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

^ublic Document 



No. 12 



Qty* <ftmmtumw?alt!j at MaamttyMttts 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1977 




Publication of this Document Approved by Alfred C. Holland, State Purchasing Agent. 
1500-11-78-150606 Estimated Cost Per Copy $3.84 



Staie Library of 



l 



Public Document 



No. 12 



QIlj? (ftflmmomuealttj ai Muamt^usstts 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1 977 




Publication of this Document Approved by Alfred C. Holland, State Purchasing Agent. 
1500-11-78-150606 Estimated Cost Per Copy $3.84 



R.4U 



State Library o. «^..i 

State House, Boston 

(Utjr (Eommonuipa.ltli of iUasfiartjuHrtta 

Boston, February 1, 1979 
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, 1977. 

Respectfully Submitted, 

FRANCIS X. BELLOTTI 
Attorney General 



P.D. 12 



Sljr (Unmmmuuealtfj of MuBnattynBettB 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
FRANCIS X. BELLOTTI 

First Assistant Attorney General 
Robert M. Bonin 30 
Thomas R. Kiley 1 ' 1 



Assistant Attorneys General 



Jose R. Alien' 5 
Phyllis H. Allen- 4 
Nicholas P. Arenella 
Kenneth M. Barna 27 
Charles Barry- 
Michael Joseph Barry 11 
W. Channing Beucler 
Robert Bonn 3 
Margo Botsford 
Jonathan Brant 
Laurie Burt 7 
James A. Clayton Jr. 24 
Robert D. Cohan 
Garrick F. Cole 
John P. Corbett 
Charles C. Corkin II 
James J. Cotter 1 ' 1 
Kathleen Ryan Dacey 
Stephen R. Delinsky 13 
Ernest P. DeSimone 2 
Maureen Dewan 
Paul Donaher 
Michael C. Donahue 
Eleanor A. Dwyer 
Irene D. Emerson 8 
Catherine Farrell 32 
Lisa Fitzgerald 
James A. Fox 4 
Gloria A. Fry 18 
Carol Fubini 20 
Charles P. Gamer 
Frank A. Gaynor 7 
Brian F. Gilligan 
Paula Gold 
Joseph P. Gordon Jr. 
Robert V. Greco 
William F. Green 
Steven J. Greenfogel 
Richard A. Gross 
Patricia C. Gunn 21 
Catherine W. Hantzis 5 
L. Scott Harshbarger 
Paul D. Hodge 19 
William E. Howell 
John F. Hurley 
John J. Irwin 23 
Daniel P. Jaffe 15 
Paul Johnson 15 
Carolyn A. Kelliher 



Sally A. Kelly 1 " 
Kevin Kirrane 
Timothy J. Lang Jr 24 
Steven M. Leonard 
William F. Linnehan 
Bernard Manning 
Michael J. McCormack 
Andrew McElaney 
Denzil D. McKenzie 
Leo S. McNamara 
Barton J. Menitove 
Michael B. Meyer 
Thomas H. Miller 
Anton T. Moehrke 
John T. Montgomery 
Paul J. Muello 5 
Claudia Noack 33 
Henry F. O'Connell Jr. 
Terence P. O'Malley 
Kathleen K. Parker 
Steven T. Platten 18 
Alan K. Posner 
Mary J. Reedy 1 
Louis A. Rizoli 
Paula Rosen 35 
Steven A. Rusconi 
Robert Rodophele 
S. Stephen Rosenfeld 
Barbara J. Rouse 
Anthony P. Sager 
Stephen Schultz 
Marc S. Seigle 
Terry Seligman 
Paul W. Shaw 
David M. Siegel 11 
Mitchell Sikora 
Bernistine Singley-Battle 28 
Susan K. Sloane 
Barbara A. Smith 
Deborah S. Soloman 26 
Piroska Soos 
Johnathan Souweine 13 
Timothy Spillane 9 
Donald Stern 
Kevin Suffern 14 
Paul J. Swartz 22 
Terence M. Troyer 
Frank Upham 27 
John J. Ward 



P.D. 12 



Betty Waxman 
Ellyn R. Weiss 
Catherine A. White 
Howard Whitehead 31 



Estelle Wing 17 
Timothy J. W. Wise 
Donald P. Zerendow 
Stephen Zeidman 



Assistant Attorney General; Director, Division of Public Charities 
Francis V. Hanify 34 
Susan K. Sloane 



Assistant Attorneys General Assigned 
to Department of Public Works 



Michael James Barry 1 

Elizabeth A. Bowen 

Edward J. Clancey Jr. 1 

Paul A. Good 

Allan Gottlieb 

James J. Haroulos 

Leslie Hedgebeth 14 

F. Timothy Hegarty Jr. 8 

Edward J. McCormack III 20 

William A. Mitchell 12 



Robert Mulligan 
Howard Palmer 
Joseph A. Pelligrino 
Edward J. Quinlan 
Richard Rafferty 
T. David Raftery 
John W. Spencer 
John T. Twomey 
Christopher H. Worthington 



Assistant Attornetys General Assigned to 
the Division of Employment Security 
Joseph S. Ayoub George J. Mahanna" 

William D. Jackson 2 "' Frank J. Scharaffa 

Chief Clerk 

Russell F. Landrigan 30 

Edward J. White 11 

Assistant Chief Clerk 
Leo J. Cushing 11 



Appointed June 1, 1976 
Appointed June 28, 1976 
Appointed July 1, 1976 
Appointed August 30, 1976 
Appointed September 7, 1976 
Appointed September 8, 1976 
Appointed September 20, 1976 
Appointed October 12, 1976 
Appointed November 1, 1976 
Appointed December 13, 1976 
Appointed January 3, 1977 
Appointed January 31, 1977 
Appointed February 1, 1977 
Appointed February 22, 1977 
Appointed March 1, 1977 
Appointed March 7, 1977 
Appointed March 14, 1977 
Appointed March 28, 1977 



Appointed April 19, 1977 
Appointed June 7, 1977 
Resigned July 12, 1976 
Resigned August 6, 1976 
Resigned September 10, 1976 
Resigned October 1, 1976 
Resigned November 1, 1976 
Resigned November 19, 1976 
Resigned December 31, 1976 
Resigned February 18, 1977 
Resigned February 25, 1977 
Resigned March 4, 1977 
Resigned May 20, 1977 
Resigned May 24, 1977 
Resigned May 27, 1977 
Resigned June 1, 1977 
Resigned June 24, 1977 
Retired December 31, 1976 



P.D. 12 



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P.D. 12 9 

(Thr (Cnmmnmiiralth nf iBassarhnsrtts 

DEPARTMENT OF THE ATTORNEY GENERAL 
Boston. February 1, 1979 
To the Honorable Senate and House of Representatives: 

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

This Annual Report is my third as Attorney General of the Common- 
wealth and covers the fiscal year from July 1. 1976 to June 30, 1977. 

During the twelve-month period we continued our efforts to improve 
the administration of the office. Specifically, we adopted a personnel code, 
which contains a mechanism for classifying employees of the Department 
on the basis of merit, according to job title and pay grade. Adoption of 
the Code marked the culmination of our effort, which began with an inde- 
pendent Civil Service Management Survey, to achieve parity and equity 
in salaries throughout the Department. At the same time we adopted a 
Personnel Manual setting forth in writing the personnel policies and pro- 
cedures of the Department. The adoption and implementation of the code 
and manual are evidence of our commitment not only to improve the 
administration of the office, but also of a desire to institutionalize the im- 
provements and preserve them for future generations. 

As in the past. Fiscal 1977 was also a significant year because we insti- 
tuted innovative affirmative litigation programs to deal with the legal 
problems of the Commonwealth. During the period covered by this report 
we established an Antitrust Division, created specifically to enforce federal 
and state laws against price fixing and monopolization. The Division is 
funded by a grant from the United States Department of Justice, which 
recognizes the role Attorneys General play in the protection of the citizens 
of their respective states. Enforcement of the antitrust laws by this Depart- 
ment is a natural outgrowth of our aggressive work in the area of consumer 
protection. In the past we have encouraged dispute resolution at the local 
level while bringing consumer protection suits primarily against major 
violators who engage in patterns of deceptive practices. Price fixing may 
be the ultimate anti-consumer practice, costing the consumers of Massa- 
chusetts millions of dollars each year. The Antitrust Division has already 
begun the attack on the practice, filing several federal actions including a 
multi-million dollar suit against sugar refiners. 

A second major new program was also created to begin to deal with 
Medicaid provider fraud. The federal government has identified provider 
fraud as a nationwide problem costing the taxpayers hundreds of millions 
of dollars annually. In Massachusetts, we created a Nursing Home Task 
Force patterned on a similar unit operating in New York state. The Task 
Force is a part of the Criminal Bureau. It utilizes a team approach, with 
attorneys, accountants and investigators working together to identify and 
prosecute the health care providers who violate state and federal law. 



10 P.D. 12 

Through this pilot program we are attempting to demonstrate the State's 
ability to reduce provider fraud in one segment of the health care delivery 
system. When federal funds become available, we hope to expand the pilot 
project to cover the entire system. 

Once again the Affirmative Litigation Division was particularly success- 
ful in advancing the interests of the Commonwealth. In one suit brought 
by the Division we prevented the federal government from discontinuing 
ten million dollars in medicaid funding, and in a second we succeeded in 
enjoining a major discontinuation in the federal food stamp program. The 
Civil Rights and Civil Liberties Division also commenced a series of 
affirmative cases of great significance, when they brought suit on behalf of 
women workers in the publishing industry who were allegedly victims of 
gender-based job discrimination. We filed yet another case of national 
importance when, with the Attorneys General of Illinois and New York, 
the Environmental Protection Division sued the Federal Aviation Admin- 
istration seeking uniform nationwide noise pollution regulations. 

It was an active year for the Criminal Bureau as well. Attorneys assigned 
to it commenced major investigative and prosecutorial efforts to combat 
arson for profit, the fastest growing crime in America. Similarly the Bureau 
began unravelling a major scandal connected with the administration of 
federal vocational education funds in the State Department of Education, 
and lawyers from the Bureau "raided" the Department of Corporations 
and Taxation and seized tax records as they commenced an investigation 
into allegations of favorable tax treatment for politically connected tax- 
payers. These three cases promise to produce significant prosecutions over 
the next two fiscal years. 

Not all of the Department's work was as glamorous as the foregoing 
summary would suggest, but much of it was of equal long term importance. 
During the year the Government Bureau promulgated model rules for the 
conduct of adjudicatory hearings which should have a permanent impact 
on the way the State's Administrative Procedures Act is administered. Sev- 
eral important Opinions of the Attorney General, written in the Govern- 
ment Bureau, should also have a lasting effect. 

In these areas I have highlighted, this was another year of true progress 
for the Department. It is impossible to reduce our accomplishments to two 
or three pages of introductory material. The extent of our efforts and 
accomplishments are set forth in more detail in the balance of this report. 



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) Con- 
tract review. 



P.D. 12 11 

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- 
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 hearing. 

At present, there are 298 active cases in the Division. Eight cases 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 in all cases. Consultation 
with engineers and architects is routine in every instance. Trials are pro- 
longed, not solely because of the complexity of issues, but also because of 
the fact that most cases involve at least three or four parties. 

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

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

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

B. ADVICE AND COUNSEL TO STATE AGENCIES 

Even.' day, the Division receives requests for assistance from state 
agencies and officials. Their problems involve formation of contracts, per- 
formance of contracts, bidding procedures, bid protests, contract interpre- 
tation, and a myriad of other matters. Many of these agencies have no 
counsel or are subdivisions of Administration and Finance. 

The economy has its effect on bids and bidding procedures in the State 
Purchasing Agent's office. All materials, supplies and equipment purchased 
by the state (except military and legislative) must be advertised, bid, and 
awarded by the Purchasing Agent. We receive, each week, new requests for 
assistance in purchasing matters. Economic conditions have heightened 
competition. Bid awards are bitterly contested. Members of the Division 
counsel the Purchasing 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 
Services, Water Resources, etc. 



12 P.D. 12 

C. CONTRACT REVIEW 

We receive all state contracts, leases and bonds submitted to us by state 
agencies. During the fiscal year, we approved as to form a total of 2,453 
such contracts. In many cases, 185 to be exact, we rejected the documents 
and approved them when the deficiencies were eliminated. 

All contracts are logged in and out and a detailed record is kept. 
The monthly count for the fiscal year was: 

July, 1976 411 

August 302 

September 226 

October 180 

November 175 

December 149 

January, 1977 143 

February 121 

March 135 

April 175 

May 213 

June 223 

2,453 

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 in the preparation and trial of contract matters 
has been greatly facilitated by the addition to the staff of a professional 
engineer. His assistance in investigation and interpretation of contract 
documents and plans has been of considerable assistance to the trial 
attorneys. 

During the last half of the fiscal year, the drive to clear the back-log in 
the Superior Court has resulted in increased trial activity, both in the Jury 
Waived Sessions and in hearings before Masters. 

EMINENT DOMAIN DIVISION 

The major function of the Eminent Domain Division is the representa- 
tion of the Commonwealth in the defense of petitions for the assessment 
of damages resulting from land takings by eminent domain. The Common- 
wealth acquires land for various purposes including rights of way for 
roads, state 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 
reasonable, but reserves to the owners the right to proceed through the 
courts to recover more money. In years past, land damage matters caused 



P.D. 12 13 

congestion in the civil sessions 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 satis- 
factory because too many cases previously tried by auditors were retried 
by juries. In 1973, the Legislature passed Section 22 of Chapter 79 which 
provides for the trial of land damage matters in the first instance before a 
judge in the Superior Court jury-waived session. Either party may reserve 
their right to a jury trial by filing an appropriate request within ten days 
of a judge's finding. A trial by jury may be had in the first instance 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. 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. 

Haufier v. Commonwealth, decided by the Supreme Judicial Court in 
May, was an appeal from a ruling excluding certain evidence relied on by 
the Commonwealth. The question was whether an intermediate appeal on 
a question of law is permissible under Section 22. The Court held that 
there can be no review of alleged errors until the jury trial is concluded. 
The unfortunate result of the decision is that jury-waived findings encom- 
passing errors of law may. now be introduced as prima facie evidence 
before juries. 

The Division consists of a Chief, Deputy Chief, nine trial attorneys, five 
secretaries, three investigators, one legal engineer, one rent administrator 
and one administrative 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 are 
approved as to form by the Eminent Domain Division. It is also the func- 
tion 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, 1977 

Eminent Domain Cases 718 

Land Court Cases 283 

Rent Court Cases 694 



Total Cases Pendina 1,695 



14 P.D. 12 

Breakdown of Pending Eminent Domain Cases by County < June 30. 1977) 

Barnstable 19 

Berkshire 7 

Bn> 40 

Essex 129 

Franklin 3 

Hampden 37 

Hampshire 21 

Middlesex 123 

Norfolk 45 

Plymouth 33 

S_ r • 131 

Worcester 130 

7l8 

Re;::c of Activities, Eminent Domain Division. Julv 1. 19~6 thru June 
30. 1977 

Rental Receipts S197. 783.00 

Land Court Cases Received 171 

Land Court Cases Closed or Withdrawn 119 

Land Damage Complaints Receiver 138 

Land Damage Cases Closed 166 

Land Damage Cases Tried or Pro Bared 108 

INDUSTRIAL ACCIDENTS DIVISION 

The Industrial Accidents Division serves as legal counsel to the Com- 
monwealth 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 10.710 First Reports of Injury- filed during the last fiscal 
year for state employees with the Division of Industrial Accidents, an 
increase of 914 over the previous fiscal year. Of the lost time disability 
; Division reviewed and approved 1.824 new claims for compen- 
sation, and 150 claims for resumption of compensation. In addition, the 
Division disposed of 94 claims by lump sum agreements and 52 by pay- 
ments without prejud:,. 

The Division appeared on behalf of the Commonwealth in 714 formal 
assignments before the Industrial Accident Board, as well as before the 
Courts on appellate matters. In addition to evaluating new cases, the 
Division continually reviews accepted cases, namely, those cases which 
require weekly payments of compensation to bring them up to date 
medically and to determine present eligibility for compensation. 



P.D. 12 15 

Total disbursements by the Commonwealth for state employees" ir._ . - 
trial accident claims, including accepted cases. Board and Court decisions 
and lump sum settlements, for the period July 1, 19~6 to June 30. 19". 
are as follows: 

General Appropriation 
( Appropriated to the Division of Industrial Accidei 
Incapacitv Compensation 54, 61,853.22 

Medical Payments 1,739,993.40 

TOTAL DISBURSEMENTS Jl, 846.62 



Metropolitan District Commission 

Appropriated to M.D.C 

Incapacity Compensation i 331.53-.S- 

Medical Payments 116,952.54 

TOTAL DISBURSEMENTS 5 448 487.38 



The Division also has the responsibility of collecting payments due the 
"Second Injun." Fund" set up by Chapter 1:2 section 65, and defending 
the fund against claims for reimbursement made under Chapter 152, sec- 
tions 37 and 37A. During the past fiscal year the Division appeared on t t 
occasions to defend this fund against claims for reimbursement by pri 
insurers. As of June 30. 1977. the financial status of this fund was as 
follows : 

Unencumbered Balance 5 217,385.55 

Invested in Securities " B 1 .000.00 

TOTAL S 998.3-: 55 



Payments made to fund ; • "216.06 

Payments made out of fund 2 ? 

Pursuant to St. 1950. c. 639. §11A. as amende;:, the Cr/.t: ::' this Divi- 
sion represents the Attorney General as a member of the Civil Defefl . 

Claims Board. This function involves reviewing and acting upon cl- 
for compensation to unpaid civil defense volunteers injured in the course 
of their volunteer duties. During the past fiscal year the Chief of tins Divi- 
sion appeared at both sittings of the Board and acted on 13 claims. 

The Division also represents the Industrial Accident Rehabilita: 
Board. In instances of an insurer's refusal to pay for rehabilitative training 
of injured employees, the Division appears before the Industrial Accident 
Board on behalf of the Industrial Accident Rehabilitation Board. 

During the past fiscal year the attorneys of this Division ".led 

upon numerous times to assist workers in private industry who cont^- 
this Division regarding problems they had in securing compensation claims 
against private industry and their insurers. Even." effort « 
these employees in resolving their difficulties or in referring them to the 
proper individual or agency. 



16 P.D. 12 

DIVISION OF PUBLIC CHARITIES 

The current statutory codification of the Attorney General's common 
law authority to enforce the due application of charitable funds is G.L. c. 
12, §8, which provides: 

[The Attorney General] shall enforce the due application 
of funds given or appropriated to public charities within the 
commonwealth, and prevent breaches of trust in the admin- 
istration thereof. 

The Division of Public Charities is created by G.L. c. 12, §8B to per- 
form the Attorney General's duties with regard to the enforcement of 
charitable funds. 

Pursuant to this broad mandate, the Division of Public Charities today 
performs a number of different functions. Those functions can be divided 
into three main categories: 

1. To register and monitor the activities of charitable organizations 
which engage in charitable activities or raise funds for charitable purposes 
in the commonwealth. 

2. To represent the interest of the general public, the beneficiary of 
all public charities, in all court actions involving the creation of charitable 
interests or the disposition of funds already devoted to charitable purposes. 

3. To represent the State Treasurer in all estates in which there is a 
possibility of an escheat to the commonwealth. 

To carry out these functions, the Division now has a staff consisting of 
five attorneys (including the Director), one certified public accountant, 
one investigator, one accountant's assistant and seven clerical staff. 

I. REGISTRATION AND MONITORING OF CHARITABLE ORGA- 
NIZATIONS 
A. Initial Registration and Annual Financial Reports 

1. Functions of the Division. General Laws Chapter 12, §§8E and 8F 
provide that all public charities which engage in charitable activities in the 
commonwealth must register with the Division of Public Charities and file 
an annual financial report. There are currently approximately 9,000 orga- 
nizations registered with the Division. The filing date this year was ex- 
tended to September 15. So far the Division has received 4,025 annual 
financial report forms with total filing fees of $70,375. All the information 
filed with the Division pursuant to the statute is a matter of public record. 
The annual financial reports are due on June 1 of each year and the 
filing fee is $15.00. Each of these reports is reviewed to determine whether 
the charitable funds have been used in a proper manner. Among the prob- 
lems looked for are: self-dealing by the officers, directors or trustees; 
imprudent investments; fund-raising or administrative costs which are too 
high; excessive salaries; and excessive accumulation of funds. If the form 
filed by a charitable organization is not approved, a letter is sent to the 
charity explaining why the form was not approved and requesting the 
necessary additional information. When the form is finally approved, the 



P.D. 12 17 



approval is noted on a file card. There is a file card for each charitable 
organization registered with the Division and the cards show the current 
status of the annual filings of each charity. 

If the form is not approved because the Division believes there has been 
some breach of trust in the administration of the charity, the Division may 
initiate legal action to replace the officers, directors or trustees responsible 
for the maladministration. In some cases, the Division also attempts to 
recover from the individual officers, directors or trustees any funds which 
have been misapplied. 

2. FY 1977 Accomplishments 

(a) Verifying and Up-dating the Mailing List. An effort was undertaken 
to eliminate from our files those organizations which were defunct but 
which had not notified us that they were no longer in existence. 

Some 2,000 or 3,000 organizations were deleted from the charity files. 
In addition, the Division received annual financial reports from certain 
organizations which had not filed in several years. The end result was that 
the Division had a current listing of all these organizations which had 
registered and which were still in existence. 

(b) Defining the Term "Public Charity". A uniform definition of the term 
"public charity , ' was developed which is now used by the staff to determine 
which organizations were required to file with the Division. Previously, 
such determinations had been made by individual attorneys on an ad hoc 
basis. "Public charity" is now defined as follows: 

Any non-profit organization, trust, foundation, group, associa- 
tion, partnership, corporation, society or any combination of 
them, whose purposes are substantially charitable in nature and 
which benefits the general public or some indefinite class thereof. 
In connection with this definition, some "rules of thumb" have been 
developed based on the kinds of organizations which had registered with 
the Attorney General in the past. Strictly fraternal organizations and social 
clubs are not considered to be public charities because they are organized 
primarily to benefit their members, not the general public. The Division 
had a large number of fraternal organizations and social clubs registered 
with it and who are being notified that they are no longer required to file 
annual financial reports with the Division. 

(c) Registration of All Charitable Organizations in Massachusetts. 

(i) Registration of new charitable organizations. To assure the registration 
of new charitable organizations, the Division has arranged with the Secre- 
tary of State's office that it will send to the Division, every two or three 
weeks, copies of the articles of organization of every new corporation 
organized pursuant to G.L. c. 180, the Massachusetts non-profit incorpora- 
tion statute. 

The Division is now receiving approximately 200 such articles of 
organization every month. Each of these articles is reviewed to determine 
if the organization is charitable. If so, a letter is sent to the organization 
informing it of the requirement that it file an annual financial report with 
the Division and a file is set up on the charity. If the organization is not 
charitable, no notice is sent. 



P.D. 12 



In many instances, it is unclear from the articles of organization whether 
the corporation is charitable. In those cases, a letter is sent to the organiza- 
tion asking for additional information. 

( li ) Registration of existing charitable organizations. In fiscal 1977, the 
department obtained from the Internal Revenue Service a computer print- 
out of all Massachusetts organizations which had received a federal tax 
exemption under Section 501(c) of the Internal Revenue Code as either a 
religious, charitable, scientific, educational, literary, amateur athletic, civic 
or social welfare organization, or a fraternal organization which conducts 
charitable activities. The Department is currently in the process of checking 
this list, which contains approximately 12,000 organizations, against our 
own list of registered charities. A letter will be sent to each organization on 
the IRS list which is not registered with us informing it of the registration 
requirements and requiring that it register with the Division. The IRS list, 
of course, does not include charities whose principal office is located in 
another state. However, such charities are also required to register with 
this Division if they conduct charitable activities or solicitations in 
Massachusetts. 

(iii) Coordination with other state agencies. The Division is in the 
process of coordinating its efforts with several other state agencies. For 
example, the State Lottery Commission has provided the Division with a 
computer print-out of all charitable organizations in the state which have 
Beano licenses. The Division is cross-checking this list with its own list of 
registered charities to ensure that all such organizations are registered . 
(d ) Dissolution of Defunct Organizations 

An investigator has been assigned to review each inactive file to ensure 
that any funds remaining in the organization at the time of its termination 
were transferred to another charitable purpose. This requires reviewing the 
last annual report filed by the organization to determine if it had any 
assets at the time of its dissolution and, if so, locating and contacting one 
of the officers, directors, or trustees to determine what happened to those 
assets. The Division usually requires a copy of the organization's final 
federal tax return and a receipt from the charitable organization to which 
the funds were transferred before it will close out a file. 

The task is further complicated for charitable corporations by G.L. c. 
180. §1 1 A. which provides that the only method for dissolving a charitable 
corporation is by filing a petition for dissolution in the Supreme Judicial 
Court. Many corporations have failed to file such a petition and have 
therefore not been officially dissolved. The Division is trying to identify 
these organizations, ascertain that the corporation has. in fact, transferred 
any remaining assets to another charitable organization, and then prepare 
and file a petition to dissolve the corporation pursuant to G.L. c. 180, 
H1B. which allows the Attorney General to dissolve charitable corpora- 
tions. A form petition for dissolution has been prepared; the Division 
intends to begin filing mass petitions, as the Secretary of State does, on a 
regular basis. 

An agreement was also reached with the Secretary of State's office to 
notify the Division, several weeks in advance, of the names of all c. 180 



P.D. 12 19 

corporations they intend to dissolve in the future. This enables the Division 
to determine whether the corporation has any assets remaining before it 
is dissolved and to ensure that such assets are applied to a similar charitable 
purpose at the time of the dissolution. 

(e) Computerization. Probably the most significant change in the Divi- 
sion is the contemplated computerization of the charity files. The Division 
is currently working on several different computer programs, aside from 
the docket control program, which will greatly streamline the administra- 
tive processes of the office. 

