

Your first inquiry is whether the various boards referred to have authority 
to amend their respective rules, regulations and codes to preempt local 
inspection of manufactured buildings, building components and mobile 
homes. This question I answer in the affirmative. 

Your second question is whether in the event of a conflict between the 
rules, regulations and codes of the above-named state boards and the provi- 
sions of the State Building Code, the authority of these boards or of the State 
Building Code Commission would be paramount under Section 67 of Chap- 
ter 802 of the Acts of 1972 [hereinafter Chapter 802] and Section 75 of 
Chapter 802 as amended by Section 20 of Chapter 541 of the Acts of 1974 
[hereinafter Chapter 541]. This second question, I respectfully decline to 



P.D. 12 113 



answer in the absence of a concrete factual situation presenting an actual 
conflict. 

In answering your first question, it is necessary to examine the statutory 
language relating to the State Building Code contained in Massachusetts 
General Laws, Chapter 23B, § 16 et seq. Section 17 (h) of G.L. c. 23 provides 
that the State Building Code Commission shall have the power and duty "to 
revise and amend the state building code . . ." Similarly, G. L. c. 23B, § 20 
provides in part that "specialized codes .... shall be amended only by 
those respective boards, commissions, departments or agencies, authorized 
to do so by law." In contrast to these clear grants of power to the Commission 
and to the various boards to amend or revise aspects of the building codes, 
the language of the local inspection statutes (G.L. c. 166, § 32, G.L. c. 142, §§ 
1 1 and 13 and G.L. c. 143, § 30) grants no such power. 
For example, G.L. c. 166, § 32 provides in part: 

. . . Such [wire] inspector shall supervise every wire over or under 
streets or buildings in such city, town or district and every wire 
within a building designed to carry . . . current . . .; and shall see 
that all laws and regulations relative to wires are strictly enforced 
. . . (emphasis added) 
Similarly, G. L. c. 142, § 1 1 provides in part: 

. . . Said inspector of plumbing shall inspect all plumbing in 
process of construction, alteration or repair for which permits are 
granted within their respective cities and towns . . . They shall 
perform such other duties as may be required, (emphasis added) 
Finally, G. L. c. 143, § 3(0) provides in part: 

. . . said [gas] inspector shall enforce the rules and regulations 
adopted by the board established under Section 12H of Chapter 25. 
(emphasis added) 
As is apparent, nothing in these sections gives the various inspectors the 
power to make any rules or regulations. Indeed, c. 143, § 3(0) specifically 
refers to the inspectors as having the duty to enforce rules and regulations 
adopted by the board. While the other sections are somewhat less explicit it 
seems clear that the various local inspectors not only lack power to make 
their own rules but in addition are required to carry out the rules made by 
their respective boards. Thus, it is my opinion that both the State Building 
Code Commissioners and the various regulatory boards may amend their 
respective rules, regulations and codes to pre-empt local inspection of manu- 
factured buildings, building components, and mobile homes. 

Although I decHne to answer your second question, a brief analysis of the 
relevent legislation might be helpful. Section 67 of Chapter 802 of the Acts of 
1972 provided that (1) the state building code commission should hold 
public hearings for the purpose of adopting a state building code; (2) at the 
conclusion of said hearings the commission should promulgate a state build- 
ing code; and (3) effective January 1, 1975, the code would be binding in all 
cities and towns notwithstanding any special or general laws to the contrary. 
G. L. c. 23B, § 19 (c. 802, § 1) provides that: 

The state building code shall incorporate any . . . codes, rules or 



114 P.D. 12 



regulations pertaining to building construction, reconstruc- 
tion, alteration, repair or demolition promulgated by and under 
the authority of the various boards which have been authorized 
from time to time by the general court [including] . . . the state 
plumbing code, electrical code, fire safety code and elevator 
code. 
The only limitation on the incorporation of these specialized codes, (see 
also G. L. c. 143, § 1) rules and regulations appears in Section 75 of Chapter 
802 (as amended by Section 20 of Chapter 541 of the Acts of 1974). As 
amended Section 75 provides that: 

All by-laws and ordinances of cities and towns [or regulations 
promulgated by any state boards, commissions, agencies or 
departments or any special acts or any specific regulations prom- 
ulgated by a local official under section twenty-eight of chapter 
one hundred and forty-eight of the General Laws] in conflict 
with the State Building code shall cease to be effective on Janu- 
ary first, nineteen hundred and seventy-five, (amended by lan- 
guage in brackets). 
Originally, section 75 covered only by-laws and ordinances of cities and 
towns which conflicted with the state building code. The language in brack- 
ets, which was added by the amendments in question, seems clearly to 
invalidate all regulations promulgated by the various boards prior to Janu- 
ary 1, 1975 which conflict with the provisions of the Code. This result is 
consistent with the general objectives of the commission, as enunciated in 
c. 20, § 18, to promote the "elimination of restrictive, obsolete, conflicting 
and unnecessary building regulations which may increase the cost of 
construction . . ." Thus, any regulations enacted by the various boards 
prior to January 1, 1975 which conflicted with specific provisions of the 
Building Code were rendered null and void by Section 75 effective January 
1, 1975. 

By invalidating those pre-existing provisions of the specialized codes 
which conflicted with the Building Code, Section 75 greatly reduced the 
potential conflict between the specialized Codes and the Building Code. 
Nonetheless, a significant potential for such conflict still exists. Originally, 
G.L. c. 23B, § 20, provided that those specialized codes incorporated into the 
Building Code were to be amended by the Building Code Commission with- 
out any further notice or hearing to conform to any amendments by their 
respective boards. By Section 4 of c. 541, Acts of 1974, the legislature 
amended G.L. c. 23B, to provide: 

Except for the specialized codes, as defined by section nineteen, 

which codes shall be amended only by those respective boards, 

commissions, departments or agencies authorized to do so by law, 

the state building code may be amended at any time by an 

affirmative vote of the majority of the members at a regular or 

special meeting of the commission, (emphasis added) 

The clear purpose of this amendment appears to have been to clarify the 

legislative intent to vest solely in the various boards and commissions the 

power to amend the specialized codes. However, G.L. c. 23, § 17(h) makes 



P.D. 12 115 



clear that the State Building Code Commission shall have the sole power and 
duty 

To revise and amend the state building code exclusive of the 
specialized codes referred to in section nineteen at least once 
every five years .... (emphasis added) 
This division of amending authority between the various boards on the 
one hand and the Building Commissioners on the other clearly gives rise to 
the possibility that amendments made by one body will conflict with amend- 
ments made by another. Whenever possible such conflicts should be reduced 
by reconciling apparently conflicting provisions, cf. Goldsmith v. Reliance 
Insurance Company, 353 Mass. 99 (1969). Failing this, it would of course be 
necessary to determine whether regulations promulgated by the State Build- 
ing Code Commission have precedence over regulations promulgated by the 
various boards. Unfortunately, your opinion request does not set forth facts 
indicating an actual existing conflict between specific provisions of the Code 
or regulations enacted pursuant thereto and regulations enacted by the 
various boards. "It is traditional that opinions of the Attorney General are 
rendered solely upon factual situations which actually confront a given State 
Department or agency, and not upon hypothetical questions or general 
requests for information." Op. Atty. Gen. 112, 114 (Dec. 23, 1966). Thus, I 
respectfully decline to answer your second question. However, if a specific 
problem arises involving an actual or apparent conflict, I shall be happy to 
respond to a formal request containing the particular questions. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 34 October 8, 1975 

Edward F. Harrington 

Alcoholic Beverages Control Commission 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Harrington: 

You have requested my opinion as to the legality of proceedings being 
conducted by the Commission in the matter of 7 <$ 7 Enterprises, Inc., et al v. 
Ralph Kaplan, et al. Two of the three commissioners have disqualified 
themselves from hearing the evidence. Specifically, you have asked: 

(1) Whether a single Commissioner can render a decision? 

(2) If he is legally disabled from rendering a decision, what steps should be 
followed which would allow a legal decision to be rendered in this matter? 

In answer to the first question, it is my opinion that at least two members 
of the Commission must make the decision in the proceedings before you. 
The Alcoholic Beverages Control Commission was created by G.L. c. 6, §43, 
to consist of three members. Chapter 138, § 64 gives licensing authorities the 



116 P.D. 12 

power, after notice to the licensee and reasonable opportunity to be heard to 
modify, suspend, revoke or cancel a license for violation of its conditions or 
for violation of any law of the Commonwealth. It also charges the Commis- 
sion with the authority to revoke a license which, after notice to the licensing 
authorities and the holder of the license and opportunity to be heard, it fmds 
was issued in excess of certain statutory quotas. "Licensing authorities" is 
defined by c. 138, § 1 as "the commission or the local licensing authorities, or 
both, as the case may be." It is the Commission then, rather than any single 
member, which is charged with taking action under c. 138, § 64. 

Mass. G.L. c. 4, § 6, paragraph fifth, provides a general rule for construing 
statutory words which give joint authority to or direct any act by three or 
more public officers or persons. It provides for construction of such words to 
give authority to a majority of the officers or persons. Analogously, a quo- 
rum of the local licensing board, also composed of three members, is set at 
two. G.L. c. 138, § 6. At common law, it has been held that in the absence of 
express provision, boards may act by the majority of their number, and if all 
members have been given an opportunity to act, a determination by a 
majority of a quorum is binding. See Real Properties, Inc. v. Board of Appeal 
of Boston, 311 Mass. 430, 42 N.E.2d 499, 502 (1942) and cases cited. Since in 
the case of the ABCC one member could be neither a majority nor a majority 
of a quorum, I conclude that two members must concur in any act to be 
taken by the Commission. 

You have asked what steps should be taken to enable a legal decision to be 
made in the matter pending before you. I have found no explicit provisions 
regarding substitution for a member of the Commission who has disqualified 
himself. Two statutory provisions do exist regarding designation of substi- 
tutes for state departments, boards and commissions, however it is my opi- 
nion that neither section is applicable to the ABCC. 

M.G.L. c. 30, § 6A allows permanent members of state boards or commis- 
sions who serve as such by virtue of holding any other office or position to 
designate an officer or employee of his department to perform his duties 
during the member's absence or disability. However, ABCC members are 
not serving by virtue of their holding some other position. See 1967-68 
Opinion of the Attorney General 40. 

M.G.L. c. 30, § 6 provides: 

If, during the absence or disability of a commissioner or head of 
an executive or administrative department or of a director or 
head of a division in a department, his duties are not specially 
authorized by law to be performed by another person, the com- 
missioner or head of such department shall designate another 
person in his department to perform the duties of such person in 
case of and during such absence or disability, but a person so 
designated shall have no authority to make permanent appoint- 
ments or removals. Every such designation shall be subject to 
approval by the governor, and shall remain in force and effect 
until revoked by the commissioner or head of such department or 
by the governor; provided, however, that such designation shall 



P.D. 12 117 



continue after the death of such commissioner or head of depart- 
ment until revoked by his successor. 
A prior opinion of the Attorney General has read this language as it refers to 
a "commissioner'' to cover only commissioners of executive or administra- 
tive departments, as the word "department" is defined in c. 30, § 1. 1965-66 
Opinion of the Attorney General 392. This reading is consistent with the 
substance of the statute, which allows designation of a substitute from the 
disabled person's department. G.L. c. 30, § 1 defines the word "departments" 
as used in c. 30 as "all the departments of the commonwealth .... and 
also including the metropolitan district commission and each of the execu- 
tive offices established by chapters six A and 7." The phrase "all the depart- 
ments of the commonwealth" has a technical meaning that is well defined. It 
refers to the twenty state departments which were authorized by article 
LXVI of the amendments to the Massachusetts Constitution. Specifically 
excluded from organization into departments by that amendment were 
commissions serving directly under Governor or council, such as the ABCC. 
For a full discussion of the meaning of the phrase "departments of the 
commonwealth", see 1966-67 Opinion of the Attorney General 240; 1965-66 
Opinion of the Attorney General 392; 1967-68 Opinion of the Attorney 
General 40. 

It is therefore my conclusion that the legislature has left a gap in providing 
for the substitution for absent or disabled members of commissions who do 
not serve ex officio, a gap into which the ABCC falls. 

Where the legislature has conferred upon only one body the power to act 
in a particular proceeding and has made no provision that some other officer 
or body act when the board is disquahfied due to bias or prejudice, a "rule of 
necessity" is sometimes invoked. This rule allows disqualified officers to 
make decisions when no provision is made for a substitute tribunal. This is a 
harsh rule, which has been critized. Davis, Administrative Law Text § 12.05. 
But when there is no alternative, the public interest requires that the board 
not be powerless to act. Mayor of Everett v. Superior Court, 324 Mass. 144 
(1949); School Committee of Boston v. Finance Commission of Boston, 1973 
Mass. Adv. Sh. 1306. In order to avoid injustice from the action of a board 
that may be biased, reviewing courts is some states will review decisions 
made under the rule of necessity more broadly and intensively than the usual 
scope of review. Davis, Administrative Law Text § 12.05; Komyathy v. Board 
of Education, 75 Misc. 2d 859, 348 N.Y.S. 2d 25 (Sup. Ct. 1973). 

Assuming that a second member of the commission will decide this pro- 
ceeding, the question remaining is whether evidence can be heard by less 
than a quorum of the Commission and a legal decision rendered based on 
that evidence. 

M.G.L. c. 30A, § 1 1, which regulates the conduct of state administrative 
proceedings, specifically contemplates that decisions may be made in cases 
where a majority of the officials of the agency who are to render the decision 
have not heard evidence. Subsection (7) provides: 

(7) If a majority of the officials of the agency who are to render 
the final decision have neither heard nor read the evidence, such 
decision, if adverse to any party other than the agency, shall be 



118 P.D. 12 



made only after (2) a tentative or proposed decision is delivered 
or mailed to the parties containing a statement of reasons and 
including determination of each issue of fact or law necessary to 
the tentative or proposed decision; and (b) an opportunity is 
afforded each party adversely affected to file objections and to 
present argument, either orally or in writing as the agency may 
order, to a majority of the officials who are to render the final 
decision. The agency may by regulation provide that, unless 
parties make written request in advance for the tentative or pro- 
posed decision, the agency shall not be bound to comply with the 
procedures of this paragraph. 
Presumably the second member rendering a decision will read transcripts 
of the evidence taken by the single commissioner. Arguably this subsection 
would then not apply. However, to the extent that the taking of evidence by 
a single Commissioner, less than a quorum of the Commission, might be 
attacked on the due process grounds, the procedure outlined in c. 30A, § 1 1 
(7) would help assure the parties a final opportunity to be heard on the 
matter through written objections and argument. 

The majority of the cases considering the question have held that an 
administrative decision is valid if made or participated in by an officer not 
present when the evidence was taken. Morgan v. United States, 298 U.S. 468 
(1936); Laughlin v. Public Utilities Commission, 6 Ohio St. 2d 1 10, 216 N.E. 
2d 60 (1966); cases collected at 18 ALR 2d 606. 

There are a few Massachusetts cases which quashed decisions made after 
hearings in which some voting members had not participated. Perkins v. 
School Committee of Quincy, 314 Mass. 47 (1943); Sesnovich v. Board of 
Appeal of Boston, 313 Mass. 393 (1943). However, these were cases of statu- 
tory interpretation of strictly drawn statutes, and would not control over the 
necessary implication of M.G.L. c. 30A, § 1 1 (7). 

It is my opinion that one of the two disqualified Commissioners should be 
required to decide this proceeding under the rule of necessity. Since Com- 
missioner Farnsworth did not feel that he was biased or prejudiced toward 
any of the parties, but disqualified himself solely to avoid the appearance of 
impropriety, he would appear to be the logical second Commissioner to 
decide the proceeding. It is also my opinion that evidence received by a 
single commissioner may be validly considered, if those commissioners mak- 
ing the decision read the transcript and all evidence taken. It is my recom- 
mendation that the commission follow the procedures set out in M.G.L. c. 
30A, § 1 1(7) in rendering its decision. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 119 



Number 35 October 14, 1975 

Charles V. Barry 

Secretary 

Executive Office of Public Safety 

1010 Commonwealth Avenue 

Boston, Massachusetts 

Dear Secretary Barry: 

You have joined with the Registrar of Motor Vehicles in requesting my 
opinion on three questions of law arising from Chapter 593 of the Acts of 
1975. That act purported to defer the effective date of certain other laws 
regulating the operation of heavy vehicles on the ways of the Common- 
wealth. Chapter 593 was declared to be an emergency law and took effect, by 
its own terms, on September 1, 1975. Diverse interpretations of that act cause 
you to inquire: 

"1. Is Section 8 of Chapter 494 of the Acts of 1975 presently 
effective? 

2. Which paragraphs found in Section 19A of Chapter 90, as 
amended by Chapter 85 1 of the Acts of 1974, Chapter 494 of 
the Acts of 1975, and considering Chapter 593 of the Acts of 
1975, are presently operative? 

3. Is the Restraining Order issued by the Federal Court, in the 
case of Hallamore Motor Transportation, Inc., et al vs. David 
J. Lucey, Registrar of Motor Vehicles, et al, applicable to 
either Chapter 851 of the Acts of 1974, as amended, or Sec- 
tion 19 A of Chapter 90 as amended by Section 9 of Chapter 
494ofthe Acts of 1975?" 

I am of the opinion that Section 8 of Chapter 494 of the Acts of 1975 is 
presently effective. Chapter 494 contained an emergency preamble and, 
except as otherwise provided within that Chapter, took effect upon approval 
by the Governor. Chapter 593 does suspend the operation of certain sections 
of Chapter 494, but section eight is not among them. On its face. Chapter 593 
suspends only the operation of Chapter 851 of the Acts of 1974 as amended 
by Chapter 494. 1 am of the opinion that section eight and all other sections 
of Chapter 494 which do not amend Chapter 851 were not suspended by the 
more recent enactment of Chapter 593. I, therefore, answer your first ques- 
tion affirmatively. 

My answer is supported not only by the literal language of the statute, but 
also basic principles of statutory construction. The doctrine of implied revo- 
cation (or suspension) of a statute is a disfavored doctrine. If the General 
Court had intended to suspend the operation of Chapter 494 in its entirety or 
section eight in particular, it would have done so explicitly rather than 
implicitly. See Doherty v. Commissioner of Administration, 349 Mass. 687 
(1950); Op. Atty. Gen. 1954-55, p. 85. 

My answer to your second question necessarily follows from the preceding 
material. All sections of Chapter 494 which are not expressly made effective 
at some future date and which do not amend Chapter 85 1 of the Acts of 1974 
are currently effective. 



120 P.D. 12 



Your third question is not a matter of statutory construction. It turns 
instead on the effect of court orders. It is my understanding that the case 
referred to in your request was dismissed after the enactment of Chapter 494 
of the Acts of 1975. The temporary restraining order issued by Judge Aldrich 
which accompanied your request has not survived the dismissal of that case 
and is no longer effective. I, therefore, answer your third question in the 
negative. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 36 October 20, 1975 

Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

You have requested my opinion with respect to the legality of compensat- 
ing the five deputy secretaries under your predecessor's administration for 
accrued vacation time subsequent to their termination of employment in 
state service. 

State employee vacation rights and procedures are governed by the offi- 
cial rules and regulations of the Director of Personnel (the so-called "Red 
Book") as authorized by G.L. c. 7, § 28. Rule LV-1 of the Red Book permits 
employees to accrue vacation time and Rule LV-8 permits compensation 
where such vacation time is earned, but not used due to termination of 
employment. Thus, if the five Deputy Secretaries are subject to the provi- 
sions of the Red Book, they are entitled to compensation for their accrued 
vacation time and I so find. 

Rule G-5 provides that all employees of the executive branch are subject 
to the rules contained in the Red Book, except for 1) officers of the Common- 
wealth, 2) elected officials, 3) employees in the offices of the Governor, 
Lieutenant Governor, and the Governors' Council, 4) members of Boards, 
Commissions or Committees established by statute, or 5) any other person 
whose salary is "expressly provided for by law in a manner other than by 
rules and regulations of the Director of Personnel and regulations of the 
Director of Personnel and regulations of the Director of Personnel and 
Standardization." 

The only category possibly relevant to your request is deputies as "officers 
of the Commonwealth" for purposes of the rules. Ordinarily this term is 
defined by considering factors which are somewhat vague and difficult to 
define, such as whether the persons involved "have and exercise some of the 
powers of the Commonwealth." See Brown v. Russell, 166 Mass. 14 (1896). 
See Also Attorney General v. Tillinghast, 203 Mass. 539 (1909). However, the 
Red Book does not require that this common law definition be used. Instead, 



P.D. 12 121 



it defines "officer of the Commonwealth" itself, for purposes of the rules that 
follow. Under this definition, to be an officer one must be the head of a 
department in a job "whose appointment must have Governor and Council 
approval." Rule G-6. Plainly, no Deputy Secretary of the Commonwealth is 
head of a department or subject to Governor and Council approval. Thus, 
none of the five deputies is an officer of the Commonwealth. Accord, 1957 
Op. Atty. Gen. p. 85. 

Since all five deputies are subject to the regulations of the Director, my 
opinion is that all are entitled to the benefit of the vacation accrual provi- 
sions set forth in the Red Book. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 37 October 17, 1975 

Gregory R. Anrig 

Commissioner of Education 

Department of Education 

1 82 Tremont Street 

Boston, Massachusetts 02 1 1 1 

Dear Commissioner Anrig: 

You have requested my opinion as to whether those provisions of Chapter 
766 of the Acts of 1972, Mass. G.L. C.71B, §1 et seq. requiring that, in 
specified instances, local school systems place special-needs students in 
appropriate programs in private institutions, violate the Anti-Aid Amend- 
ment, Mass. Const. Amend. Art. XVIII. The Anti-Aid Amendment pro- 
scribes the use of public money or property "for the purpose of founding, 
maintaining or aiding any . . . institution, primary or secondary school . . . 
which is not publicly owned. . . ." Mass. Const., Amend. Art. XVIII 
(emphasis supplied). 

The same day you requested this opinion, an action was commenced in the 
Superior Court for Hampden County, Sullivan v. Sullivan (Civil Action No. 
75-2155). One issue raised in that suit is whether the provisions of Chapter 
766, requiring placement in private institutions of students who are not 
"deaf, dumb or blind," violate the Anti-Aid Amendment of the Massachu- 
setts Constitution. It has been a long-standing policy of this Department not 
to issue an Opinion of the Attorney General dealing with matters currently 
in litigation. 6 Op. Atty. Gen. 438 (1922). I must, therefore, respectfully 
decline to render an opinion in response to your request. 

Although I have declined to issue a formal opinion, please be assured that 
we disagree with the position of the plaintiffs in Sullivan as to the constitu- 
tionality of Chapter 766. The determination of the constitutionality of Chap- 
ter 766 will depend on the purpose of special education programs authorized 
by that statute. In a recent opinion request, 1 was asked whether Chapter 
1196 of the Acts of 1973 violated the Anti-Aid Amendment. Because the 
purpose of Chapter 1 196 was to support local textbook programs and not a 



122 P.D. 12 



purpose prohibited by the Anti-Aid Amendment, 1 found no constitutional 
barrier to the loan of textbooks to private school pupils. Opinion of the 
Attorney General {SnnQ 12, 1975). 

The General Court has included in Chapter 766 the following statement of 
the purpose of the statute: 

it is the purpose of this act to provide for a flexible and uniform 
system of special education program opportunities for all chil- 
dren requiring special education; to provide a flexible and non- 
discriminatory system for identifying and evaluating the individ- 
ual needs of children requiring special education; requiring eval- 
uation of the needs of the child and adequacy of the special 
education program before placement and periodic evaluation of 
the benefit of the program to the child and the nature of the 
child's needs thereafter; and to prevent denials of equal educa- 
tional opportunity on the basis of national origin, sex, economic 
status, race, religion and physical or mental handicap in the 
provision of differential education services. Acts of 1972, c.766, 

§1- 
The Supreme Judicial Court has accepted this as an accurate statement of 
legislative purpose, pointing out that: "The entire thrust of c.766 is the 
establishment of a comprehensive and complete program of evaluation and 
placement for children with special education needs." Board of Education v. 
Assessor of Worcester, 1975 Mass. Adv. Sh. 2626, 2632 (August 18, 1975). 

Because Chapter 766 does not have as its purpose the founding, maintain- 
ing or aiding of private institutions, the intent prohibited by the Anti-Aid 
Amendment, we will vigorously defend the constitutional challenge raised in 
the Sullivan case; and I will take whatever other actions may be necessary to 
obtain compliance by all school committees with the provisions of Chapter 
766. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 38 October 2 1 , 1 975 

Honorable Keith R. Rodney 

Deputy Commissioner of Insurance 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Rodney: 

You have asked for an opinion of the Attorney General relative to a 
proposal to destroy obsolete claim reports and closed claim files of the 
Fraudulent Claims Board. 



P.D. 12 123 



General Laws c. 30, § 42 sets out the procedure whereby the Records 
Conservation Board authorizes destruction of obsolete state records. I sug- 
gest that you apply to that Board for a destruction schedule and permission 
to destroy the records you mentioned. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 39 October 27, 1975 

Stephen Weekes, Register 

Registry of Deeds 

Barnstable County 

Barnstable, Massachusetts 02630 

Dear Mr. Weekes: 

Pursuant to G. L. c. 184, § 33 you have submitted for my approval certain 
regulations for the administration of the public restriction tract index at the 
Barnstable Registry of Deeds. The original regulations were approved by my 
predecessor on June 11, 1974, and the amendments now proposed reflect 
certain modifications and additions to the regulations which you believe 
would be of benefit to the Registry and the public. 

I hereby give my approval to the amended regulations. They are consistent 
with the provisions of c. 184, § 33. I also note that you have incorporated in 
them several of the suggestions made by government officials, conservation- 
ists and other persons interested in the Conservation Restriction Act, which 
were listed in my predecessor's original letter of approval. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 40 October 3 1 , 1 975 

Commissioner Owen L. Clarke 
Department of Corporations and Taxation 
100 Cambridge Street 
Boston, Massachusetts 

Dear Commissioner Clarke: 

Your predecessor in office has sought my opinion on a question of law 
arising from the request of the Town of Scituate for approval of a temporary 
loan in anticipation of reimbursement from the Commonwealth. Specifi- 
cally, he asked whether or not such approval is proper in light of provisions 



124 P.D. 12 



of General Laws Chapter 44 Section 8C' and Chapter 132 A, Section 11.^ I 
am of the opinion that neither of these two statutes precludes approval of this 
temporary loan and answer his question by saying the loan may be 
approved. The facts of that particular transaction and my reasoning are laid 
out below. 

The Town of Scituate, at a duly called special town meeting, voted to 
appropriate $1,850,000.00 to purchase or take by eminent domain approxi- 
mately 570 acres of land, parcel 6 of which was designated for purposes of 
conservation. The appropriation was allocated among the various parcels, 
and the town treasurer was authorized to borrow certain sums to meet the 
appropriation. 

Paragraph 3 of the vote by the town allocated $217,000.00 of said appro- 
priation to the acquisition of said parcel 6 for purposes of conservation. It 
authorized the Scituate Conservation Commission to contract for reimburse- 
ment by the Commonwealth as provided in General Laws, Chapter 132 A, 
Section 1 1 . In the event the Commonwealth agreed to reimbursement, para- 
graph 3 also authorized the Treasurer (with the approval of the Selectmen) 
to borrow the sum equal to such reimbursement and issue therefor bonds 
and notes of the town payable within two years from their dates under 
General Laws, Chapter 44, Section 8C and to borrow the balance of 
$217,000.00 and issue therefor bonds and notes of the town payable within 
20 years from their dates under Chapter 44, Section 7(3). 

Thereafter, the Scituate Conservation Commission submitted an applica- 
tion for "Self-Help" funds to the Department of Natural Resources under 
Chapter 132 A, Section 1 1, of the General Laws. The Department of Natural 
Resources gave preliminary approval to the Scituate application in the 
amount of $107,500.00 and has encumbered that amount for the Scituate 
project. 

Your predecessor refused to approve the loan under these circumstances, 
contending that Chapter 132A, Section 1 1 requires "an unconditional fund- 
ing for the total amount of the project before an absolute commitment may 
be made by the Department of Natural Resources pertaining to a reimburse- 
ment." That section makes no reference to "unconditional funding". It does, 
however, impose certain conditions which must be met by the municipalities 



'General Laws. Chapter 44, Section 8C provides, inter alia: 

"A city or town which has appropriated money for the acquisition of land, to be expended together with a sum of money 
allotted by the Commissioner of Natural Resources under section eleven of chapter one hundred and thirty-two A or by the 
United States or by both, may, if said city or town is required primarily to pay a portion of the expense of acquiring such land 
which is to be reimbursed by the Commonwealth or the United States or both, incur debt outside its debt limit in the amount of 
such reimbursable expense and may issue notes therefor which shall be payable m or within two years from their dates; 
provided, that prior to the issuance of such notes such reimbursement has been agreed upon by the Commonwealth or the 
United States or by both; and provided, further, that the proceeds of such reimbursement shall be applied to the payment of 

the notes without further appropriation, notwithstanding the provisions of section fifly-three ". 

^General Laws, Chapter 132A, Section 1 1, provides, in pertment part: 

"The commissioner shall establish a program to assist the cities and towns, which have established conservation commissions 
under section eight C of chapter forty, in acquiring lands and in planning or designing suitable public outdoor facilities as 
described in section two B and two D. He may . . . reimburse any such city or town for any money expended by it in 
establishing an approved project under said program in such amount as he shall determine to be equitable in consideration of 
anticipated benefits from such project, but in no event shall the amount of such reimbursement exceed fifty per cent of the cost 
of such project. No reimbursement shall be made hereunder to a city or town unless a project application is filed by such city or 
town with the commissioner setting forth such plans and information as the commissioner may require and approved by him, 
nor until such city or town shall have appropriated, transferred from available funds or have voted to expend from its 
conservation fund, under clause fifty-one of section five of chapter forty, an amount equal to the total cost of the project, nor 
until the project has been completed, to the satisfaction of the commissioner in accordance with said approved plans . . ." 



P.D. 12 125 



in order to obtain reimbursement. On December 12, 1969, then Attorney 
General Robert Quinn summarized those conditions in an opinion to the 
Commissioner of Natural Resources in the following language: 

"those conditions are (1) that a project application be filed with 
the Commissioner in conformity with the requirement of section 
1 1; (2) that the city or town 'shall have appropriated, transferred 
from available funds or have voted to expend from its conserva- 
tion fund ... an amount equal to the total cost of the project'; and 
(3) that the project be completed." 1969-1970 Op.Atty.Gen. 83, 
85. 
There can be no controversy over two of these three conditions. It is clear 
that a project application has been filed and that the project itself is not 
completed. The sole basis for dispute, therefore, is whether or not Scituate 
has satisfied the second condition enunciated in that opinion. I conclude that 
the town has appropriated money for the project in an amount equal to its 
total cost and can anticipate reimbursement. 

The phrase "to appropriate" is a term of art which must be afforded its 
technical meaning. Our Supreme Judicial Court has said that to appropriate 
money "is to set it aside or assign it to a particular purpose or use." Kelley v. 
Sullivan, 201 Mass. 34 (1909), and "to set apart from the public revenue a 
certain sum of money for a specified object, in such manner that the execu- 
tive officers of the government are authorized to use that money, and no 
more, for that object and no other." Opinion of the Justices, 323 Mass. 764, 
766 (1949). The vote taken at the Scituate town meeting was a vote to set 
aside a particular amount of money and assign it a particular use. Scituate 
has appropriated an amount equal to the total cost of the project so that 
Chapter 132 A, Section 11 has been satisfied. I conclude that under the 
particular circumstances of this case, Scituate is entitled to the approval by 
the Director of Accounts of a temporary loan in anticipation of 
reimbursement. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 41 November 10, 1975 

Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

You have requested an opinion as to whether a sticker containing your 
name and signature can be placed over your predecessor's printed name and 
signature on certain form certificates to which the Secretary of the Common- 
wealth must attest by affixing his signature and the Great Seal of the Com- 
monwealth. You further ask whether certificates to which such stickers have 
been attached would be admissible as evidence in state and federal court. 



126 P.D. 12 



It is my opinion that the placing of a sticker with your name and signature 
over those of your predecessor would not affect the validity of the documents 
and that such documents would be admissible as evidence in both state and 
federal court. 

The answer to your questions depends upon whether the sticker contain- 
ing your name and signature constitutes a legally valid "signature" on the 
documents. It is well settled law in the Commonwealth that "signing does 
not necessarily mean a written signature, as distinguished from a signature 
by mark, by print, by stamp, or by the hand of another." Finnegan v. Lucy, 
157 Mass. 439, 443 (1892). What is important is that the person whose name 
appears on it "intended to authenticate the paper as his act." Irving v. 
Goodimate Co., 300 Mass. 454, 459 (1946). See also 1940 Op. Atty. Gen. 
p. 41. 

The law in other jurisdictions is similarly clear. "A signature may be 
written by hand, printed, stamped, typewritten, engraved, photographed, or 
cut from one instrument and attached to another ... it being immaterial with 
what kind of instrument a signature is made." Joseph Denunzio Fruit Co. v. 
Crone, 79 F. Supp. 117, 128 (S.D. Cal. 1948), affd, 188 F. 2d 569 (9th Cir. 
1951), cert. den. 342 U.S. 820 (1951). In short, the general thrust of the 
common law is that "a signature" is whatever mark, symbol or device one 
may choose to employ as representative of himself. Griffith v. Bonawitz, 73 
Neb. 622, 627, 103 N.W. 327, 333 (1906). 

Attaching the stickers with your name and signature to the certificates in 
question is, therefore, the equivalent of your signing those certificates, as 
long as it is done with your knowledge and consent. Even if the documents 
were considered to be altered, they would remain admissible, since the 
"alterations" do not change the essential meaning of a document. Pahigin v. 
Manufacturers' Life Insurance Co., 349 Mass. 78, 84-85 (1965). 

In federal court, admissibility of these certificates is further supported by 
the Federal Rules of Evidence. As public documents bearing your signature 
and the Seal of the Commonwealth, the certificates are admissible without 
any extrinsic evidence of their authenticity. Fed. Rules Evid. 902(1). Where 
the document is a copy of an official record, it is likewise admissible in 
federal court when authenticated by your signature and the Seal. Fed. Rules 
Evid. 1005. Finally, the certificates would not be excluded by the hearsay 
rule, even if you are available to be a witness at the time admission of the 
certificates in evidence is sought. Fed. Rules Evid. 803(8). 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 127 



Number 42 November 10, 1975 

Honorable Paul H. Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 
You have requested my opinion regarding the following questions: 

1. Is an application for a license to carry firearms authorized by 
Mass. G.L. c. 140, § 13 1 a public record within the meaning of 
G.L. C.4, § 7? 

2. Is an application for a firearm identification card authorized 
by Mass. G.L. c. 140, § 129B a public record within the mean- 
ing of Mass. G.L. c.4, §7? 

All government forms are public records unless they fall within one of the 
exemptions listed in Mass. G.L. c.4, § 7. There are two exemptions relevant 
to determining the status of these applications: 

(a) [Documents] specifically or by necessary implication exempted from 
disclosure by statute; 

(c) . . . . personnel and medical files or information; also any other 
materials or data relating to a specifically named individual, the dis- 
closure of which may constitute an invasion of personal privacy. 

The determination of whether the application for a firearms license is 
exempt depends upon the information contained therein. 

The form forwarded to this office as a sample of the application for a 
license to carry firearms is that used by the Police Department of the City of 
Boston. The face of this form contains questions requiring the applicant's 
name, address, occupation, place of birth, and other factual biographical 
information. Most of this information would be available on other public 
records, such as applications for motor vehicle operators' licenses. The form 
also requests the applicant's reasons for wishing to carry arms. Disclosure of 
this information would not, in my opinion, be an invasion of personal 
privacy. Therefore, any portion of a license application containing such 
information is not exempt under G.L. c.4, § 7(c) and is a public record. 

The reverse of the sample form, however, carries a column entitled "Police 
Report". To the extent that this column requires information as to the 
applicant's criminal history, any such information would be exempted from 
disclosure by clause (a), above, and by the Criminal Offender Record Infor- 
mation Act, Mass. G.L. c.6, § 172. It is my opinion that any portion of such a 
license application which contains criminal offender record information is 
not a public record and can only be released to persons certified by the 
Criminal History Systems Board. 

The sample document entitled "Application for a Firearm Identification 
Card" is in my opinion, a public record. The applicant must sign a statement 
asserting that he or she is not disqualified for listed reasons which include 
felony convictions, confinement for mental illness, and drug or alcohol 
related violations, confinement or treatment. However, the only information 



128 P.D. 12 



appearing on this document is the applicant's disclaimer. So long as the 

appUcation contains no substantive information concerning the applicant's 

prior convictions, confinement, or drug or alcohol problems, I consider it to 

be a public record. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 43 November 10, 1975 

James P. Whitters, III, Esquire 

Chairman, Outdoor Advertising Division 

80 Boylston Street 

Boston, Massachusets 021 16 

Dear Sir: 

You have asked my opinion on the following questions: 

"1) Are signs on taxicabs which are not registered as common 
carriers with the Department of Public Utilities exempt from the 
[Outdoor Advertising] Board's regulations pursuant to General 
Laws, Chapter 93, Section 32?" 

"2) Does G. L. c. 93, § 32 exempt such signs from the provisions 
ofG. L. c. 93D?" 
For reasons developed more fully below, I answer both questions in the 
negative. Signs on taxicabs are not exempt from regulation by the Outdoor 
Advertising Board (Board) by virtue of G. L. c. 93, § 32. 

The duties and responsibilities of the Board, as well as practice before the 
Board, are set out in part in G. L. c. 93, §§ 29 et seq. The section which you 
have cited for my consideration, section 32 of Chapter 93, exempts certain 
structures from regulation by the Board. Specifically, it provides: 

"Sections twenty-nine to thirty-one, inclusive, and section thirty- 
three shall not apply to signs or other devices on or in the rolling 
stock of any common carrier, nor shall said sections apply to 
signs or other devices on or in stations, subways or structures of 
or used by any common carrier unless such signs or devices are 
displayed within view of a public way." 
For advertising devices on taxicabs to fall within the exceptions carved out 
by section 32, two conditions must be met. First, the taxicabs in question 
must be "rolling stock" and second, they must be operated by "common 
carriers". I am of the opinion that taxicabs do not meet the dual test neces- 
sary for exemption because they are not "rolling stock." 

Words and phrases in a statute are ordinarily construed according to the 
common and approved usage of the language. Where, however, a technical 
term is used in a statute, the technical meaning of the phrase is controlling. 
See Corcoran v. S. S. Kresge Co., 313 Mass. 299 (1943). The phrase "roUing 
stock" is a term of art. In construing that phrase it must be supposed that the 
Legislature took into account the subject matter involved and used the 
phrase in its technical sense. RoUing stock, therefore, must be read to mean 



P.D. 12 129 

"the moving stock and fixtures attached thereto belonging to railroads and 
street railways." Black's Law Dictionary. 

The Supreme Judicial Court has specifically accepted this narrow defini- 
tion of the term, and has noted that section 32 excepts some advertisements 
"on or in railroad property." General Outdoor Advertising Company v. 
Department of Public Works, 289 Mass. 149, 162 (1935). Since taxicabs are 
not railroad property they are not rolling stock and, therefore, not excepted 
by section 32. 

A common carrier is one who holds himself out to the public as willing to 
indiscriminately furnish transportation of goods or persons for a fee. First 
National Stores, Inc. v. H. P. Welch, Co., 316 Mass. 147, 149 (1944). For 
purposes of tort liability, taxicabs have been held to be common carriers. See 
Finnegan v. Checker Taxi Company, 300 Mass. 62 (1938). Nevertheless, since 
taxicabs do not meet the first standard of section 32, it is not necessary for me 
to determine whether the second criterion is met. I, therefore, decline to 
determine whether or not taxicabs are common carriers within the meaning 
of section 32. 

My conclusion that section 32 does not exempt taxicabs from the provi- 
sions of Chapters 93 and 93 D should not be interpreted as a statement that 
those vehicles must in fact be regulated by the Board. Chapter 93, § 29 vests 
in the Board a discretionary power to regulate advertising devices. While I 
am of the opinion that the Board can regulate taxicab advertising, I express 
no opinion on the wisdom of such regulation. The decision to regulate is one 
statutorily committed to the Board, not the Attorney General. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 44 November 13, 1975 

Charles V. Barry 
Secretary of Public Safety 
905 Commonwealth Avenue 
Boston, Massachusetts 022 1 5 

Dear Secretary Barry: 

You have requested my opinion on the authority of the Board of Appeal 
on Motor Vehicle Liability Policies and Bonds (hereafter referred to as the 
Board) created by G.L. c.26, § 8, to annul a decision of the Registrar who 
suspended an individual's license pursuant to G.L. c.90, § 24. You have 
attached a letter from Robert A. Panora, Registrar of Motor Vehicles, which 
outlines the following facts: 

On January 18, 1975 the person in question was arrested for operating a 
motor vehicle while under the influence of intoxicating liquor, G.L. c.90, § 
24, and driving the wrong way on a one way street, G.L. c.20, § 79. On 
January 23, 1975, the defendant submitted to a finding of guilty on the 
first charge. However, the case was "continued" to January 23, 1976, and 
the defendant was to attend the Driver's Program conducted by the Dis- 



130 P.D. 12 



trict Court of Springfield. In addition, the defendant submitted to a find- 
ing of guilty on the second charge. She surrendered her license to the 
Probation Office for three months. After receipt of the court abstract, the 
Registrar notified the defendant that her license was revoked effective 
May 23, 1975. 

The defendant appealed to the Board which, after a hearing, annuled the 
decision of the Registrar for the following reasons: 

(1) To the charge of Operating Under the Influence, the Appel- 
lant submitted to a finding of sufficient facts that would support 
a finding of guilty, after which the case was continued without a 
finding. 

(2) That the appellant has successfully completed the Driving 
while Drinking Course conducted by the Springfield District 
Court. 

G.L. C.90, §24 (b) provides for immediate suspension of a license upon 
conviction of driving under the influence of intoxicating liquor. Obviously, a 
prerequisite to any action by the Registrar is a conviction in the district or 
municipal court. An underlying legal question is presented here as to 
whether submission to a finding of guilty is synonymous to a conviction. 
That question need not, however, be addressed in this opinion. Rather, the 
threshold and dispositive question is the relationship of the Board to the 
Registrar. 

Any ruling or decision of the Registrar may be appealed to the Board, 
which in turn may "order such ruling or decision to be affirmed, modified or 
annulled" G.L. c.90, § 28. The authority of the Board to review and act upon 
a decision of the Registrar is not limited by the discretionary or mandatory 
nature of the Registrar's decision. Ullian v. Registrar of Motor Vehicles, 325 
Mass. 197 (1950); 1964 Op. Atty. Gen. 151. In the recent case of Boyle v. 
Registrar of Motor Vehicles, 1975 Mass. Adv. Sh. 1998, 2001, the Supreme 
Judicial Court clearly held that even where the Registrar is given no discre- 
tion and must revoke a license pursuant to G.L. c.90, § 24(1) (b) upon 
notification of a conviction for driving under the influence, the Registrar's 
decision is subject to appeal to the Board under G.L. c.90, § 28 and to 
judicial review under G.L. c.30A, § 14. To the extent that Love v. Lucey, 
Suffolk Superior No. 6831 18 (August 27, 1974) and 1963 Op. Atty. Gen. 77 
hold to the contrary, and limit the Board's review authority to "discre- 
tionary" decisions of the Registrar, they are overruled. 

Should the Board decide to annul the decision of the Registrar, as in this 

case, the only option for the Registrar, beyond returning the license, is to 

seek judicial review of the Board's decision pursuant to G.L. C.30A, § 14. 

Boyle, supra at 2001. Unless the Board or the court orders otherwise (see 

G.L. C.30A, § 14(3)) the decision and order of the Board has full force and 

effect and must be complied with. It should be unnecessary for the board to 

resort to its powers under G.L. c.90, § 28 by applying to the court for 

assistance in enforcing its orders against another state agency over which it 

has the power of review. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 131 



Number 45 November 14, 1975 

Russell E. O'Connell 

Commissioner 

Massachusetts Rehabilitation Commission 

296 Boylston Street 

Boston, Massachusetts 02 11 6 

Dear Commissioner O'Connell: 
You have requested my opinion on the following two questions: 

(1) Whether the term "information" in G.L.c. 6, §8 refers to the actual 
record of an applicant for vocational rehabilitation, or refers only to an 
edited summary of the contents of that record; and 

(2) Whether the Massachusetts Rehabilitation Commission is empowered 
by G.L.c. 6, §§75 and 84 to promulgate rules and regulations indicating the 
degree of access of individuals and of other persons and state agencies to the 
records or to an edited summary. 

I conclude that edited summaries rather than complete records may be 
provided to applicants and Departments, divisions or subdivisions of the 
Commonwealth and that the Commissioner of Rehabilitation may promul- 
gate regulations describing the extent of this access. My reasons are as 
follows. 

(1) General Laws, Chapter 6, section 84 makes a distinction between a 
data subject's full record and "information concerning his own record." The 
statute reads as follows: 

Information or records concerning any applicant for vocational 
rehabilitation shall be confidential and for the exclusive use and 
information of the commission in the discharge of its duties. Such 
information or records shall not be open to the public, notwith- 
standing the provisions of section ten of chapter sixty-six or other 
provisions of law, and shall not be admissible in any action or 
proceeding unless the commission is party to such action or 
proceeding; provided, however, that said applicant, or, with his 
written authority, his attorney, shall be supplied by the commis- 
sion with information concerning his own record which is neces- 
sary to him in his relations with the commission; and provided, 
further, that the Commission may, in accordance with rules and 
regulations, on request provide such information to any person or 
department, division or sub-division of the Commonwealth 
directly concerned in the vocational rehabilitation of said appli- 
cant or to a party to an agreement established under the provi- 
sions of section eighty-one. (Emphasis Added) 
The statute by use of the phrase "information concerning his record" 
plainly indicates that less than an entire record can be provided upon 
request. See 1963-64 Op. Atty. Gen. It is a traditional principle of statutory 
construction that a statute is to be interpreted so as to give meaning to all of 
its language. Town Crier, Inc. v. Chief of Police of Weston, 1972 Adv. Sh. 891, 
282 N.E. 2d 379. Throughout G.L.c. 6, section 84, the terms "information" 
and "records" are used interchangeably until, in the phrase having to do 



132 P.D. 12 



with access by the date subject, "information" is used to mean a part of the 
record. Thereafter, the statute refers back to "such information" in two 
places. There is no ambiguity in the statute and it must be interpreted 
according to the usual and common meanings of the words therein. Com- 
monwealth V. Thomas, 359 Mass. 386, 269 N.E. 2d 277 (1971). Thus, as to 
requests by applicants, the Commissioner of Rehabilitation may provide 
edited summaries, if these summaries will provide an applicant with all the 
information which is necessary to him in his relations to the Commission. 
This does not mean, as worded in the opinion request that the term 
"information" refers only to an edited summary of the records. If an edited 
summary is not sufficient to apprise an applicant of all the information 
which is necessary to him in his relations to the Commission, those parts of 
the record necessary to properly inform the applicant must be provided. 

As to request for information from any person or department, division or 
subdivision of the Commonwealth directly concerned in the vocational reha- 
bilitation of the specific person, the provision of this information is left 
within the discretion of the Commission of Rehabilitation. 

(2) In response to question two, the Commissioner of Rehabilitation has 
broad authority to issue regulations concerning vocational rehabilitation of 
individuals: 

The Commissioner shall, with the approval of the Governor and 
council, prescribe all rules and regulations relating to the voca- 
tional rehabilitation of handicapped persons .... G.L.c. 6., § 
75. 

It is my opinion that this broad power to issue regulations includes the power 
to set standards concerning access to information by data subjects. A data 
subject's access to "information concerning his own record which is neces- 
sary to him in his relations with the Commission" may well bear upon his 
ability to receive necessary vocational rehabilitation. G.L.c. 6, section 84. In 
addition, G.L.c. 6, section 84 authorizes the Commissioner to issue rules and 
regulations concerning the dissemination of information to persons or 
departments, divisions or subdivisions of the Commonwealth. Also, pur- 
suant to this power granted under G.L.c. 6, section 84, rules and regulations 
could be promulgated concerning the providing of edited summaries of 
records. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 133 



Number 46 November 24, 1975 

Honorable Gregory R. Anrig 
Commissioner of Education 
182 Tremont Street 
Boston, Massachusetts 021 1 1 

Dear Commissioner Anrig: 

You have asked my opinion concerning the applicability of the Gover- 
nor's Executive Order No. 1 16 to school construction grants administered by 
the School Building Assistance Bureau which is part of the Department of 
Education. I find that Executive Order No. 1 16 does apply to the activities of 
this Bureau, and that the Bureau, pursuant to the requirements of that 
Executive Order, may require contractual assurance of compliance with 
nondiscrimination laws. 

As you noted in your request for an opinion, my predecessor previously 
considered the applicability of Executive Order No. 74 to the activities of the 
School Building Assistance Bureau. He concluded that the Executive Order 
did not apply because it was not intended to regulate contracts between local 
school committees and contractors, (Op. Atty. Gen. 1973-74, No. 22 (Nov. 
20, 1973) p. 2); and, that the Department's control over the disbursement of 
funds through the School Building Assistance Bureau was not sufficient 
"state action" with respect to school construction contracts to subject those 
contracts to the provisions of Executive Order No. 74. Id. at p. 4. 

That situation has been changed, however, by the promulgation of Execu- 
tive Order No. 1 16, which amends and supersedes Executive Order No. 74. 
Unlike Executive Order No. 74, Executive Order No. 1 16 requires in Article 
IV the inclusion of clauses assuring compliance with nondiscrimination 
requirements in "every state-assisted conimci for pubUc buildings and public 
works," as well as state contracts for public works. (Emphsis supplied.) 

The role of the School Building Assistance Bureau is one of providing 
state assistance to the cities and towns for the purpose of construction of 
public schools. Even though the actual construction and maintenance of a 
schoolhouse is a matter under local jurisdiction (Op. Atty. Gen., 1973-74, 
No. 22 (Nov. 20, 1973), at p. 2), the School Building Assistance Bureau 
causes monies to be provided to the local school committees to finance 
construction, as part of its statutorily defined responsibilities. See, e.g.. 
Appendix to G. L. c. 70, §§ 1-8 and 1-9.* 

Because the Bureau is part of a state agency, it is subject to the mandates 
of an Executive Order of the Governor. Op. Atty. Gen., 1973-74, No. 22 
(Nov. 20, 1973). Any contract for the construction of a public school which is 
assisted by state funds must, therefore, contain a nondiscrimination clause. 
Assistance includes provision of state funds to underwrite all or part of the 
construction and other technical advice which enables the locality to arrange 
for construction. A requirement for nondiscrimination in state assisted 
school construction projects is as valid as a requirement for such a clause in 
projects supported by federal funds (see e.g.. Associated General Contractors 



•In fiscal 1975, the School Building Assistance Bureau authorized grants orover$ 1 1 1 million lobe made to cities and towns for 
new construction or renovation of existing school facilities. 



134 P.D. 12 

of Massachusetts v. Altshuler, 361 F. Supp. 1293 (D. Mass. 1973)), and I 
believe, therefore, that Executive Order No. 116 applies to the work of the 
School Building Assistance Bureau. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 47 December 15, 1975 

Honorable Robert Q. Crane 

Treasurer and Receiver General 

Treasury Department 

State House 

Boston, Massachusetts 02133 

Dear Mr. Treasurer: 

By letter of December 9, 1975 (a copy of which is attached as Appendix 
A), you have asked several questions regarding the legality of the application 
of MBTA assessment proceeds to the payment of notes issued by the Com- 
monwealth under G.L. c. 161 A, § 12. 

These questions lack answers from direct and authoritative precedent. I 
address them in turn. 

(1) Is it lawful and constitutional to apply MBTA assessment proceeds in 
payment of notes issued by the Commonwealth under G.L. c. 161A, § 12 
without appropriation of such proceeds? (See Opinion of the Justices, 309 
Mass. 609; Singleton v. Treasurer & Receiver General, 340 Mass. 646, 
649-651.) 

From the decisions available, I believe so. In MBTA v. Boston Safety 
Deposit iSc Trust Co., 348 Mass. 538, 554 (1965), the Supreme Judicial Court 
observes that "the Irespondent] banks do not contend that borrowings under 
[G.L. c. 161 A] § 12 are not within the authority of art. 62, § 2 [of the 
Amendments to the Constitution of the Commonwealth]." The Court does 
not press the issue upon its own initiative. Its acquiescence in the omission of 
the issue is an indication that the constitutional contention would not be 
meritorious. In addition, the tenor of the Court's discussion in Singleton v. 
Treasurer & Receiver General, 340 Mass. 646 ( 1 960), also supports the prac- 
tice by which the Commonwealth issues notes in anticipation of assessment 
proceeds and repays the notes with the same proceeds. 

(2) If and to the extent that such assessment proceeds (together with 
available state contract assistance) are insufficient to pay such notes when 
due, is it lawful and constitutional to use other funds for this purpose without 
appropriation? 

The questions is a close one of constitutional construction. Amendments, 
art. 62, § 2 provides that "the Commonwealth may borrow money ... in 
anticipation of receipts from taxes or other sources, such loan to be paid out of 
the revenue of the year in which it is created. " We must ask what "revenue" is 
meant. 



P.D. 12 135 



If it is the revenue anticipated by the borrowing, the application of funds 
from the general treasury might be unconstitutional. If it means revenue 
from all sources, no constitutional problem arises. According to the usual 
canons, I favor the reasonable statutory construction avoiding both uncon- 
stitutionality and constitutional doubt. See, e.g., Chipman v. MBTA, 1974 
Mass. Adv. Sh. 1447, 1453; Commonwealth v. Lamb, 1974 Mass Adv. Sh. 
7 1 3, 717-7 1 8; and Board of Appeals of Hanover v. Housing Appeals Commit- 
tee in the Department of Community Affiars, 1973 Mass. Adv. Sh. 491, 512. I 
read "revenues" to refer to all sources and I conclude in favor of the constitu- 
tionality of the practice in question. 

As for the lawfulness of the practice under the statutes, G.L. c. 29, § 18 
provides that: 

lejxcept as otherwise provided, no money shall be paid by the 
commonwealth without a warrant from the governor drawn in 
accordance with an appropriation then in effect, and after the 
demand or account to be paid has been certified by the comptrol- 
ler; /?rov/^eJ that the principal and interest on all public debts shall 
be paid when due without any warrant and that no appropriation 
shall be required for the payment . . . of treasury notes issued for 
duly authorized temporary loans . . . (Emphasis supplied.) 
I interpret the emphasized language to authorize payment without a warrant 
and without an appropriation. 

(3) If assessment proceeds or other moneys may lawfully and constitu- 
tionally be applied to the payment of the notes without appropriation, would 
the power to do so be terminated in the event the noteholder obtained a 
judgment against the Commonwealth under Chapter 258 of the General 
Laws? (See Section 3 thereof) 

G.L. c. 258, § 3 provides in pertinent part that "the state 
treasurer . . . shall pay the [fmal judgment or decree] from any a/7/7ro/?r/a- 
tions made for the purpose [of such payment] by the general court." 
(Emphasis supplied.) 

The answer to this question requires a reconciliation of G.L. c. 258, § 3 
with G.L. c. 29, § 18, also quoted above. In effect G.L. c. 29, § 18 authorizes 
the payment of treasury notes without appropriation, while G.L. c. 258, § 3 
would require an appropriation for a treasury note obligation reduced to a 
judgment. We must resolve this apparent inconsistency. No helpful decision 
lies directly in point. 

Whenever two or more statutes relate to the same subject matter, they 
should be construed harmoniously toward a consistent legislative purpose. 
Board of Education v. Assessors of Worcester, 1975 Mass. Adv. Sh. 2626, 
2629-2630 (cases collected). See Sands, Sutherland Statutory Construction, § 
51.01 (4th ed. 1973). In this instance, I conclude that the consistent and 
dominant legislative purpose would free the payment of an acknowledged 
treasury note obligation, in judgment form or not, from the requirement of a 
specific appropriation. 

Two considerations in particular lead me to that conclusion. First, G.L. c. 
29, § 18 addresses substantive fiscal policy, while G.L. c. 258, § 3 deals 



136 P.D. 12 



merely with the procedural mechanics of payment pursuant to a Superior 
Court judgment. Second, G.L. c. 29, § 18 deals specifically with discrete and 
enumerated classes of payments purposefully excepted from the appropria- 
tion requirement; while G.L. c.258, § 3 deals generally and indiscriminately 
with judgment obligations. In short, § 18 suggests a substantive exception to 
a procedural generality. In this light, I regard the policy of G.L. c. 29, § 18 as 
overriding. Once settled, by some acknowledgement or judgment, a treasury 
note obligation seems meant to be honored without the necessity of specific 
appropriation. The mere/orm of obligation as a final judgment does not 
seem intended to alter this statutory pohcy. 

CONCLUSION 
For the foregoing reasons, I answer the questions in your letter of Decem- 
ber 9, 1975, "yes," "yes," and "no," respectively. 

Very truly yours, 

FRANCIS X. BELLOTti 

Attorney General 



Number 48 December 24, 1975 

Honorable John G. Buckley 

Secretary 

Executive Office of Administration and Finance 

Room 312, State House 

Boston, Massachusetts 

Dear Secretary Buckley: 

You have asked my opinion concerning the following question: 
Whether individuals who are not members of the Bar of the 
Commonwealth of Massachusetts may be permitted to act in a 
representative capacity at adjudicatory hearings held by the Divi- 
sion of Hearing Officers where the legal rights, duties and privi- 
leges of named parties are determined in accordance with proce- 
dures established and required under M.G.L., c.30A. 
My answer to your specific question is that no rule of law prohibits persons 
who are not members of the bar from appearing before the Division of 
Hearing Officers as representatives of parties to adjudicatory hearings held 
pursuant to G.L. C.30A, § 14, provided that appropriate rules (as later 
explained) are first adopted to permit appearances by non-lawyers. Unless 
and until such rules are adopted, only members of the bar may so appear. I 
base this answer upon a careful review of the decisions of the Supreme 
Judicial Court, the law of other jurisdictions, and a consideration of constitu- 
tional requirements. Because of the general importance of the issues 
involved in your question, I offer the following additional advice. 

It is my opinion that determination of the qualifications for practice 
before the Division of Hearing Officers is a subject for agency decision 
through its rule-making process. G.L. c.7, § 4H delegates to the chief hearing 



P.D. 12 137 



officer the responsibility to "organize his division to provide speedy and fair 
disposition of all appeals and to establish policies that will encourage and aid 
parties in hmiting and consolidating issues and pleadings to the superior 
court." The Division is given further responsibility pursuant to G.L. C.30A, 
§§ 9 and 10 to adopt regulations governing its conduct of adjudicatory 
proceedings and to afford all parties to such proceedings "an opportunity for 
full and fair hearing." Implicit in these statutory grants of power to prescribe 
rules of practice and procedure is the authority to prescribe rules governing 
the admission of persons to practice before the Division. See Goldsmith v. 
U.S. Board of Tax Appeals, 270 U.S. 117 (1925) (Board of Tax Appeals 
authorized to promulgate rules for admission to practice by general statutory 
delegation of power to prescribe rules of practice and procedure). 

The Supreme Judicial Court has never specifically determined the limits 
of agency rulemaking power in this area. However, in Lowell Bar Association 
V. Loeb, 315 Mass. 176, 52 N.E.2d 27 (1943), the Court declined to overturn 
a rule permitting accountants to appear before the Appellate Tax Board and 
more recently has promulgated a rule concerning practice by law students 
before administrative agencies. The recently promulgated Supreme Judicial 
Court Rule 3:11(7) states that law students qualified under the rule may 
appear "before any administrative agency, provided such appearance is not 
inconsistent with its rules." This language suggests that the Court shares the 
federal view that administrative agencies are generally authorized to deter- 
mine the qualifications of persons permitted to practice before them. See 
generally, Sperry v. Florida, 373 U.S. 379 (1963) (federal agencies may deter- 
mine qualifications of persons who practice before them). 

Since the Division has the authority to determine qualifications for prac- 
tice, it is important to review the principles which should guide its rulemak- 
ing proceedings. Rules of practice should be reasonable and within the ambit 
of the statutory standards requiring the "speedy and fair" disposition of 
appeals and encouraging the refinement of issues for judicial review. Com- 
monwealth V. Diaz, 326 Mass. 525 (1950). Of course, rules must be promul- 
gated in accordance with procedures for notice and an opportunity to be 
heard provided by G.L. c.30A. The specific content of the rules should be 
determined on the basis of a careful consideration of the factual and policy 
issues which arise in the course of rulemaking proceedings, and the determi- 
nations should reflect the sound exercise of agency discretion. In exercising 
agency discretion, I suggest that the Division give careful attention to the 
nature of a Rate Setting Commission adjudicatory appeals proceeding and 
the specific functions which representatives must perform in order to prose- 
cute appeals from Commission determinations in a prompt and competent 
manner. If the Division desires to permit non-lawyers to appear before it, 
however, protection of the public interest requires that it promulgate rules 
governing the qualifications of persons permitted to practice before it, using, 
perhaps, the standards of the United States Internal Revenue Service or 
similar agencies as models. In this regard, I would like to call your attention 
to two hnes of cases which set outer boundaries on the exercise of agency 
discretion to determine the qualifications of persons appearing as represen- 
tatives in administrative proceedings. 



138 P.D. 12 

One boundary is defined, rather indistinctly, by the traditional strictures 
prohibiting the unauthorized practice of law. See, e.g. G.L. c.221, § 46 A. 
Because the Supreme Judicial Court is the final arbiter of the question 
whether conduct constitutes the "practice of law", Lowell Bar Association, 
supra at 180, 52 N.E.2d at 31, it would presumably assess challenged regula- 
tions independently of an agency's rulemaking determinations. Its views on 
this question are, therefore, important to bear in mind. 

The Court has stated that the term "practice of law" is not susceptible of 
precise definition and that its applicability to specific conduct depends upon 
factual determinations which can only be made on a case by case basis. In 
the Matter of the Shoe Manufacturers Protective Association, Inc., 295 Mass. 
369, 3 N.E.2d 748 (1936); see, Lowell Bar Association v. Loeb, supra at 180, 
52 N.E.2d at 3 1 . In Lowell Bar Association, an action to restrain the unautho- 
rized practice of law by persons engaged in the preparation of income tax 
returns, the Court stated that: 

[t]he proposition cannot be maintained that whenever, for com- 
pensation, one person gives to another advice that involves some 
element of law, or performs for another some service that 
requires some knowledge of law, or drafts for another some 
document that has legal effect, he is practising law. All these 
things are done in the usual course of the work of occupations 
that are universally recognized as distinct from the practice of 
law. /^. at 18i,52N.E.2dat31. 

Recognizing the existence of penumbras of activity surrounding occupations 
hke accountancy and architecture which involve the use of legal knowledge 
and skills, the Court adopted a negative test to delimit the boundary of 
unauthorized practice: 

. . . any service that hes wholly within the practice of law cannot 
lawfully be performed by an accountant or any other person not 
a member of the bar. Id. at 183, 52 N.E.2d32. 