(i) Registration information. The first system we hope to put into effect 
will allow us to place all the registration and filing information currently 
contained in bulky card files onto the computer. The name and address of 
each registered organization, together with certain key financial information 
taken from its annual reports and a history of its filings, will be entered 
into the computer and up-dated constantly. The computer will be able to 
provide the Division with a complete, up-dated print-out of our registered 
organizations on a regular basis. 

This system will enable the Division to identify, at any given point in 
time, those organizations which are delinquent in their filings. This will aid 
immeasurably in the enforcement process. In addition, the computer print- 
out will enable the Division to provide the public, in minutes, with accu- 
rate, up-to-date information concerning any charity registered with the 
Division. 

(ii) Audit system. A computerized audit system is also contemplated. 
Members of the clerical staff will enter into the computer certain financial 
data from the annual report filed by each charitable organization. The 
computer will then be able to "audit"' such reports by doing certain pro- 
grammed calculations. The results will be provided on a computer print- 
out to the staff of the Division. By using the computer to do these calcula- 
tions, an enormous amount of staff time will be saved. 

(iii) Foundation Directory information. A third system to be put on 
computer will enable the Division to up-date its Foundation Director." on a 
regular basis without having to review all the Foundation files by hand. 

( f ) New Annual Financial Report Form (Form PC I 

In the past year, the Division has developed a new reporting form which 
is patterned after the industry audit guide for voluntary health and welfare 
organizations published by the American Institute for Certified Public 
Accountants. This new form requires much more detailed financial informa- 
tion from reporting organizations than the old financial report forms, and 
requires that the information be presented in a uniform manner. 

Because the annual reporting forms must be filed by diverse types of 
organizations, a single form cannot possibly be adequate for all organiza- 
tions. However, the Division did meet with representatives of various : 
of charities prior to printing the form in an effort to resolve some of the 
difficulties. In addition, the Division intends to work with an Advisory 
Committee to be appointed by the Attorney General to revise the form 
still further. A public hearing will be held in the fall before the final version 
of the form is promulgated as a regulation. 



20 P.D. 12 



B. Monitoring Charitable Solicitations in Massachusetts 

1. Functions of the Division. General Laws c. 68, §19 requires that all 
charitable organizations which intend to solicit funds in Massachusetts, 
except those organizations specifically exempted by §20, must obtain a 
certificate to solicit from the Division prior to conducting any charitable 
solicitations. This requirement applies both to charitable organizations 
incorporated or created in Massachusetts and to those organized in other 
states. The fee for obtaining a certificate to solicit is $10.00 per year and 
the certificate must be renewed each year. As of June 30, 1977, the Divi- 
sion had collected filing fees of $5,750 from the 575 organizations which 
had received a certificate to solicit in Massachusetts for the 1977 calendar 
year. 

In part, the small number of organizations which are registered to solicit 
is due to the large number of statutory exemptions from the requirement. 
Some of the organizations which are exempt are schools, PTA's, hospitals, 
public libraries and volunteer fire companies. In addition, any organization 
which does not intend to raise more than $5,000 in a given year is not 
required to obtain a certificate to solicit unless it actually receives more 
than $5,000 in the course of its solicitation. 

Organizations which solicit in Massachusetts and are required to obtain 
a certificate to solicit from the Division, are subject to several statutory 
restrictions on their fund-raising activities. They cannot use paid telephone 
solicitors (G.L. c. 68, §28); they cannot agree to pay a professional 
solicitor more than 15% of the gross receipts from any solicitation cam- 
paign (G.L. c 68, §21); and they cannot spend more than 50% of their 
gross income on fund-raising expenses (G.L. c 68, §22). In addition, there 
are specific statutory prohibitions against any sort of misrepresentation in 
connection with a charitable solicitation (G.L. c. 68, §30). 

The Division reviews all applications for a certificate to solicit within 
ten days after their receipt, as is required by statute. One requirement for 
obtaining a certificate to solicit is that the charitable organization must 
file a copy of an audited financial statement. Thus, the review of the 
application involves a thorough review of the financial statement to ensure 
that the charity is being operated in a reasonable fashion and that the 
funds solicited are, in fact, being used for charitable programs. 

The Division also responds to consumer inquiries concerning charitable 
organizations which are soliciting funds and investigates such organizations 
when complaints are received. 

Finally, the Division is also responsible for registering all professional 
solicitors and professional fund-raising counsel who have contracts with 
registered charitable organizations. Professional solicitors and professional 
fund-raising counsel are reauired by G.L. c. 68, §23, to register with the 
Division and post a $10,000 bond. The registration fee is $10.00 and the 
registration must be renewed each year. In addition, a copy of each con- 
tract between a professional solicitor or professional fund-raising counsel 
and any registered charitable organization must be filed with the Division 
and approved by the Division. If such a contract is disapproved, the Divi- 






P.D. 12 21 

sion must provide a hearing within 15 days to any party to the contract 
who requests one. 

2. Progress and Improvements in FY 1977. 

(a) Verifying and Up-dating the Mailing List. The same procedure 
described above for up-dating the list of registered charities applies, of 
course, to those charities which also have a certificate to solicit. 

(b) New Registration Form (Form PC). The new Form PC, which is 
described above, now incorporates the application for a certificate of 
registration for solicitation purposes. The application is Section II of the 
new form. 

Under the old system of forms, a charitable organization which solicited 
in Massachusetts had to file an annual financial report (Form 12) on June 
1 of each year and a separate application for a certificate to solicit (Form 
1 1 ) prior to January 1 of each year which was valid for the calendar year. 
This requirement meant that many organizations had two filing dates to 
remember. Also, because of the requirement that organizations applying 
for a certificate to solicit must submit an audited financial statement for 
their immediate preceding fiscal year, many organizations found themselves 
filing their financial statements twice: once to satisfy the annual financial 
report requirements and once to satisfy the requirements for obtaining a 
certificate to solicit. 

The new Form PC consolidates both of the old forms, Form 1 1 and 
Form 12, and it will be due on June 1 of each year. The Division has 
already begun issuing certificates to solicit which are valid for the June 1 
— May 31 year, rather than a calendar year. The Division hopes to intro- 
duce legislation to change the filing date for the annual financial report to 
comport with the filing deadline for federal tax returns. 

The questions on the new Form PC allow the Division to monitor the 
expenditures of charitable organizations for fund-raising and other non- 
charitable purposes. In addition, the form requires that charities list the 
methods they intend to use in raising funds and any alternative names 
under which they intend to solicit funds. This information helps us in 
answering consumer inquiries concerning the fund-raising activities of 
charitable organizations. For example, if a consumer inquires about XYZ 
Charity which is soliciting with coin canisters door-to-door, we will be 
able to determine from our files whether, in fact, XYZ Charity is conduct- 
ing such a door-to-door solicitation or whether the person soliciting may, 
in fact, be fraudulently representing that he/she represents XYZ Charity. 

Finally, the Form PC has a Schedule which must be completed for all 
special fund-raising events and for all fund-raising campaigns run by a 
professional solicitor. This Schedule requires detailed information concern- 
ing the cost of the goods sold and the total expenses of the campaign as 
compared to the gross revenue. It also requires that the organization list 
the amount of compensation paid to any professional solicitor. 

(c) Verifying and Up-Dating Registrations of Professional Solicitors 
and Professional Fund-Raising Counsel. The Division has begun cross- 
referencing the names of professional solicitors and fund-raising counsel as 



22 P.D. 12 

listed on the charities' Form PC with its list of registered solicitors and 
fund-raisers. The Division has also been cross-referencing the names of 
charities with whom the professional solicitors and fund-raisers claim they 
have contracts with the Division's list of registered charities. 

(d) Investigations and Litigation. The Division has investigated several 
organizations which are soliciting funds in the Commonwealth. 

The following is a sample of some of the larger investigations currently 
in progress: 

(i) The Unification Church. G.L. c. 68, §16 requires that all charitable 
organizations which solicit on public ways in the Commonwealth must keep 
accurate financial records concerning the amounts solicited and how those 
funds were expended. Because allegations had been made that the Unifica- 
tion Church was spending the money solicited for private commercial 
enterprises, rather than charitable purposes, and that certain misrepresen- 
tations were made in connection with the Church's solicitations, this Divi- 
sion demanded that the Church produce for the Division's inspection the 
records it was required to maintain pursuant to the statute. 

When the Church failed to produce the necessary records, the Division 
filed an action in Suffolk Superior Court to compel them to produce the 
records. Attorney General v. Holy Spirit Association for the Unification 
of World Christianity (Unification Church), Suffolk Superior Court Docket 
No. 19414. After a hearing on an application for a preliminary injunction, 
the Church entered into a stipulation with this office that it would produce 
the documents requested. The Church has produced those documents but 
the records fail to comply with the statutory requirements. 

(ii) Greater Boston Council of Girl Scouts, Inc. The Girl Scouts of the 
United States of America withdrew the local Council's charter in 1970, 
thus withdrawing the Council's right to conduct any official Girl Scout 
activities. Nonetheless, the officers of the local Council continued to main- 
tain an office, pay rent, light and utilities, employ a secretary and generally 
keep the organization running despite the fact that it could not fulfill any 
of its corporate charitable purposes because it was not authorized to con- 
duct Girl Scout activities. Over the past seven years, the corporation has 
spent over 5150,000 and has accomplished no charitable purposes. 

The Division has thoroughly reviewed all the corporation's extant finan- 
cial records. Litigation is contemplated. 

(iii) Boston Mental Health. We received allegations that this charitable 
organization was actually engaged in a private commercial enterprise in 
that it enters into contracts with private drug companies to perform 
scientific experiments and studies. 

A suit was brought to obtain permission to investigate the organization, 
subpoena documents and take testimony under oath pursuant to G.L. c. 12, 
§8H. Attornex General v. Boston Mental Health, Inc., Suffolk Probate 
Court No. 1575. 

II REPRESENTATION OF THE INTEREST OF THE GENERAL 
PUBLIC IN ALL COURT ACTIONS INVOLVING CHARITABLE 
INTERESTS 



P.D. 12 23 

General Laws Chapter 12, §8G provides: 

The attorney general shall be made a party to all judicial 
proceedings in which he may be interested in the perform- 
ance of his duties under section eight, and service upon 
or notice to the director in any such proceeding shall be 
deemed sufficient service upon or notice to the attorney 
general. 
Pursuant to this and other more specific statutes the Attorney General is 
made a party to three main categories of judicial proceedings: 

(a) Probate of Wills: The Division is notified when: 

1. the will provides charitable bequests, no matter how small, and 
whether the bequests are made outright or are contained in a testa- 
mentary trust; 

2. there are no known heirs of the decedent; or 

3. the executors or administrators of the types of estates described in 
(a) and (b) present their accounts for allowance. 

(b) Charitable Trusts. The Division is notified when: 

1. the trustees of a charitable trust present their annual accounts for 
allowance; 

2. the trustees of a charitable trust petition the court for instructions; 

3. the trustees of a charitable trust file a petition for cy pres or for per- 
mission to modify or deviate from the terms of the trust; 

4. a petition is filed for termination of a charitable trust; 

5. a petition is filed for the appointment or removal of a trustee; or 

6. a suit is brought against the charitable trust. 

(c) Miscellaneous. The Division is notified when: 

1. a petition for the sale of real estate is filed by the trustees of a 
charitable trust or the executor or administrator of an estate in 
which the Division has an interest; or 

2. the accounts of common trust funds with charitable interests are 
presented for allowance. 

The Division now has over 18,000 open probate cases. This does not 
include the Public Administration estates or the charity files. It includes 
Dnly the files pertaining to the probate of estates with charitable interests 
and the supervision of charitable trusts. 

A. Progress and Improvements in FY 1977. In FY 1977, the Division 
reviewed 1,021 new wills, 618 executor's accounts and 47 administrator's 
accounts. 

A concerted effort was made this year to catch up on the backlog of 
sstate accounts which had to be reviewed. The Division is in the process 
Df developing a computerized system to oversee the estate cases. 
B. Charitable Trusts 

1. Functions of the Division. Charitable trusts, unlike private trusts, 
are perpetual. Thus, whenever a testamentary charitable trust is estab- 
lished, the Division must set up a probate file on the trust which can be 
expected to remain an open court file in perpetuity. 



24 P.D. 12 

The reason these files can never be closed is that the trustees must file 
annual accounts of their administration of such trusts with the probate 
court. The Attorney General must be notified when such accounts are 
presented for allowance (G.L. c. 206. §24) and the Division must review 
the accounts and file either an appearance or a waiver. These probate 
accounts are accepted by the Division in lieu of the financial report form 
required on other charities and copies are filed in the open charity files 
which are available for public inspection. 

Furthermore, the Division must be notified of any other court actions 
taken with regard to these testamentary charitable trusts. Thus, whenever 
the trustees present a petition for instructions or a petition for cy pres or a 
petition to * odify or deviate from the terms of the trust, etc.. the Division 
is made a party to the action. 

(a) Petitions for Instruction, Deviation, Modification and Termination. 
In FY 1977. the Division was involved in approximately 300 cases involv- 
ing petitions for instructions, deviation, modification and termination. In 
connection with these cases, the Division filed several briefs in both the 
Appeals Court and the Supreme Judicial Court when certain cases were 
appealed. One typical case handled by the Division in FY 1977, was 
Phillip J. Nexon, Trustee v. The Boston Safe Deposit and Trust Company, 
Appeals Court No. 77-2. This was a petition for instructions brought by 
the Trustee of a testamentary trust established under the will of Phillip B. 
Bayes. The question was whether the language of the trust empowered the 
trustee to pay over the entire principal of the trust to the life beneficiary, 
thereby extinguishing the charitable remainder. The Appeals Court upheld 
the decision of the Probate Court which had found in favor of the Divi- 
sion's position that the charitable interests could not be thus extinguished. 

(b) Petitions for Appointment or Removal of Trustees. In FY 1977, 
the Division handled 19 cases involving the appointment of trustees. The 
Division also investigated two charitable trusts after receiving complaints 
that the trustees were not acting in the best interests of the trusts and 
ought to be removed. In one of these cases, the Division has filed a petition 
seeking the removal of the trustee. Attorney General v. Richard E. Byrd, 
Trustees of the Admiral Richard E. Byrd Eoundation, Suffolk Probate 
Court No. 497969. That petition will be heard in the fall. In the other 
case, negotiations are underway for removal of the current trustee and 
termination of the trust. 

fc) Other Cases Involving Charitable Trusts. The Division has filed 
answers and appeared in several other kinds of cases involving charitable 
trusts in FY 1977. An example of this type of case is Elizabeth Ann 
Ebitz, et als v. Pioneer Sational Bank. Appeals Court No. 76-12. This 
was a suit brought by a young woman who had applied to the bank, as 
trustee of a charitable trust, for a scholarship. The bank interpreted the 
terms of the trust as allowing it to make scholarship grants only to men. 
The Probate Court and the Appeals Court both found for the plaintiff 
and the Division and held that the term "young men", as used in the trust 
instrument, should be interpreted to include young women, as well. 



P.D. 12 25 



C. Miscellaneous 

1. Petitions for the Sale of Real Estate. Whenever the executor of an 
estate in which this Division has an interest or a trustee of a charitable 
trust desires to sell real estate belonging to the estate or trust, and he is not 
specifically authorized by the will or trust instrument to do so. he must 
apply to the court for a license to sell. The Division is notified of such 
petitions and it is our job to ensure that the real estate is sold for a fair 
price and that there is no self-dealing. This usually requires the obtaining 
of an appraisal of the property from the executor or trustee and a deter- 
mination to whom the property is being sold. 

In FY 1977. we disposed of 73 petitions for the sale of real estate. 

2. Common Trust Fund Accounts. G.L. c. 203A, the Uniform Common 
Trust Fund Act. permits corporate and other fiduciaries to pool charitable 
trust funds for purposes of investment. The purpose of pooling smaller 
funds into a larger fund is to enable all the trusts to benefit from the diversi- 
fication of investments which is possible only with a larger fund. Annual 
accounts of such common trust funds must be filed with the probate court 
and notice must be given to the Division when such accounts are presented 
for allowance if any charitable interests are involved. 

These accounts must be reviewed like any other trust account to deter- 
mine that the investments are proper, that no self-dealing has occurred, 
etc. However, these accounts are usually incredibly voluminous and require 
an accountant to review them. 

In reviewing some of these accounts over the past year, the Division has 
discovered numerous discrepancies between the accountings made to the 
probate court and the fiduciaries* audited financial statements. We have 
also discovered a number of instances where improper accounting methods 
have been used. Consequently, the Division has filed a number of appear- 
ances on the allowance of such accounts. Most of these cases have been 
resolved with the corporate fiduciary agreeing to re-submit its probate ac- 
count, but a few such accounts are awaiting a hearing. 
III. REPRESENTING THE STATE TREASURER IN ALL ESTATES 
IN WHICH THERE IS A POSSIBILITY OF AN ESCHEAT 

General Laws Chapter 192. sec. 1A provides that when a will is pre- 
sented for allowance and there are no known heirs at law of the decedent, 
the Attorney General must be made a party to the petition. General Laws 
Chapter 194. sec. 4 provides that the State Treasurer shall be made a party 
in all intestate estates where there are no known heirs and a public admin- 
istrator is appointed to administer the estate. The Division of Public 
Charities receives the notice of such estates and represents the interests of 
the Commonwealth and the general public in seeing that such estates are 
administered properly. 
A. No Known Heirs 

1. Functions of the Division. When the Division receives a citation con- 
cerning the allowance of a will in an estate where there are no known heirs. 
a letter is sent immediately requesting a copy of the will, the approximate 



:? p.d. 12 

amount of the estate 2nd informal: c nceni ing die circumstances ander 
which the will v._~ eiecute d die physical and mental capacity ;:' the 
te & tatia i: the time the will was executed and the relationship of the per- 
sons named in the win as beneficial es to the lestaiof The wfll is then re- 
view e_ - -ith all additional information, to ascertain: ( 1 ) whether 
as c necuted :~ thai it has the correct number of witnesses, 
. beneficial etc 1 :hat the decedent was 
mentally anc : . f executing the will: and (3) xhi: no 
undue influence was used on I he decedent In many cases, the determination 
of these facts requires much conesf n dence and many telephone calls. 

If the person reviewing the will : Bed that all is in order, the C 

skn will i -. .. He ever, as with wills 

under which charitab oterest ire crea:ei as discussed above . the 
7 5 ion must continue to mo:.:::: the estate and review all accounts until 
the estate is bnallj closed The Division's primary :-:e:e^: in acl states 
is to ensure that if a bequest fails or the will is invalid for some reason, the 
estate win eschew: the [Zbnunonwealth. In FY . : ~~. the Division re- 
ed 5- 5 5 7 I - :r. es;:e^: ; " tes 
B. Public Admirusrrarions 

1. Functions of the Division. When the Division receives notice hat a 
petition has been pre s en te d I ' : : h e appointment of a public administrator. 
the estate b monitore d until it is closed and the final escheat has been 

'- ents in FY 1977. In FY 1977. the Division 

rece: ved (331,84831 iu ts from regular Pubhc Administration 

estates and S19.979.16 from Pol : Administration estates with a total 
value of less than S700. The ittei estates are g ove rn ed by G.L. c. 194. 
Inch permits the PA :o liquidate all the estate's assets and turn 
them over to the State Tiea mei _ the - _ . t ;• Eoi 1 e ar to pay 

-" " . .'. :' :". - ': :::::;:- 

During FY 1977 ihe E - ::._ 1 '--.-■ PA estates i~d closed 

" ' - The number of open E ties at the end of the FY 1977 • • as 452 

The I - iles on the . ~eing administered by two Public 

Administrate: were I rwarded to the Criminal Division for criminal 
prosecution as it appeared that the Pubhc Adininistrators had misappropri- 
ated funds belonging to the es:i:e which should fa ed to the 
Z : ~ — : - - ; - z-.Zr. 

IV. THE TO USD A TIOS DIRECTOR Y 

The I :n is preset: the process of preparing a Foundation 

Directory. The Directory will consist of entries for more than 1 . 100 founda- 
: " :zh'.zz - "'i-.-.i-: Eizr. e - :-; :::.:i:~: :he :;~e ir.z ihh:es> 
of the organization, the names of its officers or tra tees financial informa- 
tion including the amount customarily paid out in grants: and a statement 
of porpct - -formation is also provided about the 

type : - j-ams wh:; fa die : undation has supported in the past and any 
restrictions on its grants as to geographic area or particular population 



P.D. 12 27 

TORTS DIVISION 

This Division continues to operate in three major areas: (I) Torts, 
2 Conbctkms and (3 Peril - Z Dmpensation of Victims c : em 

Crimes. 

Our operational procedures instituted in 1975 are working well, cases 
and correspondence being handled on an up-to-date and current bi 

The Division continues to realize maximum recovery on behalf of the 
Commonwealth in collection cases. . been successful in elimini ~ i 

some of the small cases which were referred to us by various schools and 
agencies, since it is our belief that those matters are more appropr- 
handled by collection agencies. 

In the area of victims of violent crimes compensation is paid in accord- 
ance with the provisions of the law. but we defend those actions in which 
compensation is unwarranted. 

In addition, new rules of procedure to be followed in violent cri.~ cease 
have been drafted in conjunction with the Administrative Committee of the 
District Courts. It is expected that these rules will become effective in the 
very near future. 

In FY 1976-1977. 649 tort cases were opened. The majority of fft . 
cases are motor tort cases. During this period the number of tort suits 
brought against the Commonwealth, its officers and employees was 139. 
Releases and Executions received amounted 1 : 51" 692.64. 

In addition. 792 Violent Crime cases ere irer.ed during this period. 
Hearings were held on 216 of these :ises and a ltd - made \ the 
. a rt amounting to $1,124,1 735 

Payments of so-called Moral Claims are kept to a minimum. 

The total collections rea hzed during the stated fiscal vear amour: : : 
$429,24* 35 

The Division presently consists of a Chie: fire 5 attorneys and one 
'.egal assistant. The following is a breakdown of the monies reco 
by the Division during the fiscal year: 
Departments 

Mental Health 
Public Health 

?'_? ..." Site: 

Public Works 

M.D.C. 

Edncal - 

State C : eges 

Administration & Finance 

- ; : R = . - . - 
Commission for the Blind 
Corrections 

Environmental Management 
Fisheries i Wildlife 
Ir.i^r.r ... A;; jer.'.i D: - . - ;- 
Labor & Industries 
Marine & F ish e ri es 
Mir.-.e i Re;:; 

Rehabilitation 
Military Division 
Secretary of State 
T-;_-_r> Department 

Prorate Ccv'.ectic-s 
Total 



--;--:.: 


Nc ::' C _ ~ 




?-:•:: . : 


(61 :: ; 51 


31 


5 ] 5 5 " 2 5 


301 


- 25.72 


11 


w •:: : 


. : . : " 


- 13 -- 


- 


- 241 52 


:- s 


: ii N 


■ - 


3,664 ■ 


: 


150.00 


. : 


1.011.93 


• 


179.01 


- 


- -.00 


S 


80.00 


• 


1 : 


1 


45 JO 


. : 


5 00 


: 


60" 67 


l 


: -.60 


6 


■ .00 


A 


652 63 


.-: 


> ■ -• - -'• 





5 _ 2 - 24J 3 g 





28 P.D. 12 

SPRINGFIELD OFFICE 

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 pertaining to Eminent Domain, 
Criminal, Torts, Contracts, Administrative, Environmental, Collections, 
Public Charities, Victim of Violent Crime cases and election law violations. 
In addition, 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 are presently being handled in the Spring- 
field office. 

EMINENT DOMAIN TORT ADMINISTRATIVE 

5 10 23 

VICTIM OF 
ENVIRONMENTAL COLLECTIONS VIOLENT CRIME 

1 7 19 

CRIMINAL 

2 

In the past year the Consumer Protection section of the Springfield 
office has investigated numerous complaints and commenced a number of 
court actions. The investigations and subsequent suits involve cases such 
as false going out of business sales, bait and switch advertising, misrepre- 
sentation of land for home building, unit price violation and odometer 
tampering. The most significant case was the investigation, prosection and 
subsequent conviction and sentencing of automobile dealers involved in 
altering odometers. This case marked the first successful criminal prosecu- 
tion of automobile dealers in Massachusetts for turning back odometers. 

In addition to the aforementioned cases there were various other cases 
in which Consent Judgments were obtained or other actions taken. The 
following is a summary of those cases. 

CONSENT ASSURANCE OF 

LAWSUITS JUDGMENTS DISCONTINUANCE SAVINGS 

2 3 8 $7,776.46 
Although the vast majority of individual consumer complaints are re- 
ferred to local consumer groups, there is still a pending backlog from the 
1975-76 fiscal year. We accepted complaints from those individuals who 
reside in towns where there is no local consumer group, and from those 
individuals who for other reasons are unable to obtain assistance from a 
local group. The results of those actions are as follows: 

OPENED CLOSED PENDING SAVINGS 

233 350 103 $8,979.62 

The staff also fulfills speaking engagements and answers numerous 
inquiries in the consumer area. 



P.D. 12 29 

In addition, the office renders legal assistance at the request of various 
state agencies. 

Our total correspondence on various matters and inquiries other than 
consumer complaints averages over 175 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 1976-1977, the Criminal Bureau continued its responsibilities 
in the traditional areas of trials, appeals, organized crime and drug abuse. 
In addition, the Bureau expanded its efforts with the operation of a 
Violent Crime Unit and a Nursing Home Task Force. 

The Trial Division has been particularly active in the area of economic 
crime. A major investigation into abuses in the Commonwealth's state tax 
system has been undertaken. Prosecutions have been pursued dealing with 
welfare provider fraud, several different forms of larceny, insurance fraud, 
banking law violations, conflict of interest, small loans violations and 
campaign laws violations. Additionally, the Criminal Bureau and the Con- 
sumer Protection Division have undertaken a cooperative effort to combat 
consumer crime. Although this program promises to develop several com- 
plex cases requiring the attention of several attorneys, it should result in 
a definite deterrent effect as well as the recovery of large sums of money 
for the Commonwealth. In one instance, this combined effort resulted in 
the conviction of several defendants in Hampden County for larceny and 
automobile odometer spinbacks. 