The Court then found itself on "debatable ground" when it applied this test 
to income tax preparation, activity admittedly outside the familiar territory 
of courtroom advocacy and traditional legal advice and clearly within the 
penumbra of accountancy. After carefully examining the activities of the tax 
preparer defendants, it concluded that the preparation of income tax returns 
does not lie "wholly within the field of the practice of law" and therefore 
might be performed by persons who are not members of the bar. Id. at 1 86, 
52 N.E.2d at 34. 

The Court's method in Lowell Bar Association is instructive. The opinion 
follows the rule of Shoe Manufacturers Association, supra, and bases its 
conclusion upon a functional analysis of the case's specific facts. It also relies 
upon a negative test which requires not simply similarity or shared function 
but rather congruence between the conduct under scrutiny and well- 
accepted exclusively lawyer functions. I suggest that the Division of Hearing 
Officers, in the absence of clearer guidance from the Court, undertake a 
similar approach to developing practice rules. 



P.D. 12 139 

The other boundary, unfortunately also rather uncertain, is set by the 
Constitution of the United States, and a rule which is unduly restrictive may 
conflict with constitutional requirements.* The U.S. Supreme Court has 
indicated that this boundary includes, as a matter of procedural due process, 
the right to meaningful access to legal proceedings and has invalidated 
regulations which were found to be so restrictive as to amount to denials of 
access. See, e.g., Johnson v. Avery, 393 U.S. 483 (1969) (prison regulations 
cannot prohibit inmates from assisting others in drafting habeas corpus 
petitions). The right to a meaningful hearing was applied to administrative 
agencies in Goldberg v. Kelly, 387 U.S. 254 (1970) (right to fair hearing 
before termination of welfare benefits) and Perry v. Sindermann, 408 U.S. 
593 (1972) (right to hearing before termination of employment by a state 
university). While it is not clear how far this due process principle extends 
and to what kinds of proceedings it applies, the cases cited represent a 
constitutional requirement which an agency must carefully respect in formu- 
lating practice rules. 

The Supreme Court has articulated another aspect of the constitutional 
boundary on agency discretion in a line of cases holding the First Amend- 
ment to protect certain forms of "collective activity undertaken to obtain 
meaningful access to the courts." The latest case in this series is United 
Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971), in which 
the Court upheld a union plan for referring members to selected attorneys 
for representation under the Federal Employers Liability Act. This principle 
has also been applied in the context of administrative agencies, e.g.. United 
Mineworkers of America v. Illinois State Bar Association, 389 U.S. 217 (1968) 
(union staff attorneys may represent union members under state workmen's 
compensation act). Although these cases thus far have involved referral or 
retention of attorneys at law by organizations, it is possible that other forms 
of collective activity may also be protected. 

Finally, the Court's very recent decision in Goldfarb v. Virginia State Bar, 
— U.S. — , 44 L.Ed. 572 (1975) may represent an additional component of 
the boundary limiting restrictive agency practice rules. Goldfarb applied 
federal antitrust law to rules of the Virginia State Bar mandating minimum 
fee schedules. The Court's opinion strongly suggests that state regulations 
which restrain trade in favor of the legal profession's economic interests may 
be held to violate federal law. In light of this possibility, the Division of 
Hearing Officers should be careful to establish a substantial basis in the 
record of its rulemaking proceedings to justify any restrictions it decides to 
impose upon practice by non-lawyers. 

In summary, it is my opinion that the Division of Hearing Officers has the 
authority to promulgate rules specifying qualifications for persons who 
appear before it as representatives in adjudicatory proceedings. In promul- 
gating its rules, the Division should be certain that they are soundly based 
upon statutory standards, are in furtherance of the effective operation of the 



•Primarily because of the recent constitutional developments discussed below, I consider the opinion of a prior Attorney 
General dealing with these issues no longer an accurate statement of the law and decline to follow it. The opinion in question 
was provided to the Chairman of the Department of Public Utilities and may be found at 1947 Op. Atty. Gen. 81. 



140 P.D. 12 

Division, and are made with due regard for the principles and case law 
outlined above. Agency action which adheres to these guidelines in my 
opinion is within the bounds of administrative discretion as currently 
defined. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 49 December 24, 1975 

Charles V. Barry 
Secretary of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 

Dear Secretary Barry: 

You have asked me whether or not a member of the uniformed branch of 
the state police is to be credited, for purposes of promotion to the rank of 
captain, with longevity points for service in the division of state poUce other 
than that spent in the uniformed branch. Specifically, you have requested 
my opinion as to the proper interpretation of the word "service" in G.L. c.22, 
§9-0(3). 

You have indicated that the practice of the Department has been to 
include only years of service in the uniformed branch when computing 
longevity, but that the practice is currently being challenged by an officer 
who reUes on a 1966 Opinion by former Attorney General Brooke for the 
proposition that "service" means "all service, including that as a civilian 
employee." 1966 Op. Atty. Gen. 297.' I am of the opinion that your previous 
practice of not granting longevity points for years spent as a civilian 
employee is consistent with G.L. c.22, §9-0(3). 

The provisions of law you ask me to interpret were inserted by Chapter 
785 of the Acts of 1965. Shortly after that statute took effect, the then 
Commissioner of Public Safety asked the Attorney General whether or not 
the word "service" included time spent as a trainee at the state police 
academy. The Attorney General wrote: 

By making 'longevity' a factor in the promotion system for 
members of the state police, the Legislature intended that promo- 
tions should to some extent depend on the amount of knowledge 
and practical experience which a man may have gained in the 
course of performing his duties as a state police officer. . . . 1966 
Op. Atty. Gen., 386, 390. 
The opinion went on to suggest that the Commissioner himself resolve the 
question by adopting an administrative interpretation, citing Cleary v. Car- 
dullo's. Inc., 347 Mass. 337 (1964). It appears from your opinion request that 



'Reliance on this Opinion is misplaced. The phrase interpreted in that instance was "service in said division of state police" not 
"service" and the involved statute, G.L. c.32, §28A, dealt with retirement, not promotions. The purpose of G.L. c.32, §28A is 
different from the purpose of G.L. c.22, §9-0(3). 



P.D. 12 141 

the Department has resolved the question and has implemented the statute 
in a manner consistent with the legislative purpose. That administrative 
interpretation is entitled to great weight, Devlin v. Commissioner of Correc- 
tions, 1973 Mass. Adv. Sh. 1601; Town Crier, Inc. v. Chief of Police of Weston, 
361 Mass. 682 (1972), and is, in my opinion, a permissible construction of 
subsection 3 of section 9-0 of General Laws, Chapter 22. I, therefore, con- 
clude that you may continue to deny longevity points for service as a civilian 
employee. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 50 December 29, 1975 

Ms. Amelia L. Miclette, Chairman 

Civil Service Commission 

John W. McCormack Building 

1 Ashburton Place 

Boston, Massachusetts 02108 

Dear Ms. Miclette: 

You have requested my opinion as to whether G.L. c.30, §9A is to be 
interpreted as granting rights under c.31, §§43 and 45 only to veterans who 
have served in a permanent position for three years. You state that the basis 
for this inquiry is an apparent contradiction in the statutory scheme linking 
c.30, §9 A with c.31, §§43 and 45. 

The language of §9 A makes no distinction between temporary and perma- 
nent positions, only requiring three years of service in an office or position. It 
provides that veterans who qualify are entitled to the protections of c.31, 
§§43 and 45 to the same extent as if their "office or position were classified 
under" chapter 31. Sections 43 and 45, however, apply only to persons in 
permanent positions. The conflict arises when a veteran serves three years in 
a temporary position. To give such a veteran the benefits of c. 3 1, §§43 and 45 
is arguably to freeze the temporary position, at least for the duration of the 
veteran's employment. 

It is not necessary to reach the question you pose, however, since the case 
which prompted your request does not present such a problem. You have 
provided to me a copy of the hearing examiner's report in a matter involving 
a veteran who claims to have qualified under G.L. c.30, §9A. It appears that 
the veteran originally held his position under a temporary appointment. 
Subsequently, the position was given permanent status and the veteran 
became a permanent employee. The veteran has apparently held the position 
for over three years. The hearing officer found that the veteran's temporary 
and permanent positions were the same, noting the identical titles and 
payroll code numbers. There is no court opinion which distinguishes 
between temporary and permanent positions, except to the extent that ser- 
vice in such positions will not be tacked on for tenure purposes if the 



142 P.D. 12 



temporary and permanent positions are not the same. See, Chairman of the 
State Housing Board y. Civil Service Commission, 332 Mass. 241 (1955). Also 
see 1960-61 Op. Atty. Gen. 96; 1965-66 Op. Atty. Gen. 216. Therefore, on the 
basis of the hearing officer's finding, 1 conclude that the veteran has served 
three or more years in the same position. 

Furthermore, it appears that the position in which the veteran currently 
serves is a permanent position. Thus, where a veteran has served for three 
years or more in the same position, and where the position in which he or she 
serves is, at the end of three years, classified as a permanent position, it is my 
opinion that the veteran quahfies under c.30, §9A and must be afforded the 
protections set forth in G.L. c.31, §§43 and 45. 1 do not, however, express an 
opinion as to whether a veteran would quahfy under c.30, §9A if, after three 
years service, the veteran serves in a temporary as opposed to a permanent 
position. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 51 January 5, 1976 

John J. Carroll, Commissioner 

Department of Public Works 

100 Nashua Street 

Boston, Massachusetts 021 14 

Dear Commissoner Carroll: 

You have requested my opinion on a question of law arising under general 
principles of the law of eminent domain and the provisions of Chapter 803 of 
the Acts of 1960 [The Act]. Under the terms of the Act the Commonwealth 
relinquished rights in certain premises in the cities of Boston and Cambridge 
to the Boston Sand and Gravel Company [The Company]. The Company 
currently maintains a plant on those premises. Your specific question is 
whether the Commonwealth will incur legal liabilities if the Massachusetts 
Department of Public Works fails to grant the Company two means of access 
to those facilities over land within the control of the Department. I answer 
your question in the affirmative. My reasoning and the facts upon which I 
base my opinion are laid out below. 

The question you have posed is essentially one of statutory construction. 
My task in such cases is to ascertain and implement the intent of the legisla- 
ture. The main source for the ascertainment of legislative policy are the 
words of the statute itself, but under appropriate circumstances one may 
properly look as well to contemporary customs and conditions and the 
history of the times. Commonwealth v. Rivkin, 329 Mass. 586 (1953); Com- 
monwealth V. Welosky, 216 Mass. 398, 401 (1931). Both the words of Chapter 
803 and the conditions surrounding its passage support my opinion. 

Under the terms of the Act and for consideration paid into the Treasury of 
the Commonwealth, the General Court released all rights, title and interest 



P.D. 12 143 



possessed by the Commonwealth in two parcels of land which previously 
had been conveyed to the Company by the Boston and Maine Railroad 
Company. The Act also specifically released all rights, title and interest to 
the easements granted in the deeds duly recording that conveyance. There 
were four such easements granted to the Company by the B&M Railroad 
and it is my opinion that the Act contemplated the maintenance of those 
easements.' Such a conclusion is mandated by the express reference to the 
easements in the statute and survives in spite of the rule that statutes relating 
to grants by the public authority to private individuals must be strictly 
construed against the grantee. Tilton v. City of Haverhill, 3 1 1 Mass. 572 
(1942). 

It is also clear that in promulgating Chapter 803 the General Court 
anticipated the fact that an elevated highway would be constructed on the 
involved premises and that provisions would necessarily have to be made for 
passage under that highway. The last paragraph of the Act provides: 
"The act of the company in making [the required] payment to the 
treasurer shall constitute a covenant with the commonwealth 
binding upon the company and all persons claiming under it that 
no damages will be claimed from the commonwealth by reason 
of any taking for an elevated highway of the premises shown on 
the Department of Public Works plan entitled 'Exhibit IB20, 
Interstate Route 695, Sheet 19,' or any taking in substantially the 
same form as shown on said plan, no matter how the plan or 
plans are designated; provided, that the taking is made in such a 
manner as to permit the company's concrete mixer trucks to pass 
and repass under said elevated highway. " (emphasis added). 
Thus, the intent of the legislature which passed Chapter 803 was to con- 
tinue to permit the Company to use the easements it acquired from the B&M 
and to pass and repass under any elevated highway ultimately constructed. 
In your request you indicate that the original access routes are not cur- 
rently available to the Company. The unavailability of these routes is due in 
part to the relocation of B&M tracks, in part to takings by the Department 
for highway construction, and in part to subsequent takings from the Metro- 
politan District Commission's new Charles River Dam. It is my opinion that 
the Department can only comply with the proviso of the last paragraph of 
the Act if it grants new access routes to the Company to replace the routes no 
longer available to them. The statute does not require that such access routes 
be granted, but if they are not, the covenant in the last paragraph of the Act 
is breached and the Commonwealth may be hable for damages. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



'Two of the easements are not relevant to this opinion One permits the Company to pass freely between the two parcels over a 
strip of land owned by the B&M, while the second permits the use of Mill Creek by boat. 



144 P.D. 12 



Number 52 January 8, 1976 

Honorable John R. Buckley 

Secretary of Administration and Finance 

State House 

Boston, Masschusetts 02133 

Dear Secretary Buckley: 

You have requested my opinion concerning the application of Rule LV-S' 
of the Rules and Regulations Governing Vacation Leave to a state employee 
who had his vacation credits held in escrow during a leave of absence and 
who, upon return to his former position, was subsequently retired. 

Rule LV-5 allows vacation credits earned but not used in one vacation 
year to be carried over for a maximum of two additional years; they must 
during that period be used or forfeited. A prior Attorney General opinion 
construed Rule LV-5 to allow an employee taking a leave of absence to hold 
in escrow all vacation credits earned until his return to employment. 1962 
Op. Atty. Gen. 153-154. The question you present, then, is whether the result 
should be different because the employee retired, rather than resumed 
employment. 

Upon retirement. Rule LV-8 only provides for payment of "an amount 
equal to the vacation allowance as earned in the vacation year prior 
to . . . retirement which had not been granted and . . . that portion of the 
vacation allowance earned in the vacation year during which 
. . . retirement . . . occurred." (Emphasis supplied.) A vacation allow- 
ance is defined in Rule G-7 as "Vacation credits earned during any vacation 
year." 

The use of the terms "vacation allowance" and "earned" in Rule LV-8 
makes clear that a state employee subject ot Rule LV-8 who has not taken a 
leave of absence is entitled to payment for the unused vacation credits 
earned in the year prior to retirement and unused credits earned during the 
year of requirement, but is not entitled to unused credits earned two vacation 
years earlier and carried over under the provisions of Rule LV-5. 

A state employee who has taken a leave of absence in which he held a state 
job exempt from the vacation rules has, nevertheless, served the Common- 
wealth without interruption and is entitled to the same rights under Rule 
LV-8 as other employees with uninterrupted service. 

To give Rule LV-8 the same effect on returning employees as all other 
employees, the years of exempt employment are to be excluded from 
consideration. 

Hence, it is my opinion that under Rule LV-8 an employee who retires 
within the vacation year during which he returned is entitled to payment for 
the unused vacation credits earned in the year of retirement and the unused 
vacation credits held in escrow from the year prior to retirement, which is 



IRuIe LV-8 tracks the language of M.G.L. c.29, §3 lA, which statute reads, in part: Employees who are eligible for vacation 
under the rules of said personnel administrator and whose services are terminated by dismissal through no fault or delin- 
quency of their own, or by retirement, shall be paid an amount equal to the vacation allowance as earned in the vacation year 
prior to such dismissal or retirement which had not been granted, and, in addition, that portion of the vacation allowance 
earned in the vacation year during which such dismissal or retirement occurred, up to the time of separation; provided, that no 
monetary or other allowance has already been made therefor. 



P.D. 12 145 



construed as the vacation year during which the employee took the leave of 
absence. As in the case of all other employees, no payments are made for 
vacation credits carried over an additional year under the provisions of Rule 
LV-5 even though they were held in escrow during the employee's absence. 
They are available for use as vacation days prior to retirement, but not for 
payment in lieu of vacation. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 53 February 9, 1976 

Honorable Robert L. Okin 

Commissioner of Mental Health 

190 Portland Street 

Boston, Massachusetts 021 14 

Dear Commissioner Okin: 
You have requested my opinion on the following issues: 

1. Whether, notwithstanding the exclusion of psychiatric resi- 
dents from employee status for purposes of civil service and 
income reporting, the incidents of an employer — employee 
relationship in the DMH residency program are sufficient to 
bind the Commonwealth for acts of the psychiatric resident 
performed as part of his regularly assigned duties and within 
the scope of his employment? 

2. Considering all of the elements of the relationship between the 
psychiatric residents and the Commonwealth of Massachu- 
setts, does G. L. c. 12, § 3D insofar as it pertains to legal 
representation by the Attorney General and indemnification 
of state officers or employees apply to a resident in psychiatry 
within the Department of Mental Heahh? 

My opinion is that psychiatric residents are not employees for purposes of 
G. L. c. 12, §3D. 

With respect to your first question, I cannot, by evaluating the incidents of 
an employer-employee relationship in the Department of Mental Health 
residency program, make a determination that the Commonwealth is legally 
bound for the acts of the psychiatric residents. The question of any such 
liability has traditionally been subject to the doctrine of sovereign immunity. 
E.g., Glickman v. Commonwealth, 244 Mass. 148 (1923). While the doctrine 
has been recently criticized by the Supreme Judicial Court (Morash & Sons 
V. Commonwealth, Mass. Adv. Sh. (1973) 785, 296 N.E.2d 461 (1973)), it 
would be beyond the function of this office to unilaterally alter it. 

Sovereign immunity, however, has been modified to some extent by the 
Legislature in G. L. c. 12, § 3D, which provides Hmited (up to $10,000) 
indemnification for state employees and representation by the Attorney 



146 P.D. 12 

General. It is the applicability of section 3D to residents which you raise in 
your second question. 

The state has broad regulatory powers over the status existing between an 
employer and an employee and the Legislature in dealing with this relation 
has a wide field of discretion. Price v. Railway Express Agency, Inc., 322 
Mass. 476, 78 N.E.2d 13 (1948). This discretion has been exercised with the 
enactment of G. L. c. 19, § 10, which specifically places persons in the 
Department of Mental Health residency program outside the category of 
"employees".* While clearly a resident is not an "employee" according to 
G. L. c. 19, § 10, and only employees are included within the limited 
protection of the indemnification statute, G. L. c. 12, § 3D, you ask whether 
"employee" in G. L. c. 12, § 3D has a different meaning so as to include 
residents. 

Traditional rules of statutory construction require that if the language of a 
statute is plain, it is to be interpreted in accordance with the usual and 
natural meaning of the words. Commonwealth v. Thomas, 359 Mass. 386, 269 
N.E.2d 277 (1971). See G. L. c. 4, § 6, Third. Since the Legislature is 
presumed to understand and intend all consequences of its own measures, 
Spaulding v. McConnell, 307 Mass. 144, 29 N.E.2d 713 (1940), statutes 
should not be interpreted to avoid injustice or hardship of the language if the 
statute, taken as a whole, is clear and unambiguous. Town of Milton v. 
Metropolitan District Commission, 342 Mass. 222, 172 N.E.2d 696 (1961). It is 
the job of the Legislature to correct such injustices and hardships. 

If the Legislature, by enacting G. L. c. 19, § 10 wanted only to exempt the 
psychiatric residents from G. L. c. 31, §§ 62 and 62 A (and not from other 
statutes, such G. L. c. 12, § 3D), there would have been no need to further 
insert the phrase "and shall not be deemed employees of the common- 
wealth," as it would accomplish nothing more than would the section stand- 
ing without the phrase and would be superfluous. Commonwealth v. Woods 
Hole, Martha's Vineyards and Nantucket Steamship Authority, 352 Mass. 
617, 227 N.E.2d 357 (1967). Selectmen of Topsfield \ . State Racing Commis- 
sion, 324 Mass. 309, 86 N.E.2d 65 (1949). A construction of a statute which 
would lead to an absurd and unreasonable conclusion is not to be adopted 
where its language is fairly susceptible to a construction leading to a logical 
and sensible result. McCarthy v. Woburn Housing Authority, 341 Mass. 539, 
170 N.E.2d 700 (1961); Berube v. Selectmen of Edgartown, 336 Mass. 634, 
147 N.E.2d 180 (1958). In this case there is another reasonable construction 
of this section; namely, to assume that the words are correct as written and 
that for all purposes the psychiatric residents are not employees of the 
Commonwealth. It should be noted that G. L. c. 19, § 10 which classified 
residents as non-employees, was enacted after the indemnification statute. 
The Legislature must be presumed to have understood the effect of G. L. c. 
19, § 10 on indemnification and representation by the Attorney General. 



•The relevant pari of G.L. c. 19, § 10 reads as follows: 

"The commissioner may establish a program for the training of residents in psychiatry and any other professional 
disciplines as required by departmental programs Such residents shall be eligible for training grants from the commonwealth 
Recipients of said grants shall be exempt from the provisions of chapter thirty-one and shall not he deemed employees of the 
commonwealth: and such grants shall not be deemed income under chapters sixty-two or sixty-two A. Approval of such training 
programs by the personnel administrator shall be required in accordance with the provisions of section twenty-eight of chapter 
seven." (Emphasis supplied.) 



P.D. 12 147 

Further, being exempt from c. 3 1 is not synonymous with not being an 
employee of the Commonwealth. There are many employees of the Com- 
monwealth who are not subject to the provisions of chapter 31. In fact, the 
physicians and psychiatrists with full medical-psychiatric responsibility 
employed by the Department of Mental Health are one example. See G. L. c. 
19, §2. 

A previous Attorney General opinion concerning the employment status 
of student nurses employed by the Department of Mental Health (1950 Op. 
Atty. Gen. 54) is distinguishable from the instant case. The provision 
involved there was a rule promulgated by the Commissioner of Mental 
Health at the instigation of the Committee on Nurses' Training Schools, a 
subdivision of the Department of Mental Health. The rule provided that 
nurses were not to be considered state employees because they received 
grants. The Attorney General found the rule not to be a bar to the loyalty 
oath requirement contained in G. L. c. 264. While the factual situations are 
different, both the prior and instant opinions rely upon the priority of clear 
statutory language. The prior opinion simply stated that a rule must fall to 
the extent that it conflicts with a broadly drawn statutory definition of 
employment. In this case there is no such conflict. The Legislature has stated 
clearly that psychiatric residents are not to be deemed employees of the 
Commonwealth. 

But, to avoid injustice, this opinion should be read as applying only 
prospectively. The Constitution neither prohibits nor requires retrospective 
effect. Linkletter v. Walker, 381 U.S. 618, 629 (1965). A state in defining the 
limits of adherence to precedent may make a choice for itself between the 
principle of forward operation and that of relation backward. Great Northern 
Railway Co. v. Sunburst Oil and Refining Co., 287 U.S. 358, 364 (1932). It 
may make decisions which overrule the previous law effective only prospec- 
tively whenever justice or hardship will thereby be averted. Id. See also, 
Gelpcke v. Dubuque, 1 Wall. 175 (1863). Courts generally do not abolish a 
clear precedent retroactively when parties may have relied upon it for the 
prior formulation of obligations. Powers v. Bethelehem Steel Corporation, 
483 F.2d 963, 964 ( 1st Cir. 1973). Where, in a serious way, an existing interest 
will be impaired or an expectation disappointed or a reliance defeated, there 
is occasion to take full precautions to confine a decision to prospective 
operation. Diaz v. Eli Lily and Co., Mass. Adv. Sh. (1973) 1263, 1277-1278. 

Any psychiatric residents who have relied on any representations made by 
the Department of Mental Health or the Department of the Attorney Gen- 
eral and are being represented by this Department will continue, in the 
interests of justice, to be represented. Residents who are defendants in the 
pending case of Rogers v. Macht, therefore, will continue to be represented 
by the Attorney General. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



148 P.D. 12 



Number 54 February 13, 1976 

Edward F. Flynn, Jr. 

Deputy Commissioner of Banks 

and General Counsel 
Office of the Commissioner of Banks 
State Office Building 
Government Center 
100 Cambridge Center 
Boston, Massachusetts 

Dear Mr. Flynn: 

You have requested assistance in resolving an issue related to the imple- 
mentation of a proposed "Urban Lending Program." You have stated that 
the Program is designed to eliminate allegations of "redlining" in mortgage 
lending in the City of Boston. Your specific question concerns the applicabil- 
ity, if any, of Chapters 93 and 93A of the General Laws to a proposed 
"Urban Lending Program."' 

Your request, unlike the traditional request for an Attorney General 
Opinion, essentially asks the Attorney General to indicate his present inten- 
tion concerning a course of conduct by private parties, which might be 
considered to violate state law. In other words, rather than advising you 
concerning matters which are "necessary and incidental to discharge of the 
duties" of your office, 2 Op. Atty. Gen. 100 (1899), the request indirectly 
seeks to assure private third parties that no action will be taken against them 
by the Commonwealth, if they participate in the "Urban Lending Program." 
While the Attorney General has the authority and discretion to issue an 
opinion to you concerning this matter, the parameters of my response should 
be clearly understood to avoid misunderstanding. 

Your request resembles the "business review letter" concept utilized by 
the United States Justice Department. The Justice Department developed 
the informal practice of conditionally waiving its right to institute proceed- 
ing in certain circumstances. See Barnes, "Theory & Practice of Antitrust 
Administration" in How to Comply with the Antitrust LawsAX (C.C.H., 1954). 
In 1964 the procedure was formalized and somewhat extended by regula- 
tion. 28 C.F.R. §50.6. Also see Schwartz, Free Enterprise and Economic 
Organizaton, Antitrust and Regulatory Controls. Although 1 do not intend to 
adopt the existing practice with respect to "business review letters," certain 
Umitations on the scope of such letters, however, are applicable. Specifically, 
my opinion should be read with the following factors in mind: 

1. It only represents my present intention not to bring any action. 

2. It is assumed that full and true disclosure by all parties has been made. 

3. My opinion is limited to the proposed plan and any actions which go 
beyond or alter the scope of the proposal are not covered. 

4. The Attorney General remains completely free to bring whatever 



'G.L. C.93, §2 prohibits contracts, agreements, arrangements, combinations or practices whereby a monopoly is or may be 
created or whereby trade is restrained. G.L. C.93A generally prohibits unfair methods of competition, as well as unfair or 
deceptive acts of practices in the conduct of any trade or commerce. 



P.D. 12 149 



action or proceeding he subsequently comes to believe is required by the 
public interest. 

5. To the extent other private parties may have a basis for a claim, this 
letter cannot abrogate their rights. 

See 28 C.F.R. §50.6; United States v. Firestone Tire & Rubber Co. 374 F. 
Supp. 43 1, 433-34 (N.D. Ohio 1974); also see generally, Neale, The Antitrust 
Law of the U.S.A. (Cambridge University Press, 1974). 

On the basis of the materials and information you have forwarded, it 
appears that the program involves a voluntary cooperative effort between 
your office, certain Boston Savings Banks, and community representatives to 
attempt to insure that residential home mortgage loans will not be denied 
solely on the basis of the location of the property. The program would permit 
any applicant for a mortgage on 1-4 family, owner occupied residential 
property in Boston to obtain review of a denial of a mortgage loan. Under 
the program, notice of a mortgage loan denial by any of the participating 
banks would be accompanied by a form explaining the method by which the 
applicant can obtain review of that denial. 

The proposal indicates that a Mortgage Review Board, consisting of repre- 
sentatives selected by the participating banks as well as representatives of the 
Banking Commissioner and representatives from the community would 
review the application to determine whether the denial of the loan was based 
on the location or neighborhood in which the property was situated. In 
conducting their review, the Board is to be guided by criteria enumerated in 
the proposal, including credit standards which an applicant must satisfy, as a 
means of evaluating the reason for the denial of the loans. If the Board 
determines that the denial of the loan was based on the location of the 
property, the Board would suggest reversal of the original denial or suggest 
reversal with qualifications. In all other circumstances, the Board would 
confirm the denial. 

It is also my understanding that no bank will be compelled to accept the 
Board's suggestion of reversal of a denial of a mortgage loan. If the bank 
which originally denied the loan refuses to accept the Board's suggestion of 
reversal, the Secretary of the Board will solicit other banks in the program to 
make the loan on a voluntary basis. 

On the basis of the documents which you have submitted, it is my opinion 
that the proposal does not violate either Chapter 93 or 93A of the General 
Laws. With respect to these statutes, I must, however, express my concern 
that the criteria for evaluating the reason for denial of the original loan serve 
only the limited purpose of providing a framework within which the Review 
Board can evaluate the merits of an appeal. My opinion is premised upon my 
understanding that Savings Banks involved in the program will continue 
unilaterally to adopt interest rates and credit standards without regard to any 
guidelines or standards set forth in the plan, and that any review standards or 
guidelines adopted by the Board shall be utilized solely for the purpose of 
evaluating applications which are submitted to the Board.^ 



^The Justice Department's Antitrust Division has recently issued a favorable business review letter to the Banks involved in this 
program. The letter, however, similarly cautions that its conclusion is premised on the participating banks continuing to 
unilaterally establish their own terms and rates with respect to loans. 



150 P.D. 12 



In sum, it is my opinion that the proposed Urban Lending Program does 
not on its face violate either Chapter 93 or Chapter 93 A of the General Laws. 
Consequently, I do not presently intend to initiate any action with respect to 
the program. In view of my opinion that the plan does not violate Chapter 
93A, I deem it unnecessary to address the suggestion in your letter that 
Savings Banks may be exempt from Chapter 93A. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 55 February 20, 1976 

Mr. John P. Larkin 

Executive Secretary 

Alcoholic Beverages Control Commission 

100 Cambridge Street 

Boston, MA. 02202 

Dear Mr. Larkin: 

You have requested my opinion concerning the appellate jurisdiction of 
the Alcoholic Beverages Control Commission (ABCC) with respect to "the 
increasing or decreasing of the hours of operation of licensees between the 
hours of 11:00 p.m. and 2:00 a.m." Your question principally involves the 
interpretation of the words "modification" as found in G.L. c. 138, §67, 
which outlines the appellate authority of the ABCC. For reasons stated 
below, I respectfully decline to render an opinion. 

This issue has been raised frequently and most recently in proceedings 
before the Licensing Board for the City of Boston and the ABCC concerning 
Colonial Tavern, Inc. d/b/a Jacques Restaurant and Profile Lounges, Inc. 
d/b/a The Other Side. The ABCC, by majority vote, denied a petition for 
rehearing brought by these corporations, based upon the long standing 
practice of the Commission to limit its jurisdiction to the hours from 11:00 
a.m. to 1 1:00 p.m. with statutory authority to either increase or decrease such 
hours reserved to local authorities. However, the Commission advised the 
petitioners in the above-mentioned cases that an opinion of the Attorney 
General would be sought concerning the ABCC's decision in this matter. 

As you note in your opinion request, this is not the first time that this issue 
has been presented to the Commission. In fact, in reviewing the files of the 
Attorney General's office, I find that there are at least two active cases, 
presently in litigation, concerning essentially the same issue. The cases of 
Limelight Corporation v. McAuliffe (Worcester Superior Court, No. 3678) 
and Tar & Feather, Inc. v. Zangrilli (Essex Superior Court, No. 21631) 
involve an issue virtually identical to the*one which prompted your opinion 
request. Similarly, the case of Limelight v. Harrington (Suffolk Superior 
Court, No. 10359) involves a case where the ABCC found it did not have 
jurisdiction over a change in closing hours after 1 1:00 p.m. 

While I recognize the public interest in the cases which prompted your 
opinion request, I see no reason to alter the long standing practice of the 



P.D. 12 151 



Attorney General's office to decline to issue an opinion on a matter which is 
the subject of litigation. See 6 Op. Atty. Gen. 438 (1922) cited most recently 
in Op. Atty. Gen. 75/76-17 (July 31, 1975). An Attorney General's Opinion 
performs the important function of advising state agencies and officials 
concerning the law of the Commonwealth. However, it is not the function of 
such opinions to intervene in ongoing and active litigation involving pre- 
cisely the same issues, particularly where the Attorney General already 
represents a party in such litigation. I, therefore, respectfully decline to 
render an opinion. This is not to be construed as an opinion with respect to 
your undoubted powers to act upon revocations or license board actions you 
consider to be revocations. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 56 March 2, 1976 

Honorable Robert Q. Crane 

Treasurer of the Commonwealth 

State House 

Boston, Massachusetts 

Dear Treasurer Crane: 

You have asked that I review the Deferred Compensation Plan for 
employees of the Commonwealth as to whether the plan grants to an 
employee: 

1. The right to receive, prior to his severance from the service of the 
Commonwealth, all or part of the compensation which has been 
deferred pursuant to the plan; or 

2. Any rights in insurance contracts purchased in connection with the 
plan. 

In answer to your first question, the plan generally prohibits a participant 
from receiving any deferred compensation prior to his severance from ser- 
vice. However, Article VII of the plan does establish a limited exception. The 
article provides: 

VII. WITHDRAWALS 
For serious financial reasons, a Participant may apply to the 
Committee for withdrawal from the Plan prior to retirement or 
other termination of the Participant's service with the Common- 
wealth. Such early withdrawal shall be permitted only in the 
event of real emergencies which are beyond the Participant's 
control and which will cause the Participant a great hardship if 
early withdrawal is not permitted. The amount withdrawable will 
be limited to that necessary to meet the specific situation. With- 
drawals for foreseeable expenditures, normally budgetable, will 
not be permitted. Foreseeable expenditures will normally include 
such items as the down payment on a home, vacation expenses, 



152 P.D. 12 



purchase of an automobile, or college expenses. Upon approval 
from the Committee, and within fifteen days thereafter, the Par- 
ticipant will be deemed to have withdrawn from the Plan and 
distribution of the amounts necessary will be made in a one time 
payment. Future participation will be subject to the provisions of 
Section 4.02(c) of Article IV. 

Thus, a participant may receive such sums as are necessary to alleviate "real 

emergencies," which occur prior to his severance from service. There are no 

other exceptions to the rule. 

With respect to your second question. Article XI of the plan is controlling. 

That article states: 

XI. NON-FUNDING OF BENEFITS 
If the Commonwealth shall acquire any investment or assets in 
connection with the liabilities assumed by it hereunder it is 
expressly understood and agreed that neither the Participant nor 
any Beneficiary of the Participant shall have any right with 
respect to, or claim against such investment or asset. Such invest- 
ment or assets shall not be held in any way as collateral security 
for the fulfilling of the obligations of the Commonwealth under 
this Plan, and shall be subject to the claims of creditors of the 
Commonwealth. 

Thus, a participant possesses no rights in insurance contracts purchased in 

connection with the plan.' Unlike the rule previously discussed, this rule is 

absolute. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Numbers? March 2, 1976 

Frederick P. Salvucci 

Executive Secretary 

Office of Transportation and Construction 

One Ashburton Place 

Boston, Massachusetts 02108 

Dear Secretary Salvucci: 

You have forwarded to me a request for an opinion from Commissioner 
Carroll of the Department of Public Works concerning the regulation of the 
weights of trucks using the highways of the Common weaUh. SpecificaUy you 
ask: 

Is the Commissioner of Public Works required to issue a per- 
mit for the maximum reducible weights permitted by statute to 
an apphcant who satisfies the standards of registration, inspec- 
tion and certification enumerated in Chapter 85, Section 30A, or 



'Indeed, to find otherwise would defeat the entire purpose of deferred compensation plans. A right in any such insurance 
contract, which offers a present economic benefit, would be considered taxable by the Internal Revenue Service. 



P.D. 12 153 



may the Commissioner refuse to issue, or limit the scope of the 
permit under Section 30A for reasons such as public safety, pro- 
tection and capacity of highways and bridges, as dictated by 
sound engineering and professional judgment? 

Analytically the question you ask may be broken into three parts: (1) 
Whether the issuance of permits is mandatory or discretionary, (2) Whether 
the Commissioner may utilize such criteria as the public safety in making his 
decision, and (3) Whether the Commissioner may limit the scope of the 
permits issued. I am of the opinion that both the issuance of permits and the 
criteria to be issued for issuance are committed to the discretion of the 
Commissioner, subject, of course, to constitutional and statutory limitations. 
I further conclude that the Commissioner possesses discretionary authority 
to limit the scope of permits issued. The reasons for my opinion are set out 
below. 

Chapter 851 of the Acts of 1974 revised the statutory scheme regulating 
the weight of loads which trucks may carry and estabUshed a permit system 
whereby vehicles could move loads higher than the statutory maximum.' In 
1975 the legislature again addressed the problem of overweight loads and 
passed Chapter 494, which amended the substance of the regulatory system 
and Chapter 593, which deferred the effective date of several provisions of 
the earlier chapters until March 1, 1976. In their current form both M.G.L. 
C.85, §30 and c.90, §19A impose limitations on the amount of weight trucks 
operating within the Commonwealth may carry. Vehicles may carry loads in 
excess of these limitations only if a permit is obtained from the Commis- 
sioner of Pubhc Works in accordance with M.G.L. c.85, §30A. 

A reading of Section 30A indicates that the issuance of permits is discre- 
tionary, since it provides that the Commissioner "may" issue permits to 
applicants meeting certain minimum standards. Our Supreme Judicial 
Court has consistently held that the word "may" is ordinarily a word of 
permission rather than command and its use in a statute normally indicates 
discretion. Commonwealth v. Gordon, 354 Mass. 722 (1968); City Bank & 
Trust Co. V. Board of Bank Incorporation, 346 Mass. 29 (1963). 

Similarly, the language of Section 30A supports the proposition that the 
Commissioner may consider factors of the type enumerated in your request 
when deciding to issue a permit. Applications for overload permits are to be 
filed on forms provided by the Commissioner, which forms "shall include 
but not be limited to" five specific details of operation. If the legislature has 
authorized the Commissioner to seek additional information from appli- 
cants, it must have contemplated use of that information in his decision- 
making process. 

Section 30A further provides that "within seven days of receipt of [an] 
application the Commissioner of Public Works shall notify the applicant of 
the approval or disapproval of his application." I am of the opinion that the 



'On January 14, 1975, my predecessor issued a formally numbered opinion dealing with Chapter 851 to the Chairman of the 
Special Overload Commission established by the General Court. 1974-75 Op.Atty.Gen. #47. The text of the opinion indicates 
that it was intended as an informal opinion and its value as a precedent is questionable, since the Attorney General may not 
issue a formal opinion to individual legislators or the Chairmen of such Commissions. I agree with the conclusion expressed in 
that opinion that the Commissioner may not unilaterally adopt a policy refusing to issue any overload permits but note the 
statement in your request that the Commissioner has not adopted such a policy. 



154 P.D. 12 



authority to limit the scope of permits is necessarily included in the Commis- 
sioner's greater powers of disapproval. Clearly the Commissioner could hmit 
the scope of permits by other indirect means, and I conclude that he also 
possesses the implied authority to impose direct limitations on permits. 

In the Commissioner's letter he requests a prompt reply because of the 
effective date of the statute. I am of the opinion that the issuance of overload 
permits is an integral part of the law and suggest deferred enforcement until 
the permit system is in force. As my predecessor has already noted in his 
opinion, it would be inconsistent with legislative intent to enforce the weight 
limitations without providing for permits. A system where permits are avail- 
able in theory but not in practice would violate the legislative mandate. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 58 April 2, 1976 

Representative Richard H. Demers 
Chairman, Committee on Commerce & Labor 
State House, Room 43 
Boston, Massachusetts 02133 

Dear Representative Demers: 

The Committee on Commerce & Labor has requested my opinion as to 
whether St. 1971, c. 771, G.L. c. 91, App. l-3(q) would conflict with or 
prohibit the implementation of Senate Bills, Numbers 60, 68 and 107. 

St. 1971, c. 771 authorized and empowered the Massachusetts Port 
Authority: 

To apply for, estabhsh, operate, and maintain ... a foreign 
trade zone and sub-zone in the Commonwealth in accordance 
with the Foreign Trade Zone Acts of 1934, [19 U.S.C. §81a-81u]. 

The Committee has specifically asked whether this provision would pro- 
hibit "entities other than the Massachusetts Port Authority from applying to 
the Foreign Trade Zone Board" and bar the passage of the pending Senate 
Bills. 

Senate Bill No. 60 would authorize the mandate of the Massachusetts Port 
Authority to establish a foreign trade zone at the South Boston Annex of the 
Boston Naval Ship Yard; Senate Bill No. 68 would establish a Commission 
to study the feasibility of establishing a world trade mart at the Boston Fish 
Pier; Senate Bill No. 107 would authorize the City of New Bedford to apply 
for and operate a foreign trade zone. 

I have concluded that there is no bar to the passage of legislation authoriz- 
ing additional entities to apply for the right to operate a foreign trade zone in 
the Commonwealth. St. 1971, c. 771 merely authorized Mass. Port to apply 
for foreign zone status and did not create an exclusive right. 



P.D. 12 155 



Further, the federal Foreign Trade Zone Act of 1934 permits state legisla- 
tion which would allow additional entities to apply for foreign trade zone 
status. The Act states that "each port of entry [within a state] shall be entitled 
to at least one zone, subject to approval by the Foreign Trade Zone Board" 
19 U.S.C. §81(b)b, and merely requires legislative action in certain circums- 
tances when the proposed applicant is a public corporation. 19 U.S.C. 
§78 (b)d. The Act places no further restriction on the permissible number of 
zones within a state, requiring only that, to be approved, proposed zones 
must be "suitable for the accomplishment of the purpose of a foreign trade 
zone . . ." 19 U.S.C. §8 Ig. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 59 April 2, 1976 

Commissioner Nicholas Roussos 
Department of Labor and Industries 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Roussos: 

You have asked my opinion concerning the legality of G.L. c. 23, §1 which 
requires, in part, that the Assistant Commissioner of the Department of 
Labor and Industries be a woman: 

There shall be a department of labor and industries, under the 
supervision and control of a commissioner of labor and indus- 
tries, in this chapter called the commissioner, an assistant com- 
missioner who shall be a woman, and three associate commission- 
ers, one of whom shall be a representative of labor and one a 
representative of employers of labor, (emphasis supplied) 
I find that G.L. c. 23, §1 violates the equal protection clause of the 14th 
Amendment to the United States Constitution and is, therefore, unconstitu- 
tional. I also find that the statute violates Title VII of the 1964 Civil Rights 
Act, 42 U.S.C. §2000(e) et seq., and the Massachusetts Fair Practices Act. 
G.L. c. 151B, §4.' 

G.L. c. 151B, §4 and Title VII of the Civil Rights Act of 1964 prohibit 
failures or refusals to hire or employ on the basis of sex. The requirement 
that the assistant commissioner be a woman would, in the absence of a bona 
fide occupational qualification, be discrimination in employment on the 
basis of sex. However, where sex is a ""bona fide occupational qualification to 
the normal operation of that particular business or enterprise," it shall not be 
an unlawful employment practice for an employer to hire or employ persons 
on the basis of sex. 42 U.S.C. §2000e-2(e). 



'G.L. c. 15 IB provides that any stale law to the contrary is effectively repealed, except for certain specifically cited statutes not 
here relevant. G.L. c. 15IB, §9. 



156 P.D. 12 

Courts which have found a bona fide occupational qualification have 
relied upon three different standards: 

1) "All or substantially aU women would be unable to perform 
safely and efficiently the duties of the job involved." Weeks v. 
Southern Bell Telephone & Telegraph Company, 408 F.2d 228 
(5th Cir. 1969). 

2) ". . . the essence of the business operation would be under- 
mined by not hiring members of one sex exclusively." Diaz v. 
Pan American World Airway, Inc., 442 F.2d 385 (5th Cir. 
1971), cert, denied, 404 U.S. 950 (1971). 

3) ". . . . sexual characteristics are crucial to successful job 
performance." Rosenfeld v. Southern Pacific Company, 444 
F.2d 1219 (9th Cir. 1971). 

The assistant commissioner performs administrative duties "relating spe- 
cifically to women and minors" and exercises authority as may be prescribed 
by the Commissioner. G.L. c. 23, §6. I find that there is no duty of the 
assistant commissioner for which sex is a bona fide occupational qualifica- 
tion and for which one sex is, therefore, exclusively qualified. The mere fact 
that the job requires dealing with "women and minors" does not suggest a 
contrary result. The bona fide occupational qualification exception cannot 
be met by any of three standards referred to above and, therefore, the 
position of assistant comissioner in the Department of Labor and Industries 
cannot be denied to a qualified person based on the individual's sex. 

Since G.L. c. 23, §1 limits the position of assistant commissioner to that of 
the female sex and deprives males of an employment opportunity and since 
the bona fide occupational qualification cannot be met to justify such dis- 
crimination, the statute is a. prima facie violation of G.L. c. 15 IB, §4, of the 
Civil Rights Act of 1964, 42 U.S.C. §2000(e)-2(a), and the equal protection 
clause of the 14th Amendment. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 60 April 12, 1976 

Honorable Robert Wood 

President, University of Massachusetts 

One Washington Mall 

Boston, Massachusetts 02108 

Dear President Wood: 

You have requested my opinion relative to the following question: 
Are lodging accommodations provided at the University of 
Massachusetts Campus Center subject to the room occupancy 
excise imposed by G.L. c. 64G? 



P.D. 12 157 

The campus Center was constructed by the University Building Authority 
pursuant to the provisions of St. 1960, c, 773, as amended. It is currently 
operated by the Board of Trustees of the University under a "Management 
and Services Agreement" between the Authority and the Board of Trustees. 
The Center serves as a facility for dining, housing and extra-curricular 
activities at the University's Amherst Campus. 

In arriving at my opinion, I need not look beyond the provisions of G.L. c. 
64G, §2(a), which declare: 

The provisions of this chapter shall not be construed to include 
lodging accommodations at . . . state . . . institutions . . . 
As part of a facility constructed and operated by state bodies for the purpose 
of serving the state university, the lodging accommodations provided at the 
Campus Center clearly constitute "lodging accommodations" at "a state 
institution". See G.L. c. 75, §1. Therefore, by the explicit terms of G.L. c. 
64G, §2(a), those accommodations are exempt from the room occupancy 
excise.' Accordingly, I answer your question "No." 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 61 April 12, 1976 

Commissioner John F. Snedeker 

Metropolitan District Commission 

20 Somerset Street 

Boston, Massachusetts 02108 

Dear Commissioner Snedeker: 

You have requested my opinion regarding a proposed transfer of land in 
East Boston from the Massachusetts Port Authority (Massport) to the Metro- 
politan District Commission (MDC). Specifically you have asked whether 
legislation authorizing the transfer is required by Article 97 of the Articles of 
Amendment to the Constitution of Massachusetts or by the doctrine of 
"prior public use." 

You have advised me that the land, known as the Belle Isle Marsh area in 
East Boston, was acquired by Massport through exercise of its powers of 
eminent domain to protect aerial approaches to runways at Logan Airport 
and is presently being used for that purpose. Massport is willing to grant a 
revocable permit to the MDC to use the land for passive recreational pur- 
poses. Alternatively, Massport is willing to convey the land, but would 
require payment of reasonable consideration. 

The MDC has previously acquired adjacent land, formerly the Suffolk 
Downs Drive-In Theater, on which it intends to build a skating rink. It 



'While G.L. c 64G, §2(b) contains a separate exemption for "lodging accommodations at . . . 
educational . . . institutions . . .," I do not reach the question of whether the lodging accommodations in question qualify 
for that exemption as well. 



158 P.D. 12 



wishes to utilize the Belle Isle Marsh land for passive recreational purposes, 
such as wildlife conservation. No construction would be undertaken. 

Article 97 of the Amendments to the Constitution of Massachusetts 
provides: 

The people shall have the right to clean air and water, freedom 
from excessive and unnecessary noise, and the natural scenic 
historic and esthetic qualities of their environment; and the pro- 
tection of the people in their right to the conservation, develop- 
ment and utilization of the agricultural, mineral, forest, water, air 
and other natural resources is hereby declared to be a public 
purpose. 

The general court shall have the power to enact legislation 
necessary or expedient to protect such rights. 

In furtherance of the foregoing powers, the general court shall 
have the power to provide for the taking, upon payment of just 
compensation therefor, or for the acquisition by purchase or 
otherwise, of lands and easements or such other interests therein 
as may be deemed necessary to accomplish these purposes. 

Lands and easements taken or acquired for such purposes shall 
not be used for other purposes or otherwise disposed of except by 
laws enacted by a two thirds vote, taken by yeas and nays, of each 
branch of the general court. 
The public purposes defined in Article 97 are "the protection of the people 
in their right to the conservation, development and utilization of the agricul- 
tural, mineral, forest, water, air and other natural resources." Only land and 
interests in land taken or acquired by the Commonwealth for "such pur- 
poses" are subject to the requirement of a two-thirds vote of each branch of 
the General Court before a change in use or other disposal is permitted. 

Since the land in question was acquired for airport purposes and not for 
the conservation-related purposes enumerated in Article 97, Article 97 
would not restrict transfer of the land by Massport.' However, it is my 
opinion that the transfer of this land by Massport to the MDC would involve 
diversion of property from one public use to another inconsistent use and, 
therefore, needs to be evaluated in light of the doctrine of "prior public use." 
If the doctrine is applicable, specific legislative approval, by majority vote, 
would be necessary whether the transfer is by sale or by revocable permit. 

The doctrine of prior public use is a judicially evolved doctrine. The 
essence of the doctrine, as stated in the leading case of Robbins v. Department 
of Public Works, 355 Mass. 328 (1969) is that "public lands devoted to one 
public use cannot be diverted to another inconsistent public use without 
plain and explicit legislation authorizing the diversion." The doctrine has 
been most stringently applied to park land, see Robbins, supra; however, it 
has been applied to land held for other purposes, such as flood control. 
Commonwealth v. Mass. Turnpike Authority, 346 Mass. 250 (1963). Here, 
land taken and held for airport purposes would be diverted to recreational 
purposes. The authorization for the acquisition of land by the MDC for the 



'As noted below. Article 97 might restrict any future transfer of the land by MDC if it is considered to have "acquired" the 
property or interest. 



P.D. 12 159 



East Boston recreational facilities, found in St. 1971, c. 976, § 2C only refers 
to land in East Boston, and does not specifically contemplate the taking of 
land at this particular location, now used for airport runway protection.^ 
Therefore, before the land can be diverted from airport-connected to recrea- 
tional uses, it is my opinion that specific legislative authorization is required. 

Further, in my opinion the acquisition of this land through purchase by 
the MDC for purposes covered by Article 97 would restrict its later transfer 
from the MDC. The land would be taken by the MDC in connection with 
the construction of a skating rink and other recreational facilities planned for 
adjacent land. The MDC does not intend to use this piece of land for 
construction but for passive uses, such as a bird sanctuary with walking 
trails. Article 97 has been interpreted in a prior Opinion of the Attorney 
General to apply to public lands acquired for parks, monuments, reserva- 
tions, athletic fields, concert areas and playgrounds. 1972-73 Op. Atty. Gen. 
p. 139, 143. Acquisition of this land for recreational purposes would fall 
within the terms of Article 97, particularly where it is my understanding that 
a portion of the land is protected "wetlands" property. In other words, if 
MDC purchased the land, a later transfer would clearly require the 2/3 vote 
contemplated by Article 97. 

The remaining questions are whether the transfer of control of the land to 
the MDC under a revocable permit would be considered an acquisition under 
Article 97, which would restrict a subsequent transfer back to Massport, and 
the impact of the doctrine of prior public use. Article 97 applies to lands and 
easements or other interests taken upon payment of just compensation, or 
acquired "by purchase or otherwise". Mere MDC control over this land 
could be interpreted as "acquisition" of such an "other interest". However, 
where the interest taken by the MDC is as speculative in nature as a permit, 
revocable by Massport at any time, it should not be considered an acquisi- 
tion within the terms of Article 97. 

The clear purposes of Article 97 are to authorize the acquisition of land for 
conservation purposes, and to ensure that land once made a part of the 
Commonwealth's holdings for conservation purposes is not altered in use or 
disposed of without legislative authorization. Where control of the Belle Isle 
Marsh land by the MDC is acquired under circumstances known to be 
temporary by the acquiring agency and is subject to revocation at any time, 
it would not in my opinion be an interest acquired "to accomplish the 
purposes" of Article 97. Therefore, the requirement in Article 97 of a 2/3 
vote of the legislature would not be imposed. 

However, the doctrine of prior public use would be applicable to a subse- 
quent change in use, even due to the revocation of a permit. Unless the 
legislation enabling the transfer of the land by Massport permitted later 
revocation of the permit and return of the land to Massport without further 
legislative approval, a subsequent transfer would require legislative 
approval by a majority vote of the legislature. 

In summary, (1)1 find that the proposed transfer of the Belle Isle Marsh 
land by Massport to the MDC, whether by revocable permit or otherwise, 



-Compare. Cily of Bi/slun v. MassMhuseiis Pun Authority. 356 Mass 741 ( 1470); Appleton v Maxs. Parkin;; Aulhorilv. 340 Mass. 
303(1960). 



160 P.D. 12 



would require a majority vote of the legislature. (2) If the transfer is by way 
of revocable permit, then a subsequent transfer or change in the use of the 
land would not be subject to the restrictions of Article 97. Legislative 
approval for a subsequent transfer or change in the use of the land would be 
required by the doctrine of prior public use, unless legislation enabling the 
transfer by Massport authorized the return of the land to Massport without 
further approval. (3) If, however, the transfer is by way of purchase, then any 
subsequent transfer or change in use of the land would be subject to the 
provisions of Article 97 and would require a 2/3 vote of the legislature. 

Very truly yours, 
FRANCIS X. BELLOTTl 

Attorney General 



Number 62 April 13, 1976 

Professor Arthur R. Miller 

Chairman, Security and Privacy Council 

131 Tremont Street 

Boston, Massachusetts 021 1 1 

Dear Professor Miller: 

You asked my opinion on the following two questions: 

(1) Does G.L. c. 6, §175 give individuals the right to copy, if 
practicable, all criminal offenders record information 
(CORI) held on them, including personal information com- 
piled by criminal justice agencies for the purpose of identify- 
ing them or is the right to copy created by this section limited 
to that portion of CORI which is not personal identifying 
information? 

(2) Does G.L. c. 6, §175 give individuals the right to take a 
photograph or make a photocopy of their CORI which is not 
personal identifying information? 

My opinion is that individuals may, when it is practicable, obtain copies of 
their CORI which contains personal identifiers and that copies may be made 
by any practicable means. 

G.L. c. 6, §175 provides that "each individual shall have the right to 
inspect, and, if practicable, copy, criminal offender record information 
which refers to him." Your first question, however, asks whether the crimi- 
nal offender record information (CORI), for purposes of this section, 
includes personal identifying information. 

It is my view that the legislature intended to permit an individual to copy 
the entire CORI, including personal identifying information. Statutes are to 
be read according to the ordinary meaning of the words. Chatham Corp. v. 
State Tax Commission, 1972 Adv. Sh. 1297, 285 N.W. 2d 420 (1972). Since 
the definition of CORI in G.L. c. 6, §167, clearly provides that CORI is 
maintained according to the identity of each offender, a copy made for the 



P.D. 12 161 



named individual pursuant to G.L. c. 6, §175, should therefore also contain 
the identity of the offender.' 

I reach this conclusion after careful consideration of the construction of 
this statute which has been made by the Criminal History Systems Board, 
the state agency principally responsible for governing criminal records. G.L. 
c. 6, §168 ff - The Board's view is entitled to weight in resolving ambiguities 
in the language of the statute. Devlin v. Commissioner of Correction, 1973 
Adv. Sh. 1601, 305 N.E. 2d. 847, Town Crier, Inc. v. Chief of Police of Weston, 
1972 Adv. Sh. 89 1, 282 N.E. 2d. 379, 382, n.6. Here, however the language of 
G.L. c. 6, §§167 and 175 is not ambiguous. If all of the language of these 
two sections is to be given meaning. Board of Assessors of Newton v. Pickwick 
Limited, 35 1 Mass. 621 (1970), individuals should be able, where practicable, 
to obtain copies of their CORI containing personal identifiers. 

An individual may make a copy of his record by any means practicable 
and reasonable. This may include the laborious task of manual duplication 
or the more modern processes of photocopying or computer printouts. Such 
methods are permitted by Regulation 3.4 of the Criminal History Systems 
Board and are valid interpretations of the word "copy" in G.L. c. 6, §175. 
Copying by any form, of course, is expressly made contingent upon practi- 
cability. G.L. c. 6, §175. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 63 April 15, 1976 

Leroy Keith, Chancellor 
Board of Higher Education 
182 Tremont Street 
Boston, Massachusetts 021 1 1 

Dear Chancellor Keith: 

On behalf of the Board of Higher Education (the Board) you have asked 
for my opinion as to whether the Board has the statutory authority to adopt 
a policy concerning admission requirements of private institutions granting 
collegiate-level degrees. You state that the Board has deferred promulgation 
or implementation of its policy pending an opinion of this Department. The 
policy provides as follows: 

Policy on Admissions for Private Sector 

("Independent") Institutions under the 

Purview of the Board of Higher Education 



'CORI is defined in G.L. c. 6, §167. as "records and data compiled by criminal justice agencies for the purposes of identifying 
criminal offenders and of maintaining as to each offender a summary of arrests, pretrial poceedings, the nature and disposition 
of criminal charges, sentencing, incarceration, rehabilitation, and relea.se." (emphasis added) 

'Regulation 3.4 of the Rules and Regulations of the Criminal History System Board (December 17, 1974) provides in part: 

"Before releasing any exact reproduction or hard copy of CORI to an individual, the agency holding the same shall remove all 

personal identifying information from the CORI." 



162 P.D. 12 



In order to protect the public interest and the needs of the 
citizens of the Commonwealth, the Board of Higher Education 
will approve only those Articles of Organization of a collegiate 
level degree granting institution or those Articles of Amendment 
to the charter of an existing collegiate level degree granting insti- 
tution which provide for an admissions policy making eligible for 
consideration for admission to or enrollment in the institution all 
educationally qualified, financially able persons, such policy 
thereby not restricting admissions and enrollees exclusively to 
employees of a particular industry or corporation or to client 
groups of such bodies. Published admissions policies in institu- 
tional catalogues and promotional material will be reviewed on a 
routine basis for compliance with the intent and purpose of this 
policy. 
Your inquiry about the validity of this policy divides analytically into two 
separate questions: (1) whether the statutes governing the Board's duties and 
its responsibilities relating to private degree-granting institutions in particu- 
lar permit the Board to adopt such a policy or standard; and (2) assuming the 
statutes authorize the Board's action, whether the procedure the Board 
followed in adopting the policy was valid. I discuss separately each of these 
issues. 

1. The Board's authority to adopt the policy. 

Under G.L. c. 15, § ID the Board is given broad supervisory powers over 
the Commonwealth's entire system of public higher education, its general 
mandate being to "promote the best interests of all public higher education 
throughout the Commonwealth." G.L. c. 15, § ID, second paragraph. The 
Board's specific power over collegiate-level, private institutions is set forth in 
G.L. c. 69, §§ 30 et seq. The two sections relevant to your inquiry are §§ 30 
and 31. 

Section 30 requires the Board to investigate and pass on the qualifications 
of any college, junior college, university or other educational institution 
which seeks to incorporate as, or to amend its articles of organization to 
become, a degree-granting institution.' Section 31 delineates thirteen stand- 
ards or conditions which the board must follow in acting on an educational 
institution's proposed certificate of organization or articles of amendment 
under § 30. These standards relate to levels of instruction and form of 
organization; faculty, admissions and graduation requirements; adequacy of 
library and laboratory facilities and equipment; and financial structure. An 
institution must satisfy all these standards in order to obtain the Board's 
approval. 

The admissions policy adopted by the Board is essentially intended to 
operate as a rule of general application. However, neither G.L. c. 69, § 30 nor 
§ 3 1 explicitly grants the Board the power to adopt rules or regulations as a 
means of implementing the provisions of these sections. Furthermore, none 



'Specifically, the Board is required to: investigate "the institution, its laculty. equipment, courses of study, financial organiza- 
tion, leadership, and other material facts relative thereto;" hold a public hearing on these issues as pan of its investigation; 
make a determination approving or disapproving the proposed certificate of organization or articles of amendment which the 
institution has filed with the Secretary of State; and report its findings to the Secretary. The Board's approval is a pre-requisite 
to the Secretary's endorsement of approval on the certificate of articles of amendment which the institution has filed. 



P.D. 12 163 



of the thirteen conditions listed in § 3 1 explicitly relates to the ability of a 
degree-granting institution to restrict its admissions to employees of a partic- 
ular industry.- The answer to the question of the Board's authority to adopt 
the policy under review depends, then, on whether (1) G.L. c. 69, §§30-31 
impliedly vest a rule-making authority in the Board, and (2) the particular 
policy or rule adopted by the Board is substantively consistent with the terms 
of these sections. I answer both of these subsidiary questions in the 
affirmative. 

As a general principle of administrative law, an agency charged with 
responsibility for implementing a statute has the power to adopt interpretive 
rules or regulations to clarify its intended application of the statute and guide 
those whose activities will be governed by it. See, e.g., Morton v. Ruiz, 415 
U.S. 199, 23 1 (1974); School Committee of Springfield v. Board of Education, 
362 Mass. 417, 441-42 (1972); Cleary v. Cardullo's, Inc., 347 Mass. 337, 
343-44 ( 1949). In my opinion, this principle applies to the Board's investiga- 
tory responsibilities over private degree-granting educational institutions 
prescribed by G.L. c. 69, §§30-31. Although § 31 does set forth an extensive 
list of standards which the Board must follow in performing these functions, 
each standard is phrased in broad and general terms. In these circumstances, 
it seems both permissible and appropriate for the Board to flesh out the 
requirements of the statute by adoption of interpretive rules or policy state- 
ments. See School Committee of Springfield \ . Board of Education, supra.^ 

I am also of the view that in substantive terms the particular policy 
adopted by the Board represents a valid exercise of its implied rule-making 
power under c. 69, §§ 30-3 1. The thirteen standards or conditions set forth in 
§ 3 1 relate to several specific aspects of an educational institution's program, 
but, as described above, each is couched in general language. While none of 
them deals specifically with the issue which the Board's policy addresses, the 
policy supplements and is consistent with their terms. Cf. Druzik v. Board of 
Health of Haverhill, 324 Mass. 129, 136 (1949). I note two of the statutory 
standards in particular: § 31, Second, which provides in part that "[t]he 
general character of the institution, its professional outlook, and the charac- 
ter and quality of its leadership and personnel shall be determining factors in 
the IBoard's] approval of the institution;" and § 31 Fourth (quoted at n.2, 
supra) which sets the basis for admission to an institution seeking degree- 
granting approval as satisfactory completion of a secondary school program 
or its equivalent. In light of the Board's broad mandate to promote and 
develop public higher education for the benefit of all Commonwealth resi- 
dents, it seems well within the Board's authority to interpret G.L. c. 69, §§ 
30-31 so as to require that a degree-granting institution keep its admissions 
open to all academically qualified and financially able applicants. 

2. The procedure used by the Board in adopting its policy. 

While I have concluded that the Board possesses rule-making authority 



-The single standard concerning admissions requirements provides that "|tlhe basis for admission to the institution [seeking 
approvall is the satisfactory completion of a secondary school program, or its equivalent." G.L. c. 69, § 31, Fourth. 