The Organized Crime Section continued to be involved in such diverse 
areas as gaming, bribery, cigarette smuggling and theft from state agencies. 
In one case a former state trooper was convicted of bribery and concealing 
auto theft. The section also cooperates with other agencies in combatting 
the activities of criminal organizations and provides technical assistance 
to law enforcement offices and district attorneys. The type of technical 
assistance that is supplied includes photographic aid and advice and expert 
testimony in such novel areas as voice print identification. The Section 
provided assistance to law enforcement agencies both within the Common- 
wealth and in other states on more than 300 occasions. 

The Appellate Section continued to represent the interests of the Com- 
monwealth in federal habeas corpus actions. Of particular significance was 
a class action suit brought by certain juvenile defendants who alleged that 
their pending trials were barred by a previous Supreme Court decision 
rendering the proceedings against them in juvenile court unconstitutional. 
The district court enjoined approximately 100 pending criminal trials. 
On appeal, however, the Court of Appeals reversed on the merits and 
ordered the petition dismissed. Certiorari was successfully opposed in 
the United States Supreme Court. In another case involving a gambling 
conviction on the basis of wiretap evidence, the Section was successful in 
arguing for reversal of a federal district court's grant of a writ of habeas 
corpus. Certiorari to the Supreme Court was again opposed with success. 



30 P.D. 12 



The Section also successfully defended in the Supreme Judicial Court 
the constitutionality of the Commonwealth's "blue laws" as well as the 
statute prohibiting possession of marijuana. 

As a result of an agreement reached with the Department of Correction 
relative to their handling of federal civil rights complaints against their 
employees, as well as the referral of some writs of error to the district 
attorneys, the number of post conviction or appellate matters handled by 
the Section has been reduced. During fiscal year 1976-1977, attorneys 
appeared in various courts in over 250 cases involving the following: 
petitions for certiorari or appeals in the United States Supreme Court, 
appeals to the First Circuit, petitions for writs of habeas corpus in the 
Federal Disrtict Court, federal civil rights actions, appeals to the Supreme 
Judicial Court, appeals to the Appeals Court, writs of error and other 
extraordinary matters in the Single Justice Session, and state habeas 
corpus proceedings in the Superior Court. 

The Appellate Section also continued to process demands for the rendi- 
tion of fugitives from justice. The Section examines demands both for the 
law enforcement officials of the Commonwealth and from the governors 
of other states, and renders an opinion as to the legal adequacy of each. 
Approximately 194 rendition demands were processed during fiscal 1976- 
1977. An appellate Section attorney must appear in court whenever a 
rendition warrant is challenged. The Appellate Section also administers 
the Commonwealth's criminal usury laws. 

The Drug Abuse Division at the present time engages in two primary 
activities: the speaker's program and the drug education seminar. 

The Division has several people who are available for speaking engage- 
ments and have addressed civic, professional, social and educational 
groups on over 80 different occasions since January, 1975. The majority of 
these requests were carried out during the evening hours. It has been our 
experience that many groups will request speakers on a semi-annual or 
annual basis. Judging from the requests as well as the turn out at these 
various functions, it is evident that there is a great deal of interest by the 
general public in the drug abuse program. 

The drug education seminar is a two-week course which addresses the 
problem of drug abuse through the means of education. Although geared 
primarily for the police, it also serves other professionals working in drug- 
related fields. The program works to educate individuals dealing directly 
with drug-related matters and on a broader plain, trains these professionals 
to train others in their respective fields. Thus, the program covers every 
aspect of the drug abuse problem from psychological and pharmacological 
considerations to search and seizure and street enforcement techniques. 

Since September, 1976, the Drug Abuse Division in conjunction with 
state and community colleges has held 12 two-week seminars throughout 
the Commonwealth from which 350 members have graduated. After 
reviewing the curriculum, each of the colleges involved agreed to award 
three academic credits for successful completion of the course. We have ob- 
tained the services of experts in various related fields for use in the seminars. 
These individuals donate their time on a regular basis and represent a 



P.D. 12 31 

wide range of agencies and institutions including the Massachusetts State 
Police, the Federal Drug Enforcement Administration, the Treasury 
Department, the United States Customs Bureau, and the Office of the 
Mayor of the City of Boston, as well as various drug and alcohol rehabilita- 
tion programs. 

The Violent Crime Unit has been active in two areas of prosecution 
during the past year. Since December of 1977, there has been a violent 
crime screening program in Norfolk County, which was set up in coopera- 
tion with the Norfolk County district attorney to accelerate prosecution in 
12 areas of violent crime cases. These 12 areas include most types of 
assault, breaking and entering, explosive charges, firearm charges, intimi- 
dation of witnesses, kidnapping, mayhem, rape and robbery. The Norfolk 
County screening unit, composed of three assistant attorneys general 
processed over 100 cases in the courts of Norfolk County averaging 84.44 
days from arrest to disposition in the Superior Court and 34.34 from 
arrest to disposition in the District Court. 

In Suffolk County, a racial crime monitoring unit received, reviewed and 
investigated several hundred incidents of racial violence. The unit selected 
the most serious reported incidents of racial crime for priority prosecution 
by the Major Violators Division of the Suffolk County District Attorney's 
Office, and referred other less serious charges for district court prosecution. 

The Suffolk County unit was involved in the investigation of the bomb- 
ing of the Suffolk County Courthouse, the Dorchester Armory and the 
bombing at Logan Airport. The unit coordinated efforts with the United 
States Attorneys in Maine and Massachusetts and the district attorney of 
Suffolk County. Ongoing liaison efforts were maintained with the Massa- 
chusetts State Police, the Boston Police Department, the Federal Bureau of 
Investigation and the Bureau of Alcohol, Tobacco and Firearms. 

Although the Criminal Bureau has had a continuing interest in the prob- 
lem of nursing home fraud, a more intensive effort was commenced in 
February of 1977 with the formation of a Nursing Home Task Force. 

On February 23, 1977, the Attorney General commenced an intensive 
state wide effort to confirm and identify fraudulent claims for Medicaid 
reimbursement, and those responsible in the nursing home industry. A 
number of investigative techniques were applied, the most prominent of 
which was the coordinated investigation by the Task Force auditor- 
investigator staff, aimed at unravelling suspect complicated financial trans- 
actions and disclosing fraud. 

The Attorney General's original suspicions were quickly confirmed. 
Every single audit by the Task Force has established significant over pay- 
ments of Medicaid funds to nursing home operators, and/or some type of 
larcenous scheme. 

Working as independent units, and following the successful team con- 
cept employed by New York State, lawyers, special investigators and 
special auditor-investigators have reviewed the books and records of 
nursing homes, vendors and suppliers, analyzed nursing home reimburse- 
ment expense claims, interviewed scores of potential witnesses and 
presented evidence to Grand Juries. 



P.D. 12 



Our irr- estig to date indicate more than merely isolated instances 

of Nursing Home Fraud. More significantly they appear to confirm wide- 
spread nnancial chicanery and wholesale misappropriation of taxpayer 
funds. The common thread is extensive fraudulent application for reim- 
bursement for expenditures that have nothing whatsoever to do with 
nursing home patient care. 

The evidence s :hat the taxpayer has unwittingly subsidized 

private residential landscaping expenses, personal travel expenses, personal 
food items at phenomenal levels, personal business interests, works of art. 
vast quantities of liquor, interior decorating expenses, personal pharma- 
ceuticals, heating fuel for private homes, personal charitable contributions, 
extensive vacations, real estate taxes, private auto expenses, mink coats, 
nal investment stocks, renovations to private residences, entertain- 
e personal pn 

Fraud indictments by the Attorney General's Task Force, have already 
led to the conviction of eight defendants, representing some twenty-two 
nursing home throughout the state, and the ordered restitution of mis- 
appropriates Medicaid funds totalling some half million dollars. It should 
be pointed out that this restitution in no way precludes the Attorney Gen- 
eral and the Department of Public Welfare from pursuing civil remedies 
for further recoupment. The Task Force has already turned over to the 
Department of Public Welfare evidence involving civil fraud of more than 
than one and one half million dollars. 

Thus, in addition to prosecuting those who have committed nursing 
home related fraud, the Attorney General is pressing, in each instance, for 
^1 restitution of the fruits of the crime. 

The Task Force has presented substantial testimony and physical and 
mentaiy evidence before Grand Juries which should lead to the filing 
of felony indictments charging various defendants with Medicaid fraud 
and larcenv in excess of one million dollars. 
A. RESTITUTION AND RECOVERY OF FIXDS 

Restitution is a form of recoupment applied by the Task Force in crim- 
inal cases only. In those cases where a larceny of Medicaid funds is in- 
volved, the Attorney General will not accept a guilty plea unless the 
defendant makes full restitution of the amount of the theft. The recovery 
process, on the other hand, involves the turnover of audit findings to the 
Department of Public Welfare for recoupment by administrative or civil 
action. 

In addition to restitution, the Attorney General has sought and received 
significant fines as well as requested hea\y costs to repay the taxpayers 
for those costs incurred incident to an investigation. 

breakdown of Task Force restitution and recoveries folic- 

a. COURT ORDERED RESTITUTION S 43*. 5 

b. COSTS AND FINES 83.150.00 

c. AMOUNTS IDENTIFIED FOR CIVIL RECOVERY 1.577.055.77 

d. CIVIL SETTLEMENTS 35.473.04 
MONIES RETURNED TO PATIENTS 39,455.00 

TOTAL S2.157 ? 191.86 



P.D. 12 

3. PATIENT ABUSE 

Nursing home patients are literally at the mercy of their environrr . 
TTie population of health care facili: k for protection, on their 

-elatives. community organizations, and public bodies to assist them. 

It is for this reason, and to assure high quality patient care to the c - 
?ens of the Commonwealth, that the Attorney General's Task Force has 
nade patient abuse a primary concern. 

When funds for patient care are diverted to private pockets it en . 
potential for patient neglect and abuse. Elimination of these conditions 
hrough criminal prosecution is unlikely as it is nearly impossible : 
:riminal responsibility for particular neglect situations. The Attorney Gen- 
eral's Task Force, ho v. . . committed to follow-up on all referrals and 
perform a watch dog role. 

A liaison has been established between the Task Force and the Depart- 
nent of Public Health. Office of Elder Affairs, and the Department of 
D ublic Welfare with a view towards strengthening remedial action- 
idministrative or judicial. 

Where criminal prosecution is either unwarranted or imp ssible, the 
Task Force may refer the facts to specific professional licensing author." e- 
or possible disciplinary action. 

The prospect of eliminating abuse of nursing home patients has been 
enhanced through our liaison with community" groups throughout the state. 
The role of these groups ranges from daily individual contact with rJb 
n nursing homes to a citizen-monitoring of governmental agencies con- 
cerned with the delivery of health care. These canized and ii 
?rour e main concern is the improvement of care for nursing home 

Datients. represents a major potential role for chare; in the ye 

rking in an atmosphere of mutual respect and trust, the -S a 

valuable resource in the rer rt ng t potential incidents 
Z. DISCIPLINARY REFERRALS' 

It has been the p - : the Task Force to refer allec. as f prof es- 
donal misconduct to the app: "..- ?:d:es. Referrals h 

contributed tc sanct ns by the Department of Public Welfare including 
he denial of payment-, decertification measur. le Department of 

Public Health, de-licensing by the Board of Nursing Home Administrators 
and. in one case, a he. ring! - de-licer- ng I the Board of Registral - 
and Discipline in Medicine oi a practicing physician. 

At the present time, the Task Force is preparing the Departme- s 
application to H.E.W. for certification and participation in federally reim- 
ams. The terms of the application bring togethe- 
- . entity two State Agenc - the Dep -ent of the A' 
eral and the Bureau of Welfare Auditing With the corn'r 
these two agencies and federal financial participation, the effort 
Medicaid fraud will spread beyond the nui ne industry and will 

include investigat of all providers within the 

Medicaid system. 

The Employment Security Division woi Its close 
Division of Employment See t prosec ho are delin- 



34 P.D. 12 

quent in paying employment security taxes and employees who file and 
collect on fraudulent claims for unemployment benefits. The vigorous 
prosecutions made by this Division have resulted in the recovery of sub- 
stantial sums of money for the Commonwealth. 

The Division is charged with the duty of pursuing those individuals 
found not complying with the Employment Security Law. During this fiscal 
year the Division waged an energetic and forceful program in handling all 
cases referred to the Division for criminal prosecution. At the same time, 
the Attorney General's office has maintained a policy of giving the erring 
individual, corporation or business entity even.' opportunity to make settle- 
ments out-of-court. Concentrated office conferences were conducted with 
the principals 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 the fiscal year ending June 30. 1977, the Division of Employ- 
ment Security processed the following cases: 

Employer 908 

Emplovee 658 

S.J.C. ' 19 

Board of Review 14 



1599 
Over S236.000 was recovered for the Commonwealth in employee cases 

and over S 1.900.000 in employer cases. 

The cases now existing in which prosecutions may be commenced could 

yield between S950.000 and S 1,200.000 in employee cases and over 

S4. 000. 000 in employer cases. 

III. EXECUTIVE BUREAU 

ELECTIONS DIVISION 

The primary responsibility of the Elections Division is the investigation 
and prosecution of violations of the Commonwealth's election laws. 

The Division is extremely active in the area of enforcing the laws pertain- 
ing to campaign and political finance. (G.L. c. 55.) In fiscal year 1977, the 
Office of Campaign and Political Finance reported 170 candidates or treas- 
urers of political committees who failed to file the required financial dis- 
closure reports. Compliance with the statute was secured in 148 instances 
by administrative action, and in 22 instances by the institution of civil litiga- 
tion. Various city and town clerks reported 37 additional violations, result- 
ing in civil litigation on eight occasions. 

The Elections Division also enforces the statute requiring legislative 
agents and their employers to file financial disclosure statements with the 
Office of the Secretary of State. (G.L. c. 3, §§43, 44, 47). Last year, 44 
violations of this section were reported by the Secretary. As a result of 
administrative action by this Division, reports were filed by all reported 
violators. 

The Division was also involved in litigation questioning the validity of 
state statutes. Of special note, is a case decided by the United States 



P.D. 12 35 

Supreme Court, First Sational Bank v. Bellotti, in which the constitutional- 
ity of the state's restriction on corporate political contribution was in issue. 

In January. 1977, the Massachusetts Supreme Judicial Court issued its 
decision in the case of Eugene McCarthy v. Secretary of State. This case 
invoked important questions regarding the requirements of state law in the 
certification of signatures on nomination petitions by local election officials 
and the process of judicial review thereof. The case of Lowery v. Guzzi also 
involved the certification of nomination signatures by local registrars. Upon 
appeal to the Massachusetts Supreme Judicial Court this case was remanded 
:o Superior Court in light of the McCarthy decision. Challenges to the state 
statutory scheme for gathering signatures on nomination petitions were 
defended successfully before a three-judge panel in the cases of LaRouche v. 
Guzzi and Selson v. Guzzi. In Pace v. Guzzi, the Division successfully de- 
fended a challenge to the election time-table for special elections to the 
State Legislature, and in Town of Ayer v. Guzzi. an attempt to have the 
1975 census set aside on constitutional grounds was thwarted. 

The Division represented the State Ballot Law Commission in proceed- 
_ngs for judicial review of hearings conducted by the Commission in the 
;ases of Huard v. Bromberg and Lowry v. Guzzi. The Division also sat as 
advisory counsel at all administrative hearings conducted by the Com- 
mission. 

Another major area of activity within the Division is the enforcement 
Df the state Open Meeting Law. The Division's chief responsibilities are at 
the state level. However, the Division is currently engaged in a project in 
conjunction with the League of Women Voters to lend momentum to the 
enforcement of this statute by their participation in reporting violations at 
the local level. During fiscal year 1976-1977, 34 reported violations of 
:he Open Meeting Law were settled extra-judicially. Through litigat 
the Division was successful in obtaining compliance with the law by a school 
committee in the cases of Attorney General v. Begins, et al., by a housing 
authority in the case of Attorney General v. I'aselakis. et al. and by a 
Board of Selectmen in the case of Attorney General v. Walker et al. On 
appeal by the Division before the Appeals Court is another case involving 
a school committee. Attorney General v. Andrade et al. 

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 regarding veterans" benefits. The Division also pro- 

2S counsel to the Commissioner of Veterans Sei vices and the Veterans 
Affairs Division of the Department of the Treasury. 

The Division is presently involved in a number of cases pending before 
various State and Federal courts. The most noteworthy of these ca-. 
Feeney v. Dukakis, an appeal from a decision of the Federal District C art 
ruling that the Massachusetts Veterans' Preference laws are one ns 
tional. An important collateral issue decided favorably to the A.G. by the 
Massachusetts Supreme Judicial Court in that case is the authority of the 
Attorney General to prosecute an appeal over the objection of the Gov- 



36 P.D. 12 

ernor and the agency which is represented. Pending in the United States 
District Court are the cases of Reynolds v. Dukakis, challenging the 
exclusion of conscientious objectors from state veterans' benefits, and 
Strong v. Veterans' Commissioner, challenging the three-year residency 
requirement for eligibility to receive state veterans' benefits. White v. 
Northampton Veterans' Agent and Commissioner of Veterans' Services, 
Pelargonio v. Commissioner of Veterans' Services and Savastano v. Civil 
Service Commission are cases assigned to the Division in the state superior 
courts involving the eligibility of individual plaintiffs for state veterans' 
benefits. 

The Division also represented several state and community colleges at 
hearings before the Veterans Administration involving the administration 
of Federal veterans' educational benefits. 

IV. GOVERNMENT BUREAU 

The Government Bureau has four main responsibilities: 

(1) Defense of state agencies; 

(2) Initiation of affirmative litigation on behalf of state agencies; 

(3) Preparation of Opinions of the Attorney General and Opinions con- 
cerning Conflicts of Interest pursuant to G.L. c. 268 A, §10; 

(4) Legal review of all newly enacted municipal by-laws pursuant to 
G.L. c. 40, §32. 

A report on those functions as well as several additional responsibilities 
follows. 

A. DEFENSE OF STATE AGENCIES 

The Government Bureau represented the Commonwealth and its various 
agencies in defensive litigation in both state and federal courts. The law- 
suits typically involved constitutional and administrative law issues in 
diverse areas of public law. 

Government Bureau attorneys maintained an average caseload of from 
50 to 90 defensive lawsuits. 

During fiscal 1976-1977, the Division received 562 new cases. By 
quarters, the breakdown is the following. 

( 1 ) July — September, 1976 117 

(2) October — December, 1976 133 

(3) January — March, 1977 154 

(4) April — June, 1977 158 

By subject matter and client, the FY 1977 caseload was reduced to the 
following numbers (with miscellaneous and nonrecurrent cases omitted). 

Class of Lawsuit Number 

Civil Service Appeals 64 

ABCC Appeals 54 

Welfare Department 51 

provider actions, 31 

recipient actions, 16 

miscellaneous, 4 



P.D. 12 37 

State Employment Disputes 37 

termination, status, benefits 
Judges 31 

sued for alleged abuse of discretion, typically 

in SJC under G.L. c. 211, §3 
Education, State Board 30 

Boards of Professional Registration 

Registry of Motor Vehicles 29 

appeals from license sanctions 
Taxation 25 

Insurance 19 

Department of Public Utilities 18 

Board of Conciliation and Arbitration 15 

Rate Setting Commission 14 

Department of Public Health 10 

Also sued for administrative action or decision during the reporting 
period were the Department of Community Affairs (7) (usually decisions 
of the Housing Appeals Committee approving moderate and low income 
housing developments); the Department of Correction (7); the Depart- 
ment of Public Safety (6); the Department of Mental Health (5); the 
Lottery Commission (5); and the Banking Commissioner (3). 

Attorneys appeared extensively in both state and federal courts and 
logged approximately 35 arguments in the Supreme Judicial Court and 15 
in the Circuit Court of Appeals. 

The time spent representing particular agencies cannot be measured 
exclusively by the number of cases. The representation of certain agencies 
involves a substantial commitment to complex major litigation. For 
example, the Government Bureau defended the rates set for the Boston 
Edison Company by the Department of Public Utilities in the most exten- 
sive litigation ever brought to the Supreme Judicial Court on utility rate 
setting. The case involved twenty rate setting issues and absorbed more 
resources than any other single piece of litigation during the fiscal year. Of 
the eighteen issues which the Attorney General contested, the Supreme 
Judicial Court upheld all but one of its arguments. The Department's over- 
all rates were upheld in their entirety. 

Another major case which began during the fiscal year was the so-called 
Lahey Clinic litigation. In this case, the Lahey Clinic sought to enjoin 
the Government Bureau's client, the Health Facilities Appeals Board, from 
considering whether or not Lahey Clinic's planned construction of a major 
new facility in Burlington, Massachusetts, was in keeping with the certifi- 
cate of need — required for all health related capital expenditures — that 
had been granted Lahey in 1972. The trial court found the HFAB to be 
without jurisdiction, a determination which the Government Bureau has 
since appealed to the Supreme Judicial Court. 

Also during the fiscal year, the Government Bureau successfully negoti- 
ated a settlement in the Argo Merchant Oil spill case. The spill occurred 
in December, 1977. At that time it was feared that hundreds of millions 



38 P.D. 12 

of dollars of damage would result. In fact, Massachusetts has been fortu- 
nate, and only a minor amount of damage was caused. The Government 
Bureau reached a settlement for $20,000. The amount was small, but the 
principle that the state has a stake in such cases and is entitled to compen- 
sation is an important one for the future. 

As in FY 1976, one of the greatest commitments of division resources 
went to negotiation of consent decrees in five cases seeking improvement 
in the conditions and treatment in state institutions for the mentally re- 
tarded. Five lawyers in the Bureau have had responsibility for these cases. 
During FY 1976 interim consent decrees were reached at Fernald, Wren- 
tham and Dever. These agreements call for a substantial increase in the 
personnel providing direct care to the patients. They also outline a con- 
tinuing process of capital improvement that will significantly enhance the 
living conditions of patients at the institutions. In addition, supplemental 
decrees were issued with respect to the Belchertown School and the 
Monson School. 

In addition to the cases cited, the Bureau also committed significant 
amounts of time to (1) upholding the constitutionality of a statute requir- 
ing binding arbitration and collective bargaining concerning police and 
firefighters, (2) engaging in extended litigation, including proceedings in 
the federal bankruptcy court, district court and court of appeals to thwart 
an attempt to utilize the bankruptcy process to override the state's regula- 
tion of liquor licenses in Boston, (3) arguing before the United States 
Supreme Court to uphold a statute which limited the taking of fish in 
Vineyard Sound to Massachusetts residents, (4) arguing before a three- 
judge federal court on behalf of a statute suspending the driver's license 
of anyone arrested for drunkeness who refused to take a breathalyzer test. 

The primary administrative development of the year was the success of 
a new system for liquidating cases. Six-month case inventories, prepared by 
each lawyer, are expected to show a significant number of closed cases. 
The objective is to rid the office — and the commonwealth — of old, 
moot, frivolous, or otherwise terminable cases. During FY 1977, the Divi- 
sion closed out 51 1 cases. The campaign which began in the final quarter 
of FY 1976, accelerated throughout the year. As of the first quarter of 
FY 1978 (July through September of 1977) the rate of case closing had 
for the first time overtaken the rate of new cases. During that time our 
lawyers closed 153 cases as 138 new ones arrived. Our hope for the end 
of the Attorney General's first term is to have drained off old cases, leav- 
ing the offices with the important lawsuits which deserve our attention. 

B. AFFIRMATIVE LITIGATION 

The Government Bureau accelerated its affirmative litigation activities 
during its second year of operation. These activities include suits against 
both the federal government and private parties, particularly in the human 
services area. 

The most significant affirmative case was brought against the federal 
government for $142,000,000 owed to Massachusetts by HEW for social 
service expenditures dating back to 1971. In December, 1976, Government 



P.D. 12 39 

Bureau attorneys made a substantial submission of briefs, affidavits and 
other documents to HEW in support of the commonwealth's position. By 
the spring of 1977 the new federal administration was considering settle- 
ment of the action, to avoid defending against our suit. 

Another important case, also involving federal reimbursement, chal- 
lenged HEW's decision in June to withhold $10,000,000 for Massachu- 
setts' alleged failure to adhere to the utilization review provisions of the 
Medicaid program. The Government Bureau obtained a temporary re- 
straining order in federal court preventing the cutoff. The case, Massachu- 
setts v. Califano, ultimately was mooted out by congressional action, there- 
by saving the state from any loss of reimbursement. 

The case of Massachusetts v. United States addressed the issue of 
whether a federal tax on a state police helicopter violated the principle 
Df intergovernmental tax immunity — the Government Bureau claimed 
me state was exempt from the tax. The First Circuit Court of Appeals held 
against the Commonwealth. In June, 1977, the Supreme Court agreed to 
lear the case. 

Finally, a number of major affirmative cases were successfully brought 
:o completion. American Medical Association v. Mathews and Massachu- 
setts was a challenge by the AMA to the federal regulation which set 
maximum allowable cost limitations on drugs which are reimbursable by 
the federal and state governments under the medicaid program. Massachu- 
setts intervened in order to support HEW's authority to promulgate such 
a regulation. The federal district court sustained the regulatory scheme in 
a thorough opinion which made clear that legitimate government cost- 
saving devices do not interfere with the practice of medicine. 

Massachusetts obtained a preliminary injunction in Trump v. Butz, a 
suit brought by a number of private parties and states against the U.S. 
Department of Agriculture for their $1.2 billion reduction in food stamps. 
The case was then dismissed in April, 1977. when the new administration 
withdrew the challenged regulations. Similarly, the state prevailed in 
Durham and Massachusetts v. Butz, a case contesting the impoundment of 
approximately $650 million of federal funds for states under the supple- 
mental food program for women, infants and children. This case termi- 
nated when the federal government decided during the year not to appeal. 

There was also affirmative litigation in federal court against private 
parties. For example, a complaint was filed against the owners of the Argo 
Merchant, as a result of a major oil spill off the coast of Massachusetts. 
Another case involved a claim against federal savings and loan associations 
in the Massachusetts District Court that they follow state law requiring 
interest be given homeowners on mortgage escrow accounts. 

Significantly, the affirmative litigation division increased its litigation in 
the state courts during the year. The division filed cases in the areas of 
education, community residences for mentally retarded persons, health, 
welfare and children's services. 

In the area of education, a major suit was filed against the city of 
Chicopee, alleging massive and widespread violations of Chapter 766, the 



40 P.D. 12 

state special education statute. The Government Bureau also intervened 
in a suit against the Boston School Committee for violations of c. 766. 
The Attorney General's suit against Springfield involving the issue of 
whether c. 766 violates the anti-aid amendment, moved closer to resolu- 
tion in the Supreme Judicial Court. Other education suits included a case 
brought against the School Committee of Norwood to obtain compliance 
with the statute providing that children are entitled to publicly-supported 
education in the town where they reside and a complaint against the town 
of Swansea for interfering with the fiscal autonomy of the school com- 
mittee reducing its budget. The latter two cases were successfully com- 
pleted during the year. 

One area of particular interest concerned lawsuits assisting the state 
Department of Mental Health to pursue its development of community-based 
facilities. The Department has determined that mentally retarded persons 
will be best served by transfer from state institutions to community resi- 
dences. Government bureau attorneys intervened in a number of Superior 
Court cases to uphold the statutory exemption of community residences 
from local zoning laws, since they serve an "educational use" as defined 
by the state zoning enabling act. In all such cases, the court agreed with 
the Attorney General's position. Bureau attorneys, on behalf of the De- 
partment of Mental Health, also filed amicus curiae briefs on the same 
issue in the Massachusetts Appeals Court. 

The area of health regulation continued to spawn litigation. Suit was 
brought on behalf of the Commonwealth against Revere Hospital, as a 
result of non-compliance with hospital licensure laws and regulations. In 
addition, the Government Bureau filed suits for the Rate Setting Com- 
mission against the New England Medical Center Hospital for violation 
of the new hospital cost control statute. On behalf of the Department of 
Public Welfare, a suit was brought seeking receivership of a nursing home 
to protect patients. Also, suits were filed seeking recovery of over-pay- 
ments to a nursing home operator and for non-compliance with rate 
setting commission regulations. 

Finally, in the area of children's services, four separate cases were suc- 
cessfully brought on behalf of the Office of Children to seek compliance 
with licensing statutes and regulations relating to family day care facilities. 

C. OPINIONS OF THE A TTORNEY GENERA L 

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 in regard to pending legislation. Opinion 
requests range from those affecting a small number of people to issues of 
state-wide significance. In each instance, however, the Attorney General 
is asked to perform a quasi-judicial function and to exercise his independent i 
legal judgment. This process has been strengthened during the past fiscal 
year through an intensified effort to screen out unnecessary or inappropri- 
ate opinion requests. 

During Fiscal Year 1977, the Department of the Attorney General 
rendered 39 Formal Opinions. During this same period, over 100 inapprop- 



P.D. 12 41 

riate requests for opinions were declined. For example, many requests came 
from persons not legally entitled to receive an Opinion from the Attorney 
General. Similarly, a number of requests were hypothetical in nature or 
related to ongoing litigation. 

Of the 39 formal opinions issued during FY 1977, four were issued in 
response to requests emanating from the Legislature. These included a 
request from the President of the State Senate regarding whether the 
Commissioner of Public Welfare was authorized to expend funds or incur 
obligations for the Medicaid Program in excess of the amount appropriated 
by the Legislature. The Attorney General concluded that the Legislature 
is specifically vested with control over state expenditures and that when 
the total appropriated amount has been expended or committed, all 
further expenditures must cease until the Legislature has appropriated addi- 
tional funds. Another request by the Legislature asked whether it was con- 
stitutional to restrict the use of certain lanes on the Southeast Expressway 
to cars with four or more passengers. The Attorney General found that 
restriction to be an appropriate exercise of the Commonwealth's Police 
power. 

Growing interest in the areas of public records and privacy prompted 
two opinions of the Attorney General. In one the Attorney General 
addressed the extent to which a professional board of registration must 
permit public access to personal data contained in their files. The Attorney 
General construed the statutory public records definition to permit access 
to names, educational and professional backgrounds, addresses and regis- 
tration numbers of licensees, but to bar access to age, marital status and 
other similar personal data. In a second opinion the Civil Service Com- 
mission inquired as to the public record status of pending charges and 
evidence. The opinion holds that pending charges are public records unless 
disclosure would constitute an invasion of personal privacy. 

In an area closely related to privacy and public records, the Attorney 
General considered the validity of the University of Massachusetts Board 
of Trustees holding executive sessions for certain specified purposes. Based 
on its interpretation of state law creating the Trustees, the Attorney Gen- 
eral found the action valid notwithstanding the more general provisions of 
the state open meeting law. 

Another important set of Attorney General Opinions addressed election 
problems. One opinion clarified the function of the Director of the Office 
of Campaign and Political Finance; another confirmed that election 
officials must count "sticker" votes with a pre-printed "X" on them and 
sticker votes which have been improperly affixed to the ballot. 

Three opinions were issued in the area of corrections, including one in 
which the Attorney General found that the state Parole Board's jurisdiction 
extends to all prisoners eligible for parole, regardless of the type of sentence 
(e.g., aggregated, weekend, or split sentences) being served. 

Another major category of opinions pertained to the retirement law. Sub- 
jects addressed by the Attorney General in four retirement opinions in- 
cluded mandatory retirement, survivor benefits, and the authority of the 



42 P.D. 12 

Federal Internal Revenue Service to issue a tax levy on a state retirement 
allowance. 

Other significant opinions included one upholding the right of school 
teachers to refuse to lead and participate in the pledge of allegiance; an- 
other defined the scope of the state small business purchasing program; 
and a third defined how municipalities may spend and encumber funds 
granted to them under the Massachusetts Clean Waters Act. 

Finally, one of the most significant aspects of the Opinion Process during 
the past year was the initiation of the Opinion Digest. The Digest, pub- 
lished three times each year, summarizes the highlights of each of the 
opinions issued during the prior four month period. It is sent to state and 
municipal officials as well as to county and university law libraries. 
Conflicts of Interest 

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, 61 formal conflict of interest opinions were issued. 
These opinions evaluated the factual information surrounding the conflict 
statute, G.L. c. 268 A, § 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 frequently written the conflict 
opinions so as to provide general guidance to other similarly situated 
employees. For example, the Attorney General issued several opinions 
regarding the propriety of state employees taking additional positions as 
part-time instructors at state colleges. 

D. BY-LAWS 

The Government Bureau reviews all town by-laws after they are en- 
acted, to determine that they conform to statutory and constitutional 
requirements. Two types of by-laws are reviewed: zoning by-laws, enacted 
by a two-thirds vote; and general by-laws, enacted by a majority vote to 
deal with the general police power of the community or special subjects 
authorized by statute or by the Home Rule Amendment. The Home Rule 
Charter actions of all cities and towns are also reviewed. 

During the fiscal year 1977, 1200 by-law submissions were received. 
Specifically, 548 dealt with zoning. The disapproval rate in total or in 
part ran about four percent. There were two charters and fourteen charter 
amendments and two historic by-laws reviewed. 

Wetlands regulations to meet the U.S. Department of Housing and 
Urban Development requirements to qualify for flood plain insurance 
continued to be numerous. 

There were over twenty-five complete zoning by-law enactments as a 
result of the passage of Chapter 808 of 1975 (New Zoning Act). This 
activity should increase in fiscal 1978. 

Activity continued in two fields of local police power: drinking in 
public places and canine control by-laws. 

Inquiries from the field indicate that there have been a remarkable 
number of town committees formed to re-write various towns' general 
by-laws comoletely in fiscal 1978. 



P.D. 12 43 

E. COUNSELING TO ST A TE AGENCIES 

In addition to the major responsibilities described above the Government 
Bureau also counsels 30 boards of professional registration in the per- 
formance of statutory duties to license, regulate and discipline the members 
of the professions. The average attorney advises two boards on their ad- 
ministrative rulemaking and adjudication and represents them in all court 
proceedings as well. 

This counseling function extends to all state clients needing guidance 
on questions likely to generate litigation. The Bureau is especially avail- 
able to bodies lacking house counsel, and will assist others on serious 
matters when they have exhausted the resources of their own attorneys. 
The objective is to obviate litigation wherever possible and to prevent 
administrative error. In particular, a number of boards of registration have 
adopted the Rules of Adjudicative Procedure drafted by the Government 
Bureau in an effort to improve the hearings process and make them uni- 
form from board to board. 

F. INTERNAL MANAGEMENT 

The Bureau has strengthened and enlarged many of the management sys- 
tems established in 1975. Each attorney receives and maintains a stan- 
dardized Office Manual describing the principles of work assignment, case 
file maintenance, trial book assembly, periodic case loan reporting, law 
and form file systems, and client relationships with state government. The 
Law File system presently numbers approximately 170 briefs, memoranda 
and decisions of recurrent usefulness; the Form file system includes about 
150 model court papers and correspondence formats. 

Currently, the Bureau is installing all its cases and most of its important 
work products in the Department's computer system. 

G. THE CLINICAL PROGRAM 

The Bureau continued its successful relationship with Boston College 
Law School. Fifteen third-year Boston Colleue Law School students par- 
ticipated in the Attorney General's Clinical Program in the Government 
Bureau. The students assisted in all phases of litigation and generated a 
substantial work product, including a number of excellent — and winning 
— briefs. Bureau attorneys served as instructors both in the daily cam- 
paign of particular cases and in formal seminar sessions which taught 
pleading, discovery practice, motion practice, appellate argument, trial 
preparation, negotiation, as well as substantive issues of special importance. 

V. PUBLIC PROTECTION BUREAU 

CIVIL RIGHTS AND LIBERTIES DIVISION 

A. INTRODUCTION 

The Civil Rights and Liberties Division, established by G.L. c. 12, § 1 1 A, 
is one of the five Divisions within the Public Protection Bureau of the 
Department of the Attorney General. The Division operates to protect the 



44 P.D. 12 

civil rights and civil liberties of citizens in the Commonwealth. Specifically, 
the Division initiates affirmative litigation on behalf of citizens, citizen 
groups, agencies and departments of the Commonwealth in matters in- 
volving constitutional 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 legislation, comment on agency regulation and investigate 
complaints of violations of civil rights brought to the attention of the 
Division by citizens of the Commonwealth. Finally, the Division is given 
the authority pursuant to the provisions of G.L. c. 15 IB. §5 to initiate 
complaints before the Massachusetts Commission Against Discrimination 
(MCAD) and to represent that agency before trial and appellate courts 
when judicial review of MCAD decisions is sought. 

The Division is presently staffed by a Chief, four Assistant Attorneys 
General, one of whom directs the Women's Rights Unit and another of 
whom heads a Privacy and Public Records Section, and appropriate sup- 
port personnel, including para-professionals who staff a citizen complaint 
unit. In addition, two Special Assistant Attorneys General are located 
physically within the Division and are available for specific case assign- 
ments in areas consistent with their expertise. One of these Special Assis- 
tant Attorneys General serves as counsel to the Criminal History Systems 
Board. The other serves as counsel to the Security and Privacy Council. 

B. DESCRIPTION OF ACTIVITIES 

Through Fiscal Year 1977, the activities of the Division were catalogued 
according to the nature of the Division's involvement in any one of several 
areas involving the protection of civil rights and civil liberties. 

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 represented a plaintiff or a 
defendant in a legal cause of action before a court or an administrative 
hearing. Non-litigation activities included cases disposed of through pre- 
liminary negotiations, or activities not of a litigation nature, such as the 
drafting of legislation or position papers. Affirmative actions generally 
involved lawsuits or administrative matters initiated by the Division in 
response to perceived patterns and practices of discrimination. Such pat- 
terns were generally found to exist following self-initiated investigations or 
were brought to the Division's attention through citizens" complaints. 

Matters in which staff of the Division were involved, either through 
litigation or non-litigation, occurred in the following areas: 

Equal Educational Opportunities 

Correctional/Youth Services 

Employment Discrimination 

Privacy Matters 

Matters Involving Public Records 

Health Matters 

Discrimination Again Physically Handicapped 



P.D. 12 45 

Age Discrimination 

Problems Involving Migrant Laborers 

Discrimination Against Developmentally Disabled 

Issues Involving Women's Rights 

Housing Discrimination 

A representative description of cases in each of the several areas of 
involvement follows. 

1. EDUCATION 

Department of Education v. New Bedford School Committee. On 
behalf of the Commissioner of the Department of Education, we brought 
an administrative action against the New Bedford School Committee for 
failure to implement M.G.L. c. 71 A, the Transitional Bilingual Education 
Act. The suit's objective was to ensure that even - student within the New 
Bedford School system had access to education in his or her dominant 
language, as required by law. 

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. 

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 establish- 
ment of a unified school system in the City of Boston. 

Commissioner of Education v. Berkshire Hills Regional School Com- 
mittee. We represented the Commissioner of Education in this case 
initiated against the members of the school committee of the Berkshire 
Hills Regional School District and the Commissioner of the Department of 
Welfare to compel the school committee to permit a handicapped foster 
child to attend school in the town of his foster parents. In addition, we 
sought to compel the Department of Public Welfare to seek appropriation 
for the funding of school costs of children placed with foster homes in 
cities other than that of their natural parent. The case was settled after 
the Governor sought a $2.5 million appropriation to fund implementation 
of G.L. c. 76. §7/ 

2. CORRECTIONS/YOUTH SERVICES 

Inmates of the John Connolly Detention Center v. Dukakis. Youths in- 
carcerated at the Department of Youth Services Detention Center in 
Roslindale brought a class action suit against the Department of Youth 
Services alleging that unconstitutional conditions existed at the Detention 
Center. After numerous hearings, at which we represented the state de- 
fendants, 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 administer the detention center. 

3. EMPLOYMENT 

Wheelock College v. Massachusetts Commission Against Discrimination. 
In FY 1977, the Supreme Judicial Court issued a decision in the Wheelock 



46 P.D. 12 

f- egecase rich had alle; . . .inmation in employment based 

do sex The MCAD had found discrimination to have e\:>:ed in hiring and 
promotion practices. The SJC reversed and remanded the Comm. 

d '.- sc doing the SJC set the ^.andard for establish!-^ nina- 

tion in employment, following closely the principles established in 

J Douglas Corporation v. sen, 411 U.S. "92 i 1973 . 

Mas :.:: : ::<Sz::± Commission Agi L L ''.:<:ual 

Insurance Compar.y. In FY 1-"". the Supreme Judicial Court issued a 

dec ^:on in the Liberty Mutual Insurance Company case, a case ale- lg 

discrimination in employment based sex. In : >:on. the SJC 

-ed that the Massachusetts Commissioii Against Discrimination has 
the power to issue 2 >_hpoena duce> :e;_m for the pi ::ion of b 
and records during an investigation and before a finding of probable cause. 
Bournewood H: mmission Against Discrimina- 

tion. In FY 19"". the Supreme Judicial C - ssned a decision in the 
Bournewood Hospital case, a case alleging discrimination in employment 
7-7.: :r. ie.x Ir. ::s decision. :he Supreme Judicii! Crur: reversed the 
on of a Superior Court judge who had set aside an award for emo- 
tional distress, pain and suffering awarded by the MCAD. The Supreme 
Judicial Court held that G.L. c. 15 IB. : 5 emp . \ the Commission to 
rd punitive damages. The Court also held that c. 15 IB, if. does not 
grant the MCAD the rower :c award eounsel fees and affirmed the 
Superior Court ruling denying such fees 

Massachusetts C ion Against Discrimination v. Cambridge Hous- 

' . - In this case, the Division represented a complainant before 

the MCAD in an employment discrimination case. The Division sue. 
r_h;. settled the eoaim for S35.000.00 in back pay. including an award of 
damages for humiliation, pain and suffering on the basis of Bournewood 
Hospital. 

Bradlc and hi these two compla: - 

plaintiffs sought prote. \ status for provisional firefighters hired during 
the pendency of NAACP v. Beecher. We successfully filed motions for 
judgment on the pleadings in each case. 

Be'.'.:::: Attyn and Bacon, Addison-W esley and Houghton Mifflin. 
These are three employment cases alleging that publishing companies dis- 
criminate in their employment practices on the basis of sex and race. After 
recer og right :: sue tetters from the Equal Employment Opportunity 
Commission, the cases ere filed in the United State District Court. Exten- 
discovery is now in progre 

td. v. Hon Mifflin On behalf of the Attorney General. 

e intervened in this case alleging sex-based employment discrimination 

in the publishing industry. The case has proceeded through extensive 

covery and negotiations toward a possible settlement are proceeding. 

Commonwealth thorn Police. Pursuant to its authority under c. 

5, the Division brought a complaint before the Massachusetts 

Commission Against Discrimination alleging that the hiring practices of the 

Police Department discriminated against minorities. After con- 



P.D. 12 47 

siderable negotiation, the city made ar. ble offer for settlement in 

which it agreed to increase substantially its number of minority police 
officers. 

Smith College '.' ichuseus Commission Against Discrimination. 
In FY 197". we repre anted the tchnsetts Commission \gainst 

crimination in an appeal of a Commission Order finding discrimination 
against women in the granting of tenure at the Colli- w appeal to the 
Supreme Judicial Court is pending. 

-. PRIVACY 

Police Commissioner- ■:' Boston v. The Municipal Court of the Dorches- 

:er D:s:rict. The Division is representing the Defend^- hose 

rdei for the expungement of a juveniie record is being challenged 

in the Supreme Judicial Court Theca - argued in reme Judicial 

Court during the fiscal year and a decision is being aw aited. 

Commonwealth v. Credi: Bureau of Sashuc. Inc. The ?n com- 

menced negotiations with the Credit Bureau of Nashua. Inc.. pursuant to 
G.L. c. 93A, tor attempting to crerte its customers into buying back credit 

:r the threat of selling those reports to a computerized age~ 
During the fiscal year, the Division agreed to accept an Assurance of Dis- 
continuance that the Credit Bureau would cease the practice ::mplained 
of. and would refund all monies collected. 

Police Commissione r :~ Quincy v. The District Court *f t ilk. 

This case was initiated in the Supreme Judicial Court for Suffolk C 
in February. 1977, by the Chief of Police of Quincy. The complaint chal- 
lenges the validity of an Order in Quincy District Court for the expunge- 
ment of the records of an adult defendant found not en in a case of 
mistaken ider. 

5. PUBLIC RECORDS 

Addison-Wedey Publishing Company - The plaintiff in this 

case brought a "reverse freedom of information act" suit to prevent the 
federal government from releasing affirmative action plans and standard 
. Dtract review reports to a United States agenc; The n: rrr / - tad 
heer aght substantial- . f sea discrimination in em: 

ment. We intervened and filed ar. Answer. The United States District Crurt 
denied the plaintiffs request for a temporary restraining order. That denial 
appealed i; the United States Court of Appea rid ;-ae:ed the 
Disiric: Court to ci- e a statement :: reason Eoi its dearial i the temp 
restraining order. As a result of the decis - - the United S 
o: Appeals, the Defense Sunn'.;. Acenc;. has releasee e information 
we sought. 

Dennis-Yarmouth Regional School D. - 
case - initiated in January. 19 . as a ~. arse put c rec case in 

ch the Dennis-Yarmouth Regional School Comma tee ed the Da 
Selectmen to prevent the publication of the names arc sa em- 

ployees : the school district in that town's annual report We inter 
as a defendant and counterclaimed undei amended Public Records 



48 P.D. 12 

Law, Chapter 438 of the Acts of 1976. In our counterclaim, we sought 
relief making available to the public the names, salaries, and home ad- 
dresses of such employees. That information had originally been sought 
by one of the Cape newspapers. The Dennis-Yarmouth Teachers Associa- 
tion intervened on the side of the school district. The Cape and Island 
Press Association filed a brief amicus curiae on our behalf. All parties 
stipulated to the facts and moved for judgment on the pleadings. The case 
was argued in Barnstable Superior Court. The Superior Court issued an 
opinion supporting our position that the records sought are public records. 

Attorney General v. School Committee of Northampton. This action 
was commenced on behalf of the Attorney General in the Superior Court 
of Hampshire County. The local newspaper had sought the names and 
addresses of all applicants for the position of Superintendent of Schools 
in Northampton. The School Committee refused to make such list avail- 
able and also refused to print the names of 16 semi-final candidates and 
the minutes of a subcommittee meeting. The newspaper appealed to the 
Supervisor of Public Records. The Supervisor declared the list to be a 
public list and ordered its release. When the School Committee refused, 
the Supervisor asked the Attorney General to initiate this action pursuant 
to the amended G.L. c. 66, § 10(b) and the Open Meeting Law. After 
argument, the Superior Court found a violation of the Open Meeting Law 
and held that the privacy exemption might protect the records of the non- 
semi-finalists. The Defendant has appealed. 

Hastings Sons Publishing Company v. Police Commissioner of Lynn. 
This case involves an appeal from a Superior Court decision which held 
that base salary and overtime paid to police officers are subject to dis- 
closure pursuant to the Public Records Law. We have filed an amicus 
curiae brief in the Appeals Court urging affirmance of the Superior Court 
decision. 

D'Attilio v. President and Fellows of Harvard College. In this case we 
represented the Supervisor of Public Records relative to whether the 
records of the Governor's Special Commission considering the Sacco and 
Vanzetti pardon (the Lowell Commission) are public records. The records 
are presently housed in the Harvard Archives under a promise that they 
not be made public until December 9, 1977. We moved to dismiss the 
complaint on the grounds that the Supervisor of Public Records is not a 
proper party. 

Cunningham v. Housing Inspector of Chelsea. We filed an amicus curiae 
brief in the Appeals Court urging reversal of a Superior Court determina- 
tion that housing inspection reports are not public records. We argued 
that specific statutory provisions make the records public and, even in 
their absence, no exemption to the public records law would exempt hous- 
ing inspection reports from public disclosure. 

6. HEALTH 

Department of Public Health v. Sheriff of Plymouth County. In FY 1977, 
we filed suit on behalf of the Department of Public Health against the 
Sheriff of Plymouth County after the Department's investigation revealed 



P.D. 12 49 

that the Sheriff was violating provisions of G.L. c. 127, §§16 and 17. 
That statute requires county jailers to give complete physical examinations 
to inmates committed for more than 30 days and to keep complete medical 
records. 

7. PHYSICALLY HANDICAPPED 

Architectural Barriers Board v. Selectmen of Burlington. At the request 
of the Architectural Barriers Board, we filed suit against the Town of 
Burlington to enforce state laws prohibiting towns from building sidewalks 
and curbs without "curb cuts" to make them accessible to the physically 
handicapped. 

8. AGE 

Frietchie v. Dukakis. This case concerned a challenge to the procedures 
of the Department of Elder Affairs for implementing a home care 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. 

9. MIGRANT LABOR 

Consolidated Cigar Corporation v. Department of Public Health. This 
case involved a challenge to the validity of the statute and regulations in 
Massachusetts which require growers to permit access to migrant labor 
camps. The Division defended the action and counterclaimed for enforce- 
ment of the statute. The plaintiff admitted violation of the statute and 
regulation with regard to its camps for adolescent workers in the Con- 
necticut River Valley. During the fiscal year, the Division prepared and 
argued the company's appeal from the Superior Court decision favorable 
to the Department. The Supreme Judicial Court upheld the validity of 
the statute and regulations. 

10. DEVELOPMENTALLY DISABLED 

Superintendent of Belchertown State School v. Saikewicz. Defendant in 
this case is a 67 year old retarded resident of a state school for the men- 
tally 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 disease 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 a case in which the Division filed an amicus brief supporting 
the guardian. Another bureau of the Department represented the petition- 
ing superintendent. The Court issued an order sustaining the Division's 



50 P.D. 12 

position and indicating that a full Opinion would follow. The Division filed 
a supplemental brief recommending procedures for the handling of similar 
cases in the future. 

Ricci v. Greenblatt. In conjunction with attorneys from the Govern- 
mental Bureau, we are representing the Department of Mental Health and 
other state Defendants in this suit challenging the conditions of a facility 
and the nature of care provided to mentally retarded residents at the 
Belchertown State School as well as at four other state institutions for 
the mentally retarded. Recent efforts have concentrated on the implemen- 
tation of the Consent Decree entered into in November, 1973, and on the 
continuation of the transition from an institution-based to a community- 
based delivery system. 

11. WOMEN'S RIGHTS 

Secretary of State v. City Clerk of Lowell. The complaint in this case, 
filed in the Supreme Judicial Court for Suffolk County, challenged certain 
practices of all city and town clerks in the recording of names. The case 
concerned the manner in which the clerks interfered with the statutory 
and constitutional responsibilities of state officials with respect to public 
records by refusing to record names of choice. The second cause of action 
concerned the adverse effect of the clerk's action on citizens of the Com- 
monwealth. The parties filed stipulations of fact and the case was reserved 
and reported to the full bench. The case was argued before the Supreme 
Judicial Court during the fiscal year, and is awaiting decision. 

C. REPRESENTATIVE DESCRIPTION OF NON-LITIGATION 
ACTIVITY 

Following an extensive investigation, the Division submitted a report 
and recommendation to the Commissioner of Youth Services, Commis- 
sioner of the Department of Public Welfare, and the Director of the Office 
for Children relating to allegations of mistreatment on the part of the staff 
at Hyde Park House, Inc. The report found that allegations of fact concern- 
ing mistreatment of children were substantiated in certain cases, that the 
benefit of concept-type modality for the treatment of juveniles was ques- 
tionable, and that, in any event, the state agencies did not require sufficient 
recordkeeping and reporting on the part of the provider. The report 
recommended that the Office for Children institute license revocation pro- 
ceedings against Hyde Park House, Inc. In addition, the report recom- 
mended that the state agencies implement recordkeeping procedures for 
monitoring intrusive modality-oriented programs. 