'That the Board is explicitly required under c. 69, ij 30A to establish certain standards for educational institutions whose 
certificate of organization or articles ol amendment it has already approved does not mean that the Board is nol permiiied lo 
establish similar standards under §§ 30 and 31. 



164 P.D. 12 



under G.L. c. 69, §§ 30-3 1, the procedure the Board followed in adopting the 
policy at issue raises a different question. It appears that the Board approved 
this policy simply by a vote of its members. It neither held a public hearing, 
gave public notice that it was considering adoption of the policy, nor invited 
any comments or arguments from interested parties. The Massachusetts 
courts have made clear that compliance with these types of procedures is 
necessary to render the policy a binding rule or regulation of the Board. 

The Board is an agency subject to the Commonwealth's administrative 
procedure act, G.L. c. 30A. See id., § 1(2). The "policy" the Board has 
adopted constitutes a "regulation" as defined in c. 30A, § 1(5) — a 
"requirement of general application and future effect . . . adopted by an 
agency to implement or interpret the law enforced or administered by it": it 
is intended to apply generally to all private educational institutions under 
the Board's purview, and it establishes on a prospective basis an admissions 
standard which the institutions must meet to obtain degree-granting author- 
ity. See Kneeland Liquor, Inc. v. Alcoholic Beverages Control Commission, 
354 Mass. 408, 414 (1968).^ 

Once the policy is properly defined as a "regulation" under c. 30A, how- 
ever, other statutory provisions come into play which require the Board to 
follow specific procedures for the regulation's effective adoption, promulga- 
tion and implementation. Specifically, the Board must choose between the 
following alternatives: 

(1) It may give all interested persons notice and an opportunity to present 
data, views or arguments on the proposed regulation in accordance with 
G.L. c. 30A, § 3, and file any regulation it adopts with the Secretary of State 
pursuant to G.L. c. 30, §37. See Commissioner of the Department of Commu- 
nity Ajf airs V. Boston Redevelopment Authority, 362 Mass. 602, 617-18 (1972); 
cf Massachusetts General Hospital v. Commissioner of Public Welfare, 346 
Mass. 739, 740(1964); 

(2) Upon deciding the application of one particular educational institu- 
tion seeking degree granting authority, the Board, in making its findings 
under G.L. c. 69, § 30, may announce a general standard that it is applying to 
the case at hand and also that it intends to apply to other similar future 
decisions. Such a statement will not be binding beyond the one case being 
decided, but will be an announced posture and have guidance and predictive 
value. See Securities and Exchange Commission v. Chenery Corp., 332 U.S. 
194,201-03(1947).' 

It is clear that the procedure the Board has followed in adopting the policy 
you have asked me to review did not comply with any of the methods of 
rulemaking I have outlined. As a result, the policy can have no binding effect 
on any of the educational institutions to whom it is intended to apply. 



'The fact that the Board has used the term "policy" rather than "regulation" is not conclusive for purposes of defining the legal 
requirements applicable to its adoption. See. e.g.. Columbia Broadcasting System v. United States. 316 U.S. 407, 422 (1922); 
Kneeland Liquor. Inc. v. A Icoholic Beverages Control Commission, supra. 

'Rather than issuing a broad general policy the Board might, at the request of any interested person, render an "advisory 
ruling" with respect to the applicability to any person, property or state of facts of any statute or regulation enforced or 
administered by the Board. G.L. c. 30A, §8. Under this method, compliance with the requirements governing adoption of 
regulations is not necessary. 



P.D. 12 165 

Massachusetts General Hospital v. Commissioner of Public Welfare, supra. 
The Board is free, however, to cure this procedural defect by reconsideration 
of its policy in accordance with one of these methods. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 64 April 21, 1976 

Robert J. Kane 

Executive Director 

Committee on Criminal Justice 

The Commonwealth of Massachusetts 

80 Boylston Street 

Suite 725-740 

Boston, Massachusetts 021 16 

Dear Mr. Kane: 

You have requested my opinion concerning the definition of the word 
"competitive" as it appears in G.L. c. 156A, § 6, which authorizes the 
Proposal Review Board of the Committee on Criminal Justice to "evaluate 
and approve or disapprove competitive applications to the committee for 
funding." Further clarification of your request is contained in an attached 
memorandum, where you ask: 

. . . whether that [authority to evaluate and approve or disap- 
prove a competitive application to the committee for funding] 
gives the Proposal Review Board final say over the entire block 
program or whether it[s] [authority to evaluate and approve or 
disapprove a competitive application to the committee for fund- 
ing] is limited to only those programs which the committee has 
designated specifically as competitive programs .... 
In other words, you ask whether the Proposal Review Board has the 
authority to approve or disapprove all applications for grants, whether those 
grants originate from the annual block grant or from a specifically desig- 
nated program competition. It is my opinion that the term "competitive" in 
G.L. c. 6, § 156 A refers only to those applications submitted by potential 
subgrantees in response to an announcement of a special competition pro- 
gram designated as such by the Committee on Criminal Justice and that, 
therefore, the Proposal Review Board's authority to evaluate and approve or 
disapprove applications for grants is limited to those submitted in response 
to an announcement of a specifically designated competitive grant program. 
Further, it is my opinion that the Proposal Review Board performs an 
advisory function and does not have final decision making authority over 
any funding decision. 

It is important to note that there is no provision in the federal statute 42 
U.S.C. § 3701, et seq. or the federal regulations for: (a) a proposal review 
board; (b) the expenditure of funds designated specifically as "competitive 



166 P.D. 12 



grants"; and, (c) the review, approval or disapproval of any so-called com- 
petitive grants by a unit designated a Proposal Review Board. Massachu- 
setts, however, has taken it upon itself to create a Proposal Review Board to 
"evaluate and approve or disapprove competitive applications to the com- 
mittee for funding." G.L. c. 6, § i56A. cf.. Executive Order No. 60, July 25, 
1968 and Executive Order No. 70, March 23, 1970. The scope of the Board's 
authority, therefore, must be viewed with the Committee's grant making 
process in mind. 

By statute. Law Enforcement Assistance Act (LEAA) money is distributed 
through five distinct grant processes. Grants are made to various states for 
the establishment and operation of state planning agencies. 42 U.S.C. § 3722. 
These are the so-called "planning grants." Second, an annual amount of 
money ("block grant") is allocated to each state according to their respective 
populations for the purpose of enabling state planning agencies to make 
grants to subgrantees. 42 U.S.C. § 3736 (a) (1). Third, additional sums of 
money may be given at the discretion of LEAA to state planning agencies, 
units of general local government, combinations of such units, or private 
nonprofit corporations. 42 U.S.C. § 3736 (a) (2). These are called "discre- 
tionary grants," the expenditure of which does not necessarily involve the 
state planning agency. Fourth, special grants are made directly to public 
agencies, institutions of higher education, or private organizations to con- 
duct research, demonstrations, training, or educational programs designed 
to improve and strengthen law enforcement and criminal justice. 42. U.S.C. 
§ 3742. Again, the expenditure of these funds does not necessarily involve 
the state planning agency. Finally, specific grants are made to state planning 
agencies for the purpose of developing and implementing programs and 
projects for the construction, acquisition and renovation of correctional 
institutions and facilities. 42 U.S.C. § 3750 (b). 

As a matter of practice, the members of the Committee have determined 
that a certain amount of "block grant" money should be set aside for the 
funding of specific programs in designated program areas, and that all 
interested persons should be allowed to submit competitive bids for those 
funds. For example, in 1975, $335,000 was set aside for the creation and 
implementation of a Juvenile Delinquency Impact Program, an award even- 
tually made to eight different sub-grantees in competition with some 42 
other applicants. As discussed below, it is this type of grant which G.L. c. 6, 
§ 156 A refers to as competitive. 

The process by which state planning agencies determine the manner in 
which monies may be granted is left largely to their discretion. 42 U.S.C. 
§ 3733 (a) (4). The only prerequisite is that such expenditures must be 
consistent with the state's comprehensive plan.' In Massachusetts, the proc- 
ess for the review of grant applications and the awarding of grants is set forth 
in the Committee's "Briefing Book" of January 1, 1976. Generally, applica- 
tions received by the Committee are first reviewed by a program specialist 



'42 use 3732 provides as follows; 

Any Slate desiring to participate in the grant program under this subchapter shall establish a State planning agency as 
described in subchapter II of this chapter and shall within six months after approval of a planning grant under subchapter II 
of this chapter submit to the Administration through such State planning agency a comprehensive State plan developed 
pursuant to subchapter II of this chapter 



P.D. 12 167 



and grant manager, both of whom are members of the Committee staff.^ 
When preliminary reviews are completed, the Executive Review Committee 
begins the process of selection and makes preliminary recommendations 
regarding funding. The applications are then sent to various task groups 
composed of members of the Committee who are experienced in a particular 
phase of the law enforcement or criminal justice system. The members of the 
various task forces review the applications and recommendations of the staff 
and often receive direct input from applicants. The members of the task 
force then decide what applications to fund and instruct the staff to prepare 
the committee's annual action plan. The plan is reviewed in draft form by all 
members of the Committee, final funding allocations are determined, and 
the Annual Action Plan is submitted to the Law Enforcement Assistance 
Administration. This final step by the Committee — its decision regarding 
funding allocation — is consistent with 42 U.S.C. § 3734, which provides 
explicitly that "the State planning agency is authorized to disburse funds to 
the applicant."' 

When G.L. c. 6, § 156A is interpreted in context with G.L. c. 6, § 156 and 
with 42 U.S.C. § 3734, it is clear that the legislature intended members of the 
Proposal Review Board to have authority to review only those particular 
applications submitted in response to invitations to bid for competitive grant 
money. Further, it is clear that the Proposal Review Board does not have 
final decision making authority over the funding o{ any applications made to 
the Committee on Criminal Justice. 

G.L. c. 6, § 156 clearly authorizes members of the Committee on Criminal 
Justice to review applications for funding submitted to the Committee on 
Criminal Justice. The Committee's "Briefing Book" similarly interprets the 
responsibilities of the Board and is entitled to considerable deference. See, 
e.g., Udall V. Tollman, 380 U.S. 1(1964).'* As noted above, final decision 
making authority is given to the full Committee, by 42 U.S.C. § 3734, by 
G.L. c. 6, § 156, and by the Committee's guidelines. The language contained 
in § 156 A must be read in the context of other statutes and regulations which 
treat the same subject matter. Pereira v. New England LNG, Inc., 30 N.E. 2d 
441 ( 1973), and construed so as to constitute a harmonious whole consistent 
with legislative purpose. Mathewson v. Contributory Retirement Appeal 
Board, 141 N.E. 2d 522 (1957). Thus, although G.L. c' 6, § 156A authorizes 
the Proposal Review Board to "approve or disapprove" competitive grant 
applications, G.L. c. 6, § 156 mandates that review of these decisions must be 
conducted by the full Committee, with final funding authority in that body. 



-In addition, if the application is from a major city, it is also reviewed initially by the Criminal Justice Development Agency 
(CJDA) of that city. Part V, Section D(2). Commonwealth of Massachusetts Committee on Criminal Justice Briefing Book. 
January I. 1976. 

'42 U.S.C. § 3734 provides as follows: 

State planning agencies shall receive applications lor financial assistance from units of general local government and 
combinations of such units When a Stale planning agency determines that such an application is in accordance with the 
purposes stated in section 373 I of this title and is in conformance with any existing statewide comprehensive law enforcement 
plan, the Stale planning ageniv is authorized to disburse funds to the application (hmphasis added ) 

^Also. I note that under the original structure ol the Commillee established by (iovcrnor Volpe prior to the passage of G.L. c. 
6, § I56A. the Boards mandate was to "evaluate and approve or disapprove grant applications under Parts B & C of Title I of 
the Omnibus Crime Control & Safe Streets Act of 1968." Executive Order No. 60. The insertion by G.L. c. 6. {j I56A of the 
modifying phrase 'competitive" had the effect, therefore, of limiting the scope of the Board's activities. 



168 P.D. 12 

Any other reading of the state statutory scheme might well be inconsistent 
with 42 U.S.C. § 3734 and violative of the Supremacy Clause. Free v. Bland, 
369U.S. 663, 666(1962). 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 65 April 26, 1976 

Bette Woody, Commissioner 

Department of Environmental Management 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Ms. Woody: 

You have requested my opinion regarding the authority of your Depart- 
ment to acquire certain land in Concord, presently occupied by a mobile 
home park. Your request is prompted by the following facts: 

The Department of Environmental Management, as part of its Walden 
Pond Restoration Project, has reached an agreement with the owner of a 
mobile home park located at Walden Pond in Concord, to purchase his land 
for conservation and recreation purposes pursuant to G.L. c. 132A, § 3. The 
owner would condition the conveyance with a stipulation in the deed which 
would allow his present tenants to continue their tenancies on the premises 
for the rest of their lives under certain rules and regulations promulgated by 
the Department and recited in the deed. The Department is willing to accept 
such a stipulation, since it wishes to prevent present or future commercializa- 
tion of this historic area.' Because of economic considerations, the exercise 
of eminent domain is not a feasible method of acquisition. The owner has 
agreed, however, to accept an amount substantially below the appraised 
value of the property and make a gift to the Commonwealth for the 
remainder. 

On the basis of the above facts, you have specifically asked the following 
questions: 

(1) May the Commissioner of Environmental Management 
pursuant to the statutory authority granted in G.L. c. 132A, 
§3 acquire on behalf of the Commonwealth for conservation 
and recreation purposes, certain lands whose public use will 
be deferred by the operation of life tenancies? 

(2) May the Commissioner, pursuant to the authority granted in 
G.L. c. 132A, §2D acquire these lands where, incidental to 
the transaction, the Commonwealth must maintain a mobile 
home park to honor the tenancies specifically reserved by the 
seller in the deed? 



'You note that acquisition of this property would be an integral part of the Department's program to rehabilitate and restore 
the Walden Pond area. The property is among the last in private ownership near the Pond. 



P.D. 12 169 

(3) Does the broad authority of the Commissioner set forth in 
G.L. c. 132A permit the Commonwealth to maintain the 
mobile home park on a concession basis by a private party 
under contract to the Commonwealth? 
As your question correctly assumes, the starting point for determining the 
legality of the proposed transaction is G.L. c. 132 A, §3, which permits you to 
"acquire ... by eminent domain ... or by purchase, lease or otherwise, 
any lands suitable for purposes of conservation or recreation . . ." Unlike 
situations where the commissioner seeks to permit development or other 
alteration of the natural state of land already acquired," cf. 1966 Op. Atty. 
Gen. p. 335 (Commissioner asks whether he could properly permit creation 
of ski resort), you seek to acquire already improved land and eventually 
return it to its natural state. I find nothing in the language of §3 which would 
limit its terms to those lands which can immediately be used for "purposes of 
conservation or recreation."^ While the life tenancies in the present situation 
may take years to terminate,'* the conservation purpose of the acquisition 
will not have changed nor will the nature of the land be altered. In fact, rules 
and regulations as to use with which the tenants must comply will be made 
part of the deed. Further, the aquisition is consistent with the commissioner's 
authority to engage in long range planning. See G.L. c. 132A, §2A. 

A different problem is presented, however, with that portion of the trans- 
action considered a gift. While G.L. c. 132A, §1 permits the commissioner to 
"accept in trust, on behalf of the Commonwealth, bequests or gifts to be used 
for the purpose of advancing the recreational and conservation interests and 
policies of the Commonwealth . . ." the approval of the governor is a 
necessary pre-requisite."^ I, therefore, advise you to seek the governor's 
approval of that portion of the transaction which is a gift to the 
Commonwealth. 

Your second question asks whether you can acquire lands which contain 
the reservation of a mobile park, pursuant to G.L. c. 132A, §2D. Section 2D 
lists specific facilities which the commissioner can acquire, maintain, and 
operate; a mobile park is not included. However, §2D also permits "such 
other facilities as the commissioner deems necessary and desirable and 
consistent with the policy of the commonwealth, as set forth in section two 
B." Since I find that §2B permits the acquisition as a permissible exercise of 
your authority, it follows that §2d permits the maintenance of the mobile 
park. 

Your final question concerns your authority to maintain the mobile park 
on a concession basis by private contract. It is important to make clear that 



-G L C.I32A. §2D. discussed infra, carefully specifies the scope of permissible development and improvement. 

'Obviously, if the land itself was not "suitable" for such purposes, either because of its nature or location or because of zoning 
problems. tj3 would not permit acquisition. 

'There could well be situations where the conservation purposes of §3 would be so remote in time that acquisition would 
amount to an abuse of discretion. However, the 65 trailer sites here are occupied by tenants ranging in age from 55 to 92. 

'The requirement in G.L. c. 132A, §1 that the council also approve the transaction was repealed by St 1964. ch 740. §4 
I also note that St. 1956. ch. 631. a special legislative enactment, contains language that might be viewed as making it 
unnecessary to get gubernatorial approval That statute created the "Massachusetts Bay Circuit" which included a number of 
cities and towns in Metropolitan Boston, mcludmg Concord, where Walden Pond is located. St. 1956. ch. 631, ij!( permits the 
commissioner to "accept any deed to the commonwealth containing reservation of easements, rights of way. and life estates 
and estates for years . ." However, §6, which refers specifically to "grant or devise of land" requires approval of the 
governor. 



170 P.D. 12 



your question does not present the abstract issue as to the commissioner's 
authority to establish or create a mobile park. In other words, rather than 
embarking upon a commercial venture, cf. G.L. C.132A, §§2D and 3, the 
Commonwealth would be fulfilling its legal obligations in a reasonable 
manner.^ Your agency is permitted to "evaluate the situations presented to it 
on the basis of its own expertise and . . . make appropriate decisions in 
conformity to the legislative policy and purpose." 1966 Op. Atty. Gen. 
p. 335, 337. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 66 May 3, 1976 

Commissioner Gregory R. Anrig 
Department of Education 
182 Tremont Street 
Boston, Massachusetts 021 1 1 

Dear Commissioner Anrig: 

You have requested my opinion as to whether certain regulations' 
adopted by the Board of Education are consistent with Chapter 622 of the 
Acts of 1971, G.L. c. 76, §§5 and 16.^ 

The regulations which have been questioned provide that participation on 
all extracurricular athletic teams, including those in the so-called "contact 
sports," be free from restrictions based on sex, and, that the entire curricu- 
lum offered in physical education courses be free from restrictions based on 
sex.^ I find that these regulations are a valid exercise of your authority and 
consistent with G.L. c. 76, §§5 and 16. 



"The language of G.L. C.I32A. §2A that lands acquired by the commissioner "Insofar as practicable be preserved in their 
natural state ." and "that no commercial activities except those essential to the quiet enjoyment of the facilities by the 
people shall be permitted." is not inconsistent with the result reached It should be observed, however, such decisions must be 
reasonable and evaluated in the light of their particular factual context. 



'Section 6.02: No student shall be denied the opportunity in any implied or explicit manner to participate in any extracurricu- 
lar activity because of the race, color, sex, religion or national origin of the student except as provided in Section 
6.07. 
Section 5.04: Each school shall provide equal opportunity for physical education for all students. Goals, objectives and skill 
development standards, where used, shall neither be designated on the basis of sex, nor designed to have any 
adverse impact on members of either sex 
-G.L. C.76. §5; Every person shall have a right to attend the public schools of the town where he actually resides, subject to the 
following section No persons shall be excluded from or discriminated against in admission to a public school of 
any town, or in obtaining the advantages, privileges and courses of .study of such public school on account of 
race, color, sex. religion or national origin 
G.L. c. 76. §16: The parent, guardian or custodian of a child refused admission 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 committee with a written statement of the reasons therefor, and thereafter, if the refusal to admit or 
exclude was unlawful, such child may recover from the town in tort, and may examine any member of the 
committee or any other officer of the town, upon interrogatories. 
'It is important to note that Section 6.07 of the regulations, permits the establishment of separate teams in a particular sport, 
provided the teams are ". . . granted equal instruction, training, coaching, access to available facilities, equipment and 
opportunities to practice and compete . . ." Also. Section 3.05 provides that particular segments of a physical education 
program may be offered separately where necessary to protect personal privacy 



P.D. 12 171 



There is no doubt that the Board has the authority to issue regulations 
implementing G.L. c. 76, §5 and §16. See Op. Atty. Gen. No. 74/75-1 (July 
2, 1974). G.L. C.15, §1(G), which sets out the scope of the Board's duties and 
powers, conferred administrative authority to "employ all ordinary means 
reasonably necessary for the full exercise of the power and for the faithful 
performance of the duty." Bureau of Old Age Assistance ofNatick v. Commis- 
sioner of Public Welfare, 326 Mass. 121, 124, 93 N.E. 2d 267, 269 (1950). 

The validity of the regulations must be examined in light of the statutes 
under which they were promulgated. Regulations, to be valid, must be 
within the ambit of the statute. Commonwealth v. Diaz, 326 Mass. 525, 527, 
95 N.E. 2d 666, 668 (1950). They must not be arbitrary, but must be reasona- 
ble and necessary to achieve the purpose of the statute. Id. However, to be 
consistent with a statute, a regulation need not necessarily find support in a 
particular section of the statute. It is enough if they carry out the scheme or 
design of the chapter. Cambridge Electric Light Company v. Department of 
Public Utilities, 1973 Mass. Adv. Sh. 645, 662, 295 N.E. 2d 876, 888 (1973). 

The regulations are designed to interpret the broad mandate of G.L. c. 76, 
§5. In fact, where a statute's coverage is broad, regulations are especially 
necessary and effective in interpreting its scope and application to specific 
situations. 

Although the usefulness of regulations should not be overrated, 
their importance is never greater than where, as here, an agency 
must interpret a legislative policy which is only broadly set out in 
the governing statute. School Committee of City of Springfield v. . 
Board of Education, 362 Mass. 417, 442, 287 N.E. 2d 438, 455 
(1972). 

G.L. c. 76, §5 states that the "advantages, privileges and courses of study" 
of the public schools of the Commonwealth shall be free from discrimination 
based on "account of race, color, sex, religion and national origin." Where 
the language of the statute is plain it is to be interpreted in accordance with 
the usual and natural meaning of the words. Commonwealth v. Thomas, 359 
Mass. 386, 387, 269 N.E. 2d 277, 278 (1971). I find that Regulation 5.04, 
dealing with physical education, is plainly consistent with G.L. Ch. 76, §5, 
which provides that no person shall be discriminated with respect to, or 
excluded from, courses of study in a public school on the basis of sex. 
Regulation 5.04 interprets the statute's anti-discriminatory policy specifi- 
cally as applied to physical education classes," and carries out the mandate of 
the statute that participation in a "course of study" may not be restricted on 
the basis of sex. There can be no doubt that Regulation 5.04 is consistent 
with the purpose of the statute and does not exceed its authority. 

An admittedly more difficult question is presented by Regulation 6.02, 
since there is the threshold question as to whether extracurricular activities 
are among the "advantages and privileges" offered by the public schools; if 
not. Regulation 6.02 would exceed the statutory authority. 

G.L. c. 71, §47 specifically places school-related extracurricular organiza- 
tions under the control of local school committees, and designates expendi- 



■•G.L. c. 71. §3 slates that physical education is a required course of study for all public school students 



172 P.D. 12 



tures and achievement awards related to those organizations to be for a 
school purpose. 5 The fiscal and supervisory powers exercised by the schools 
over extracurricular organizations indicates that extracurricular activities 
are among the activities meant to be included in the category of "advantages 
and privileges."^ Further, the views of the agency charged with the responsi- 
bility of implementing the statute must be accorded due deference and taken 
into consideration in resolving any ambiguity. See, e.g. Udall v. Tollman, 380 
U.S. 1 (1964). Therefore, I similarly find Regulation 6.02 to be a valid 
regulation implementing G.L. c. 76, §5, and not in conflict with the statute.^ 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 67 May 14, 1976 

The Honorable Robert Q. Crane 
Treasurer and Receiver General 

of the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Treasurer Crane: 

You have asked my opinion on a question of law requiring the interpreta- 
tion of the provisions of Section 4 of Article LXII of the Amendments to the 
Massachusetts Constitution. You state that a portion of the proceeds from an 
imminent sale of legislatively authorized bonds will be used to repay internal 
advances made by the Treasurer. The advances were made after the enact- 
ment of legislation which appropriated money for specific projects and 
which authorized the issuance of bonds to meet that appropriation. In each 
instance the advances were for project costs and were made from other 
available funds. Based upon these facts you seek my opinion on the follow- 
ing question: 

May the proceeds of bonds issued pursuant to legislation autho- 
rizing such bonds for the purpose of meeting appropriations 
made for specified capital purposes be used to reimburse the 
Treasury for sums advanced for such capital purposes after the 



'G.L. c. 7 1 . §47 provides that: The [school) committee may supervise and control all athletic and other organizations of public 
school pupils and bearing the .school name or organized in connection therewith . . . Expenditures by the committee for the 
organization . . . shall be deemed to be for a school purpose. Expenditures by the committee for making special awards to 
pupils who have performed meritoriously . . . shall also be deemed to be for a school purpose. 

'Obviously, G.L. c. 76, §5 does not require a school system to provide extracurricular activities. The question presented here is 
whether having offered such extracurricular activities, the Board can promulgate regulations which seek to insure that these 
"advantages and privileges" are equally available. Cf. Brenden v. Independent School Dislricl. All F. 2d 1292 (8th Cir. 1973). 

'Your request did not ask that I address any constitutional questions. Cf.. Board of Education v. School Commitlee of 
Springfield. 1976 Mass Adv Sh. 866, 897. n. 27. It is worth noting, however, that several courts have found rules which /lar co- 
educational athletic teams to violate the equal protection guaranteed by the Fourteenth Amendment to the United States 
Constitution. See, Morns v. Michigan State Board of Education. 412 F 2d 1207 (6th Cir. 1973); Brendan v. Independent School 
District, supra: and Reed v. Nebraska School Activities Association. 341 F Supp. 258 (D. Neb. 1972); Gilplin v. Kansas Slate 
High School Activities Association. Inc.. ill F. Supp. I2ii (D. Kansas l')7J): Contra, e.g., Magell v. Avonworth Baseball 
Conference. 364 F. Supp. 1212 (W.D. Pa. 1973); Bucha v. Illinois High School A s.sociation. 351 F. Supp. 69(N.D. 111. 1972). Also 
see generally. Note, "Sex Discrimination in High School Athletics," 57 Minn. L. Rev. 339 (1972). 



P.D. 12 173 



appropriation was made and the bonds were authorized, but 
before the bonds were issued? 

For the reasons set forth below, I answer your question in the affirmative. 

The power to appropriate money and to raise revenue, whether by taxa- 
tion, by borrowing, or by other means, is vested by the Constitution of 
Massachusetts in the General Court. The Constitution of the Common- 
wealth contained no express restrictions on the exercise of the borrowing 
power until 1918. In 1918, Massachusetts joined forty-four other states 
which had previously adopted state constitutional amendments limiting 
borrowing. The Constitutional Convention rejected the "New York" model 
imposing a flat monetary ceiling on borrowing and opted instead to submit 
to the people an amendment limiting the purposes of borrowing and impos- 
ing procedural requirements on the exercise of the power. See, generally. 
Debates of the Constitutional Convention 1917-1918, Vol. Ill, pp. 1217 et seq. 
On Novembers, 1918, the voters ofthe Commonwealth ratified and adopted 
the proposal ofthe convention as the sixty-second amendment. Section four 
ofthe amendment provides: 

Borrowed money shall not be expended for any other purpose 
than that for which it was borrowed or for the reduction or 
discharge ofthe principal ofthe loan. 

I know of no other statutory or constitutional provision which even argua- 
bly would prohibit using borrowed money to repay internal advances made 
for project costs, and I am ofthe opinion that Section 4 does not preclude 
such a practice. 

Constitutional provisions, like statutes, are given their common and ordi- 
nary meaning unless it appears that the framers intended to give the words 
and phrases used a special, technical meaning. The debate in the Constitu- 
tional Convention negates any possible inference that the word "purpose" or 
the phrase "that for which it was borrowed" were meant to have a technical 
meaning. Indeed, Section 4 ofthe proposed amendment was often discussed 
as an afterthought, with the framers indicating that it bespoke the obvious 
and merely formalized their understanding of sound fiscal practices. See, 
e.g.. Comments of Mr. Theller, Debates of the Constitutional Convention 
1917-1918, Vol. Ill, p. 1228. The ultimate purpose of borrowing money in 
any given instance is to finance a particular project. That purpose is served 
when advances are made for project costs under the circumstances described 
in your letter, and Section 4 of Article LXII is not a bar to the repayment of 
such advances.' 

I find further support for my conclusion in the longstanding practice of 
your Department to authorize repayments. Prior practice, in and of itself, 
will not insulate an exercise of the borrowing power from constitutional 
challenge, Ayer v. Commissioner of Administration, 340 Mass. 586 (1960). 
However, the consistent and long-standing administrative interpretation of a 



'There is a line of authority suggesting that reimbursement of expenses incurred is not a legitimate basis for municipal 
borrowing. Chapin v. Lincoln. 217 Mass. 336 (1914); 4 Op. Ally. Gen., 261 (1914). These authorities are not controlling in the 
question you present Unlike municipalities which have only limited specifically delegated powers, the slate may borrow for 
any non-prohibited purpose. 



174 P.D. 12 

Constitutional provision is of significant probative value. See, Sutherland 
Statutory Construction §49.03 (4th ed. Sands, 1973). 

I, therefore, advise you that you may use proceeds from the sale of bond 
issues to reimburse the Treasury for sums advanced for project costs under 
the circumstances described in your request. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 68 May 14, 1976 

James M. Stone 

Commissioner of Insurance 

Department of Banking and Insurance 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Commissioner Stone: 

You have requested my opinion concerning the proper construction of 
G.L. C.32, §4, as relating to the retirement system covering state employees. 
The facts upon which you base your request may be summarized as follows: 
A member in service has completed his term as an elected official of the 
Commonwealth; his term of office was governed by the Sixty-Fourth Article 
of Amendment to the Massachusetts Constitution and included service prior 
to the inauguration of his successor in the early weeks of January; the 
individual has now applied for retirement benefits and claims that he is 
entitled to a full year of creditable service for the weeks he served during his 
last calendar year as an elected official. You ask whether the provisions of 
G.L. c.32, §4(1) (a) require such a result. For the reasons set out below, I 
answer your question in the affirmative. 

Chapter 32 of the General Laws contains an integrated series of statutes 
erecting a retirement and pension system for state, county and municipal 
employees. G.L. c.32, §4 is concerned with creditable service. Significantly it 
treats elected officials and other employees differently. G.L. c.32, §4(1) (a) 
provides in pertinent part: 

Any member in service shall ... be credited with all services 
rendered by him as an employee in any governmental unit after 
becoming a member of the system pertaining thereto; provided 
that he shall be credited with a year of creditable service for each 
calendar year during which he served as an elected official; and 
provided, further, that in no event shall he be credited with more 
than one year of creditable service for all such membership ser- 
vice rendered during any one calendar year, (emphasis added) 
Words and phrases in a statute are to be construed according to the 
common and approved usage of the language unless they are technical 
phrases having a peculiar meaning in law. See, G.L. c.4, §6; School Commit- 
tee of Springfield v. Board of Education, 362 Mass. 417 (1972). The under- 



P.D. 12 175 



scored language is not a technical phrase and is ambiguous only in the sense 
that the word "during" is susceptible to two interpretations. Webster's Third 
New International Dictionary (1964) defines "during" to mean either 
"throughout the continuance or course of or, alternatively, "at some time in 
the course of'.' The answer to your question depends upon which of these 
two meanings the General Court intended to import by its use of the word 
"during". Application of basic principles of statutory construction lead me to 
conclude it was the latter. 