An attorney from this Division helped lead seminars for MDC lifeguards 
from Roxbury and South Boston to assist them in dealing with racial 
incidents which may occur at MDC facilities. 

Through negotiations with representatives of the First National Bank, 
we have reached an agreement in which the bank will no longer process 
letters of credit containing certification that no Israeli materials are being 
shipped pursuant to the letter. 



P.D. 12 51 

As a result of negotiation on the part of a Division attorney, Equifax 
Services, the nation's largest consumer credit reporting agency, has agreed 
to make available to Massachusetts' citizens all information it holds con- 
cerning them. This negotiation followed receipt of several complaints by 
citizens to the effect that they had been denied access to personal informa- 
tion collected by Equifax. 

A Division attorney participated in the development of regulations for 
the proposed women's intensive care unit of the Worcester State Hospital. 
The intensive care unit is a new, experimental program and has the poten- 
tial of being used by persons within the criminal justice system as a con- 
venient place to house women who are categorized as trouble-makers. 

Boston State College Investigation. Attorneys in the Division partici- 
oated in an investigation of allegations that the private security force em- 
ployed by Boston State College engaged in illegal surveillance of students 
and faculty. We recommended dismissal of the private contractor and 
direct employment of a security force. The College accepted our 
recommendation. 

Maternity Leave. Four hundred letters were mailed to the larger em- 
ployers in the Commonwealth regarding maternity leave benefits and 
statutory requirements that notice concerning maternity leave benefits 
must be posted. We are now engaged in an ongoing monitoring of re- 
sponses received from those letters with the possibility that litigation may 
be necessary in the future to achieve full compliance with maternity leave 
regulations. 

Hospital Records. In FY 1977, we received numerous complaints from 
persons alleging that hospitals were charging excessive amounts of money 
for their patients' records in violation of G.L. c. Ill, §70. We have written 
to those hospitals complained against and each of them has agreed to 
:omply with the statute. To date, we have received compliance from over 
30 hospitals. 

Redlining in the Provision of Services. In November, 1974, we began 
negotiations with the General Electric Company to insure provision of 
services to particular areas of Boston by General Electric. Those negotia- 
tions were concluded in November, 1976, with General Electric agreeing 
to provide service to persons purchasing their product, either through 
the use of minority employees they have hired as a result of our negotia- 
tion, or through the use of minority subcontractors. 

Co-Re Realty, Inc. During the month of July, we received several com- 
plaints concerning an advertisement placed in a local newspaper by Co-Re 
Realty, Inc., which noted that, in the areas served by Co-Re (Burlington, 
Melrose, Medford, etc.) there was "No Busing Here". We advised Co-Re 
that such advertisement appeared to be in violation of the housing laws. 
We have received a reply from Co-Re advising us that they will no longer 
use the challenged phrase in their advertisement. 

Hyde Park Blockbusting. In April of 1977, we received several com- 
plaints from citizens and from citizen groups that realtors in the Hyde Park 
area of Boston were engaging in blockbusting and steering tactics in the 



52 P.D. 12 

sale of real estate. Following an investigation, we notified seven realtors 
of our findings that they were engaging in unpermitted conduct, and 
requested that such conduct be discontinued. As a result, all such actions 
have ceased. 

CONSUMER PROTECTION DIVISION 

A. INTRODUCTION 

The activities of the Consumer Protection Division continue to increase. 
The combined efforts and coordination of the attorneys, investigators, 
utilities and complaint sections, enable us to approach with expertise 
problems of a consumer oriented nature occurring throughout the state. 
All resources are utilized in an attempt to better educate both the con- 
sumer and businessman of their rights in the marketplace. 

B. REGULATIONS 

All regulations promulgated by our office are drafted with the assistance 
of advisory committees appointed by the Attorney General whose members 
are made up of professionals with expertise in the area of drafting con- 
sumer regulations. 
Automobile 

All sections of the automobile regulations are now in effect and for the 
first time provide firm rules governing all aspects of the automobile indus- 
try. On two separate occasions, the Massachusetts Automobile Dealer's 
Association challenged these regulations in an attempt to stay their imple- 
mentation, and each time they were unsuccessful. 

Since automobile problems make up the largest single category of con- 
sumer complaints received we have drafted a layman's version of these 
regulations to assist the consumers of the Commonwealth in all aspects 
of automobile sales, service, and manufacturer's responsibilities. 
Advertising 

Public hearings were held in Springfield and Boston on the 5th draft 
of the Retail Advertising Regulations and the final version will be com- 
pleted in September. These regulations which we hope will become effec- 
tive sometime in October, would govern all aspects of commercial sales 
promotions excluding automobiles (which are exclusively covered in the 
Motor Vehicle Regulations). 
Debt Collection 

The third draft of the debt collection regulations has been completed. 
Public hearings are expected to be held in mid-winter, 1978. 
Nursing Home 

The nursing home regulations were promulgated on November 1 1, 1975. 
We continue to monitor all aspects of these regulations for compliance in 
all nursing homes throughout the Commonwealth. 

C. INVESTIGATIONS 

We have been involved in many investigations during the last twelve 
months. In August of 1976, we began our in-depth survey of the funeral 
industry which involved contacting over 950 funeral establishments in 



P.D. 12 53 

Massachusetts. This survey was undertaken in an attempt to better under- 
stand the funeral industry in Massachusetts and provide invaluable infor- 
mation to consumers. After collecting data from these funeral homes cover- 
ing all aspects of their operating procedures, a report was issued in March 
with the Attorney General's recommendations which, if put into effect, 
would give the consumer more options in planning funerals. 

Our investigators are also continuing a multi-level investigation of the 
automobile industry checking for compliance with our recently promul- 
gated motor vehicle regulations, monitoring advertising and checking for 
odometer violations. This investigation requires an on-the-spot visit to 
every new and usd car dealer in the state. Questionnaires are filled out and 
the information is then reviewed by an attorney who forwards a warning 
letter to any dealer determined to be in violation of the law. If proper 
actions to correct the situation are not undertaken, lawsuits are initiated. 

D. ECONOMIC CRIME PROGRAM 

In the latter part of 1976, we developed an economic crime program in 
connection with the Attorney General's Criminal Bureau. The program 
consists of four parts: 

(1) Establishment of an informational network; (2) Public 
Education; (3) Litigation; and (4) Legislative Reform. 

All police chiefs and district attorneys in the state were invited to a 
meeting at which the Attorney General announced that this program would 
become operational on January 1, 1977. He asked each police department 
to name a liaison to work with us. Of the 351 cities and towns throughout 
the Commonwealth, 95% to date have designated an economic crime 
liaison to work directly with our office. 

Two Consumer Fraud Conferences were held in April, one in Holyoke 
and the other in Framingham, at which representatives from various police 
departments throughout the state attended. These conferences included 
sessions on both civil and criminal approaches to economic crime. 

The core of the economic crime program, however, is criminal prosecu- 
tion of offenders. We have successfully indicted seven (7) Springfield area 
automobile dealers of which three (3) were convicted of larceny in con- 
nection with odometer spinning. In addition, we have indicted one ( 1 ) 
individual in regard to the illegal promotion of business opportunity 
schemes. 

E. CONSUMER EDUCATION 

As part of Attorney General Bellotti's effort against white-collar crime, 
a public awareness program has been developed in conjunction with 
Boston University's Ad Lab. It consists of public service announcements 
on radio, television, and in public transit vehicles warning consumers of 
common pitfalls they may encounter at the marketplace. Pamphlets entitled 
"If It Sounds Too Good To Be True, It Probably Isn't", have been dis- 
tributed to every police department and local consumer group throughout 
the Commonwealth. 



54 



P.D. 12 



F. COMPLAINT SECTION 

The number of consumer complaints continued to increase this year. 
During FY 1977, 12,846 consumer complaints were received and recorded 
in the Complaint Section of the Consumer Protection Division, and 11,201 
were closed. The number of new complaints received this year constituted 
a 10% increase over last year. In addition, approximately 3,500 consumer 
complaints were referred to various state agencies and the local consumer 
groups. 

As a result of the combined efforts of the many college students, law 
students, and elderly persons working in our Complaint Section, we have 
recovered $407,893.00 in refunds, savings, and value of goods or services 
received by consumers. 

G. LOCAL CONSUMER GROUPS 

The 30 local consumer groups in the state have continued to work in 
conjunction with our office accepting referrals as well as referring to us 
unlawful business practices for review and possible legal action. 

These groups meet each month with us in Boston. These meetings 
afford them the opportunity to exchange ideas and gather additional infor- 
mation about current consumer issues. 

Attorney General Francis X. Bellotti filed legislation in 1977 which 
established a fund to provide financial assistance to local consumer groups 
throughout the state. An Advisory Committee will be named in August to 
assist the Attorney General in preparing appropriate guidelines. 

H. LITIGATION 

All legal actions are categorized by subject, name of defendant, current 
status and jurisdiction. Note: all cases were entered or heard in superior 
court, unless otherwise designated. 



I. ADVERTISING 

Stephen Guarino, d/b/a 

Kitchen Delight 

Hyannis Hi-Fi, d/b/a 

Nantucket Sound 

Arkay Electronics Corp. 

Artistic Typing Hdqtrs. 

A & W Electronics 

B & G Industries 

Bromfield Camera, Inc. 

Mansfield Mattress Co. d/b/a 

Comfort Corner 

Cuomo's Audio 

Pickwick International Corp. 

d/b/a Discount Records 

Eclipse Sleep Proucts 

Ed's Radio 

Graham Radio, Inc. 

Lane's Furniture 



In Litigation 



Suffolk 



Assurance of Discontinuance 


Barnstable 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Norfolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


On Appeal 


Suffolk 



P.D. 12 



55 



Lesnow Manufacturing Corp. 

and Hercules Trouser Co. 

Universal Marketing Corp. 

d/b/a U.S. Marketing Associates 

Jordan Marsh Co. 

I.M.B.C. Inc. d/b/a 

Puppy Center 

Juno Inc. d/b/a Siesta Sleep 

Shop 

Supreme Furniture d/b/a 

Summerfield's Furniture 

Todd's World of Furniture 

Richard Boisvert 

YDI Electronics Corp. d/b/a You 

Do it Electronics Hobby Center 

Building #19 

New England Photo 

Anderson's Furniture 

Massachusetts Camera Centers 

National Business Association 

Directory 

Sound II 

People's Furniture 

Joseph Parks and Perfect Nails 

a/k/a Figurenails Unlimited 

Jack's Radio and TV 

Smith's Division of Wolfe 

and Smith 

Leonard B. Paul and Leslie 

Paul d/b/a Town & Country 

Edwards Wayside Furniture 



Assurance of Discontinuance Suffolk 



In Litigation 


Norfolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Hampden 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Hampden 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Essex 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Suffolk 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Middlesex 


In Litigation 


Suffolk 


Consent Judgment 


Essex 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Hampden 


In Litigation 


Hampden 



I. APPLIANCE REPAIRS 

Paul Johnson, d/b/a Factory 
Heating Service 

Ralph Rigione d/b/a AACME 
Power Vac Service 
Paul E. Petit, d/b/a TV 
and Radio Center 
Audiosonics, Inc. 
Kingsley Bristol d/b/a 
King Appliance Service 
Timothy J. Rich, Jane Rich, 
and Air Temp Engineering 
Corp. 



In Litigation 

Consent Judgment 

In Litigation 

Assurance of Discontinuance 

Consent Judgment 
In Litigation 



Middlesex 

Suffolk 

Bristol 
Middlesex 

Suffolk 

Middlesex 



[II. AUTOMOBILES 

Autobarn Ltd. 

Anthony Famalette, d/b/a 

Westport Autorama 

Imported Cars of 

Cape Cod Inc. 

Milton Motors, Inc., d/b/a 

Milton's Auto Sales 

Toyota of Falmouth 

Volkswagen of America, Inc. 



In Receivership Worcester 

Consent Judgment Bristol 

Assurance of Discontinuance Suffolk 

In Litigation Hampden 

Assurance of Discontinuance Barnstable 

In Litigation Middlesex 



56 



P.D. 12 



. d/b/a E. 

d/b/a ACE Motors 
Reuben Enterprises. Inc. 
a/b/a Ban'< Auto Center 

Stoughton 
..... 
Bor Bn . Inc. 

Chale: M Sale 

3orlen, d/b/a 
Sale 

. rd, Inc. 
DazeO Volvo 
Kevin De ik Inc. 
DeS 

rp. 
Brothers 

Big Beacon Chevrolet 
Massachusetts Automobile 

-ociation 
George CTHara 

rolet/Cadillac 
iac 

Pool . UK 

sil, 
M .- . 

ogtonS . tuc. 
Taunton Sales 
English Che vrt . 

Ford 
Harry Silverman. Inc. 



In Litigation 


Norfolk 


In Litigation 


Middlesex 


sent Judgment 


Worcester 


In Litigation 


N rfolk 


- '-.--.. 


Suffolk 


Discontinuance 


Norfolk 


-^nce of Discontinuance 


Suffolk 


sent Judgment 


.die sex 


Assurance of Discontinuance 


Suffolk 


ranee of Discontinuance 


Suffolk 


In Litigation 


Bristol 


In Litigation 


Suffolk 


ent Judgment 


Middlesex 


Assurance of Discontinuance 


Suffolk 


In L:::g„:ion 


SJ.C. 


-ance of Discontinuance 


Suffolk 


In Litigation 


Essex 


In Litigation 


Suffolk 


In Litigation 


Middlesex 


Assurance of Discontinuance 


Suffolk 


ent Judgment 


Suffolk 


In Litigation 


Suffolk 


Assurance of Discontinuance 


Suffolk 



IV. BASKIXG ASD CREDIT 

Allied Bond and 
Co'.r. - '- . -ency 
Chr- sler Creii: C . rp 
Daniel Gaeta 
Y_r. R.; C:e_ 

erprise Co-op Bank 
I - e - Me .-lints Bank 
sselman 



In Litigation 


U.S.D.C. 


Consent Judgment 


Suffolk 


Consent Judgment 


Suffolk 


In Litigation 


Suffolk 


In Litigation 


Suffolk 


In Litigation 


Suffolk 


Consent Judgment 


Middlesex 



V. BASKRLPTCY 

Dante E Gregorie 
Guys i Gals 
Hamilton's Furniture 
R. B. Diggins 

HiH Furniture 

Coloni ~ient 

Co., et alii. Consolidated 

Debtors 



In Litigation 

Settlement 

Settlement 

Settlement 

In Receivership 

Ir. Litigation 



Bankruptcy 
Bankruptcy 
Bankruptcy 
Bankruptcy 
Middlesex 

Bankruptcy 



P.D. 12 



57 



VI. FOOD & ASTl-TRL'ST ACTIVITIES 



Datamarine International. 
Inc. 

First National Stores, Inc. 
The Great Atlantic and 
Pacific Tea Co.. Inc. 
Yankee Milk 
Bulk Meat Co., d/b/a 
Hohoke Packing Co., Inc. 
Chala Foods. Inc. et al 
Atlantic Richfield Co. 
Julius Wilensky. d/b/a 
Orleans Coal & Oil Co. 



Consent Judgment Barnstable 
Assurance of Discontinuance Middlesex 

Consent Judgment Barnstable 

In Litigation Suffolk 

In Litigation Hampden 

Consent Judgment Middlesex 

In Litigation Suffolk 

Consent Judement '■' s: z~t\ 



VII. HEALTH AXD MEDICAL 

-u ranee of Discontinuance 



Phillip G. Gallagher. M.D. 

Blue Cross of Massachusetts 

and Blue Shield of 

Massachusetts 

Medical Home Care Ser . 

and Maurice Glennon 



In Litigation 
Consent Judgment 



Suffolk 

Suffolk 
Hampden 



VIII. HEALTH SPAS 

Diversified Health Industries 

d/b/a Roman Health Spa In Litigation 

International Health Spa In Litigation 

Mystic Health Club 

of Dedham In Litigation 



Norfolk 
SJ.C. 



IX. HEARLXG AIDS 



Dee &. Mahoney. d/b/a 
Hearing Aid Service 


In Litigation 


Harr.rde 


Louis F. Cercone. d/b/a 
Hearing Dynamics of 
New England 


In Litigation 


Norfolk 


Beltone of Boston 


Consent Judgment 


Suffolk 



X. HOME IMPROVEMEXTS 

Palandro. et al In Litigation 

Frank DePasquale. 

Individually and as he is 

d/b/a Hub Contracting Co. In Litigation 

Paul Sheridan, d/b/a 

Sherry Decorators In Litigation 

Charles R. Stott and 

Michael Ward, d/b/a 

Town & Country" Roofing. 

Waltham Roofing Service. 

Be..con Hill Roofing and 

Skylight Sen. ice In Litigation 

John W. Jones, d/b/a 

Servall Constructing Co. In Litigation 

Thomas O'Connor, d/b/a 

O'Connor Bros. In Litigation 

Supreme Remodeling In Litigation 



sing Court 
Suffolk 



Midj 
N rfolk 



58 



P.D. 12 



XI. LANDLORD-TENANT 

Donald E. Anchutz, d/b/a 
Golden Eagle Apartments 
Henry M. Barry 
Chawa Tash 

Alfred L. Gladstone, d/b/a 
Ridgewood Realty 
Gray Rental Properties 
Peter Minicucci 
Variety International 
Publications, Inc. 
Bluebird Realty Trust 
General Investment & 
Development Co., d/b/a 
Windsor Meadows 
Henry M. Barry, Individually 
and as he is Trustee of Main 
Realty Trust, Exchange 
Realty Trust, Mane Realty 
Trust, and Prospect 
Realty Trust 



Assurance of Discontinuance Suffolk 

Consent Judgment Plymouth 

Assurance of Discontinuance Suffolk 

In Litigation Middlesex 

Assurance of Discontinuance Suffolk 

In Litigation Essex 



In Litigation 
Consent Judgment 



Hampden 
Norfolk 



Assurance of Discontinuance Suffolk 



Assurance of Discontinuance Suffolk 



XII. MOBILE HOMES 

Bluebird Acres Mobile 
Home Park, Inc. and 
Liberty Park Equipment 
and Sales Co., Inc. 
Anthony Graffeo, et al, 
d/b/a Starlite Trailer 
Park 



Consent Judgment 
Dismissed 



Hampden 
Middlesex 



XIII. REAL ESTATE 

Skyline Manors In Litigation 

Louraine E. Souther and 

Furmer H. Souther, d/b/a 

Brookside Acres 

Development Co. and 

Crest Realty Co. In Litigation 

Business Achievement 

Corporation In Litigation 

William Hartwick, Indiv. 

and as he is a partner in 

HOMES BY DESIGN In Litigation 

William Walo and 

Richard Levine, d/b/a 

HOMES BY DESIGN In Litigation 

Alan Zucker, d/b/a 

Alan Realty In Litigation 

Northeast Land 

Limited Partnership In Litigation 

Alfred Gladstone, Indiv. 

and as Trustee of 

Ridgewood Realty Trust 

and Michael F. Iodice, Sr. In Litigation 

Natale J. Sergi, Nancy 

J. Sergi, Nat Sergi 

Enterprises, Inc., and 

Liberty Hill Management 



Hampden 

Essex 

Middlesex 

Suffolk 

Middlesex 

Norfolk 

Hampshire 

Middlesex 



P.D. 12 



59 



Corporation 
Goldstein and Gurwitz 
Bird, Inc. 



Consent Judgment 
Consent Judgment 
In Litigation 



XIV. GENERAL SALES PRACTICES 



Isaac Cohen, d/b/a 
C & C Oil Company 
Diversified Products 
Kaufman Carpet Co., Inc. 
Apartment Showcase, Inc. 
King's Row Fireplace 
Shop 

Paul Sheridan, d/b/a 
Sherry Decorators 
Paul Clare 
Roche Insurance 

XV. TRAVEL 

Associated Travel Services 
of Newton, Inc. 
Quality Travel Corp. 
of America 
International Leisure 



Consent Judgment 
In Litigation 
In Litigation 
In Litigation 



Essex 

Suffolk 

Middlesex 



Suffolk 
Middlesex 
Suffolk 
Middlesex 



Assurance of Discontinuance Suffolk 



In Litigation 
Consent Judgment 
In Litigation 



Suffolk 

Plymouth 

Suffolk 



Assurance of Discontinuance Suffolk 
In Litigation Norfolk 



Service, Irwin Berman 


In Litigation 




Suffolk 




Sea and Sky Tours, 


Inc. 


In Litigation 




Norfolk 


XVI. UTILITY CASES 












Company 


D.P.U. i 


Date 
Filed 


Amount 
Requested 


Date 
Decided 


Amount 
Granted 


% of 
Amount 
Requested 


Boston Edison Co. 


18515 


11/17/75 


$54,000,000 


8/12/76 


$10,900,000 


20.2% 


Commonwealth Gas Co. 


18545 


11/14/75 


11,342,000 


9/28/76 


7,637,000 


67.3 


Cape Cod Gas Co. 


18571 


12/17/75 


2,631,000 


10/29/76 







Lowell Gas Co. 


18572 


12/17/75 


4,157,000 


10/29/76 







Mass. Electric Co. 


18599 


1/16/76 


21,090,000 


11/30/76 


15,372,000 


72.9 


Boston Gas Co. 


18631 


2/13/76 


15,000,000 


3/18/76 







Western Mass. 
Electric Co. 


18731 


5/18/76 


20,310,000 


4/8/77 


16,757.000 


82.5 


New England Power 
Co. 


(F.P.C.) 
ER-76-304 
ER-76-317 
ER-76-498 


11/ 76 


40,000,000 


6/30/77 


22,000,000 


55.0 


N. Attleboro Gas Co. 


18928 


12/1/76 


92.000 


4/11/77 


59,000 


64.0 


New England Power 
Co. 


(F.P.C.) 
ER-77-97 
ER-77-75 


12/6/76 






Pending 




Granby Telephone Co. 


19055 


1/2/77 


48,000 


8/5/77 


48,000 


100.0 


Cape Cod Gas Co. 


19036 
19036A 


1/11/77 


4,007,000 
2,900,000 


8/1/77 


1,332,000 



33.2 


Lowell Gas Co. 


19037 
19037A 


1/11/77 


6,417,000 
5,446,000 


8/1/77 


2,684,000 



41.8 


Fitchburg Gas & 
Electric Co. 


19084 


2/14/77 


3,633,000 


8/31/77 


1,614,000 


44.4 


Montaup Electric 


(F.P.C.) 


5/1/77 


1,600,000 


Discovery Stage 




Nantucket Electric Co. 


19192 


5/17/77 


463,000 


B 


riefing Stage 




Fall River Gas Co. 


19237 


6/16/77 


1,201,000 


B 


riefing Stage 





XVII INSURANCE CASES 

Fair Plan — Homeowner's Insurance 

Attorney General Bellotti intervened and tried case in February of 1977. Brief filed 
February 18, 1977. Commissioner rejected Fair Plan's reported rate increase in its 
entirety in March, 1977. 



60 P.D. 12 



Health Insurance — Blue Cross & Blue Shield Rate Cases 

(a) Attorney General Bellotti intervened and tried a Blue Cross/Blue Shield non- 
group quarterly rate case in February, 1977. Brief filed February 25, 1977. Com- 
missioner rejected Blue Cross/Blue Shield's requested rate increases in their en- 
tirety in March, 1977. 

(b) Attorney General Bellotti intervened and tried a Blue Cross/Shield Medex I, II 
and III rate case in Febaiary, 1977. Brief filed March 1, 1977. Commissioner 
rejected rate increase in its entirety in March, 1977. 

Automobile Insurance 

(a) Attorney General Bellotti intervened in eight (8) of the twenty-two (22) individ- 
ual companies' rate filings 1 1/15/76 for 1977 rates. All eight (8) filed downward 
revisions without a hearing. 

(b) Attorney General Bellotti intervened in the "small companies" filing on 11/15/ 
76 which covered ninety-five (95) insurers. All ninety-five (95) filed downward 
revisions during the hearings in December, 1976. 

(c) Attorney General Bellotti intervened and tried and briefed the so-called "ade- 
quacy of competition" case in May, 1977 under G.L. c. 175E, §5. As a result of 
winning this case, auto insurance will be fixed and established in 1978. 

(d) Attorney General Bellotti intervened in the rule making proceeding in May and 
June, 1977 concerning the operation of the Massachusetts Motor Vehicle Rein- 
surance Facility. Attorney General Bellotti filed two (2) briefs. The facility's 
operations were amended as a result of this case. 

ENVIRONMENTAL PROTECTION DIVISION 

I. INTRODUCTION 

Responsibilities 

The Environmental Protection Division of the Department of the 
Attorney General was established by statute, M.G.L. c. 12, § 1 ID. This 
same statute also authorizes the Attorney General to take affirmative action 
to prevent or remedy damage to the environment. 

The Secretary of the Executive Office of Environmental Affairs and two 
of the Departments under her jurisdiction, the Department of Environ- 
mental Quality Engineering and the Department of Environmental Man- 
agement, generate the majority of the enforcement cases and defenses 
handled by this Division. We also represent the Department of Fisheries, 
Wildlife and Recreational Vehicles. Pursuant to M.G.L. c. 12, §11D, the 
Division is authorized to initiate cases on behalf of the Attorney General 
in many areas of environmental concern. 

Massachusetts has a long-standing and well-established structure of 
environmental legislation covering, inter alia, air and water pollution, 
coastal and inland wetlands protection, solid waste disposal regulation and 
outdoor advertising control. In addition to enforcing these laws, the Divi- 
sion is also the legal representative of the Energy Facilities Siting Council, 
which regulates the siting and construction of electrical generation facilities, 
oil pipelines, and facilities associated with oil refining and production. 

The Commonwealth's commitment to the protection of the environment 
is reinforced by the Massachusetts Environmental Policy Act (MEPA) 
and by Article 97 of the Amendments to the Massachusetts Constitution, 
the "Environmental Bill of Rights." 

In a normal enforcement action on behalf of a client agency the Division 
seeks injunctive relief for compliance with a particular environmental 



P.D. 12 61 

statute or regulation, and the award of a civil penalty for any past 
violation. Certain environmental statutes provide for criminal sanc- 
tions. In addition to the conventional legal responsibilities handled by 
the Division, EPD attorneys act as hearing officers, presiding over adjudi- 
catory hearings held pursuant to the procedures of the Department of 
Evironmental Quality Engineering with regard to wetlands matters. 
Special Funding 

The Division is also the recipient of and responsible for funds received 
under two separate federal grants. In recognition of the 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 approved grants to the Division of eighty thousand dollars 
($80,000) in FY76 and one hundred twenty-eight thousand dollars 
($128,000) in FY77. These monies have been used primarily for legal 
and support personnel. 
Staff 

At the close of the fiscal year the Division was staffed by a Chief, seven 
Assistant Attorneys General, an Administrative Assistant, a Natural 
Resource Economist, a Wetlands Specialist, and five legal secretaries. 

II. DESCRIPTION OF CATEGORIES OF CASES HANDLED BY 
THE ENVIRONMENTAL PROTECTION DIVISION 

A. AIR 

Air pollution cases are referred from the Department of Environ- 
mental Quality Engineering, for violations of the State Air Pollution 
Control Regulations. The statutory authority is M.G.L. c. Ill, 
§§142 A-E. 

B. WATER 

Water pollution cases are referred from the Division of Water 
Pollution Control, a semi-autonomous division of the Department of 
Environmental Quality Engineering. These cases generally involve 
violations of water discharge permits, which are issued jointly by the 
Division and the United States Environmental Protection Agency. 
Other water pollution cases involve those seeking to recover costs 
expended during oil-spill cleanup operations. The statutory authority 
is M.G.L. c. 21, §§26-53. 

C. WETLANDS 

Wetland cases are generally referred from the Department of 
Environmental Management, Restriction Division; the Department 
of Environmental Quality Engineering, Wetlands Division; and by 
citizen complaints. In addition, some cases are generated by investi- 
gations conducted by the Division itself. These cases fall into two 
categories: 

( 1 ) cases involving the permit program for altering of wetlands 
under M.G.L. c. 131, §40, (wetland enforcement cases) and 



62 P.D. 12 

(2) cases challenging the development restrictions which the 
state is authorized to impose on inland and coastal wetlands 
pursuant to M.G.L. c. 130, §105 and c. 131,, §40A. (wetland 
defense cases). 

D. SOLID WASTE 

Solid Waste cases are referred from the Department of Environ- 
mental Quality Engineering. These cases involve the manner in 
which refuse is disposed of and the enforcement of the State's 
sanitary landfill regulations. The statutory authority is M.G.L. 
c. Ill, §150A. 

E. BILLBOARD 

Billboard cases are referred from the Outdoor Advertising Board: 
These cases are governed by M.G.L. c. 93, §§29-33 and M.G.L. c. 
93D, §§1-7 which regulate and restrict outdoor advertising and 
authorize a permit program. A majority of these cases are defenses 
of Petitions for Judicial Review which seek to have decisions of the 
Outdoor Advertising Board reversed. 

F. NON-CATEGORICAL 

A number of matters are handled by this Division each year which 
do not fall into the categories listed above. They include legal 
advice, unusual cases for the agencies as plaintiffs, cases in which 
the division represents an agency as defendant (ex. judicial review, 
declaratory judgment, mandamus) and those initiated or pursued by 
the Attorney General in areas of broad environmental policy, in- 
cluding such areas as nuclear power plant siting and construction 
amicus curiae briefs to the Supreme Court, NEPA (National En- 
vironmental Policy Act) and MEPA (Massachusetts Environmental 
Policy Act) cases, administrative interventions, and energy policy. 

III. DISPOSITION OF CASES AT THE END OF FY77 

A. During the fiscal year 1977 the Environmental Protection Division 
opened the following number of cases in each of the listed categories: 



CATEGORY OF 
CASE 


NUMBER 
OPENED IN EAC 


AIR 




26 


WATER 




40 


WETLAND 






Enforcement 




8 


Defense 




17 


Adj. Hearings 
SOLID WASTE 




8 

27 


BILLBOARD 




49 


NON-CATEGORICAL 


TOTAL NUMBER 
OF CASES OPENED 


41 




DURING FY77 


216 



P.D. 12 63 

B. During the fiscal year 1977 the Environmental Protection Division 
closed the following number of cases in each of the listed categories. 

TOTAL 
CATEGORY OF NUMBER OF CASES 

CASE CLOSED IN EACH CATEGORY 

AIR 23 

WATER 22 

WETLANDS 

Enforcement 4 

Defense 2 

Adj. Hearings 2 

SOLID WASTE 14 

BILLBOARDS 7 

NON-CATEGORICAL 4 

TOTAL NUMBER 

OF CASES CLOSED 

DURING FY77 78 

C. At the close of the fiscal year 1977 the Environmental Protection 
Division had the following number of cases remaining active in each 
of the listed categories: 

TOTAL NUMBER OF 



CATEGORY OF 


CASES PE 


CASE 


IN EACH CA 


AIR 




29 


WATER 




68 


WETLANDS 






Enforcement 




31 


Defense 




88 


Adj. Hearings 




12 


SOLID WASTE 




44 


BILLBOARDS 




91 


NON-CATEGORICAL 


TOTAL NUMBER 


35 




OF CASES REMAINING 




ACTIVE AT THE 






CLOSE OF FY77 


398 



IV. IMPORTANT CASES HANDLED DURING FY77 
A. AIR CASES 

DEPARTMENT OF ENVIRONMENTAL QUALITY 
ENGINEERING vs. UNION PETROLEUM CORPORATION 

The defendant was in violation of M.G.L. c. Ill, §142 (Massachu- 
setts Clean Air Act), the Regulations for the Control of Air Pollu- 
tion in the Metropolitan Boston Air Pollution Control District and 



64 P.D. 12 

a Department of Public Health Order for their illegal operation of 
an industrial oil terminal facility in Revere. Massachusetts. Follow- 
ing the filing of a complaint, the parties executed an Agreement for 
Judgment which provided in part that the defendant would comply 
th the Massachusetts Clean Air Acr. would pay civil penalty in 
the amount of twelve thousand dollars (S 12.000) for past viola- 
tions, and would submit to a liquidated damages clause that calls 
for a fine of one thousand dollars (S 1.000) for each day of non- 
compliance with the terms of the judgment. This was the first 
pen. acted for air pollu: 

DEPARTMENT OF ENVIRONMENTAL QUALITY 
ENGINEERING vs. HOLLISTON SAND AND GRAYEL 
( Suffolk Sopei - No. L863S 

This case was brought by the Department to seek enforcement of 
the Massachusetts Clean Air Act. G.L. c. 111. §142A et seq., and 
endant regulations. The defendant owned a rock crushing 
and sand manufacturing operation and did not properly control the 
fugitive dust emissions. On the eve of the hearing on the Depart- 
ment's motion for a preliminary injunction seeking to shut down 
the compan "ition. the company agreed to install the neces- 

sary air pollution control equipment and to pay $15,000 for creat- 
ing a public nuisance. 

B. WATER 

DIYISION OF WATER POLLUTION CONTROL 
vs. RE\T£RE. CITY OF 

The defendant was in violation of M.G.L. c. 21 2 -53 Massa- 
chusetts Clean V . :t) and of a water-discharge permit which 
was jointly issued by the Environmental Protection Agency and 
the Division of Water Pollution Control. The suit sought to enforce 
the permit and to prevent sewage from being introduced into the 
storm drainage system. An agreement was reached and a Consent 
Judgment was filed. The Consent Judgment provides for the com- 
pletion of the necessary engineering work, an escrow account of 
; 5 .000. which will be administered by this Division, and a liqui- 
dated damages clause of SI. 000 for each day of violation of any 
term in the Judgment. 

DIYISION OF WATER POLLUTION CONTROL 

vs. WORCESTER SPINNING AND FINISHING COMPANY 

The defendant was in violation of M.G.L. c. 21. § §26-53 (Massa- 
chusetts Clean Water Act) for discharging processing wastes into 
the Kettle Brook in Worcester. An adjudicator}" hearing was held 
on this matter and a final decision was rendered. The defendant 
failed to comply with the terms of this decision. The Division then 
filed a suit seeking to have a preliminary injunction issued against 
the defendant, and asking for a civil penalty. An agreement was 



P.D. 12 65 

worked out with the company and a Consent Judgment entered 
into. The Consent Judgment provided for the construction of 
an approved water pollution control facility, a civil penalty in the 
amount of S8.000 and a liquidated damages clause for violation of 
the judgment. This was the first civil penalty recovered against a 
violator of the Massachusetts Clean Waters Act. 

DIVISION OF WATER POLLUTION CONTROL v. TOWN OF 
DIGFTTON 

This action was brought because of the town's failure to comply 
with the Massachusetts Clean Waters Act. G.L. c. 21, §§26 ei seq., 
and a water discharge permit that was issued jointly by the Massa- 
chusetts Division of Water Pollution Control and the United States 
Environmental Protection Agency to the town. The Massachusetts 
Superior Court granted the Commonwealth's motion for a summary 
judgment, ordering the town to comply with the statute and tc 
a civil penalty of S35.000.00 for violating the permit. This is die 
first case in which a civil penalty was awarded against a municipality 
under the Massachusetts Clean Waters Ac:. 

DIVISION OF WATER POLLUTION CONTROL v. C. RAY 
RANDALL MANUFACTURING. INC. 

This action was brought against a metal plating company for its 
failure to comply with the Massachusetts Clean Waters Act and the 
pollution abatement schedule set forth in its jointly-issued v 
discharge permit. The Division moved for and was granted a pre- 
liminary injunction ordering compliance by July 1. 19""". This is the 
first such injunction under the Massachusetts Clean Waters Act 
Since that time the company has agreed to pay a $25,000 civil 
penalty. 

UNITED STATES OF AMERICA v. CITY OF LYNN AND 
COMMONWEALTH OF MASSACHUSETTS 

On June 16. 19". the Environmental Protection Agenc ~-;ught 
an action against the City of Lynn for failure to comply 
Federal Water Pollution Control Act 42 U.S.C |§1251 ct seq. The 
Commonwealth of Massachuset) as ned as a party. R- 
than defend the city, which had violated this jointly issued water 
discharge permit, the Commonwealth brought a cross clairr 
the City of Lynn under the Massachusetts Clean Waters Act After 
discovery, the Commonwealth prevailed on its motion for sunrr 
judgment and the City of Lynn agreed to a judgment which provided 
a schedule for the completion of construction of its 
ment facility and payment of a SI 0.000 civil penalty for its past 
violations of the Massachusetts Clean Waters Act and its discharge 
permit. The federal government's claim is still pending. 



66 P.D. 12 



DIVISION OF WATER POLLUTION CONTROL, et al v. 
ADVANCED COATINGS COMPANY 

This action was commenced as the result of complaints from 
the residents of Lawrence and Lowell that the public water supply 
reeked of an obnoxious odor. Investigation by personnel from the 
Department of Environmental Quality Engineering revealed that 
the source of the odors was the Advance Coatings Company of 
Westminster, Massachusetts. Apparently a number of barrels in 
which the company stored wastes from its manufacturing process 
had burst. The wastes, consisting of a varied mixture of largely 
unknown chemical components, discharged into drains at the perim- 
eter of the company's property, and into a nearby pond. The wastes 
then flowed into the Nashua River and thence to the Merrimack 
River. The Merrimack River is the source of the public water supply 
for the cities of Lawrence, Lowell and Methuen. 

The Superior Court granted a temporary restraining order en- 
joining the company from producing additional wastes until the 
chemical make-up of the wastes had been determined. A consent 
judgment was later entered requiring the company to store all of the 
barrels containing waste in an enclosed room. The consent judgment 
also required the company to hire an engineer in order to determine 
whether the soils surrounding the plant were contaminated with 
wastes, and to undertake any remedial actions necessary to elimi- 
nate the further discharge of those wastes. 



C. WETLAND CASES 

DEPARTMENT OF ENVIRONMENTAL QUALITY 
ENGINEERING v. FARRAR & CARTY, INC. 

The defendant was in violation of M.G.L. c. 131 §40 (Wetlands 
Protection Act), M.G.L. c. Ill, §150A (Solid Waste Disposal Act) 
and M.G.L. c. 21, §§26-53 (Massachusetts Clean Water Act). The 
defendant was operating a landfill site which resulted in the filling 
in of a wetland in the flood plain of the Charles River. Because of 
its close proximity to the Charles River, it posed a serious threat to 
the river's water quality. A settlement was reached with the defen- 
dant which provided for the removal of the materials dumped on 
certain portions of the landfill site and for a civil penalty in the 
amount of $1,000. This was the first such civil penalty recovered. 

DEPARTMENT OF ENVIRONMENTAL QUALITY 
ENGINEERING v. GAGNE 

In this case the Commonwealth had obtained an agreement for a 
preliminary injunction pursuant to the Massachusetts Wetlands 
Protection Act, G.L. c. 131, §40 which enjoined the defendant 



P.D. 12 



67 



from the further dumping of gravel on the site. The defendant 
argued that he was merely improving an existing dike. Although 
the plaintiff's petition was only for civil contempt, the Court found 
the defendant guilty of criminal contempt and fined him $10,000.00. 
The Court also awarded the Commonwealth a civil contempt penalty 
of $3,138.00, which included attorney fees for the contempt hear- 
ing. The defendant has appealed. 

D. BILLBOARDS 

JOHN DONNELLY v. OUTDOOR ADVERTISING BOARD 
AND TOWN OF BURLINGTON 

In the first of the post "Brookline" decisions, the Massachusetts 
Appeals Court held in November of 1976 that recent free-speech 
cases out of the U.S. Supreme Court do not change the SJC's result 
in Brookline; balancing the right to communicate against the interest 
in regulating billboards, a community can prohibit off-premise out- 
door advertising. 

TOWN OF MILLBURY v. OUTDOOR ADVERTISING BOARD 

In this case, we persuaded the Outdoor Advertising Board to 
reverse its position while the case was on appeal, and it worked out 
well. The SJC ruled in January of 1977 that a "non-conforming 
use" provision in local zoning by-laws which did not unambiguously 
include billboards would be read to exclude them. The decision 
rested on the interpretation of G.L. c. 40A, §5 and judicial glosses 
on the word "structure". 



E. CIVIL PENALTIES 

Civil penalties were awarded or agreed to in the following cases: 



Case 


Type 


Penalty 


Date Entered 


DWPC v. Dante 


Water 


$25,000 


3/1/77 


DWPC v. Hilsinger 


Water 


$10,000 


5/2/77 


DWPC v. Microfab 


Water 


$ 6,000 


8/22/77 


DEQE v. Gagne 


Wetlands 


$13,138 


6/3/77 


DWPC v. Dighton 


Water 


$35,000 


6/27/77 


DWPC v. Garelich 


Water 


$ 3,000 


1/19/77 


DEQE v. Rapid 
Processing 


Air 


$ 5,100 


4/27/77 


DWPC v. Simonds 
Cutting Tools 


Water 


$15,000 


7/20/77 



68 



P.D. 12 



Case 


Type 


Penalty 


Date Entered 


DEQE v. Union 
Petroleum 


Air 


SI 


2,000 


11/19/76 


Brown v. Farrar 
and Cany 


Wetlands. 
Water. 
Solid Waste 


s 


1,000 


4/30/76 


DEQE v. Ferrous 
Technology. Inc. 


Air 


s 


5,000 


7/1/77 


McMahon v. Stevens 
Paper. Inc. 


Water 


$ 


1.000 


1/25/77 


DEQE v. Gassett 


Air 


s 


750 


6/30/77 


McMahon v. Foster 
Metal Products 


Water 


$ 


250 


3/20/77 


DWPC v. F. B. Silver 
Company 


Water 


s 


5.000 


4/11/77 


DWPC v. Leach Garner 
Company 


Water 


S 


500 


2/23/77 


DEQE v. Holliston 

Sand Company 


Air 


$15,000 


7/1/77 



F. NON-CATEGORICAL CASES 

FEDERAL AVIATION ADMINISTRATION SUIT 

The Attorney General has joined in an action along with Illinois 
and New York seeking to have the Federal Aviation Administration 
impose limits on jet noise at airports. 

The suit attempts to compel the Federal Aviation Administration 
to promulgate regulations that would: 

f 1 ) curtail noise from older model airplanes: 

(2) control aircraft in the vicinity of the airports to maintain 
minimum flight altitudes; 

(3) establish operating procedures for aircraft on arrivals and 
departures at airports. 

The promulgation of these new regulations would serve to protect 
the public health. 

FLUOROCARBON PETITIONS 

The Attorney General has joined in three petitions seeking to have 
aerosol sprays containing ozone-destroying fluorocarbon compounds 
banned as hazardous products. The first petition was filed in July of 1976 
with the Consumer Product Safety Commission; the second and third peti- 
tions in October 1976 with the Food and Drug Administration and the 
Environmental Protection Agency. 



P.D. 12 69 

Scientific evidence has indicated that the continued use c: :zed 

products containing fluorocarbon compounds as propellants will cause a 
substantially greater incident of skin cancer. The fluorocarbon propellants 
that are released into the atmosphere deplete the earth's pre:. . i zone 
layer and allow cancer-producing ultraviolet rays to reach the . - sur- 

face. These ozone-depleting propellants can be found in a verj 
of aerosol products, including hair sprays, deodorants, air fresheners, 
pesticides, oven cleaners and furniture polish. 

The National Academy of Science originally estimated that there would 
be approximately a l^c decrease in the ozone layer. However, re.. - 
evidence now indicates that the harm to the ozone layer will be 
great as previously estimated, at least 13^ to 16^ decrea>es. This doub- 
ling of the predicted ozone loss in turn doubles the estimated increase in 
skin cancer due to ultra-violet radiation which will no longer be blc - ■ 2d 
by the earth's protective ozone shield. 1: is e-::mated that a 15*7 loss of 
ozone would cause between 90.000 and 300.000 additional cases of - c 
cancer per year in the United States alone. 

LIQUEFIED NATURAL GAS STATEMENT 

The Attorney General submitted a written statement to the Federal 
Energy Administration in October of 19 "6 regarding federal policy on 
Liquefied Natural Gas. The statemerr. .: out the safe:;, problems 

associated with the importation, si rage and transfer of Liquer.ec Natural 
Gas. 

The statement recommended that a ... iucted of 

the safety questions associated with Liquef.ea Natural Gas facilities and 
their operating procedures. 

The most important recommendation in the statement concerns the 
need for uniform standards. We have urged the FEA to >e: up uniform 
siting criteria for LNG facilit es sucl criteria Focusing on public 

safety. 

The statement does not question the importance of LNG :... 
merely the propriety of their location. 

PETITION FOR RULE-MAKING FOR THE OUTER CONTINENTAL 
SHELF 

The Division prepared a petition to the Department of Interior requeu- 
ing that it promulgate the necessary rules and regulations in 
guard the environment during offshore drilling operations 
continental shelf. We are urging the adoption of rules '.1 ensure 

that the development of the oil resources of Georges Banks :> carried out 
in a manner consistent with the economic ar.a s I terests of the C 

monwealth and its citizens. 

The petition seeks to ensure the well- x a : the environmer" 
our industries which are dependent upon the existence 
sound and aesthetically appealing shoreline without interferine : ally 

with exploration and drilling operations. 



70 P.D. 12 

SEABROOK NUCLEAR POWER PLANT PROCEEDINGS 

In :he past year, the "Seabrook Case'* has been before five administra- 
tive tribunals and the L\S. Court of Appeals for the First Circuit. It can 
fairly be described as the most controversial — and procedurally confus- 
ing — nuclear power case in the country. 

In July 19~6. the Atomic Safety & Licensing Board of the NRC 

gran:. . -uction permits after almost two years of evidentiary hearings, 

in which the A.G. represented the Commonwealth as an "interested 

state." Inter alia, the Licensing Board ruled that the project was acceptable 

if it employed once-through cooling (i.e., if it received an exemption from 

EPA regular: at that, if cooling towers were required, the costs 

the benefits and the permits would not issue. Along with 

thei . mors, we appealed to the Atomic Licensing Appeals 

it about the same time, moved for a stay of the permits pend- 

ienied and the denial appealed to the Court of 

Appeals for :he First Circuit 

While these matters -.ere rending, the Regional Administrator of the 
U.S. Environmental Protection Agency, exercising his authority under the 
:e^e:.:". Water Pollution Control Act. rejected the company's application 
for an exemption from the clo~. cooling regulations. In our opinion 

this triggered the ••condition" in the NRC license and the permits should 
. been automatically revoked, or, in the alternative, suspended to 
. at meeting the issues by presenting the regulators with a fait accompli. 
""The NRC staff, predictablj enough, didn't see it that way. We argued 
the point in the First Circu ch wrote a memorandum accepting our 

formulation of the and dire. . NRC to rule on the matter 

finally by February 18, 1977 or hs ourt rule on 

Or. January 21. 1977, the Appeals Board issued a 113-page opinion 
suspend:' -.. -eabrook permits on the grounds of identified obvious 

deficiencies in the Licensing Board record and decision, combined with 
the uncertain: - ioned by the EPA decision. The full commission 
liscretionary (and rarely used) authority 7 to review that deci- 
sion. Oral argume place in Washington, D.C. on Februa- 

GENERIC RULE-MAKING PROCEEDING PENDING BEFORE 
NUCLEAR REGULATION COMMISSION 

The i full participant in the ongoing rule-making 

preceedings on the . . e of mixed-oxide ("uranium /?/«5plutoniumj 

fuel in power reactors. The A.G.. working with the New York AG.. 
through the Environmental Committee of NAAG, helped to educate a 
number of states to the importance of this proceeding. As a result 
Minr : consin and other states, have joined the pro- 

ceed ii - are working York, Wisconsin and 

e e-il natior. al en nmental groups in analyzing the massive record and 

Plutonium is the raw material of nuclear weapons. The wide-scale use 
of plutonium in fuel would take us into a r i -ation of nuclear 

technolor c ng economic and social costs which are hotlv debated. 



p.D. 12 -; 

CONNECTICUT RIVER FTSHWAYS CASE 

This D::s: :r. re i the £ tncies erf aE the 

anc Vermont in hearir.- . the Frier.: ~ 

. . ~ rar. . : 
at its dam a: 

•--. - m ^ . . . . require :he ;: —par : 
comr : sets of facili: e b -SI and 1983 An additional agreement 

has been reached with regard Vernon Dam, which is further 

r- er. This is a major rr. rz>gram : 

salmon, shad and other anadrc r to the C rnnectic n - 

BOSTON EDISON PILGRIM GENERATE 3 5~7 \T1 . v - UNIT zl 

to 1976, the before the \tomk Safe and 

Licensing Board of the U.S Nuclear Rego - Commission continued- 
The Commonwealth, as an inti ~ered 10 

Ft ?pics. including inter alia, the risk of 
theft anu sabotage he neec and the 

xxmomics of nuclear powc . : ■ . . 

the adec. ssurance 

qainst rr. 
- - ■ . . r.rar « : -r ; : NRC 

evaluation of the earthquaV al of the Pflgrrrr 



n Opir. 



72 P.D. 12 

Number 1. July 8, 1976 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

You have requested my opinion on a series of questions dealing with 
what you describe as '"the long-standing practice of requiring candidates 
for nomination at a state primary to enroll in the party whose nomination 
is sought at least twenty-eight days before the deadline for filing nomina- 
tion papers." Specifically, you have asked me: 

"1. If a candidate requests a certificate of enrollment in a polit- 
ical party in the manner prescribed by Chapter 53 of the General 
Laws, Section 48, on or before the last day prescribed by that 
section for filing nomination papers, are the registrars required 
to issue a certificate of enrollment from one party to another less 
than one year prior thereto and if the candidate: 

(a) if not registered, has filed an affidavit of registration indicat- 
ing his wish to enroll in that political party? 

(b) if registered, but unenrolled, has filed a certificate or written 
request seeking to establish his enrollment in that political 
party? 

(c) has voted in a primary of that political party? 

(d) if enrolled in another political party has filed a certificate or 
written request to change his enrollment to that political 
party? 

2. Does enrollment in a political party or any change or cancel- 
lation of enrollment take effect immediately upon the filing of an 
affidavit of registration or written request for a change or can- 
cellation of enrollment or on voting in a primary election except 
during a period beginning at ten o'clock in the evening of the 
twenty-eighth day prior to a state or presidential primary or the 
twentieth day prior to a special state primary or city or town 
primary and ending with the day of such primary?" 

In the material accompanying your request you informed me that "in 
the past the position of the Elections Division (of the Department of the 
State Secretary ) has been that candidates for nomination in a state primary 
must be enrolled members of the party whose nomination they seek, and 
must be enrolled at least 28 days before the deadline date for filing nomi- 
nation papers." Essentially, you ask me whether or not this position should 
be reversed. I conclude that it should not be. The apparent statutory bases 
for this practice are the provisions of General Laws, Chapter 53, Sections 



P.D. 12 73 

38 1 and 48 L> . I find these statutes ambiguous but believe that the long- 
standing and consistent administrative interpretation of these laws by your 
office and by municipal registrars and clerks is entitled to great weight. 
Rockland Mutual Insurance Co. v. Commissioner of Insurance, 360 Mass. 
667 (1971); Collector of Taxes of Boston v. Cigarette Service Co., 525 
Mass. 162 (1950). Both of the statutes under consideration have been 
extensively amended during the existence of this administrative practice. 
See, e.g., St. 1974, c. 79; St. 1971, c. 920. but none of these amendments 
has effectively altered the provision of law governing the practice. Under 
these circumstances, it may be said that the General Court has acquiesced 
in the long-standing interpretation of the laws. Sa.xbe v. Bustos, 419 U.S. 
65 (1974). While it has been stated that '"legislative silence is a poor 
beacon to follow in discerning statutory meaning . . . because it often 
betokens unawareness.'" Zuber v. Allan 396 U.S. 168 (1969). even 
legislator was at one time a candidate who by necessity complied with 
General Laws. Chapter 53. Section 48. Thus, it would fly in the face of 
reason to attribute legislative silence in this case to unawareness. It is. 
therefore, my opinion that the twenty-eight day requirement has become 
firmly engrafted upon existing law and that it should be reversed only by 
the General Court itself. 