In the interpretation of statutes, no clause, sentence or word is to be 
deemed meaningless or superfluous. Commonwealth v. Gove, 1974 Mass. 
Adv. Sh. 2083; Commonwealth v. Woods Hole, Martha's Vineyard and Nan- 
tucket Steamship Authority, 352 Mass. 617 (1967). If the legislature had 
intended to give elected officials credit only for actual time served, then it 
would have been unnecessary to treat them differently from other employ- 
ees. Without the special provision inserted by St. 1947, c.660, §3, elected 
officials would have been treated like other members in service and would 
receive creditable service only for that portion of the year actually served. To 
read the word "during" to require service throughout the entire calendar 
year would therefore render the proviso of which it is a part meaningless. 

I find further support for my conclusion in the legislature's use of the 
phrase "calendar year". The terms of the Commonwealth's elected officials 
are governed by the Sixty-Fourth Article of Amendment to the Massachu- 
setts Constitution. Those terms are not coextensive with the calendar year 
and were not coextensive with the calendar year when the provisions of 
Chapter 32 were made applicable to elected officials in 1947. St. 1947 c.660. 
The General Court was presumably aware of the fact that elective terms 
extended into the early weeks of the succeeding calendar year when it 
amended Chapter 32, §4(1) (a) by inserting the underscored proviso, 
Mathewson v. Contributory Retirement Appeals Board, 335 Mass. 610 (1957). 

Based on the foregoing considerations, I find that the legislature intended 
to provide for a full year of creditable service whenever an elected state 
official served "at some time in the course of a calendar year. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



'Similarly, some courts have interpreted the phrase "durmg" as meaning the entire time period, eg.. Jennings v Common- 
wealth. 3()() S W 353. 354, 222 Ky 95, while other courts have adopted the alternative definition of the term, using such 
language as "in the time of. e.g.. In Re Carpenter's Estate. 246 A. 2d 72. 75, 102 N.J. Super.395 (1968); Zigler v. Sprinkel. 108 
S.H. 656. 657. 131 Va. 408(1921). 



176 P.D. 12 

Number 69 May 19, 1976 

Commissioner Robert Okin 
Department of Mental Health 
190 Portland Street 
Boston, Massachusetts 

Dear Commissioner Okin: 

You have requested my opinion regarding the authority of the Depart- 
ment of Mental Health (DMH) to replace a single boiler at Monson State 
Hospital with funds appropriated for the replacement of "boilers". 1 fmd 
your proposed action permissible. 

The legislature, pursuant to St. 1971, c. 976, provided $375,000 for "the 
replacement of certain boilers in the power plant" of Monson State Hospital. 
Apparently, the project did not go forward because stack requirements 
imposed by environmental agencies and inflation increased the cost, result- 
ing in insufficient funds to complete the project as originally planned. You 
have requested funding in the pending capital outlay appropriation act to 
move two battery boilers and replace them with two new boilers, with the 
new stacks meeting the various environmental control requirements. You 
inform me, however, that there is an immediate need at Monson State 
Hospital to make the necessary repairs and that you could replace one boiler 
at this time within the previously allocated funding level. The Bureau of 
Building Construction (BBC) has advised you that it will not approve such 
renovations, in light of the legislative appropriation which uses the word 
"boilers", thereby implying that expenditures must be for more than one 
boiler to be within the legislative mandate. BBC refers to a previously issued 
opinion of the Attorney General, 1965 Op. Atty. Gen. p. 145 as support for 
its position. 

The Opinion of the Attorney General, upon which BBC relies, addressed 
the question of whether $34,000,000 appropriated for the construction of 
three buildings in the Government Center could be expended for only as 
many of the buildings as might be built with such sum. The Attorney 
General concluded that because of "[t]he clear intent" of the legislature to 
require all three buildings to be constructed (each building to house a 
distinct group of personnel), the funds must be used to build all three 
buildings, even if on "a much more modest, though adequate scale" than 
originally envisioned. 

In the present case, however, the legislative intent was clearly to provide 
adequate heat at Monson State Hospital through the replacement of the 
boilers. Both boilers perform or fail to perform the same function (heating 
the building), and replacing one boiler better carries out the legislative intent 
than replacing no boiler at all. 

Finally, permitting DMH to use its appropriated funds to replace just one 
boiler is consistent with the principles of statutory interpretation set forth in 
G.L. c. 4,§6,cl.4, which state: 

In construing statutes the following rules shall be observed, 
unless their observance would involve a construction inconsistent 
with the manifest intent of the lawmaking body or repugnant to 



P.D. 12 177 

the context of the same statute: . . . [w]ords importing the plural 
number may include the singular . . . 
I, therefore, find that in this case it would be lawful for you to use the 1971 
appropriation to replace a single boiler. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 70 May 21, 1976 

Mr. Wallace H. Kountze 
Personnel Administrator 
One Ashburton Place 
Boston, Massachusetts 02108 

Dear Mr. Kountze: 

You have asked my opinion on the following questions relative to G.L. c. 
31, §461,' a statute which governs the re-employment of individuals laid off 
from work within the civil service system: 

1. If an individual is laid off from employment with the Commonwealth, 
is that individual eligible to go on a re-employment Ust for positions in any 
municipality?^ 

2. In certifying individuals from the re-employment list is "the judgment 
of the administrator" (G.L. c. 31, §461) restricted to qualifications previously 
demonstrated in accordance with civil service procedures, that is, a civil 
service examination, or may the administrator's judgment be extended to 
possible qualifications not previously related to the individual's civil service 
history?^ 

3. If the answer to question two is that the administrator's judgment may 
be extended to possible qualifications not previously related to the individu- 
al's civil service history, would a person laid off from a labor service job, who 
may be personally generally qualified, be eligible for certification from the 



'G.L. c. 31, §461 provides, in part: 

Whenever a person is separated from the official or labor service for lay-off due to lack of work or lack of money or for 
abolition of position, his name shall be placed by the administrator on the re-employment 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 certification 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 administrator, 
can be filled from such re-employmenl list the administrator before certifying from the regular list, shall certify from such re- 
employment li.st, in accordance with the rules relative to certification, the names of persons then standing thereon in the order 
of the dates of their original appointment. (Emphasis supplied). 

^You ask, for example, whether a slate employee could go on a re-employment list for a position in the City of Boston (or any 
other city or town)? 

'You ask, for example, whether a person whose civil service record was solely an appointment as a Junior Clerk and 
Stenographer, a promotion to Senior Clerk and Stenographer and again promotion to Principal Clerk who was laid off from 
the last position, can be certified from the re-employmenl list as an Accountant, Junior Civil Engineer, or Public Health Nurse 
because that mdividual happened to possess qualifications for one of these positions? Or conversely should a person who has 
been laid off from one of the three latter positions, who might have the qualifications of a stenographer, be certified for a 
position of Junior Clerk and Stenographer? 



178 P.D. 12 



re-employment list to an official service position even though the person had 
never taken a competitive examination? 

4. If the answer to question two is that the personal qualifications of the 
individual are the determining factor and past civil service history is not a 
necessary part of such determination, does Section 461 require that the 
administrator review and analyze the personal qualifications of each indi- 
vidual on the re-employment list before certifying from the regular list?"* 

With respect to your first question, I find no restriction which would 
prevent a state employee from going on a re-employment list for positions in 
cities or towns, provided that, as required by G.L. c. 31, §461, the appoint- 
ment is appropriate in your judgment. Section 461 at no point distinguishes 
between municipal and state positions. 

Your second question concerns the standard to be used in certifying 
individuals. G.L. c. 31, §461 provides that certification from the re-employ- 
ment list be made where appropriate "in the judgment of the administrator". 
No further standard is set forth in §461. 

This provision is in direct contrast to the other provisions of Chapter 3 1 
relating to the certification of individuals for appointment. Those other 
provisions limit the discretion of the administrator in filling civil service 
positions or in promotions by requiring prospective appointees to pass civil 
service examinations.^ It would, thus, appear that §461 is designed to provide 
the administrator with greater flexibility in certification than is normally 
provided in c. 3 1 due to the circumstances under which the employment is 
terminated, i.e., through no fault of the tenured employee. On the other 
hand, the administrator's responsibility in §461 is consistent with other prov- 
isions of Chapter 3 1 where the legislature has delegated to the administrator 
the authority to determine eligibility requirements for various types of civil 
service appointments. For example, G.L. c. 31, §2A(e) provides that the 
personnel administrator should 

determine and pass upon qualifications of applicants; and hold 
examinations for the purpose of establishing eligible lists of per- 
sons for appointment or promotion to positions in the official 
service. (Emphasis supplied.) 

G.L. c. 31, §15 allows the administrator to a.\xihox'\z& provisional appoint- 
ments without examinations if the administrator determines that the person 
proposed for provisional appointment meets the qualifications and require- 
ments necessary to perform the duties of the position in question. 

Similarly, G.L. c. 31, §15B(1) allows the administrator to determine which 
civil service employees are qualified to take competitive promotional exami- 
nations by placing on the administrator the responsibility for determining 
which class or service groups "contain positions having duties, qualifica- 
tions, and other significant characteristics similar or functionally related to 
those of the position for which the [promotional] examination is to be held." 
See, also, G.L. c. 31,§15B(2). 



<You note it is highly conceivable that a person who ostensibly has the personal qualifications, if one only looks at a resume of 
training, education and experience, could not pass the civil service examination for the position being filled. 
'See, for example, G.L. c. 31, §15 and the requirements for examinations for appointment and promotion. 



P.D. 12 179 



My answer to question two, therefore, is that the administrator is not 
restricted to qualifications previously demonstrated in accordance with civil 
service procedures, (i.e., a civil examination) but may consider qualifications 
not previously related to the individual's past civil service history. It is, in 
other words, within your discretion to make any reasonable determinations 
of eligibility for certification under §461. This discretion is, of course, not 
without limitations; you must fashion consistent, reasonable guidelines 
which do not undermine the intent of the civil service system.^ Your third 
and fourth questions, which I will treat together, raise the issue of what type 
of guidelines would be appropriate. 

In fashioning such guidelines, provisions found elsewhere in Chapter 31 
are useful in determining the outer Umits of your discretion. These sections 
emphasize an individual's experience, education, and training (G.L. c. 31, 
§§8(c) and 15B(2)), and the skills and abilities necessary to perform the 
duties of the vacant office position (G.L. c. 31, §15). Under appropriate 
circumstances, you could certify an individual from the re-employment list 
to a position in a different class or unit from that in which he was originally 
employed and for which he has not taken a civil service examination. How- 
ever, in order to do so, you must be satisfied that there is sufficient connec- 
tion between the individual's qualifications and the requirements for the 
vacant position so that your decision does not amount to an abuse of 
discretion.' 

For example, (to refer to the example posed in question two) a principal 
clerk who was laid off from that position could only be certified from the re- 
employment list as an accountant, junior civil engineer or public health 
nurse if you were persuaded that the individual possesses the qualifications 
to successfully function in the new capacity. Similarly, it is unlikely, 
although not impossible, that an individual who was terminated from a labor 
service job would be qualified for appointment from the re-employment list 
to an official service position. The fundamental differences between the 
labor and official service would likely result in an abuse of discretion if 
former labor service employees were indiscriminately certified to fill official 
service vacancies. 

My reading of G.L. c. 31, §461, which grants substantial discretion to the 

administrator in certifying from the re-employment list, is based upon the 

wording of the statute itself. Section 461 directs the administrator to fill any 

position from the re-employment list when such action is appropriate in his 

judgment. While it would no doubt be useful for you to have more precise 

guidelines to assist you in making your judgment, none are provided by the 

statute. Nor can an Attorney General's Opinion supply precision where the 

legislature has chosen to commit such decisions to your judgment and 

expertise. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

'The requirement that an individual be "generally qualified", which I previously found to implicit in Section 461 ( 1974-75 Op 
Atty Gen. p. , No. 57, April 25, 1975). is a shorthand way of stating the same concept 

'The certification process set forth in Section 461 requires, to some extent, an individualized decision by the administrator You 
are permitted, however, to develop standards which would assist you and make the administrative process of reviewing 
qualifications less burdensome 



180 P.D. 12 



Number 71 May 24, 1976 

Gregory R. Anrig 
Commissioner of Education 
182 Tremont Street 
Boston, Massachusetts 021 1 1 

Dear Commissioner Anrig: 

You have requested my opinion concerning the proper construction of the 
"grandfather clause" of Chapter 766 of the Acts of 1972, the Common- 
wealth's special education law.^ You state that since chapter 766 went into 
effect on September 1, 1974, a number of unresolved questions concerning 
the scope and meaning of the "grandfather clause" have arisen. Accordingly, 
you pose the following two questions: 

1. Does the phrase "with his tuition paid by the commonwealth" 
in St. 1972, c. 766, §18 make this grandfather clause applicable 
to children placed in special education programs as of Sep- 
tember 1, 1974 by any agency of the Commonwealth? 

2. Does St. 1972, c. 766, §18 impose responsibility on a state 
agency for a child's continuing special education placement as 
long as the child was a client of the agency, and had his special 
education program approved by that agency prior to Septem- 
ber 1, 1974, even if the special education program for which 
the agency contracted to pay did not actually begin until 
September 3, 1974? 

I answer both your questions in the affirmative for the reasons that follow. 

Initially, it is useful to summarize briefly the factual context within which 
these questions arise. Specifically, you mention that several state agencies^ 
and local school committees have disagreed over the proper allocation of 
responsibility for the cost of continuing special education programs of chil- 
dren with special needs who, at the time Chapter 766 went into effect, were 
in such programs with their tuition being paid for by the state agency. 
Apparently, the state agencies concerned have contended that § 1 8^ of Chap- 
ter 766 only refers to children who are enrolled in programs paid for by the 
Department of Education; based on this reading, they argue that the local 
school committees are responsible for the total costs of continuing special 



'These sections appear as §§16-18 of St. 1972, c. 766, and provide as follows: 

Section 16. A child who is in a special education program as of the effective date of this act (September 1, 1974) shall be 
presumed to be appropriately assigned to said program until an evaluation pursuant to the provisions of section three of 
chapter seventy-one B of the General Laws, inserted by section eleven of this act, indicates that another program would benefit 
said child more. 

Section 1 7. No child with special needs in a special education program on the effective date of this act shall be removed from 
said program he is in without the written consent of the parents, guardians, or persons with custody of said child. 
Section 18. A school committee shall not be responsible for more than the average per pupil cost for pupils of comparable age 
within the respective city, town or school district as its share of the cost of continuing placement for those children with special 
needs enrolled in an institution with his tuition paid by the commonwealth as of the effective date of this act. 

'You refer specifically to the Massachusetts Rehabilitation Commission. I understand, however, that the same questions have 
been raised by the Department of Public Welfare and other agencies as well. 

'As you state in your letter, the specific section of the "grandfather clause" at issue in this dispute is §18. It must be assumed, 
therefore, that the children whose programs are under question were in "special education programs" on the effective date of 
the Act within the meaning of §17, so that their programs may not be terminated without their parents' or guardians' consent. 



P.D. 12 181 



education programs for children who had been placed in the programs as of 
September 1, 1974, by any other state agency. The school committees, on the 
other hand, take the position that §18 applies to continuing special education 
programs which had been paid for by any state agency prior to the effective 
dale of Chapter 766; they argue that with respect to all such programs their 
financial responsibility is limited to the average per pupil cost. 

Turning to your first question, I find nothing in the language of §18 to 
support the contention that its terms apply solely to the Department of 
Education. The section refers expressly to special education programs which 
have previously been paid for by the Commonwealth, without any mention of 
the Department of Education or any particular state agency. If the legisla- 
ture had intended §18 to apply specifically to the Department of Education, 
it could and would have so stated. See, e.g., G.L. c. 7 IB, §§2, 3, 4, 6, 7, 8, 9, 
11, 12, 13, all of which make express reference to the "department". '• 
Moreover, in the last two sections cited, the legislature has referred to both 
the "department" and the "commonwealth" as plainly separate entities. 

General rules of statutory construction require that a term appearing in 
different portions of a statute be given the same meaning and that, to the 
greatest extent possible, each word be given proper effect. E.g., Bolster v. 
Commissioner of Corporations & Taxation, 319 Mass. 81, 84 (1946). A read- 
ing of §§12 and 13 of c. 7 IB makes obvious that the legislature has not 
employed the words "commonwealth" and "department" interchangeably. 
Where, as in §18, "commonwealth" appears alone and without special defi- 
nition, it must be construed according to its "ordinary and approved 
usage . . . when applied to the subject matter of the act . . . ." Franki 
Foundation v. State Tax Commission, 361 Mass. 614, 617 (1972); see Bolster 
V. Commissioner of Corporations & Taxation, supra at 84-85. Following these 
principles, I am of the opinion that "commonwealth" as used in §18 of 
Chapter 766 refers to the Commonwealth acting as an entity or through any 
of its agencies, departments, commissions, etc. Accordingly, with respect to a 
"child with special needs" placed in a special education program as of 
September 1, 1974, by and at the expense of any state agency, the school 
committee of the city or town where the child resides is only responsible for 
paying an annual amount equal to its average per pupil cost as long as the 
child remains in the program; the agency which originally placed the child 
remains responsible for program costs in excess of this amount. 

While I believe the language of §18 is sufficiently unambiguous as to 
require, without additional analysis, the construction I have given it, see 
Chouinard, Petitioner, 358 Mass. 780, 782 (1971), I note that it is also the only 
construction which will make the "grandfather clause" as a whole "an 
effective piece of legislation in harmony with common sense and sound 
judgment." Tilton v. City of Haverhill, 2>\\ Mass. 571, 577-78 (1972). Accord, 
Mass Mut. Life Ins. Co. v. Commissioner of Corporations & Taxation, Mass. 
Adv. Sh. (1973)863. 



'The "Department" refers to the Department of Education for purposes of Chapter 766. See G.L. c. 7IB, §1, inserted by St. 

1972, c. 766. §11. 



182 P.D. 12 



Under the financial scheme contemplated by Chapter 766, local school 
committees are financially responsible only for that portion of each special 
education program equal to their average per pupil cost for pupils of com- 
parable age; the excess is to be reimbursed by the Commonwealth. This 
method of allocating costs applies to all special education programs com- 
menced after the effective date of Chapter 766. See e.g., G.L. c. 71B, §§10, 
12, 13."* In addition, no one appears to dispute that under §18 of Chapter 766, 
this allocation formula also applies to programs in place on the effective date 
of the statute which were paid for by the Department of Education. Under 
the construction of §18 suggested by the agencies you mention, however, the 
same financial scheme would not govern programs originating before the 
effective date of Chapter 766 and paid for by such agencies. Rather, the local 
school committees would be wholly responsible for their continuing costs. 
No reason is given for treating these programs in a manner different than all 
others covered by Chapter 766. I hesitate to ascribe to the legislature an 
intent to reach such an anomalous result absent explicit statutory language 
that would require me to do so. The more reasonable, common sense 
approach is to read §18 as applying to the Commonwealth and any of its 
agencies. 

Your second question refers to the situaton where a state agency approved 
a special education program prior to September 1, 1974, but the program did 
not actually begin until September 3, 1974. 

In response to this question, I again rely on the rule of statutory construc- 
tion mandating that a statute be interpreted if possible in harmony with 
common sense and reason. Pursuant to this rule, it is my opinion that §18 of 
Chapter 766 imposes responsibility on a state agency for a child's continuing 
special education placement in an institution as long as the child was a client 
of the agency and had his program approved and contracted for by the 
agency prior to September 3rd. 

The word "enroll" is ordinarily defined as to "register, or enter." Web- 
ster's Third New International Dictionary, p. 755 (1964). Under this defini- 
tion, it is clear that a student may be effectively "enrolled in an educational 
program before instruction under the program has begun. Wirth v. Corning, 
75 F. Supp. 817 (D.D.C. 1948). C/, Long v. Dick, 87 Ariz. 25, 347 F.2d 581, 
582 (1959). In the situation you describe, the state agency had approved the 
special education program and contracted to pay for it as of September 1, 
1974. (I assume, also, that the institution had accepted the child for the 
program by that date.) Thus, all the critical steps for "enrollment" had been 
accomplished before the effective date of the Act. In these circumstances it is 
only reasonable to conclude that the child in question was "enrolled in an 
institution with his tuition paid by the commonwealth as of the effective date 
of [Chapter 766]." Accordingly, as I have discussed above, under §18 the 



'While G.L c 7 IB. §§10 and 12 authorize the Department of Education, in its discretion, to order school committees to bear the 
full cost of the special education placements described in those sections, the Department's regulations provide for reimburse- 
ment to school committees of all costs exceeding the average per pupil expenditure Chapter 766 Regulations, §§504 4 and 
504.5. 



P.D. 12 183 



state agency who had placed the child is responsible for the cost of the 
continuing placement in excess of the portion paid for by the appropriate 
school committee.^ 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 72 June 15, 1976 

Gregory R. Anrig 

Commissioner of Education 

Department of Education 

182 Tremont Street 

Boston, Massachusetts 021 1 1 

Dear Commissoner Anrig: 

You have requested my opinion on the following two questions which 
concern transportation of nonpublic school students: 

1. Is G.L. C.76, §1, paragraph 2, entitling private school pupils to 
the same rights and privileges as to transportation to and from 
school as are provided by law for public school pupils, consti- 
tutional under Amend. Art. 18 of the Massachusetts 
Constitution? 

2. If it is, under what circumstances does the law require a city or 
town to pay for the transportation of students attending pri- 
vate or parochial schools in other communities? 

I. The Constitutionality of G.L. c. 76, §1 
G.L. c.76, §1 provides in pertinent part: 

For the purposes of this section, school committees shall approve 
a private school when satisfied that the instruction in all the 
studies required by law equals in thoroughness and efficiency, 
and in the progress made therein, that in the public schools in the 
same town: but shall not withhold such approval on account of 
religious teaching, and, in order to protect children from the 
hazards of traffic and promote their safety, cities and towns may 
appropriate money for conveying pupils to and from schools 
approved under this section. 

Pupils who, in the fulfillment of the compulsory attendance 
requirements of this section, attend private schools of elementary 
and high school grade so approved shall be entitled to the same 
rights and privileges as to transportation to and from school as 



'To reach (he opposite conclusion based on the facl thai the program at issue did not actually start to operate until September 
3. 1974, would unnecessarily exalt form over substance. This conclusion gains force from fact that September I, 1974 fell on a 
Sunday and September 2 was Labor day. - both holidays. Presumably many school programs operatmg for the 1974-75 
academic year did not begin until Tuesday, September 3. 



184 P.D. 12 



are provided by law for pupils of public schools and shall not be 
denied such transportation because their attendance is in a school 
which is conducted under religious auspices or includes religious 
instruction in its curriculum, nor because pupils of the public 
schools in a particular city or town are not actually receiving such 
transportation. 

The United States Supreme Court has ruled that the First Amendment of 
the United States Constitution does not prohibit a state from providing 
transportation to students who attend private or parochial schools. Everson 
V. Board of Education, 330 U.S. 1 (1947); see also, Meek v. Pittenger, 421 U.S. 
349, 364 (1975); Board of Education v. Allen, 392 U.S. 236, 242 (1968). You 
have asked, however, whether Article XVIII' of the Amendments to the 
Constitution of the Commonwealth (the Anti- Aid Amendment) prohibits a 
municipality from providing transportation to students who attend private 
or parochial schools. For the reasons discussed below, I have concluded that 
G.L. c. 76, §1, which authorizes such transportation, on its face does not 
violate Article XVIII. 

The Supremacy Clause of the Federal Constitution requires me to read 
Article XVIII in harmony with the Free Exercise Clause of the First Amend- 
ment to the Federal Constitution. Decisions of the Supreme Court interpret- 
ing the Free Exercise Clause have emphasized the requirement of neutrality 
of state law toward the exercise of religion. See, e.g., Sherbert v. Verner, 374 
U.S. 398, 402-03 (1963). Article XVIII, therefore, must operate neutrally, 
without hostility toward religious interests. 

In a recent opinion, 1974-75 Op. Atty. Gen. No. 65 (June 12, 1975), I 
concluded that a construction of Article XVIII which would prohibit a 
textbook loan program similar to those sustained by the Supreme Court 
would raise a danger that Article XVIII violated the Free Exercise Clause of 
the Federal Constitution. To avoid this constitutional doubt, I read the state 
and federal constitutional law on this issue to be in harmony. Because the 
circumstances of the instant opinion request are similar, I reach the same 
result here, cf, Everson v. Board of Education, 330 U.S. 1, 16 (1947), and 
conclude that Article XVIII should not be read to prohibit the transportation 
of nonpublic school students to and from school.^ 

Neither the opinions of the Supreme Judicial Court nor of the Attorney 
General dictate a contrary conclusion. In fact, over thirty years ago, the 
Attorney General concluded that a municipality may furnish transportation 
to parochial and public school students without violating Article XVIII. 
1935-36 Op. Atty. Gen. p. 40. The proposed statute was considered to be 



'The Eighteenth Article of Amendment was superseded by the Forty-sixth Article, which in turn was amended by the One 
Hundred and Third Article. For convenience, I have throughout this opinion adopted your use of the term "Article XVIII" as 
a short-hand reference to the end product of these various amendments. 

The United States Supreme Court has applied a three-part test to determine whether various forms of assistance violate the 
Establishment Clause. This test was stated in Week v. Peltinger. supra, at 1760: 

First, the statute must have a secular legislative purpose . . . Second, it must have a "primary effect" that neither advances 
nor inhibits religion . . . Third, the statute and its administration must avoid excessive government entanglement with 
religion. 

Although in this opinion I have read federal and state constitutional law to be in harmony, it should be noted that there may 
be circumstances where the more specific language of Article XVIII, see Opinion of the Justices, 357 Mass. 836, 841 (1970), 
would bar aid to private institutions which would be permissible under the First Amendment and still not create a Supremacy 
Clause problem. 



P.D. 12 185 



consistent with Article XVIII because it would confer a benefit on the 
students, as distinguished from the school itself. That opinion continues to 
be valid, and its rationale — the so-called "child benefit" theory — has 
sustained other benefits to non-public school students. E.g., 1950-51 Op. 
Atty. Gen., p. 38 (school lunch program); 1965-66 Op. Atty. Gen., p. 370 
(guidance counselors); 1975 Op. Atty. Gen. No. 65 (textbooks). 

The Supreme Judicial Court has not ruled on the precise question of the 
constitutionality under Article XVIII of furnishing transportation to non- 
public school students.^ In their Opinions, however, the Justices have given 
no reason to suggest that they would reject the child benefit theory of aid to 
nonpublic school students. 

In Opinon of the Justices, 357 Mass. 836 (1970), the Justices concluded that 
proposed legislation which would allow the Commonwealth to purchase 
secular educational services from nonpublic schools would violate Article 
XVIII. The Justices stated that reimbursement of nonpublic schools under 
the proposed statute would be such "substantial assistance" as to constitute 
"aiding" as that term is used in Article XVIII. The Justices reached a similar 
conclusion in Opinion of the Justices, 357 Mass. 846 (1970), with respect to 
proposed legislation which would have channelled public funds to private 
schools by means of tuition subsidies to nonpublic school students. Although 
the form of aid was indirect, the Justices concluded that it would have the 
same practical effect as the direct purchase of secular educational services. 

It is apparent that the purpose of the proposed legislation considered in 
each of these Opinions was to assist private schools, and that the proposed 
legislation would not have been sustained under the child benefit theory."* 
Here, however, I find that G.L. c. 76, §1 is not an attempt to provide direct or 
indirect assistance to private institutions, but rather a proper means of 
promoting the legitimate public interest in the conservation of the health and 
protection of the safety of school chilren. Accordingly, I conclude that G.L. 
c. 76, §1 does not on its face violate Article XVIII of the Amendments to the 
Constitution of the Commonwealth. 

II. The 1971 Amendment to G.L. c. 76, §1 
The last clause of G.L. c. 76, §1, p, which provides "nor because pupils of 
the public schools in a particular city or town are not actually receiving such 
transportation," was added by Chapter 875 of the Acts of 1971. It is appar- 
ently this amendment which has prompted your second question regarding 



'In Quinn v. School Committee of Plymouth, 332 Mass. 410 (1955), the court ruled that the school committee lacked standing to 
question the constitutionality of G.L. c. 76, §1. Courts in other jurisdictions have both upheld and invalidated transportation 
programs, on the basisof particular provisions of their state constitutions. E.g.. Bowkers. Baker. Ti Cal. App. 2d 653. 167 P. 2d 
256 (Dist. Ct. App. 1946); Snvder v. Town of Newton. 147 Conn. 374, 161 A. 2d 770 ( 1960); Board of Education v. Bakatis. 54 
111. 2d 448. 299 N.E.2d 737 ( 1973); Adams v. County Commissioners, 180 Md. 550, 26 A.2d 377 ( 1942); .Alexander v Harllell. 14 
Mich App. 177. 165 N.W.2d 445 (1968); American United. Inc. v. Independent School District No. (^22. 288 Minn 196, 179 
N.W.2d 146 (1970); Rhoades v School District. 424 Pa. 202, 226 A. 2d 53 (1967). For decisions invalidating transportation 
programs, see, p.g..Ma((/ie»iV.^um(on,362P.2d932(Alaska \9(>\).Spears\. Honda. i\ Hawaii l,449P.2d 130 ( 1968); C/)t'/c/i 
V. Engelkmg. 94 Idaho 390,488 P.2d 860 (1971); yuc/t/ v. Board of Education. 278 N.E. 200, 15 N.E.2d 576(1938); Board of 
Education v. Anione. 384 P. 2d 91 1 (Okla 1963); Visser v. Nookaack Valley School Di.tlricl No. 506. 33 Wash. 2d 699, 207 P.2d 
198 ( 1949); S(a(ff.vrW. Reynolds v. Nushaum. 17 Wise. 2d 148, 115 N.W.2d761 (1962). As the Justices of our Supreme Judicial 
Court have stated, "(olpinions of other slates, with different constitutional provisions, are not controlling " Opinion of the 
Justices. 35 Mass. 836. 845 ( 1970). 

*Cf. Opinion of the Justices. 356 Mass. 775, 800 ( 196p9), in which the Justices stated that the "provision of facilities in aid of a 
proper public purpose will not be rendered unconstitutional simply because individuals or private entities, as such, inciden- 
tally may profit." See also Opinion of the Justices. 354 Mass. 779 ( 1968) 



186 P.D. 12 



the obligation of municipalities to furnish transportation to students attend- 
ing private or parochial schools. 

In Quinn v. School Committee of Plymouth, 332 Mass. 410 (1955), the 
Supreme Judicial Court construed G.L. c. 76, §1 as it then stood. The Court 
stated: 

We think that by its enactment the Legislature intended to make 
available to children in private schools transportation to the same 
extent as a school committee within its statutory power should 
make transportation available to children in public 
schools. . . . The question is not what the committees can be 
made to do. The requirement imposed is that there by no discrim- 
ination against private school children in what the committee in 
its discretion decides to do. Id. at 412. 

The Court ordered the school committee to furnish transportation to 
nonpublic school students "to the same extent that transportation is pro- 
vided" to pubic school students. Id. at 414. (Emphasis added.) 

Subsequent to the Quinn decision, an opinion of the Attorney General 
concluded that a town whose high school students are transported to a 
regional district high school in another town, but it or the district, must 
provide similar transportation to pupils attending private high schools out- 
side the town. 1960-61 Op. Atty. Gen., p. 127. 

A second Attorney General's opinion on the subject of transportation of 
private school students concluded that the furnishing by a town of transpor- 
tation of a pupil to a private school in another town is required only when 
similar transportation is being furnished to pupils in the public schools in the 
same grade. 1961-62 Op. Atty. Gen., p. 99. 

A third Attorney General's opinion advised that the Department of Edu- 
cation was not authorized by G.L. c. 71, §7 A to cause reimbursement to a 
municipality for expenses incurred in the transportation of private high 
school students to a school outside the town, if the town did not transport any 
public high school students to schools outside the town. 1961-62 Op. Atty. 
Gen., p. 85. 