Based on the foregoing analysis and assuming that your question relates 
to the specifically enumerated officers in Section 48 I answer your ques- 
tions as follows: 3 

1. (a) Yes. if the affidavit is filed at least twenty-eight days prior to 
the last day for filing nomination papers. 



iChapter 53. Section 38 of the General Laws provides in part: 

No voter enrolled under this section or section thirty-seven shall be allowed to receive the ballot of 
any political party except that with which he is so enrolled: but, except as otherwise provided by 
said section thirty-seven, a voter may. except within a period beginning at ten o'clock in the evening 
of the twenty-eighth day prior to a state or presidential primary or the twentieth day prior to a 
special state primary or city or town primary and ending with the day of such primary, establish, 
change or cancel his enrolment by forwarding to the board of registrars of voters a certificate signed 
by such voter under the pains and penalties of perjury, requesting to have his enrolment established 
with a party, changed to another party, or cancelled, or by appearing in person before a member of 
said board and requesting in writing that his enrolment be so established, changed or cancelled. 
The processing of an absentee ballot to be used at a primary shall also be deemed to establish the 
enrolment of a voter in a political party, effective as of the date of said processing. Except as 
otherwise provided in section twelve of chapter four, such enrolment, change or cancellation shall 
take effect at the expiration of twenty-eight days for a state and presidential primary or twenty days 
for a special state primary or city or town primary following the receipt by said board of such certifi- 
cate, or such appearance, as the case may be. No voter enrolled as a member of one political party 
shall be allowed to receive the ballot of any other political party, upon a claim by him of erroneous 
enrolment, except upon a certificate of such error from the registrars, which shall be presented to the 
presiding officer of the primary and shall be attached to. and considered a part of the voting list and 
returned and preserved therewith: but the political party enrolment of a voter shall not preclude 
him from receiving at a city or town primary the ballot of any municipal party, though in no one 
primary shall he receive more than one party* ballot. 

-Chapter 53. Section 48. of the General Laws, provides in part: 

There shall not be printed on the ballot at the state primary- the name of any person as a candidate 
for nomination for any office to be filled by all the voters of the commonwealth, or for councillor, 
senator, representative to the general court, representative in congress, district attorney, clerk of 
court, register of probate and insolvency, register of deeds, county commissioner, sheriff, or county 
treasurer, unless a certificate from the registrars of voters of the city or town wherein such person 
is a registered voter that he is enrolled as a member of the political party whose nomination he 
seeks is filed with the state secre:ar> on or before the last day herein provided for filing nomination 
papers. Said registrars shall issue such a certificate, signed by a majority thereof, forthwith upon 
request of any such candidate so enrolled or of his authorized representative. No such certificate shall 
be issued to any person who is a candidate for nomination for any such office, if such person has 
changed his party enrolment less than one year prior to the last day for filing nomination papers 
w ith the state secretary as provided by this section. 

">I have further assumed that your questions concern regular, as opposed to special, state primaries. 
As to special primaries, a twenty day waiting period would apply. M.G.L., c. 53 



74 P.D. 12 

(b) Yes, if the certificate or written request is filed at least twenty-eight 
days prior to the last day for filing nomination papers. 

(c) Yes, in accordance with the provisions of General Laws, Chapter 
53, Sections 37 and 37A. 

(d) Yes, if the certificate or written request is filed at least one year 
and twenty-eight days prior to the last day for filing nomination papers. 

Your second request poses the already answered questions in general 
terms. I answer it merely by reiterating my opinion that the pre-existing 
administrative practice is controlling. Finally, I note that although your 
letter concerned itself with the party enrollment of candidates, similar 
problems arise as to individual voters. I mean to express no view as to the 
effective date of a voter's party enrollment and have before me no indica- 
tion of prior administrative practice. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 2. July 21, 1976 

Vahan Vartanian 

Major General, Mass ARND 

The Adjutant General 

905 Commonwealth Avenue 

Boston, Massachusetts 02215 

Dear Major General Vartanian: 

You have requested my opinion on several questions concerning the 
protection against liability of military medical personnel in the Massachu- 
setts National Guard when they provide medical services or treatment 
while serving on either mandatory annual field service training duty (G.L. 
z. 33, §60), or the required shorter training drills held throughout the 
year (G.L. c. 33, §61 ). Specifically you ask: 

1. In the case of Massachusetts National Guard medical person- 
nel treating other military members of the Massachusetts 
National Guard, does there exist any right by the treated military 
person to maintain an action for alleged medical malpractice 
against the Massachusetts military medical personnel. 

2. In the event that your answer is in the affirmative, does the 
Massachusetts military medical personnel have any protection 
under Massachusetts laws and the right to a defense by the 
Office of the Attorney General. 

3. In the case of Massachusetts National Guard medical person- 
nel treating military members of the National Guard who are not 
members of the Massachusetts National Guard (i.e., 43rd 
Brigade, Connecticut National Guard and 1-26 Cavalrv. Rhode 



P.D. 12 75 

Island National Guard) and members of active U.S. Forces, does 
that non-Massachusetts military member of the National Guard 
or member of active U.S. Forces have the right to maintain an 
action for alleged medical malpractice against the Massachusetts 
military medical personnel. 

4. In the event that your answer is in the affirmative, does the 
Massachusetts National Guard medical personnel have any legal 
defense under Massachusetts laws and the right to a defense by 
the Office of the Attorney General. 

5. In the case of Massachusetts National Guard military 
medical personnel providing medical service or treatment to 
civilians, either Massachusetts residents or non-Massachusetts 
residents on either emergency or routine basis, does the civilian 
in any case have a right to maintain an alleged malpractice 
action against the Massachusetts military medical personnel and 
does the Massachusetts military medical personnel have any 
defense under Massachusetts laws and the right to a defense by 
the Office of the Attorney General. 

I will respond to your questions first by considering the liability of the 
Guard's military medical personnel to each of the three classes of persons 
you mention in questions 1, 2 and 5. I will then discuss the issue of legal 
representation of the military medical personnel by the Attorney General. 

1. It is my opinion that a military member of the Massachusetts Na- 
tional Guard does not have a right to maintain an action against a fellow 
member of the Guard for injuries resulting from medical treatment or 
services rendered by the latter during the Guard's mandatory training 
periods. A well-established principle of military law provides that a 
soldier in the armed forces is not liable to another soldier for acts of 
negligence performed in the line of duty. £".,!?. Feres v. United States, 340 
U.SM35, 141-42 (1950); Hass for the use of United States v. United 
States, 518 F. 2d 1138, 1143 (4th Cir. 1975); Mattos v. United States, 
412 F. 2d 793. 794 (9th Cir. 1969) ; Roach v. Shields, 371 F. Supp. 1392. 
1393 (E. D. Pa. 1974); contra, Mazurek v. Skaar, 60 Wis. 2d 420. 210 
N.W. 2d 691, 694 (1973). 1 This rule has been applied specifically to acts 
of alleged negligent medical malpractice. See, e.g., Bailey v. Van Buskirk, 
345 F.^2d 298 (9th Cir. 1965). cert, denied, 383 U.S. 948 ( 1966) ; Bailey 
v. DeQuevedo, 375 F. 2d 72, 73-74 (3rd Cir.), cert, denied, 389 U.S. 
923 (1967); Roach v. Shields, supra. 



iThe protection afforded by this rule appears to apply only to negligent acts performed in the line 
or course of duty. See Roach v. Shields, supra. Wilful, wanton or malicious acts of a military officer 
are not within the scope of the rule, and the officer could be sued by a fellow member of the force for 
injuries arising from such acts. See, f.?.. Crozman v. Callat>han. 135 F. Supp. 466 (W. D. OkJa. 1955): 
Wilkes v. Dinsmore. 7 How. 89. 130 (1849). See also, Gildea v. Ellershaw, 363 Mass. 800, 824 (1973) 
( immunity for non-judicial public officers' negligent actions within their discretionary powers, but not 
for acts of misfeasance or those made in bad faith); but see Gamadge v. Peal. 217 F. Supp. 384. 390 
(N.D. Cal. 1962). 



76 P.D. 12 

There are no Massachusetts decisions that have specifically considered 
or adopted this rule. However, in light of the rule's widespread acceptance, 
Feres, supra at 141 : Bailey v. I an Buskirk, supra at 298, - I believe it likely 
that our courts would find it applicable to an action for alleged malpractice 
brought by one Massachusetts guardsman against another for acts per- 
formed in the course or line of duty. The Supreme Judicial Court's 
apparent approval of a related immunity rule for servicemen in Neu v. 
McCarthy, 309 Mass. 1". 22-23 ( 1941 > (soldier's obedience to a military 
order may justify conduct otherwise giving rise to civil or criminal liability 
unless order is "palpably unlawful"), leads me to conclude that it would 
similarly adopt the principle under discussion here, for the rationale 
underlying both rules is similar: the necessity of an effective discipline 
m in the armed forces in order to maintain a strong military force. 
Just as discipline would be undermined if servicemen could question the 
propriety of their superiors" orders, so would it be if servicemen could 
litigate among themselves over performance of their military duties. See 
Bailey v. Van Buskirk, supra at 298: Bailey v. DeQuevedo, supra at 73-74. 

The only remaining question is whether medical personnel of the Na- 
tional Guard are acting in the "line"" or "course"" of duty while providing 
medical treatment and services during their statutorily required training 
programs. I have concluded that they are so acting. 

The military" duties and responsibilities of the Massachusetts National 
Guard are set forth in Chapter 33 of the General Laws. See G.L. c. 33. 
-47, 57-61. The regular annual service training program and the unit 
training drills required by § ;60 and 61. respectively, are explicitly defined 
as part of these duties. See, e.g., § j57, 59, 61 and 83. Furthermore, as you 
indicate in your letter, the conduct of the medical personnel in the Na- 
tional Guard during these periods is governed entirely by the provisions 
of military law set forth in Chapter 33. including those concerned with 
disciplinary measures and military courts. Under such a system, I believe 
it is clear that members of the National Guard's medical personnel are 
acting in the line or course of duty while performing authorized" medical 
services during their training service. Under the general rule discussed 
above, they are not liable to their fellow Guard members for negligent 
acts committed within the scope of their authority which might in other 
circumstances constitute actionable medical malpractice. 

Independent of this common law rule. 4 Chapter 33 contains a specific 

-While the Supreme Court of Wisconsin declined to follow the rule of "serviceman immunity" in a 
case between two national guardsmen. Mazurek v. Skaar, supra, it seems to be the only court to have 
done so. 
31 use the word "authorized" to distinguish the situation in which a particular medical officer per- 
forms a medical service during his training duty that is outside the scope of any orders he received. 
.-. a case. I do not believe that the officer could derive protection from liability under the gen- 
eral rule described above. See Ela v. Smith. 5 Gray 121. 141 H857) Cmembers of militia would be 
liable to civilian plaintiff for personal injuries he sustained if they acted outside of specific order of 
- :n acting to quell riotj. 
♦A second common rule may also be applicable to National Guardsmen serving on their training duty: 
the doctrine under which public officers are granted immunity from liability for negligence result- 
ing from decisions and actions made and taken wthin the scope of their duties, in good faith and with- 
out malice. See. e.%.. Somers v. Osterhel;. »56) < superintendent of state hospital 
as public official not liable for omission to perform his statutory duties in caring for a patient under 
his charge): see also Gildea v. Ellershaw, supra. 363 Mass. at 820-22. However, since this rule as 
L to "public officers" does not appear to afford immunity from liability that is as broad as that 
provided the Guardsmen_by G.L. c. 33. 553 (discussed immediately below in the text;, I do not 
-esolve the difficult threshold question of whether the rule does in fact apply to members 
of the National Guard. 



P.D. 12 77 

immunity provision tha: is applicable to militar personnel in the 

National Guard. Section 53 of that chapter pi 

No officer or enlisted person shall be liable for any damag. 
property or injury to any person, including death result: - s 
from, caused by him or by his order, while perforrr s 
military duty lawfully ordered under any provision of 
chapter, unless the act or order causing such damage or ir 

manifestly beyond the scope of the author: f such 
or enlisted person. 
Under this section, a member of the military medical personnel in the 
National Guard would be protected against a claim of damages for in 
resulting from his provision of medical sei - . - as long "ions 

are met: ( 1 > the medical officer's performance of : 

"military duty lawfully ordered:"' and ( 2 » the act or order resulting in 
injury was not "man:. I the scope" of his authority. Fc: 

reasons I gave above in discussing the phrase "in the line or coi 
duty" in the context of Char:.- 33, - my opinion tha: . medical 
services and treatment performed by National Guard medical personnel 
during their mandator) training sess ns qualify as "military duty" within 
the meaning 53 Whether or not the second conditio- - satisfied 

obviously depends the particular facts and circumstar ice eac 
As a general ma::. . . seems i sar that this statute aid serve 

to protect the military medica' pers one om liability for acts of a'. 

negligent malpractice they might commit - ning 

dutv under G.L. c 33, ~j60 oi 4 Idstein i 281 N.Y. 

396. 24 N.E. 2c 97, I I Skaar, supra at 6 C . : - 

(1973 . 

2. For essentially the same re n my an* . 

question. I am of the : :at neither military membe 

states* National Guar.- of the I S 

armed forces may main: acl ns .._ nsl military personnel in 
Massachusetts National Guard for allege . - k ^1 malpractice 

again provided that the . . the scope ' the mi. 

officer's duties, and were performed in good faith and in the . . irse of a 
required training session. 

No cases between soldiers in different armed forces have been found 
in which a court considered or discussed the principle sei . :men 



SThe '. das - " 

$3 was enacted in 1939. It provide . v - 

criminal Hafa injui •.-- -- 

ge sections -_----..- 

. . . — the as - - - 12. St. 1939 

51. In 1943. the Legislature broac. -.--;- 

C ■ ~ . - - nc . . ■ criinin 

. performing "any mi!i:.. nda ay ps - o 

time '. . 2 - 

i 

from the 1943 version of the sec n. Sin 51 follow closely the piovisions 

i noted snot ".eft an injured member . M ■ ^".ional 

as and enlisted N n anen 

.-.■': of medical treat- 
mer: :"rom a fel!.- sections 



r8 P.D. 12 

Tirm:- inscribed above. In my ju^ r . - the reasons for 

_ ? ng such a ra e are the -_me as in the case i - ere 

soldier claims damages from a member of the sarr.; . . and it seems 
::.i: i co.r _ . of this rule, the 

nmunity provisions of G.L. c _ : - : :3 protect the Guardsmen against 
ability for injury erson — including r. 

_ : S im Bar _h respect to the liability :: National Guard mil: 

a] pc fs o nn d ::vilians for injuries resulting from the former's pro- 
- of medical service :ha: G.L . 33 53 affords the 

ledical personnel immuniry from suit if the wo conditions of the 
ed above - - are met 

- Fina tun your _— as re yarding the right of National 

. ■ . - . . rney Gen- 

medical malprac: . 
as actually encompasses two sub- 
mt of representation afforded officers 
General in actions 
■ malpractice actions) arising out of 
in: 1 ia! extent are members 

i the National Guard considered "officers"' or "employees" of the Com- 
lonwealth for purposes of - -tion by the - General. Resolu- 

ion of the second question is ml if as a general rule state 

fficers and emplc x -id be en tided to representation b; rart- 

■em ' the types of actions for alleged mi escribed. 

- conclude that they are r. . ::led. I do not reach 

zZZT.Z 





. . \. - :ec::a 




rii '-. 


me type 




-t : : 


.. Eacl 


- . 


._ -'. 






-; e: 




- _ _ _ _ . __ 






- - ' .- - — 



1.1 A . eral represents state 

s in all actions and other . il proceedings in which their "official 

ad doing the parameters of this 

itutory lax further delineated or explained in 3 

llowing sections in Chapter 12 provide more guidance in defining 

:;e :: :he V.: ~~z Ger.era! :-".:e ■■■.'.:. re- re:: v _e J rr:.r_ r.r.e 

: in actions for personal injurie --ought against them. 

2 C eneral is to defend upon 

;t, an officer or employee of the Commonwealth again ; "ion 

Tsonal injuries ( including death j or property damage arising from 

lployee's operation of a state-owned motor vehicle within the scope 

official dutie authorizes :'~ General, again upon 

quest o: e employee involved, to settle this type of motor 

t tort action for SI 000 or 3D requires the Attorney 

al to defend any officer or employee of the Department of Mental 

.ilth or Correction, or the Commonwealth's Sold 
s in "an action for damages for bodily injuries or infections, physical 
otal agony or pain, death of any person r certain 1 pes of prop 
re arising out of the operation of these depar - r homes. 



p.d. :: 79 

General La . 1 3, 3B, 3C and 3D are the ooh . inert 

. ;smed with the scope jenexaTs esponsibilities for 

repre sen! - state tfficen ind emp loye* pecinc nature of the man- 

di::e . - - ■ : 7 -" - ."■ I ::;i:es 

the Legislature did n - him to defend state employees in actions 

for personal injuries not e mentioned in the . . . ons. See, on 

as constru: Cc mmissioner of Correction, 

363 I 1973); .missioner c 

Mass. 250, 252-53 >54 iing I am of the opinion the. 

General is obligated s -:::. " .. 

a damage action for personal injuries I he thin the 

specific ca ... A emplc .. ad in G.L - 2 "I 
action is within :r . of civil procee. - . J L : '. 

~-C.~ In other _ s, re taming . - 

. Delusion that if a stale race 
ments and agenc as . : D is nan an acticr 

damages for alleged malpractice performed in the course of r 
ae will not be . . 
Having . . . ad ±is cor.. ... 

or f cm . mihtarj member- 

training dun. should be considered state 

the Guardsmen are classified, thej stU jJd not be ad to this De- 

partment's rej pes of alleged malpractice actions 

... G.L. 

c. 12, §3D. 9 

\ e: 
FRANCS X BELUOlTi 

■ 



Nu~be: 3 2 « -"- 

— A Calhoun 
'■ 

"3 Tic Streel 

Boston. Mass .1 

DearC a nei Calhoun: 

You have :ejues:ei mj opnricn . 
missioner of the Department of Ych * 

.-:-..-- - • - - - - 

?:---. -...-;:--..-.;:.. ------ :-• .-.;.- — .■; -.■■;- 7 .-;;•'■-:"--"'" r ; » 

•-.-.-..... ;__i . . • .... .. ■ . .- - . - 

- - :':-. - -.- ■ .-.-.. : 

. ■ ■ ■ — .-r i;i'.-.r 

-"--.:-:--- K Rsr ?.-; ------- J - ■ - -.-- .. - --.--.---.•• ;---r v- i" ;■■: .- : 

.--.- . . " . - . . 

....... . 

in the civil malpractice actions described. Tbe 

-"- - - . 



80 P.D. 12 

ties for the temporary detention and custody of juveniles. Specifically, 
you ask: 

1. Whether you may designate particular locations within the 
Commonwealth to receive and detain police arrests; and 

2. Whether you may designate particular locations within the 
Commonwealth to receive and detain court referrals. 

You state that "[s]ome courts and police departments continue to send 
children to locations formerly used for purposes of detention, when, in 
fact, private contractors have been designated by the Department to re- 
ceive children in a detention status". 

The detention of juveniles arrested by the police is governed by G.L. 
c. 119, §67. This section provides in part that a child who has been 
arrested and is to be detained, 

. . . shall be detained in a police station or town lockup, or 
place of temporary custody commonly referred to as a detention 
home of the department of youth services, or any other home 
approved by the department of youth services pending his 
appearance in court. 
The section also provides that detention facilities for children at police 
stations or town lockups shall be inspected annually by the Department 
and approved in writing by the Commissioner. 
General Laws, c. 119, §68B provides that: 

The department of youth services may use or provide special 
foster homes and places of temporary custody commonly referred 
to as detention homes, at various places in the commonwealth 
which shall be completely separate from any police station, town 
lockup or jail, and which shall be used solely for the temporary 
care, custody and study of children committed to the care of the 
department of youth services. The commissioner of youth services 
may at his discretion transfer any child thus committed from 
any foster home or detention home to another such foster home 
or detention home. 

I have found no statute that would prohibit you from designating a 
particular location to receive police arrests, so long as the designated 
location qualifies under G.L. c. 119, §67 as a "detention home" or a 
"home approved by the department." However, because Section 67 is 
written in the alternative, I do not believe your designation would be bind- 
ing upon the police. The police could, consistent with this section of the 
statute, detain a child at approved juvenile facilities at the police station or 
town lockup. In this case, you would have no authority to order the child 
transferred to the designated location. Alternatively the police could deliver 
the child to any detention home or home approved by the Department. In 
this case, you would have authority under G.L. c. 1 19, §68B to order the 
child transferred to the location designated to receive police arrests. See 
1973 Op. Atty. Gen. No. 73/74-13 (September 20, 1973). 

The detention of juveniles temporarily committed to the care of the 
Department pursuant to a court order, and your authority to designate 



P.D. 12 81 

particular locations to receive such court referrals, is similar to that 
described above with respect to police arrests. General Laws, c. 119, §68 
provides that: 

A child between seven and seventeen years of age held by the 
court for further examination, trial or continuance, or for indict- 
ment and trial ... or to prosecute an appeal to the superior 
court, if unable to furnish bail, shall be committed by the court 
to the care of the department of youth services. . . . 

The department of youth services may provide special foster 
homes, and places of temporary custody commonly referred to 
as detention homes of the department of youth services for the 
care, maintenance and safekeeping of such children between 
seven and seventeen years of age who may be committed by the 
court to said department under this section; provided, that no 
more than five such children shall be detained in any such special 
foster home at any one time. . . . 
Since this section of the statute does not specify the place of commit- 
ment within the Department and since no other statute appears relevant, 
you have the authority to designate a particular location to receive court 
referrals. The location you designate must, however, conform to the 
requirements of G.L. c. 119, >;68. Although your designation would not 
be binding upon a court, you would have authority under G.L. c. 119, 
§68B to order children committed to other homes transferred to the 
designated home. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 4. August 3, 1976 

Paul A. Chernoff, Chairman 
Massachusetts Parole Board 
100 Cambridge Street 
Boston, Massachusetts 

Dear Mr. Chernoff: 

You have requested my opinion on five questions concerning the scope 
of the Parole Board's jurisdiction over sentencing. I will answer each 
question separately. 

Split Sentences 
1. Regarding "split sentences," 1 so-called, you have asked 
three questions. The first is: 

"Does the so-called 'split sentencing' law. Chapters] 347 [and 
459] of the Acts of 1975, which empowers a court to suspend a 
portion of a sentence and to commit the individual on the bal- 
ance of the sentence, deprive the Parole Board of jurisdiction 



'A "split sentence" permits suspension of any part of a fine or any part of imprisonment, a flexibility 
which was not available to courts prior to the enactment of St. 1975. c. 347 and c. 459. 



82 P.D. 12 

to issue a parole permit, the source of the prospective jurisdiction 

being Chapter 127, §128 of the General Laws?" 
I answer this question "no." General Laws, c. 127, §128 confers juris- 
diction on the Parole Board to grant parole permits to prisoners in certain 
institutions. It makes no reference to the type of sentence the prisoners are 
serving. I conclude, therefore, that the Legislature intended to grant the 
Board jurisdiction over all prisoners described in that section, regardless 
of the type of sentence being served. By the plain language of this statute, 
it is irrelevant to the Board's jurisdiction that a prisoner is serving a split 
sentence. 

I find nothing in the legislative history of the split sentencing law to 
alter my view as to the effect of the language of §128. In enacting the split 
sentencing law, the apparent intent of the Legislature was to provide a 
sentencing judge with additional flexibility in prescribing rehabilitative and 
correctional services for offenders. See 49 Mass. Judicial Council Rep. 
154-55 (1973). This legislative purpose is in no way restricted by con- 
tinuing to give effect to the language in G.L. c. 127, §128 which author- 
izes the Board to grant parole permits. I believe, therefore, that the Legis- 
lature did not intend to limit or alter the scope of the Board's jurisdiction 
under §128 in passing the split sentencing law. 

2. Your second question regarding split sentences is the 

following : 

"Assuming that your answer to question number one is 'no', is 

the jurisdiction of the Parole Board to issue parole permits based 

on the total sentence, or only that portion of the sentence that 

is executed?" 
The Legislature has conferred on the Board the authority to grant 
parole permits to eligible persons "at such time as the [Bjoard in each case 
may determine" within certain established boundaries, G.L. c. 127, §133. 
It has also conferred rule-making power on the Board, G.L. c. 127, 
^151A(5). Historically, and, I believe, correctly, the Board has exercised 
this power to establish rules regarding parole eligibility, except where the 
terms of eligibility are specifically set by statute. While the Board's juris- 
diction is based on the total sentence, the Board in its discretion may also 
adopt reasonable eligibility rules for those held on split sentences. 2 

There are, however, two important limitations on the Board's power to 
promulgate rules concerning parole eligibility. The first is contained in 
G.L. c. 127, §133, which specifies that prisoners held on sentences con- 
taining a minimum may not be considered for parole until they have served 
that portion of the minimum sentence specified in the appropriate clause 
of the section. By its clear terms, §133 applies to split as well as total 
sentences. If, therefore, a prisoner is held on a split sentence subject to 
this statute and the committed portion of his sentence is less than that 
portion of the minimum he is required to serve, he will be released on 

-The Board may, for example, rule that prisoners held on split sentences are not eligible for a parole 
in certain circumstances, cf. 28 CFR §2.8. On the other hand, the Board may rule that such persons 
become eligible for parole after serving some specified portion of their commitment. Of primary 
importance is that the Board adopt some rule and make it known to judges who impose sentences. 



P.D. 12 83 

probation before he is eligible for parole. The Board may not alter the 
effect of §133 by rule or regulation. 