Finally, a fourth opinion concluded that, since the town of Berkeley 
transported all of its public high school students to a school in one adjoining 
municipality, it must also provide transportation to six (6) private high 
school students who attended school in a second adjoining municipality. 
That opinion also indicated that a school committee is obligated to provide 
transportation to private school pupils even though the cost per capita may 
be greater for the private school pupils. 1965-66 Op. Atty. Gen., p. 74. Each 
of these opinions was based upon Quinn v. School Committee of Plymouth, 
supra; each opinion read that case as requiring transportation of private 
school students "to the extent that transportation is provided" {in fact) to 
public school students in the same grades. 

Chapter 875 of the Acts of 1971 eliminates the requirement that transpor- 
tation be in fact provided to public school students before it can be provided 
to nonpublic school students. It is apparent, therefore, that this amendment 
was adopted to overrule the Quinn case or, at least, the construction of that 



P.D. 12 187 



case adopted by the Attorney General. Consequently, it becomes necessary 
to reconsider the present effect of the Quinn decision. 

In Quinn, the school committee of Plymouth provided transportation for 
students who attended public schools in Plymouth as follows: (1) grades one 
through six if the distance between the homes and schools exceeded one 
mile; (2) grades seven through twelve if the distance between the homes and 
schools exceeded one and one quarter miles. Some of the petitioners' chil- 
dren attended grades one and two in parochial schools in Plymouth; all of 
these students lived more than one mile from their school. The school 
committee did not provide transportation for these students, but the Court 
ordered it to do so. 

The school committee also transported four elementary school pupils 
living twenty or more miles from the center of Plymouth to a public school in 
the adjoining town of Bourne. Some of the petitioners' children attended 
grades three through six in a parochial school in the adjoining town of 
Kingston. The committee provided no transportation for these students. The 
petitioners asked the Court to order the committee to provide transportation 
to nonpublic school students "whenever said children meet the criteria of 
distance as established from time to time by the respondents for all the 
school children of Plymouth." The Court ordered the committee "to provide 
transportation to the Sacred Heart School in Kingston for pupils in grades 
III through IV to the extent that transportation is provided by the committee 
for elementary school pupils in the public school in Bourne." Id. at 414. 

The school committee had contended that "the same rights and privileges 
as to transportation to and from school as are provided by law for pupils of 
public schools" (G.L. c. 76, §1), meant only those rights and privileges 
conferred by statutes of the Commonwealth'* and did not include rights or 
privileges granted by the committee's regulations or decisions to public 
school students. The Court expressly rejected this contention. Id. at 412. 
Instead, the Court ruled that 

[t]he Legislature intended to make available to children in 
private schools transportation to the same extent as a school 
committee within its statutory powers should make transporta- 
tion available to children in public schools .... The question 
is not what the committee can be made to do. The requirement 
imposed is that there be no discrimination against private school 
children in what the committee in its discretion decides to do. Id. 
(Emphasis added.) 
Construing Chapter 875 in light of the Quinn decision and the Opinions of 
the Attorney General noted above, I believe that by this amendment, the 
Legislature intended to codify the statement of the Court that a school 
committee furnish transportation to nonpublic school students when cir- 
cumstances are such that the committee should furnish transportation to 
similarly situated public school students. Further, the Legislature intended 
to set aside the Attorney General's interpretation of the Quinn decision 
which had read the Court's holding to mean that a committee is required to 
provide transportation to nonpublic school students to the extent that trans- 



'Specifically. the right, under G L. c. 71. §68. lo appeal to the Depanment of Education in certain circumstances. 



188 P.D. 12 



portation is in fact provided to public school students. 

As so interpreted. Chapter 875 adds to G.L. c. 76, §1 in its pristine form no 
additional requirement of furnishing transportation to nonpublic school 
students. Rather, it excludes from the decision whether to furnish transporta- 
tion to nonpublic school students consideration of the fact that, because 
there are no similarly situated public school students, the transportation 
requested is not in fact being provided to public school students. 

I conclude, therefore, that G.L. c. 76, §1 requires a municipality to provide 
transportation to nonpublic school students when the circumstances are such 
that the municipality would provide transportation to similarly situated 
public school students, either because it is required by law, or by its own 
regulations or practices to do so, or because in the exercise of its sound 
discretion, considering among other things the health and safety of the 
children, it would choose to do so. 

This interpretation may best be illustrated by the following examples:* 

(1) if there are similarly situated public and nonpublic school students and 
if the public school students are provided with transportation, transportation 
to the same extent must be provided to nonpublic school students; (2) if there 
are similarly situated public and nonpublic school students and if the public 
school students are not provided with transportation, transportation need 
not be provided to the nonpublic school students;^ (3) if the public and 
nonpublic school students are not similarly situated but a law, regulation, or 
practice would require transportation of public school students if they were 
in the same circumstances as the nonpublic school students, transportation 
must be provided to the nonpublic school students to the same extent that it 
would be provided if they were public school students; and (4) if the pubhc 
and nonpublic school students are not similarly situated and no law, regula- 
tion, or practice would require transportation of public school students if 
they were in the same circumstances as the nonpublic school students, a 
school committee must exercise its discretion in deciding whether to furnish 
transportation to the nonpublic school students without consideration of the 
fact that the nonpublic school includes religious instruction, or the fact that 
no public school students are actually receiving the transportation contem- 
plated for the nonpublic school students. 

These examples illustrate the intent of G.L. c. 76, §1, ^2 which is, as the 
Court stated in Quinn, that in furnishing transportation to students, "there be 
no discrimination against private school children." 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

'The memorandum attached to your request raised additional hypothetical questions to which I decline to respond. Cf. 1 Atty. 
Gen. Op. 273, 275 (1895). The examples above, however, should provide you with sufficient guidance on this matter. 

'Chapter 875 may be read as requiring an independent determination of whether to provide transportation to nonpublic school 
students under these circumstances. I have, however, rejected this interpretation. The thrust of G.L. c. 76, §1 is to put 
nonpublic school students in the same position regarding transportation as public school students. I do not believe that, in 
enacting Chapter 875, the Legislature intended to expand the scope of G.L. c. 76, § I as originally enacted, but rather, intended 
to overrule the narrow interpretation of the statute adopted by this office in opinions following the Quinn decision. 

I hasten to add, however, that the term "similarly situated" is not necessarily limited to distance from a child's home to 
school. Thus, if a public and a nonpublic school were in close proximity to each other, but only the nonpublic school were 
surrounded by extremely hazardous roads, the students attending these two schools would not necessarily be similariy situated 
for purposes of providing transportation. 



P.D. 12 189 

Number 73 ^ne 14, 1976 

Honorable Owen L. Clarke 

Commissioner of Corporations and Taxation 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, MA 02204 

Dear Commissioner Clarke: 

You have requested my opinion by letter dated May 21, 1976, as to 
whether the person currently acting as Treasurer of Plymouth County has 
been duly qualified to perform the acts of that office, including the borrow- 
ing of funds on behalf of the County. Specifically, you have asked the 
following questions: 

1. Did Mr. John F. McLellan's appointment as Assistant County Treas- 
urer continue beyond the death of the County Treasurer who appointed 
him? 

2. Absent any further action by the County Commissioners, did Mr. 
McLellan as Assistant County Treasurer become the Acting County Treas- 
urer upon the death of the duly elected County Treasurer? 

3. May the Director of Accounts properly certify, under G.L. c.35, sec. 
39B, that Mr. McLellan is the duly qualified County Treasurer of Plymouth 
County? 

I shall address these questions in order. 
I. Continuation of the Assistant Treasurer in Office. 
The office of county treasurer, its qualifications, and its term, are estab- 
Ushed by G.L. c.35, §1. Elections for that office are provided by G.L. c.35, 
§1, and C.54, §§ 62 and 160. The county treasurer may appoint an assistant 
treasurer under G.L. c.35, §2, which provides, in pertinent part, as follows: 
In any county, except Suffolk and Nantucket, the county treas- 
urer may appoint an assistant in his office, who has served 
therein for at least one year, as assistant treasurer, removable at 
his pleasure. . . . 
By the express language of the statute, the assistant treasurer, once appointed 
by a county treasurer, continues to serve in that position until removed by 
the county treasurer. However, by common law rules, the tenure of office of 
the assistant treasurer cannot last beyond that of the official who appointed 
him. Cieriw. Commissioner of Insurance, 343 Mass. 181, 184 (1961). The one 
limited exception to this rule does permit the assistant treasurer to remain in 
office as a "holdover" until his own successor is appointed and qualified. 
Howard w. State Board of Retirement, 325 Mass. 575, 579 (1931). There is no 
provision in the statute to prevent the assistant treasurer from resigning the 
position, prior to removal by the treasurer, or from ceasing to perform the 
duties of that position. See, Russell \. Worcester, 323 Mass. 717, 719 (1949). 
In the situation about which you have requested my opinion, Lawrence F. 
Marden was elected County Treasurer of Plymouth County for a term 
expiring on December 31, 1978. During his term of office, he duly appointed 
John F. McLellan to be Assistant Treasurer. On February 1, 1976, County 
Treasurer Marden died. In view of the language of G.L. c.35, §2, and the 



190 P.D. 12 

common law»rule, supra, Mr. McLellan remained Assistant Treasurer as a 
"holdover" after Mr. Marden's death, since he had not been removed "at the 
pleasure" of a subsequent County Treasurer. However, on the basis of other 
facts you have presented, it appears that after the death of Mr. Marden, Mr. 
McLellan ceased acting as Assistant Treasurer and began performing the 
duties of Treasurer that were assigned to him by the County Commissioners, 
as explained below. 

II. The Present Acting County Treasurer. 

G.L. C.35, §2, provides for an Assistant Treasurer to perform the duties of 
the County Treasurer when the latter is unable to do so. This statute states, in 
pertinent part, as follows: ^ 

... If the treasurer is unable to act, the assistant treasurer shall 
perform his duties. If both the treasurer and the assistant treas- 
urer are unable to act, the county commissioners may appoint a 
temporary treasurer, who shall hold office until the treasurer or 
assistant treasurer is able to resume his duties. . . . 
This provision, by itself, does not resolve the situation in question, because it 
applies only to the treasurer's temporary inability to act, for reasons such as 
illness or other disability, in contrast to a permanent vacancy due to death, 
removal, or resignation. See, Opinion of the Justices, 215 Mass. 575, 578 
(1931), and G.L. c.54, §143. Thus Mr. McLellan could not become Acting 
County Treasurer of Plymouth County by virtue of G.L. c.35, §2. 

When a vacancy occurs in the office of county treasurer as by death of the 
incumbent, there shall be an election of a new county treasurer at the next 
biennial state election. • In the interim, the County Commissioners may 
appoint a person to fill the office, pursuant to G.L. c.54, §143, which states, 
in pertinent part, as follows: 

. . . Upon a vacancy by removal or otherwise in the office of 

county treasurer ... in a county or district, except in Suffolk and 

Nantucket counties, the county commissioners shall . . . issue 

precepts for an election to fill such vacancy at the next biennial 

state election for which precepts can be seasonable issued, unless 

the term of the office expires on the first Wednesday of January 

following such state election, and may appoint some person to fill 

such office until a person is elected thereto and qualified. . . . 

Your letter correctly states that, under this statute, the county commissioners 

have the authority to appoint an acting or interim treasurer until a new 

treasurer is elected and qualified. However, the statute does not require the 

commissioners to exercise this authority, but says they "may" do so. The 

word "may ... is a word of permission and not of command," Brennan v. 

Election Commissioners of Boston, 310 Mass. 784, 786 (1942), and should be 

construed "according to the common and approved usage of the language," 

G.L. C.4, §6. Thus the Plymouth County Commissioners could properly 

choose not to appoint a County Treasurer to fill the vacancy until the office 

is filled after an election. According to your letter and its attachments, it 

appears that, in fact, they did not fill the office by any separate and express 

act of appointment. 

'Notice of the vacancy must be given to the state secretary by the county commissioners. G.L. c.54, §146. 



P.D. 12 191 



The absence of an express appointment does not, however, necessarily 
invalidate the acts of Mr. McLellan as County Treasurer, because the 
County Commissioners can lawfully appoint him by implication to that 
office. In that regard, I note that the Plymouth County Commissioners, by 
Arthur T. Murphy, their Clerk, have "certified" that John F. McLellan 
"holds the Office of the Acting Treasurer" and "that he is acting in accor- 
dance with" G.L. C.35, §2. In addition, at a regular meeting of the Commis- 
sioners on April 27, 1976, it was voted to authorize "John F. McLellan, as he 
is Acting County Treasurer, ... to borrow the sum of $29,000.00 on the credit 
of the County, . . . giving therefor County of Plymouth Emergency Loan 
Note or Notes . . ." Likewise, a majority of the Commissioners countersigned 
an "Emergency Loan Note" to borrow $29,000.00, which bore the signature 
of John F. McLellan, and which had to be signed by the county treasurer 
pursuant to G.L. c.35, §§36A and 39B. 

The aforestated actions by the County Commissioners reveal their inten- 
tion to have John F. McLellan perform the duties of office of County 
Treasurer until a successor is appointed. These actions appear to constitute 
implied appointment of Mr. McLellan to that office, in the absence of any 
express vote by the Commissioners to make such an appointment. Since the 
Commissioners are not required to make an express appointment under G.L. 
C.54, §143, or any other statute, the implied appointment of Mr. McLellan 
reflected in the acts of the Plymouth County Commissioners described 
above is valid. See, Hubert v. Mendheim, 30 P. 633, 634-35, 64 Cal. 213 
(1883). 

I note further that the appointment of Mr. McLellan, although implied, is 
nonetheless consistent with public policy, which requires than an interim 
appointment to fill a vacancy in an elected office be made by officials who 
are themselves elected. The Legislature has so provided in G.L. c.54, §143.- 
Because the County Commissioners are elected pursuant to G.L. c.34, §4, the 
public interest has been satisfied by the practice of the Plymouth County 
Commissioners in this matter. 

Even if Mr. McLellan were to be deemed not to have been validly 
appointed by the county commissioners, he must nonetheless be considered 
the de facto county treasurer, since he has been performing the duties of that 
office. Commonwealth v. Wotton, 201 Mass. 81, 85 (1909). The due authority 
of an officer who is acting de facto may be inferred in the absence of evidence 
of usurpation of office. Damon v. Carroll, 163 Mass. 404, 409 (1895); cf, 
Bucknam v. Ruggles, 15 Mass. 180, 182 (1818). 

III. Certification by the Director of Accounts 

For the reasons stated in my answers to your first and second questions, it 
is my conclusion that John F. McLellan is the duly authorized Treasurer of 
Plymouth County, in accordance with G.L. c.35, §39B, so that the Director 
of Accounts may properly certify that the note in question was signed by a 
person qualified as such, under the statute. 

Very truly yours, 

FRANCIS X. BELLOTTI 

A ttorney General 

-For similar provision for filling vacancies in other offices, see G L. c.54, §§138, 139, 142, 144. 



192 P.D. 12 



Number 74 June 16, 1976 

Owen L. Clarke 

Commissioner of Corporations 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Commissioner Clarke: 

You have requested my opinion as to the appropriateness of certain 
expenditures presently being made by at least one County Treasurer. You 
have stated that the Director of Accounts within the Department of Corpo- 
rations and Taxation, who has certain responsibilities with respect to County 
expenditures pursuant to G.L. c. 14, §1 and G.L. c. 35, §50, and the members 
of the County Personnel Board are in agreement that these expenditures are 
not being made in conformance with G.L. c. 35, §48 et. seq. I read your 
request as asking two separate questions, which I will restate as follows: 

1 . Are employees hired by a County Treasurer for the purpose of admin- 
istering a County Retirement system and paid out of the Retirement 
System Expense Fund subject to the classification and allocation require- 
ments of G.L. c. 35, §49? 

2. May County Treasurers receive compensation in addition to their regu- 
lar salary out of the Expense Fund of the Retirement System without 
approval of the County Personnel Board? 

Initially, I must consider whether it is appropriate for me to address the 
merits of your request. G.L. c. 12, §3 provides that the Attorney General 
shall render all legal services required by state "departments, officers, [and] 
commissions" relating to their official duties. Your request on behalf of the 
Director of Accounts concerns itself, at least in part, with the duties of the 
members of the County Personnel Board. I have serious doubts as to whether 
the County Personnel Board is a state department. See, e.g., 1926 Op. Atty. 
Gen. p. 125, 1917 Op. Atty. Gen. p. 9, 12. However, since your request is on 
behalf of the Director of Accounts, who has statutory duties with respect to 
such Boards • and who clearly is within a state department, it is not necessary 
that I resolve the question of whether the County Personnel Board is a state 
department. But, I wish to emphasize that my opinion is related solely to the 
responsibilities of the Director of Accounts and only insofar as he has certain 
responsibilities for reviewing county budgetary matters pursuant to G.L. c. 
14, §1 and G.L. c. 35, §50. 

Your first question directs my attention to G.L. c. 35, §49. Section 49 
provides, in part, as follows: 

Every office and position whereof the salary is wholly payable 
from the treasury of one or more counties, or from funds admin- 
istered by and through county officials, . . . shall be classified by 
the board in the manner provided by sections forty-eight to fifty- 
six, inclusive, and every such office and position, now existing or 
hereafter established, shall be allocated by the board to its proper 
place in such classification. 

'G.L. c. 35, §50. 



P.D. 12 193 

You have informed me that despite that language of Section 49, at least 
one County Treasurer has hired employees to work for the County Retire- 
ment System without regard to the classification and allocation procedure 
estabhshed by Section 49. You have further stated that it is your understand- 
ing that the County Treasurer in question has followed this course of con- 
duct in reliance upon the following statutory language appearing in G.L. c. 
32, §20 (3) (d): 

The county treasurer shall employ such clerical and other assis- 
tants as may be required to transact the business of such system. 
The primary motive underlying the legislative enactment of G.L. c. 35, 
§§48-56 was to bring about uniformity and order among county positions 
and salaries. Dolan v. Suffolk County, 310 Mass. 318 (1941). Cf. Johnson v. 
District Attorney for the Northern District, 342 Mass. 212 (1961). 

In those instances where the legislature has determined that certain posi- 
tions should be exempt from the classification and allocation system, the 
legislature enacted specific exemptions. G. L. c. 35, §49. There is no specific 
exemption for employees of the County Retirement System. Similarly, the 
language of G. L. c. 32, §20(3) (d) to which you refer relates only to the 
authority of the County Treasurer as an ex officio member of the County 
Retirement Board to hire employees; it does not purport to exempt those 
employees from the classification and allocation procedure of G.L. c. 35, 
§49. Since you have indicated that these employees are paid out of funds 
"administered by and through county officials," it is my view that these 
employees fall within the purview of G.L. c. 35, §49 and should be classified 
by the Director of Accounts and the County Personnel Board. 

Your second question directs my attention to G.L. c. 32, §20(3) (c) which 
provides: 

The members of the board of any such county Iretirement] sys- 
tem shall serve without compensation but they shall be reim- 
bursed from the expense fund of such system for any expense or 
loss of salary or wages which they may incur through services on 
such board. Nothing in this paragraph shall prevent any county 
treasurer from being compensated for services rendered by him 
in the active administration of the system in his capacity as 
county treasurer but not as a member of the board. 
You have stated that the County Personnel Board fixes the salary rates for 
county treasurers, but that certain county treasurers are being paid addi- 
tional compensation from the Expense Fund of the retirement system with- 
out Board approval or sanctions. It is unclear from your request how this 
particular question relates to the official duties of the Director of Accounts. 
Any disbursements made to a County Treasurer in the form of salary from 
the Retirement Expense Fund presumably would not come within the Direc- 
tor of Accounts' review function over accounts of the county treasurer G.L. 
c. 35, §44. Nevertheless, since the statutory language of G.L. c. 32, §20 (3) (d) 
appears clear and unambiguous, I will render my opinion as to the meaning 
of that statute without addressing the question of what authority the Director 
of Accounts has, if any, to prohibit payments in the form of salary from the 
Retirement Expense Fund to the County Treasurer. 



194 P.D. 12 



G.L. c. 32, §20 (3) (c) provides that members of the County Retirement 
Board "shall serve without compensation but they shall be reimbursed from 
the expense fund of such system for any expense or loss of salary." The 
words of a statute must be construed according to common and approved 
usage of language unless words of technical and precise meaning are 
employed. Dexter v. Dexter, 283 Mass. 327 (1933). Applying this principle of 
statutory interpretation, it is clear that the Legislature intended that no 
member of a County Retirement Board, including, the County Treasurer, 
receive salary or compensation for his services. The subsequent provision 
with respect to the County Treasurer is simply to insure that the County 
Treasurer would not forfeit his right to compensation as Treasurer by virtue 
of his role as an ex officio member of the retirement board. Accordingly, it is 
my opinion that Section 20 (3) (c) does not authorize the payment of addi- 
tional salary to County Treasurers from the Expense fund for services ren- 
dered to the County Retirement Board. The County Treasurer is, of course, 
entitled to be reimbursed for expenses or losses incurred in administering the 
Retirement system. G.L. c. 32, §20 (3) (c). 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 75 June 16, 1976 

Amelia L. Miclette, Chairperson 
Civil Service Commission 
One Ashburton Place 
Boston, Massachusetts 02108 

Dear Ms. Miclette: 

You have asked whether it would be proper to designate a hearing officer 
from the Division of Hearings Officers (DHO), which is for organizational 
purposes considered part of the Executive Office of Administration and 
Finance, to hear appeals arising under G.L. c. 31, §43(b), particularly where 
the appeal relates to an action taken by the Executive Office of Administra- 
tion and Finance. I find that such a designation is permissible. 

The Civil Service Commission is authorized by recently enacted legisla- 
tion to use hearing officers from the Office of Administration and Finance to 
hear appeals arising under G.L. c. 31, §43(b). St. 1975, c. 681 amending G.L. 
c. 7, §4H. 

The propriety of a hearing officer presiding over an appeal of an action 
taken by the same department in which he is employed is not a conflict of 
interest under G.L. c. 268A, since the hearing officer's performance of 
official duties is not influenced by private financial interests. See 1965 Op. 
Atty. Gen. p. 229 (Chapter 268A is primarily directed toward the conduct of 
officials and employees as affected by purely private financial interests, not 
to the financial interest that an employee has in public employment as 



P.D. 12 195 



such).' See also. Commonwealth v. Albert, 307 Mass. 239, 246 (1940) (in 
determining whether municipal officer acted in violation of statute barring 
participation by officer who is "personally interested," the court must con- 
strue the words "personally interested" in a pecuniary or proprietary sense); 
State ex. rel. Thomson v. State Board of Parole, 342 A.2d 634, 639 (N.H. 
1975). 

Quite apart from Chapter 268A, however, there is a requirement under 
G.L. c. 31, §43(b) that a hearing officer be "disinterested. "^ The hearing 
officer cannot be considered "interested" solely because of the inclusion of 
DHO within the organizational structure of the Office of Administration 
and Finance. Instead, the inquiry must focus on whether the structure you 
describe presents an "unacceptable risk of bias." Withrowv. Larkm, 421 U.S. 
35, 54, 95 S. Ct. 1456, 1468 (1975). In Withrow, a challenge was made to the 
decision of a state medical licensing board which had combined investigative 
and adjudicative functions. The Supreme Court upheld the board's decision 
and distinguished the case from the situations where "experience teaches 
that the probability of actual bias on the part of the judge or decision maker 
is too high," such as where the "adjudicator has a pecuniary interest in the 
outcome" or where "he has been the target of personal abuse or criticism 
from the party before him." Id at 1464. As discussed below, those unique 
situations similarly do not apply here. 

The hearing officer would have no pecuniary interest in the outcome of 
the hearing itself, since it would not have a direct effect on his private 
financial interests. See Davis, Administrative Law Text §12.04 (3d. ed. 1972); 
see also Gibson v. Berryhill, 41 1 U.S. 564, 579 (1973). The Office of Adminis- 
tration and Finance does not control the salaries, rating, or hiring of the 
hearing officers. The officers all have equal salaries set by the legislature and 
are not "rated"; in fact, they are hired and fired by the Chief Hearing 
Officer, not by the Office of Administration and Finance. See G.L. c. 7, §4H. 
An inference that a hearing officer might be indirectly influenced by the fear 
that a decision adverse to the agency could lead to some type of retribution is 
too speculative and uncertain. There is a "presumption of honesty and 
integrity in those serving as adjudicators . . ." Withrow v. Larkin, supra at 
1464. 

Also, there is no indication that the hearing officer would be the target of 
any abuse or criticism directed at him by a party. The fact that the hearing 
officer may know the parties, as a result of working within the same agency, 
does not necessarily mean that he is not "disinterested." The standard for 
determining whether the officer is disinterested looks to the nature of the 
prior personal interaction between the officer and the person or party before 
him. See Police Commissioner of Boston v. Municipal Court of the West 
Roxbury District, 1975 Mass. Adv. Sh. 2598, 332 N.E. 2d 901 (1975). If the 
circumstances of the prior personal interaction are such that the hearing 



'Further, the existence of St. 1975, c. 681. would be a statutory provision which takes the hearings officer's official actions 
outside the scope of c. 268A. since it would be "provided by law." See, e.g., G.L. c. 268A, §3. 

'The requircmenl of a "disinterested person" is " . . in turn reflective of the constitutional rights of litigants to a fair hearing, as 
established in Art 29 of the Declaration of Rights of the Constitution of the Commonwealth . " Police Commissioner of 
Boston V Municipal Court of the West Roxhury District. 1975 Mass. Adv. Sh. 2598, 2606, 332 N.E. 2d 901, 905 (1975). Similarly, 
a fair trial in a fair tribunal is a basic requiremenl of due process guaranteed by the United States Constitution. Withrow v. 
Larkin. 42[ U.S. 35, 46, 95 S. Ct. 1456. 1464(1975). 



196 P.D. 12 



officer could be expected to be biased, he is not a "disinterested person." But, 
mere prior acquaintance is insufficient to support a contention of bias or 
partiality. Cf. Police Commissioner of Boston, supra. See also Commonwealth 
V. Leventhal, 1974 Mass. Adv. Sh. 269, 273, 307 N.E. 2d. 839, 843, (1974) 
(assertion of bias was found insufficient to disqualify the adjudicatory offi- 
cial where the official was the former teacher of a witness, a fellow member 
of the bar and an acquaintance); Frade v. Costa, 342 Mass. 5 (1961) (official, 
prior to his appointment, had made a campaign contribution to defendant's 
attorney and was not disqualified). On the other hand, prior involvements 
found to support an assertion of bias have included a prior acrimonious 
adversary relationship between the hearing officer and an attorney for one of 
the parties in the hearing. Police Commissioner of Boston, supra, 1975 Mass. 
Adv. Sh. at 2608-09, and a hearing officer's having been an attorney of 
record for one of the parties. Beauregard \. Dailey, 294 Mass. 315, 325 (1936). 
I find that the organizational structure you describe does not, on its face, 
present an "unacceptable risk of bias" and that, therefore, a hearing officer 
from the Executive Office of Administration and Finance may hear appeals 
of actions taken by that office. Obviously, my views are based upon the 
hearing officer's functioning without interference in particular cases; ". . . we 
should be alert to the possibilities of bias that may lurk in the way particular 
procedures actually work in practice." Withrow v. Larkin, supra 1468. It 
would appear, however, that organizational steps have been taken to mini- 
mize the risk of bias.^ Cf id. at 1468, n. 20. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 76 June 24, 1976 

Jonathan E. Fielding, M.D. 
Commissioner of Public Health 
600 Washington Street 
Boston, MA 02133 

Dear Commissioner Fielding: 

You have requested my opinion concerning the proper interpretation of 
the phrase "transfer of ownership", as appearing in the second paragraph of 
G.L. c. Ill, §71. Particularly, you have asked whether the Department's 
practice of treating mortgage foreclosures or a landlord taking possession at 
the end of a lease as a "transfer of ownership" under the second paragraph of 
G.L. c. 1 1 1, §7 1, is permissible under the statute read as a whole, including in 
particular the 18th paragraph of the section. I conclude, for the reasons 
discussed below, that the Department's practice is proper. 



'For example, the Regulations of the Division of Hearing Officers forbid any eA/JoMe communications between any person or 
party and an officer regarding any matter at issue in an appeal. See Rules of Practice and Procedure, Division of Hearing 
Officers, Rule 2.10. Thus, assuming no prior personal involvement that would cause bias, the officer would seem to be 
insulated from any potential extrajudicial influence by either the employee or the Executive Otfice of Administration and 
Finance. 



P.D. 12 197 

The second paragraph of G.L. c. 1 11, §71 provides: 

In the case of the transfer of ownership of a convalescent or 
nursing home, infirmary maintained in a town, rest home or 
charitable home for the aged, the application of the new owner 
for a license shall have the effect of a license for a period of three 
months when filed with the department. 

The eighteenth paragraph of G.L. c. 1 1 1, §71, provides: 

For the purposes of this section "changes in ownership" of a 
convalescent or nursing home infirmary, rest home or charitable 
home for the aged shall, in the case of a corporation, mean 
transfer of a majority of the stock thereof, and in all other cases, a 
transfer of a majority interest therein. 

I understand from your request that one of the parties in a licensing 
dispute presently before your Department contends that the eighteenth para- 
graph of G.L. c. 1 1 1, §71 limits, in cases involving corporations, the right set 
forth in paragraph 2 of G.L. c. 1 1 1, §71 of obtaining a three month extension 
of a license to situations in which there has been 51% stock transfer. 

I conclude that paragraph eighteen's defmition of "changes of ownership" 
does not apply to the second paragraph. Paragraph 1 8 defines "changes in 
ownership", while paragraph 2 deals with a "transfer of ownership". The 
term "change in ownership" or "change of ownership" also appears in 
paragraphs 12 and 15 of Section 71. The term "transfer of ownership" also 
appears in paragraph 3 of Section 7 L As a rule of construction, differences in 
language within statutory provisions should not lightly be held to have been 
overlooked in legislation. City Bank & Trust Co. v. Board of Bank Incorp., 
346 Mass. 29 (1963). "[T]he very use of two separate words is an 
indication ... of some sort of different meaning to be ascribed to each of 
them . . ." Hoffman v. Joint Council of Teamsters No. 38, 230 F.Supp. 684, 
691 (N.D. Cal., 1962). Thus, I conclude that the use of the term "changes in 
ownership" in paragraph 18 was deliberate and was not meant to apply to 
the term "transfer of ownership" in paragraph 2. 

To declare that paragraph 2 did not encompass mortgage foreclosures or a 
landlord taking possession at the end of a lease would lead to illogical results. 
If a transferee of assets is denied "transfer of ownership" status, in situations 
where a stock transfer is not desirable or possible, there may very well be 
patients shuffled around by transferees who will not be allowed to operate a 
home while they are waiting for approval of a license for a facility that had 
previously been approved. The Department's construction of paragraph 2 is 
the only construction which makes that clause as a whole "an effective piece 
of legislation in harmony with common sense and sound judgment". Tilton 
V. City of Haverhill, 311 Mass. 571, 577-578 (1972). Accord, Mass. Mut. Life 
Ins. Co. V. Commissioner of Corporations and Taxation, 1973 Mass. Adv. Sh. 
863. 

Such a result is compatible with the history of the dispute you mention in 
your letter, when the whole transaction is viewed as an integrated method of 
financing with provision for asset recapture, via non-renewal of the lease, 
opposed to a method of pledge of corporate stock and foreclosure. 



198 P.D. 12 

Therefore, I conclude that the Department's practice as described in your 
letter is proper and answer your question in the affirmative. 

Very truly yours, 

FRANCIS X. BELLOTTl 

Attorney General 



Number 77 June 28, 1976 

Mr. Laurence D. Fitzmaurice 

Comptroller 

Executive Office for Administration 

and Finance 
One Ashburton Place 
Boston, MA 02108 

Dear Mr. Fitzmaurice: 

You have requested my opinion as to the method to be used in computing 
the compensation to be paid to former state employees who, while receiving 
a pension, have returned to active state service. In your request you direct my 
attention to G.L. c. 32, §91, as amended, and ask me to resolve a question of 
statutory construction. Reduced to its simplest terms, your question is 
whether the word "salary" as used in that statute denotes a weekly or an 
annual amount of compensation.' For the reasons articulated below, I advise 
you to compute compensation based on annual rather than weekly salary 
and pension figures. 

In your letter of transmittal you state that "this is the third time this 
question has been officially presented to the office of the Attorney General". 
In an opinion dated January 10, 1969, one former Attorney General 
responded to the question by concluding that a "re-employed employee is 
entitled to only that portion of the full weekly salary of the position in which 
he is re-employed which when added to his pension, calculated on a similar 
basis, will equal the salary, similarly calculated, currently being paid for his 
former position." 1969 Op. Atty. Gen. pp. 92-93 (emphasis added). That 
opinion expressly rejected a construction of G.L. c. 32, §91 which would 
have required computation based on annual pension and salary figures. 

On March 5, 1973 my immediate predecessor reviewed and reversed the 
ruling incorporated in the earlier opinion. I will neither summarize nor 
repeat my predecessor's reasoning; I merely restate his conclusion. The 
appropriate formula for computing compensation to a reactivated state 
employee is that which "entitles the employee to the full weekly salary of the 
position in which he is re-employed until he has received an aggregate 
amount which, when added to his annual pension, will equal the annual 
salary being paid for his former position. 1972-73 Op. Atty. Gen (March 5, 
1973) (emphasis in original). 



'You ask me to interpret G.L. c. 32, §91 (b) which reads, inter alia: ". . provided, that the earnings [from re-employment] 
when added to any pension or retirement allowance [the mdividual] is receiving do not exceed the salary that is being paid for 
the position from which he has retired or in which his employment was terminated " 



P.D. 12 199 



The object of all statutory construction is to ascertain the true intent of the 
General Court from the words used. Lehan v. North Main Street Garage, 312 
Mass. 547 (1943). When a statute is re-enacted without material change by 
the Legislature after its terms have been judicially construed, the Legislature 
is originally presumed to have adopted the judicial construction placed upon 
those words Bursey's Case, 325 Mass. 702 (1950); Hertrais v. Moore, 325 
Mass. 57 (1949). I believe a similar presumption to be in order when the 
words of a statute have been the subject of a formal Opinion of the Attorney 
General. 

The proviso which you call upon me to construe was amended by St. 1973, 
c. 587. The house bill which resulted in the amendment was referred in the 
Senate to the Committee on Ways and Means on March 15, 1973, just ten 
days after the opinion of my predecessor was rendered. It was engrossed in 
the Senate on May 2 and in the House on July 19 and signed by the 
Governor on August 6, 1973. The amendment clarified the pre-existing 
proviso. As amended, the law permits reactivated state employees to work 
ninety days or seven hundred twenty hours, thus eliminating potential ambi- 
guity as to the amount of time such an individual may serve. Significantly, 
the General Court did not alter the manner in which the word salary was 
used. I am of the opinion that in re-enacting G.L. c. 32, §91 without such 
change, the General Court adopted my predecessor's construction of the 
word "salary". 

Even if there had not been a re-enactment of the law, I would not be 
inclined to reverse the previous opinion in this case. While an opinion of the 
Attorney General is not the equivalent of a judicial determination, I nev- 
ertheless find it generally inappropriate to reconsider a legal question which 
has already been decided by the proper official. It is, of course, true that 
there may be circumstances in which it is necessary to reconsider an opinion 
erroneously or improvidently rendered. In this case, however, the previous 
opinion was based on all known relevant considerations and appears to have 
been a proper exercise of the advisory powers of the Attorney General. Thus, 
your request does not present an occasion requiring the reversal of a prior 
opinion. 

Accordingly, following the guidelines established in the Opinion of March 
5, 1973, an individual receiving a salary of $403.95 per week and a pension of 
$177.58 per week would receive the sum of the two, namely $581.53 per week 
"until he has received an aggregate amount which . . . will equal the 
annual salary currently being paid for his former position." 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



200 P.D. 12 

INDEX OF OPINONS 

TOPIC OPINION PAGE 

Acts, Legislative: see Legislative Bills; Statutes 
Alcoholic Beverages: 

1) No opinion rendered concerning appellate jurisdiction of 

Control Commission 55 150 

2) Proceedings of Control Commission when two of three 

members disquahfy themselves 34 115 

Appropriations: 

1) Power of Executive Branch to refuse to recommend 
appropriation; veto power of Governor 19 91 

2) Money designated for replacement of boilers used to 

replace single boiler 69 176 

Attorneys: 

Appearances by non-lawyers at hearings 48 136 

Boilers: 

Employment of licensed engineers or firemen in steam 

plants; posting of license 20 92 

Bonds: see Revenue bonds 
Building Codes: 

1) No conflict between State Building Code and Tenement 

Housing Acts 10 80 

2) Relationship between State Building Code, local statutes, 

and rules and regulations of other boards 33 112 

Child Abuse: 

Investigator has same responsibilities as guardian ad litem 

for purposes of Federal regulations 29 106 

Citizenship: 

Citizenship requirements of certain boards of registration are 
unconstitutional 18 90 

Civil Service: 

1 ) Termination of permanent civil service employees 2 69 

2) Selective certification of CETA-eligible candidates for 

police appointment 6 75 

3) No opinion rendered on definition of "department" 8 77 

4) Classification of veterans as permanent employee 50 141 

5) Re-employment of laid off employees; Discretion of 
administrator 70 177 

6) Designating hearing officer from Office of Administra- 
tion and Finance to hear appeals of action taken by that 

Office 75 194 

Conflict of Interest: 

1) Bill permitting president of state colleges to serve on 

Board of Trustees of State Colleges 25 100 

2) Designating a hearing officer from Office of Administra- 
tion and Finance to hear appeals of action taken by that 

Office 75 194 

Corrections: 

Benefits to widow of industrial instructor 7 76 



P.D. 12 201 



TOPIC OPINION PAGE 

County Ofiicers and Employees: 

1) Authority of Assistant County Treasurer County to 
become Acting Treasurer without express appointment of 

county commissioners 73 189 

2) Certain expenditures by County Treasurers in administer- 
ing County Retirement System 74 192 

Deeds: 

Regulations for the administration of the public registration 

tract index 39 123 

Discrimination: 

Contractual assurance of compliance with non-discrmina- 

tion laws in education contruction grants 46 133 

Easements: 

Department of Public Works must grant two means of access 

to certain property 51 142 

Education: 

1 ) Licensed journeyman electrician may supervise electrical 

work performed by students 12 83 

2) Contractual assurance of compliance with non-discrimi- 
nation laws in construction grants 46 133 

Education, Higher 

1) Collective bargaining agreements before university 

merger 24 99 

2) Bill permitting president of state college to serve on Board 
of Trustees of State Colleges conflicts with Conflict of Inter- 
est Statute 25 100 

3) Accommodations at University of Mass. Campus Center 

not subject to room occupancy excise tax 60 156 

4) Authority of Board to adopt admission requirements pol- 
icy re private institutions 63 161 

Education, Secondary and Elementary: 

1 ) Regulations re sex discrimination in athletics and physical 

educations courses 66 170 

2) Transportation of non-public school students 72 183 

Educational Institutions: 

1 ) Appointment of employees to serve as special police offi- 
cers I 68 

2) Obtaining liability releases from students 4 73 

3) Accommodations at University of Mass. Campus Center 

not subject to room occupancy excise tax 60 156 

Election and Corrupt Practices: 

Responsibihties of Secretary of State as Chairman of Com- 
mission of Campaign and Political Finance 13 84 

Electricians: 

Licensed journeyman electrician may supervise electrical 

work performed by students 12 83 

Eminent Domain: 

Department of Public Works must grant two means of access 

to property 51 142 



202 P.D. 12 



TOPIC OPINION PAGE 

Employees, Public: 

1) Operation of state-owned motor vehicles 26 101 

2) Procedure to be followed by Commissioners to discharge 

division director 28 104 

3) Compensation for accrued vacation time subsequent to 

termination of employment 36 120 

4) Compensation for vacation credits held in escrow 52 144 

5) Psychiatric residents as. For purposes of G.L. c. 12, §3D... 53 145 

6) Rights prior to severance under the Deferred Compensa- 
tion Plan 56 151 

7) Re-employment of laid-off employees; discretion of 
administrator 70 177 

8) Method for computing compensation paid to former state 
employees who while receiving pension returned to active 

state service 77 198 

Firearms: see Weapons 
Foreign Trade Zones: 

Legislation authorizing operations of 58 154 

Freedom of Information: 

1) Definition of public records 11 82 

2) Applications for license to carry firearms and for firearm 
identification card as public records 42 127 

3) Access to records of Rehabilitation Commission 45 131 

4) Right to obtain copies of criminal offender record infor- 
mation 62 160 

Gambling: 

Failure to submit question to voters re beano license 31 109 

Game and Fish: 

Restrictions on capture of fur bearing mammals 16 88 

Grants: 

Approval or disapproval of competitive applications 64 165 

Guns: see Weapons 

Higher Education: See Education, Higher 

Insurance: 

1) Purchase by state for property obtained by purchase, gift 

or loan 23 97 

2) Destruction of obsolete records of Fraudulent Claims 

Board 38 122 

Labor Relations: 

Collective bargaining agreements before university merger ..24 99 

Lawyers: see Attorneys 
Legislative Bills: 

1) Proposal under the Federal Occupational Safety and 

Health Act of 1970 5 74 

2) Bill permitting president of state college to serve on Board 
of Trustees of State Colleges, conflicts with Conflicts of 

Interest Statute 25 100 

Liability: 

1) Obtaining releases from students 4 73 

2) Full-time use of surplus federal vehicles 14 86 



P.D. 12 203 



TOPIC OPINION PAGE 

Licensing-Granting: 

Failure to submit question to voters re beano 31 109 

Liquor: see Alcoholic Beverages 
Mental Health: 

Psychiatric residents are not employers for purposes of G.L. 

c.l2,§3D 53 145 

Mortgages: 

Implementation of "Urban Lending Program" 54 148 

Motor Carriers: 

Regulation of truck weights 57 152 

Motor Vehicles: 

1) Liability for full-time use of surplus federal vehicles l4 86 

Motor Vehicles: 

2) Operation of state-owned vehicles 26 101 

3) Regulation of taxicab signs 43 128 

Motor Vehicles, Licensing and Registration: 

1) No opinion rendered re termination of Registry branches 22 97 

2) Effect of emergency law regulating the operation of heavy 

vehicles , 35 1 19 

3) Authority to annul decision of Registrar 44 129 

Municipal Corporation: 

Request for approval of a temporary loan 40 123 

Natural Resources: 

1) Need for legislation re transfer of land from Massport to 
Metropolitan District Commission 61 157 

2) Authority to acquire lands whose public use will be 

deferred 65 168 

Negotiable Instruments: 

Use of Mass. Bay Transportation Authority assessment pro- 
ceeds and other funds for payment of notes 47 134 

Nursing and Convalescent Homes: 

Transfers of ownership 76 196 

Open Records: 

1) Definition of public records 11 82 

2) Applications for license to carry firearms and for firearm 
identification card 42 127 

3) Access to records of Rehabilitation Commission 45 131 

4) Right to obtain copies of criminal offender record infor- 
mation 62 160 

Outdoor Advertising: 

Regulation of taxicab signs 43 128 

Plumbers and Plumbing: 

Rules and regulations for sewage treatment plants 15 87 

Police: 

1) Selective certification of CETA-eligible candidates 6 75 

2) Appointment of employees of educational/religious insti- 
tutions to serve as special police officers 1 68 

Probation and Parole: 

Prohibited outside activities of Parole Board 9 78 



204 P.D. 12 



TOPIC OPINION PAGE 

Procedural Due Process: 

Notice to owner of unsafe dam 27 102 

Property, State: 

Insurance for property obtained by purchase, gift or loan 23 97 

Public Funds: 

Placing special needs students in private institutions; possible 

violation of Anti-Aid Amendment 37 121 

Public Lands: 

1) Need for legislation re transfer of land from Massport to 
Metropolitan District Commission 61 157 

2) Authority to acquire lands whose public use will be 

deferred 65 168 

Public Office: 

Procedure to be followed by Commissioners to discharge 

division director 28 104 

Religious Organizations: 

Appointment of employees to serve as special police officers 1 68 

Retirement Systems: 

1) Benefits to widow of inustrial instructor 7 76 

2) Compensation for vacation credits held in escrow 52 144 

3) Rights prior to severance under the Deferred Compensa- 
tion Plan 56 151 

4) Credit to employee for service as elected official 68 174 

5) Certain expenditures made by County Treasurers 74 192 

Revenue Bonds: 

Use of proceeds to repay internal advances 67 172 

Safety: 

Notice to owner of unsafe dam 27 102 

Salaries: 

Method for computing compensation paid to former state 
employees who, while receiving a pension, returned to active 
state service 77 198 

Schools: see Education 

Secretary of State: 

1) Responsibilities as Chairman of Commission of Cam- 
paign and Political Finance 13 84 

2) Implementation of act requiring action prior to effective 

date 32 1 10 

3) Use of signature sticker on certain documents 41 125 

Sewage: 

Rules and regulations for treatment plants 15 87 

Sex Discrimination: 

1) Requirement that Assistant Commissioner be a woman is 
unconstitutional 59 155 

2) Regulations re sex discrimination in athletics and physical 

education courses 66 170 



P.D. 12 205 



TOPIC OPINION PAGE 

Signatures: 

1) Obtaining liability releases from students 4 73 

2) Use of facsimile stamps by registrars 30 108 

3) Use of sticker on certain documents by new Secretary of 

State 41 125 

Sovereign Immunity: 

Liability for full-time use of surplus federal vehicles 14 86 

Special Education: 

1) Placing special-needs students in private institutions; 

possible violations of Anti-Aid Amendment 37 121 

2) Construction of "grandfather clause" of Chapter 766 71 180 

State Agencies: 

Appearances by non-lawyers 48 136 

State PoHce: 

1) Payment of witness fees to officers 3 72 

2) Exclusion of service as civilian employee in computing 

longevity 49 140 

Statutes-Construction: 

No conflict between State Building Code and Tenement 

Housing Acts 10 80 

Statutes-Effective date: 

Implementation of act requiring action prior to 32 1 10 

Taxation and Revenue: 

Use of Mass. Bay Transportation Authority assessment pro- 
ceeds and other funds for payment of notes 47 134 

Treasurer, State: 

1 ) Use of Mass. Bay Transportation Authority assessment 

proceeds and other funds for payment of notes 47 134 

2) Use of proceeds from sale of bonds to repay internal 

advances 67 172 

Veterans: 

Classification as permanent employee 50 141 

Wages: see Salaries 
Water Pollution: 

No opinion rendered on permits for. construction of control 

plants 17 90 

Weapons: 

Gun control laws for non-residents on special occasions 21 95 

Witnesses: 

Payment of fees to police officers 3 72 

INDEX OF REQUESTING AGENCIES 

AGENCY OPINION PAGE 

Administration and Finance, Office of The 2,6,8,26, 69,75,78, 1 1 

Secretary of 48,52,77 136,144,198 

Alcoholic Beverages Control Commission 34,55 1 15,150 

Banking and Insurance, Department of 54,68 148,174 



206 



P.D. 12 



TOPIC OPINION PAGE 

Bicentennial Commission 23 97 

Building Code Commission 10,33 80,1 12 

Children, Office for 29 106 

Civil Service Commission 50,75 141,194 

Commerce and Labor, Committee on 58 154 

Consumer Affairs, Office of the Secretary of 1 1 82 

Corporations and Taxation, Department of 40,73,74 123,189,192 

Criminal Justice, Committee on 64 165 

Education, Advisory Council on 19 91 

Education, Committee on 25 100 

Education, Department of Commissioner 37,46,66, 121,133,170 

71,72 180,183 

Environmental Management, Department of 65 168 

Firefighting Academy 4 73 

Fisheries and Game, Division of 14,16 86,88 

Higher Education, Board of 63 161 

Insurance, Division of 38 122 

Labor and Industries, Department of 5,59 74,155 

Lottery Commission 31 109 

Mental Health, Department of 53,69 145,176 

Metropolitan District Commission, Department of 61 157 

Milk Price Control Commission 28 104 

Outdoor Advertising Board 43 128 

Parole Board 9 78 

Personnel Administration, Division of 70 177 

Plumbers, Board of State Examiners of 15 87 

Public Health, Commissioner of 76 196 

Public Safety, Committee on 22 97 

Public Safety, Department of 1,3,20,21 68,72,92,95 

Public Safety, Executive Office 35,44,49 1 19,129,140 

Public Works, Department of 27,51 102,142 

Registration, Division of. 12,18 83,90 

Registry of Deeds, Barnstable County 39 123 

Rehabilitation Commission 45 131 

Retirement, State Board of 7 76 

Secretary of the Commonwealth 13,30,32, 84, 108, 1 10 

36,41,42 120,125,127 

Security and Privacy Council 62 160 

Transportation and Construction, Office of the Secretary of 57 1 52 

Treasurer and Receiver General 47,56,67 134,151,172 

University of Lowell, Board of Trustees of 24 99 

University of Massachusetts, President of 60 156 

Water Pollution Control, Division of 17 90 



ATTORNEY GENERAL OPINIONS CITED 

OPINION 



PAGE 



1 Op. Atty. Gen. 273 (1895) 15,1 1,72 88,82,188 

2 Op. Atty. Gen. 100(1899) 13 84 

4 Op. Atty. Gen. 261 (1914) 67 173 

4 Op. Atty. Gen. 496 (1915) 12 83 



P.D. 12 207 



OPINION PAGE 

5 Op. Atty. Gen. 9 (1917) 74 192 

6 Op. Atty. Gen. 438 (1922) 17 90 

6 Op. Atty. Gen. 438 (1922) 32,37, 1 1 1,121, 

55,23 151,98 

8 Op. Atty. Gen. 75 (1926) 22 97 

8 Op. Atty. Gen. 125 ( 1926) 74 192 

1936 Op. Atty. Gen. 40 72 184 

1941 Op. Atty. Gen. 56 22 97 

1945-46 Op. Atty. Gen. 75 28 105 

1946-47 Op. Atty. Gen. 81 48 139 

1949-50 Op. Atty. Gen. 54 53 147 

1950-51 Op. Atty. Gen. 38 72 185 

1954-55 Op. Atty. Gen. 85 35 119 

1956-57 Op. Atty. Gen. 85 36 121 

1960-61 Op. Atty. Gen. 53 3 72 

1960-61 Op. Atty. Gen. 96 50 142 

1960-61 Op. Atty. Gen. 127 72 186 

1961-62 Op. Atty. Gen. 85 72 186 

1961-62 Op. Atty. Gen. 99 72 186 

1961-62 0p. Atty. Gen. 153 52 144 

1962-63 Op. Atty. Gen. 70 12 83 

1962-63 Op. Atty. Gen. 73 20 93 

1962-63 Op. Atty. Gen. 77 44 130 

1963-64 Op. Atty. Gen. 151 44 130 

1964-65 Op. Atty. Gen. 229 75 194 

1965-66 Op. Atty. Gen. 74 72 186 

1965-66 Op. Atty. Gen. 145 69 176 

1965-66 Op. Atty. Gen. 216 50 142 

1965-66 Op. Atty. Gen. 100 23 98 

1965-66 Op. Atty. Gen. 297 49 140 

1965-66 Op. Atty. Gen. 335 65 169 

1965-66 Op. Atty. Gen. 370 72 185 

1965-66 Op. Atty. Gen. 392 34 1 17 

1966-67 Op. Atty. Gen. No. 44 13 85 

1966-67 Op. Atty. Gen. No. 44 20 95 

1966-67 Op. Atty. Gen. No. 44 31 1 10 

1966-67 Op. Atty. Gen. No. 55 1 1,33 83, 1 15 

1966-67 Op. Atty. Gen. No. 63 23 99 

1966-67 Op. Atty. Gen. No. 122 34 117 

1967-68 Op. Atty. Gen. No. 5 34 1 17 

1967-68 Op. Atty. Gen. No. 46 3 72 

1967-68 Op. Atty. Gen. No. 75 1 68 

1968-69 Op. Atty. Gen. No. 25 77 198 

1969-70 Op. Atty. Gen. No. 21 40 125 

1970-71 Op. Atty. Gen. No. 17 1 68 

1972-73 Op. Atty. Gen. No. 12 12 84 

1972-73 Op. Atty. Gen. No. 19 77 198 

1972-73 Op. Atty. Gen. No. 45 61 159 

1973-74 Op. Atty. Gen. No. 22 46 133 

1974-75 Op. Atty. Gen. No. 1 66 171 

1974-75 Op. Atty. Gen. No. 47 57 153 

1974-75 Op. Atty. Gen. No. 57 70 179 



OPINION 


PAGE 


18 


90 


37 


122 


72 


184 


55 


151 


54 


148 


34 


117 


54 


148 


15 


87 



208 P.D. 12 



1974-75 Op. Atty. Gen. No. 64 

1974-75 Op. Atty. Gen. No. 65 

1974-75 Op. Atty. Gen. No. 65 

1975-76 Op. Atty. Gen. No. 17 

Barnes, "Theory and Practice of Antitrust Administration", 
How to Comply with the Antitrust Laws p. 41 (C.C.4., 1954) 

Davis, Administrative Law Text, §12.05 

Neale, The Antitrust Law of the U.S.A. (Cambridge Univer- 
sity Press, 1974) 

National Plumbing Handbook, 1st Ed. 1957 

Plumbing Dictionary, 1st. Ed. 1971, American Society of 

Sanitary Engineering 15 87 

The Random House Dictionary of the English language, 201, 

1148, 1149,573(1966) 9 79 

Schwartz, Free Enterprise and Economics Organization, 

Antitrust and Regulatory Controls 54 148 

Sutherland, Statutory Construction §49.03 (4th Ed. 1973) ... 67 174 

Sutherland, Statutory Construction, §51.01 (4th Ed. 1973) .. 47 135 

TABLE OF MASSACHUSETTS STATUTES CITED 

G.L. 4, §6 34,53, 1 16,146, 

68, 73 174, 190 

4, §6, cl.4 69 176 

4, §7, cl.26 1 1 82 

4, §§7(a), (c) 42 127 

6, §43 34 1 15 

6, §§75, 84 45 131 

6, §§156A, 156 64 165 

6, §§167, 168, 175 62 160 

6, §172 42 127 

7, §4H 48 136 

7, §4H as amended by St. 1975, c. 681 75 194 

7, §28 36 120 

10 32 111 

12, §3 74 192 

12, §3B 14 86 

12, §3B 26 101 

12, §3D 53 145 

12, §9 22 97 

14, §1 74 192 

15, §1D 63 162 

15, §1(G) 66 171 

15, §20A 25 100 

16, §§3A, 4 28 105 

19, §10 53 146 

20, §8 28 104 



P.D. 12 209 



G.L. 20, §18 

20, §79 

22, §9-0(3) 

23,§1 

23, §6 

23,§9P 

23B, §§16, 17(h), 19,20 

25, §12H 

26, §7 

26, §8 

27, §2 

27, §4 

27, §15 inserted by St. 1963 c.801 

29,§18 

29, §30 

29,§31A 

30,§§1,6,6A 

30,§§7,9A 

30,§9A 

30, §42 

30A 

30A,§§1(2), 1(5),3,8 

30A,§1(5) 

30A,§§9, 19, 14 

30A, §11(7) 

30A, §§14, 14(3) 

31 

31, spec. §23 

31, spec. §§2A(e), 8(c), 15, 15B, 15B(2). 

31, §§21, 43 

3K§§43,45 

31, §§43(a), 46G 

31,§43(b) 

31, §461 

31, §§62, 62A 

32, §4(1) (a) 

32, §20(3) (c and d) 

32, §46 

32, §§91, 91(b) 

32,§10O 

34, §4 

35, §§1, 2, 36A, 39B 

35, §§44, 48, 49, 50-56 

44, §§77(3), 8C 



OPINION 


PAGE 


33 


114 


44 


129 


49 


140 


59 


155 


59 


156 


9 


79 


33 


113 


33 


112 


28 


105 


44 


129 


7 


76 


9 


78 


9 


79 


47 


135 


23 


97 


52 


144 


34 


116 


28 


104 


50 


141 


38 


123 


15 


87 


63 


164 


15 


87 


48 


136 


34 


118 


44 


130 


8 


78 


6 


75 


70 


178 


28 


105 


50 


141 


2 


69 


75 


194 


70 


177 


53 


146 


68 


174 


74 


193 


7 


76 


77 


198 


7 


76 


73 


191 


73 


189 


74 


192 


40 


124 



210 



P.D. 12 



OPINION 

G.L. 54, §103A 31 

54, §§62, 138, 139, 142, 143, 144, 146, 160 73 

55, spec. §2A, §3 13 

55, §16 31 

64G, §§2(a), 2(b) 60 

69, §30, 31 etseq 63 

70, §§1-9 46 

71, §§3, 47 66 

71, §§7 A, 68 72 

71B, §1 etseq 37 

71B,§1 inserted by St. 1972 c. 766, §11 71 

71B, §§2, 3,4, 6, 7, 8, 9, 10, 11, 12, 13 71 

75, §1 60 

76, §1 72 

76, §§5, 16 66 

85, §30A 57 

90, §1 14 

90, §19A 35 

90, §19A 57 

90, §§24(b), 28 44 

90D, §1 14 

91 58 

93, §2 54 

93, §§29, 32 43 

93A 54 

93D 43 

1 1 1, §71, pars. 2, 18 76 

112, §§45, 73E, 83, 87 A, 87NN, 87TT, 87GGG, 101, 

109 18 

1 19, §§1, 21, 24, 29, 51A, 513 29 

127, §52 7 

131, §§4, 5, 37 16 

131, §80A inserted by St. 1974c.796 16 

132A, §§1, 2A. 2B, 2D, 3 65 

132A, §11 40 

138, §§ 1, 6, 64 34 

138, §67 55 

140, §§ 121 (A) and (B), 122-129D, 131A, 131B, 131E, 

13 IF 21 

140, §§129B, 131 42 

141, §§1 and 8 as amended by St. 1962, c. 582 §3 12 

142, §§11, 13 33 

142, §§13, 21 15 

143 10 

143,§§l,3(o) 33 



PAGE 

109 

189 

84 

109 

157 

162 

133 

171 

186 

121 

180 

181 

157 

183 

170 

152 

87 

119 

153 

130 

87 

154 

148 

128 

148 

128 

197 

90 
106 

77 



168 
124 
115 
150 

95 

127 

83 

112 

87 

81 

113 



P.D. 12 211 



G.L. 144, spec. §4 

145, spec. §5 

146 

146, §§43 e! seq 

146, §§51, 55, 64 

147, §10G 

148, §9 

149, §9 

149, §30c 

151B,§§4,9 

152,§1(4) 

161 A, §12 

166, §32 

178G 

184, §33 

215, §56A 

221,§46A 

258, §3 

262, §50 

262, §53B 

262, §53C as amended by St. 1970, c.664 

264 

268A 

268A, §3 

268, §23A 

268A(1) 

269, §10(a) as amended by St. 1975 c.l 13 

St. 1941 c.691, §4 

St. 1947 C.660, §3 

St. 1956 C.631, §§6, 8 

St. 1960 C.773 as amended 

St. 1960 C.803 

St. 1964 C.740, §3 

St. 1964 c.740, §4 

St. 1965 C.785 

St. 1970 C.298 

St. 1970 C.595, spec. §46 

St. 1971 C.486, §4 as amended by St. 1974c.244. 

St. 1971 C.622 

St. 1971 C.771 

St. 1971 C.875 

St. 1971 C.976 

St. 1971 C.994 



10 


81 


10 


81 


20 


93 


20 


93 


20 


93 


1 


68 


21 


97 


21 


96 


3 


72 


59 


155 


26 


102 


47 


134 


33 


112 


26 


102 


39 


123 


29 


106 


48 


138 


47 


135 


3 


73 


3 


72 


3 


73 


53 


147 


75 


194 


75 


195 


25 


101 


26 


102 


21 


95 


28 


104 


68 


175 


65 


169 


60 


157 


51 


142 


28 


104 


65 


169 


49 


140 


9 


79 


27 


102 


31 


109 


66 


170 


58 


154 


72 


186 


69 


176 


9 


79 



212 P.D. 12 



St. 1971 C.976, §2C 

St. 1971 C.1004 

St. 1971 C.1012 

St. 1972 C.766 

St. 1972 c.766, §1 

St. 1972 c.766, §§16, 17, 18 

St. 1972 c.766, Regs. §§504.4, 504.5 

St. 1972 C.802 

St. 1972 c. 802, §§1, 67 

St. 1972 c. 802, §75 

St. 1972 c.802, §75 as amended by St. 1974 c.541, §20. 

St. 1973 c. 587 

St. 1973 C.1173 

St. 1973 C.1175 

St. 1973 c.1175 §§10, 12 

St. 1973 C.1196 

St. 1974 c.541, §4 

St. 1974 C.828, spec. §2 

St. 1974 C.851 

St. 1974 C.851 

St. 1975 C.139 

St. 1975 C.151 

St. 1975 C.494 

St. 1975 c.494, §§8, 9 

St. 1975 C.593 

St. 1975 c.593 

St. 1975 C.600 



OPINION 


PAGI 


61 


159 


3 


72 


7 


76 


37 


121 


37 


122 


71 


180 


71 


182 


10 


80 


33 


112 


10 


80 


33 


112 


77 


199 


13 


84 


24 


100 


24 


100 


37 


121 


33 


114 


6 


75 


57 


153 


35 


119 


30 


108 


13 


84 


57 


153 


35 


119 


35 


119 


57 


153 


32 


110 



P.D. 12 213 



TABLE OF MISCELLANEOUS MASSACHUSETTS CITATIONS 

Pt. 2, Art. 2, c.K §1 19 92 

Pt. 2, Art. 4, c.l, §1 2 70 

Pt. 2, Art. 4. c.l, §4 19 91 

Amendments, Arts. 18,46, 103 72 183 

Amendment, Art. 48 32 ill 

Amendments, Art. 52, §4 Amendments to the Mass. Const., 

Art. LXII, §4 67 172 

Amendments, Art. 62,§2 47 134 

Amendments, Art. 63, §§2, 3 2 70 

Amendments, Art. 63, §§2, 3, 5 19 92 

Amendments, Art. 64 68 174 

Amendments, Art. 66 34 117 

Amendments, Art. 97 61 157 

U.S. CONSTITUTION 

Amendment 14 2 71 

Amendment 1 72 184 

FEDERAL STATUTES 

19 U.S.C. §§ 78(b)d, 81(b)b, 81g 58 155 

42 U.S.C. §2000e e/ 5e^ 2,59 71, 155 

42 U.S.C. §§3701 et seq., 3722, 3731, 3732, 3733 (a) (4), 3734, 

3736(a) (1), 3736 (a) (2), 3743, 3750(b) 64 165 

28 C.F.R. §50.6 54 148 

29 C.F.R. §1902-2(b) 5 74 

45 C.F.R. §1340.3-3(d) (7) , 29 106 

Federal Rules of Evidence 803 (8), 902( 1 ), 1005 41 126 

Title VII of the Civil Rights Act of 1964 59 155 

Occupational Safety and Health Act of 1970, 84 Stat. 1590, 

§18 (c) (1) 5 74 



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154'Sf 



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