The second restriction on the Board's rule-making power is imposed 
by Article I of the Massachusetts Declaration of Rights and the Equal 
Protection Clause of the Fourteenth Amendment of the United States 
Constitution. Any rule the Board adopts must guard against the possibility 
that the split sentencing law will be utilized to decrease a prisoner's eligi- 
bility for parole. In other words, the rule must proviae that a prisoner who 
is held on split sentence will be eligible for parole no later than a prisoner 
ield on an unsplit sentence of the same length. 3 

3. Your third question regarding split sentences is the fol- 
lowing: 

"Assuming that your answer to question number one is 'no*, is 
the 'total aggregate of sentences of twelve months or more', set 
forth in Chapter 127, §128 of the General Laws with respect to 
district court commitments to houses of correction, computed on 
the basis of the executed portion of the 'split sentence' or upon 
the total sentence?" 

General Laws, c. 127, §128, reads, in pertinent part: 
Subject to other provisions of law, parole permits . . . may be 
granted as follows: — . . . to all . . . prisoners . . . sentenced [by 
a court other than the superior court] to jails or houses of cor- 
rection for one year or more, or for a total aggregate of sentences 
of twelve months or more, by the parole board. 
This statute expressly refers to the "sentence" imposed upon a prisoner; 
t does not make any reference to the committed portion of the sentence. 
[ perceive no reason why the language of §128 should not be given its 
?lain and ordinary meaning. If the Legislature had intended to alter the 
mpact of the section, it could have done so when it enacted the split sen- 
:encing law. In the absence of such legislative action I conclude that the 
Board has jurisdiction to grant a parole permit to any prisoner or house of 
correction who has been sentenced to an aggregate term of twelve months 
:>r more. This is true even though a portion of the sentence is suspended. 4 

AGGREGATION OF SENTENCES 

4. You have further requested my opinion as to the following 
matter: 

"Does the decision of the Supreme Judicial Court in the case of 
Henschel v. Commissioner of Correction [Mass. Adv. Sh. 



'Consider, for example, a prisoner who is sentenced to a term of one year, of which eight months are 
committed and the remainder suspended. Under an existing rule of the Board a prisoner held on a 
sentence of one year to a house of correction is eligible for parole after six months. Any rule adopted 
to govern split sentences must provide that the prisoner held on this split sentence would be eligible 
for parole no later. He cannot be required to serve the full eight months without being considered 
for parole. 

I wish to make clear, however, that in answering the Board's question. I express no opinion as to the 
method the Board should use in computing parole eligibility. The fact that the Board has obtained 
jurisdiction over a prisoner by aggregating his sentences does not require that it aggregate the sentences 
for the purpose of computing parole eligibility. It is the Board's responsibility to decide how parole 
eligibility is to be computed and to announce its policy so that judges and other officials may rely 
upon it. See G.L. c. 27, §5ff). The Board's authority in this matter is. of course, subject to constitu- 
tional requirements; but it would be constitutional for the Board to adopt a rule that split sentences 
are not aggregated. See Federal Bureau of Prisons, Sentence Computation Manual, §7617.1, p. 3 
(1972). 



84 P.D. 12 

(1975) 1982] require the Parole Board to aggregate for the 
purpose of determining parole eligibility, consecutive sentences 
to different county institutions '" 
With some hesitation. I answer this question •"yes.*' The Henschel case 
clearly holds that the Board may aggregate sentences to different cor- 
rectional institutions for the purpose of computing parole eligibility. There 
is some question, however, whether the case goes beyond this and holds 
that the Board must aggregate such sentences. The case is not directed 
specifically to this point. Nevertheless. I believe that the reasoning under- 
lying the court's decision implies that the Board is required to aggregate 
sentences to different institutions. 

A substantia] portion of the court's opinion in Henschel is devoted to 
its analysis of the legislative history of G.L. c. 12". H33 and the relation- 
ship of that section to other provisions in Chapter 127. Of particular 
relevance to your question is the court's treatment of G.L. c. 127, §130. 
This section provides, in part: 

No prisoner shall be granted a parole permit merely as a reward 
for good conduct but only if the board or officer having juris- 
diction is of the opinion that there is a reasonable probability 
that, if such prisoner is released, he will live and remain at 
liberty without violating the law. and that his release is not in- 
compatible with the welfare of society. A prisoner to whom a 
parole permit is granted shall be allowed to go upon parole out- 

- he prison walls and enclosures upon such terms and conditions 
as the board or officer having jurisdiction shall prescribe .... 

The court suggests that the effect of this statute is to require that the 
i make a single decision as to the time a prisoner is to be returned to 
society. Henschel, M ss. Adv. Sh. (1975) at 1991: the court im- 

:hat the Board is not empowered to make a series of decisions mov- 
ing a prisoner 1 ze as it would be required to do if 
subsequent semen:. ■ her institutions were viewed merely as detainers. 
7'; failure of the statute- governing the parole system to require the 
. sentences :o different institutions is explained in the 
e by pointing to the legislative history' of the statutes, id. at 
19S9-91. As the court observes, the various sections of Chapter 127 
- ability were enacted at different times and do not 
. . ;eme: thus, it is not surprising that they fail 
fie - Aggregation of terms to different county institutions. 
In lig : Court's I conclude that in order to per- 

lese statutes, tl i must aggre- 

: I 

WEEK-END SENTENCES 

5 Your final question concerns the Board's jurisdiction over sentences 
.: on an intermittent basis such as those authorized 

- G.L. c 273 .'. permits a judge to impose a sentence of 
imprisonment upon a person and order that " : during such 



D .D. 12 85 

lours as will permit said pc Ihese type 

----- . - - . . - ... 

_=-:ion rea_ 

-ole Board jurist . 

so-callec £ek-end sentence 

f :das a condition of probation ien snot imposec 

a condition of probation?" 
Before ans - ur question. 

. . _e may be imp sed "as a condition of j lere- 

. would . . sentence pur- 

;uan: :o Char . 347 and 45 f 1975 . ztka 

i has no jurisdic- 
tion and mu ; 

and the courts. 

en a per ..... 

.ntence inte the Parok 3oard m_ r a parole 

permit if the _efined in G.L : 127, 

28. In res ng this issue . ... . .... 

ended to impose. Th i mention in yom 

Btle . . - a week-enc . . 

in th:~ . 

1. A sentence serve _ i . . - . 

1 A sentence - a 52 sek-ends 

3 \ sentence I dc - - - .. . committed 

. 
Each of thes . . ron- 

>f the Board to dete . r - r.:er.cei ana :: :: 

.. .. rdins 

The first e\a~r . the . ctar sentence 

Under a . . • I ic pris . old be eligible 1 

the snn. 

The sec ad example must b ..." 104 

- see Superior jurisdk 

if imp wed by a coi Supe 

The third example mu>. As 

discussed above, the Board should promulgate rules 
senter. e 

In [ perce . . ..... . . .... 

to be serve . . . . . . : . . • 

There ma 3 ties ascertaining - :on of the sentf 

adge itenl s been oinec rarole rule 

. app to a continuous sentence 

Ver 
FRANCIS X BELLOTTI 



86 P.D. 12 

Number 5. September 9, 1976 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

You have requested my opinion on two questions of law relating to the 
manner in which local elections officials are to count "sticker" votes. A 
sticker is a printed, pre-pasted label which an individual who wishes to 
vote for a candidate whose name does not appear on the ballot may affix to 
his or her ballot in lieu of writing in the name and address of that candi- 
date. The laws of the Commonwealth specifically provide that individuals 
may cast their ballots by using such stickers. See, Mass. Gen. Laws c. 53, 
§§35 x and 35A and c. 54, §§41-44, 65 and 77. 2 But, the statutes are gen- 
eral in form and do not provide clean-cut answers to your particular 
questions. Specifically, you have asked: 

1. Must votes be counted if a voter votes by using stickers 
with a preprinted [X] on them, and otherwise votes in the ap- 
propriate manner? 

2. Must sticker votes be counted if the sticker is placed on 
the ballot under the office to be filled, but is placed vertically 
over any other names, or diagonally over same, or near the office 
designation or in a place other than the appropriate one? 

I answer your first question in the affirmative. In reaching this con- 
clusion, I have been guided by the "cardinal rule" for guidance of election 
officers: 

If the interest of the voter can be determined with reasonable 
certainty from an inspection of the ballot . . . effect must be 
given to that intent and the vote counted in accordance there- 
with, provided the voter has substantially complied with the 
requirements of the election law. O'Brien v. Election Commis- 
sioners of Boston, 257 Mass. 332, (1926). 

Although no reported case in the courts of the Commonwealth has 
attempted to apply this rule to the issue posed by your first question, in 
my opinion, its application would clearly require counting ballots contain- 
ing premarked stickers. My opinion is buttressed by a recent unreported 
decision of the Massachusetts Superior Court directly holding that pre- 
marked stickers should be counted under Massachusetts law (Bowen v. 
Registrars of Voters of Millville, Moynihan, J.). 



iMass. Gen. Laws c. 53, §35 provides in pertinent part: 
A cross (X) marked against a name shall constitute a vote for the person so designated. 

2Mass. Gen. Laws c. 54, §77 provides in pertinent part: 
The voter on receiving his ballot shall . . . prepare his ballot by marking a cross (X) in the square 
at the right of the name of each candidate for whom he intends to vote or by inserting the name and 
residence of such candidate in the space provided therefor and making a cross in the square at 
the right. . . . 



P.D. 12 87 



The same conclusion was reached by the Arkansas Supreme Court in 
a well-reasoned opinion interpreting the provisions of a sticker statute sub- 
stantially the same as Mass. Gen. Laws c. 53, §77. In the only reported 
decision in any jurisdiction dealing specifically with the problem of the 
validity of premarked stickers the court opined: 

The only question is whether the (X) may be placed on the 
sticker before the voter enters the polling place. We hold that it 
may be. . . . What the statute requires is that the voter mark his 
ballot inside the polling place. Here the marking of the ballots 
was accomplished by the affixation of stickers. As long as that 
substantive step was taken inside the polling place, it made no 
difference under either the letter or the spirit of the statute, when 
or where the marking of the (X) mark took place. Pace v. 
Hickey, 236 Ark. 792, 370 S.W. 2d 66, 67 ( 1963 ) . 

Based on these judicial precedents and my own view of the Massachu- 
setts law, I conclude that premarked stickers should be counted. 

I must respectfully decline to answer your second question. In essence, 
it asks whether a sticker should be counted if it appears under the appro- 
priate office to be filled, but is otherwise imperfectly placed. I decline to 
render an opinion on the question because determination of the actual 
intent of a voter is a question of fact which should be made in the first 
instance by local election officials on a case by case basis. 

Two cases decided by the Supreme Judicial Court provide guidance for 
those officials. In Ray v. Registrars of Voters of Ashland, 221 Mass. 223 
(1915) the Court held that a sticker placed over the name of a candidate 
appearing on the ballot accompanied by an (X) marked alongside the 
sticker could properly be counted for the sticker candiate. In O'Brien v. 
Election Commissioners of Boston, 257 Mass. 332 (1926) the Court con- 
sidered several variations of irregular sticker votes and validated some 
while invalidating others. In both instances, the Court sought merely to 
ascertain whether the ballot as cast manifested the clear intent of the voter. 
Like the Court, I conclude that the provisions of Massachusetts law for 
casting one's ballot are directory rather than mandatory, and that ballots 
should be counted whenever there is substantial compliance with the law 
and a clear indication of the voter's intent. 



Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



88 P.D. 12 

Number 6. September 17, 1976 

Vincent J. Piro, Chairman 

Committee on Taxation 

House of Representatives 

State House 

Boston, Massachusetts 

Dear Chairman Piro: 

With respect to your duties as House Chairman of the Committee on 
Taxation, you have requested an opinion concerning the income taxation 
of certain "nominee trusts". You describe these trusts as "trusts or trustees 
which act as agent or nominee for and under the control and direction of 
their beneficiaries." Attached to your request is a copy of a draft bill 
which the committee has under consideration and which would effect 
various changes in the existing scheme of income taxation of trusts. The 
two principal issues raised by your questions relate to the income taxation 
of "nominee trusts" under G.L. c. 62, §10 as presently written and the 
potential taxation of such trusts if the bill before your committee is enacted. 

I have been informed that the issue raised with regard to the present 
state of the law is the subject of a case presently before the Appellate Tax 
Board. In the case of Drucker v. State Tax Commission, App. Tax Bd. Nos. 
73670, 6361, the board ordered an abatement to be made to the bene- 
ficiary of a nominee trust because the losses of the "nominee trust" were 
attributable to the taxpayer-beneficiary. The Board has not yet issued an 
opinion in that case. I am also informed that an appeal is likely to be 
taken by the State Tax Commission in the Drucker case. In the ordinary 
course, one of my Assistant Attorneys General would represent the Com- 
mission before the Supreme Judicial Court in any such appeal. The issu- 
ance of an opinion by me in these circumstances would unduly complicate 
the administrative proceedings and would be premature in light of the 
possibility of judicial resolution. I must, therefore, respectfully decline to 
answer your first question. 

The second question you ask relates to the effect of the enactment of 
the revised bill attached to your request. This bill would substantially 
change the Commissioner of Corporation and Taxation rule of taxing the 
trust and in its place adopt the federal system found in the Internal 
Revenue Code of 1954, §§71-678. Under such a system, the beneficiary is 
taxed if any number of circumstances are present. Briefly, they are: 

(a) The trust income is distributable to or accumulated for the benefit 
of the grantor or the grantor's spouse; 

(b) The grantor holds a reversionary interest in the trust which is not 
postponed beyond a ten-year period; 

(c) The grantor has the power to revoke the trust in his favor; 

(d) The grantor has the power to control the beneficial enjoyment of 
the trust corpus or income; 

(e) The grantor has retained certain administrative powers with respect 
to the trust; and, 



P.D. 12 89 

(f ) A person, other than the grantor, has the power to obtain the trust 
corpus or income. 

The ""nominee trust" would ordinarily come within the terms of a, b, c. d 
and e. Thus, the bill in question would assure that in a nominee trust 
situation tax liability or benefit would pass through the trustee to the 
beneficiary. 

Very truly yours, 

FRANCIS x/bELLOTTI 

Attorney General 

Number 7. September 24, 1976 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

By letters dated September 7. 1976. you have asked me whether certain 
questions are ones of public policy in accordance with section 19 of 
Chapter 53 of the Massachusetts General Laws. It is my opinion that the 
questions presented, as modified for reasons of form, see infra pp. 2-5, are 
important public questions in which every citizen of the district or the 
Commonwealth has an interest, are fit subjects for lawmaking and, there- 
fore, are questions of "public policy" which may be submitted to the 
voters if all other statutory requirements are met. See 1939 Opinions of 
the Attorney General, pp. 99-100; 1955 Opinions of the Attorney Gen- 
eral, pp. 51-52. See, also, 8 Opinions of the Attorney General 1928. pp. 
490-492; 1965 Opinions of the Attorney General, pp. 92-93. 

The requirements to which I make reference are contained in G.L. c. 
53, §§19. 20 and 21, and involve a number of statutory prohibitions 
specifically set out in these sections. For example, a question may be 
technically accurate and present an important public policy issue; however, 
if the question is substantially the same as one which has been submitted 
to the voters within less than three years, it shall not appear on the ballot. 
G.L. c. 53, §21.! I have made no independent inquiry to determine 
whether these questions are statutorily defective for any reason other than 
a failure to qualify as a public policy question in proper form for presen- 
tation on the ballot. See 1958 Opinions of the Attorney General, p. 44. 

1 . Nuclear Power Question — 4th Hampshire Representative District 
In my opinion the statement that nuclear plants are unsafe and uneco- 
nomical is overly broad and inappropriate as an opinion which is subject 
to controversy. Further, public policy questions do not extend to matters 
in jurisdictions beyond the Commonwealth. I would, therefore, suggest the 
following language on this question: 



'As Secretary of State you have in your possession past election ballots of the Commonwealth and are, 
therefore, in the best position to make such a determination. If you find that a question does not meet 
the requirements aforementioned, it should not be printed on the ballot. 



90 P.D. 12 

Shall the Representative from this District be instructed to vote 
to oppose the construction of nuclear fission power plants in the 
Commonwealth in general and in Montague and Plymouth in 
particular on the grounds that such plants are allegedly unsafe 
and uneconomical? 

II. Abortion Question — 24th Norfolk Representative District 

In my opinion, it is inappropriate to refer to the decisions of the 
Supreme Court in the abstract on the ballot itself. I would, therefore, 
suggest the following language on this question: 

Shall the Representative from this District be instructed to vote 
to support and ratify an amendment to the United States Con- 
stitution permitting the states to prohibit abortions and to affirm 
the right to life to the unborn? 

III. Cigarette Tax/ Lead Paint Question — 53d Middlesex Representative 
District 

In my opinion, the question as presently drafted is not in such simple, 
unequivocal and adequate form so as to be best suited for presentation 
upon the ballot. G.L. c. 53, §19. It is my recommendation that the 
language read as follows: 

Shall the Representative from this District be instructed to vote 
to approve the passage of a bill increasing the state tax on 
cigarettes sold in Massachusetts by one cent per package, said 
tax money to be used to eliminate childhood lead paint poisoning 
in the Commonwealth? 

IV. Solid Waste Question — 15th and 16th Essex Representative Districts 
In my opinion, the proper form of this public policy question for presen- 
tation to the voters of the 16th Essex Representative District is as follows: 

Shall the Representative from this District be instructed to vote 
to approve the passage of legislation allowing a city (or town) 
to construct a solid waste facility larger than is necessary for 
servicing the inhabitants of said city (or town) absent a prior 
vote in favor thereof by a majority of the voters in said city 
(or town)? 

V. Boston City Council Question — 25th, 26th and 27th Suffolk Repre- 
sentative Districts 

In my opinion, a public policy question should appear on the ballot in 
the form of an instruction to the legislator of the applicable district, not- 
withstanding the fact that any such instruction is non-binding unless the 
question submitted receives a majority of all the votes cast at that election. 
G.L. c. 53, §22. I would, therefore, suggest the following language on 
this question: 

Shall the Representative from this District be instructed to vote 
to approve the passage of a bill requiring that the majority of 
the members of the Boston City Council be elected by geographic 
districts of equal population? 



P.D. 12 91 

VI. Abolition of County Level of Government Question — 1st Essex 
Senatorial District 
In my opinion, the statements relative to eliminating an overlap of ser- 
vices so as to nullify the cost of allegedly ineffective county run programs 
as well as the reference to disorganization and potentially lower taxes are 
inappropriate. I would, therefore, recommend an abbreviated form of the 
question to read as follows: 

Shall the Senator from this District be instructed to support and 
vote in favor of legislation, including any necessary constitu- 
tional amendments, abolishing the county level of government? 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 8. September 27, 1976 

The Honorable Kevin B. Harrington 

Office of the Senate President 

State House 

Boston, Massachusetts 

Edward B. O'Neill, Senate Clerk 

Office of the Clerk of the Senate 

State House 

Boston, Massachusetts 

Dear Senate President Harrington and Mr. 0"Neill: 

I respectfully render the following opinion in response to the Order of 
the Senate which provides: 

Ordered, That the attorney general of the commonwealth be 
forthwith requested by the senate to render an opinion to be 
delivered to the president and clerk of the senate at the earliest 
possible date, on the following question: — 
Whereas item 4402-5000, of chapter six hundred and eighty-four 
of the acts and resolves of nineteen hundred and seventy-five, [ l ] 
for a medical assistance program, provides that all federal funds 
received for the purpose of this item shall be credited to the 
General Fund; and further provides that no expenditure or com- 
mitment made pursuant to this item or to any agreements author- 
ized by chapter eight hundred of the acts of nineteen hundred and 
sixty-nine, [-] for the purpose of complying with the provisions 
of Public Law 89-97, Title XIX, [ 3 ] shall be incurred in excess 



'Acts of 1975, c. 684, Item 4402-5000, appropriated $410,000,000 for a "medical assistance program" 
for fiscal year 1976, conditioned on the provisos described in the Order of the Senate. 

-Acts of 1969, c. 800 amended the General Laws by inserting Chapter 118E, entitled "Medical Care 
and Assistance." 

: '42 U.S.C. §§1396, et seq. 



92 P.D. 12 

of available funds which have been appropriated therefor; and 
further provides that all judgments, appeals and rate changes 
for services provided in a prior year but finally determined dur- 
ing the current fiscal year may be paid from this account, subject 
to the approval of the house and senate committees on ways and 
means; and further provides that optional services allowed under 
this item may be phased out at the discretion of the commissioner 
of public welfare consistent with the funding level of this item; 
and further provides that the medical needy program so-called 
in this item shall cease effective January thirty-first, nineteen 
hundred and seventy-six unless a certification is made by the 
commissioner of administration that sufficient funds are available 
from either state or federal sources to warrant the continuation 
of the program and that this item is increased by appropriation 
to properly fund said continuation: 

Does the commissioner of administration have the statutory 
authority to certify the expenditure of funds by the commissioner 
of public welfare for said medical assistance program, and the 
commissioner of public welfare to expend funds or to incur 
expenditures or obligations for said medical assistance program, 
in excess of the amounts appropriated therefor, in chapter six 
hundred and eighty-four of the acts and resolves of nineteen 
hundred and seventy-five and therefor must the commissioner of 
administration and the commissioner of public welfare cease to 
incur expenses or obligations until such time as further funds 
have been appropriated for this item 
This opinion addresses two questions posed by the Order of Senate. 4 
Those questions are restated below and answered as indicated. 

1. Q: Does the Commissioner of Public Welfare have authority 
to expend funds or incur obligations for the medical assistance 
program established bv G.L. c. 118E in excess of the amount 
appropriated in St. 1975, c. 684, Item 4402-5000? 

A: No. 

2. Q: If and when the total appropriated amount is expended 
and committed, must any further expenditure of funds, or in- 
curring of obligations for the medical assistance program cease 
until additional funds have been appropriated by the Legislature 
for the program? 

A: Yes. 



4 The Order of the Senate also asks a third question: 
Does the Commissioner of Administration (the Secretary of Administration and Finance) have 
authority to certify the expenditure of funds by the Commissioner of the Department of Public Welfare 
for the medical assistance program established bv G.L. c. 118E exceeding the amount appropriated in 
St. 1975, c. 684. Item 4402-5000? 

As I read this question, the Secretary's "authority to certify the expenditure of funds" refers to 
something other than the certification that sufficient funds are available to warrant continuation of 
the medical needy program, referred to in the first paragraph of the Order. The statutory source of 
the Secretary's "authority to certify the expenditure of funds" is not, however, set forth in the Order; 
nor is it otherwise apparent. It may be that this "authority to certify" refers to the allotments made 
by the Governor or the Secretary of Administration and Finance pursuant to G.L. c. 29, §9B. But since 
the statutory' language actually conferring such authority would be material to an attempt to define 
its limits. I prefer not to speculate and decline to answer this question in its present form. 



P.D. 12 93 

The Constitution of the Commonwealth evidences a fitting concern for 
the commitment, expenditure and control of public funds. It vests exclu- 
sive power in the Legislature to appropriate funds for maintaining state 
government. Const.. Part 1. art. 23: Part 2. c. 1. §1. art. 4. and §3, art. 7. 
and expressly provides for legislative control and supervision of all state 
expenditures. Const., art. LXIII of the Amendments. In addition, the pay- 
ments of monies from the treasury - can be made only by warrant of the 
Governor with the advice and consent of the Council, and "'agreeably to 
the acts and resolves of the general court." Const.. Part 2. c. 2. ^2. art. 11. 

Pursuant to its constitutional grants of power, the Legislature has en- 
acted various statutes which limit the commitment and expenditure of state 
funds. Notable among these are §?9B. 12. IS. 26. 27. 63 and 66 of 
Chapter 29 of the General Laws. In particular. Section 26 provides that 
expenses of state offices and departments shall not exceed legislative 
appropriations or executive allotments, and that no obligation incurred 
in excess of either shall impose any liability on the Commonwealth. 

These provisions, and specifically Section 26. are designed to 
require an official or department to keep expenditures within the 
amount appropriated and to protect the public credit by prevent- 
ing the incurring of any indebtedness against the Commonwealth 
for the payment of which no provision had been made by the 
Legislature. 

Baker v. Commonwealth, 312 Mass. 490. 493 (1942). See United States 
Trust Co. v. Commonwealth, 348 Mass. 378, 380-81 (1965): Opinion 
of the Justices, 323 Mass. 764. 767 (1948). 

In accordance with this interpretation, opinions of my predecessors in 
office have consistently maintained that a state officer or department may 
not expend funds or incur obligations in excess of appropriations. E.g., 
1970-71 Op. A.G.. p. 119 (June 17, 1971): 1966-67 Op. A.G.. p. 181 
(Mar. 22. 1967): id. p. 154 (Feb. 14. 1967): 1965-66 Op. A.G.. p. 145 
(Oct. 7. 1965); 1961-62 Op. A.G.. p. "6 (Sept. 11. 1961): 1959-60 
Op. A.G.. p. 76 (Jan. 21. 1960): id., p. 73 (Jan. 19. 1960): 1959-60 
Op. A.G., p. 63 (Nov. 25. 1959): 1949-50 Op. A.G.. p. 15 (Aug. 9, 
1949): III Op. A.G.. p. 226 (Apr. 26. 1909). 

Given the consistent history of legislative limitation on administrative 
spending power."' it is apparent that a grant of authority to the Commis- 
sioner or the Department of Public Welfare to expend funds or incur 
obligations in excess of appropriations (assuming such a grant were con- 
stitutional) would be both novel and extraordinarv. 



r 'The Acts of 1975. c. 684. evidences the same legislative concern for control of expenditures as that 
expressed in G.L. c. 29 and other previously enacted statutes. Thus, for example, c. 6S4. §1 provides 
that the enumerated appropriations are made "subject to the provisions of law regulating the disburse- 
ment of public funds and the approval thereof;" §23 subjects a secretary who incurs total commitments 
in excess of available funds to a fine or removal from office: turning specifically to the Department 
of Public Welfare. Item 4400-1000 requires the Commissioner of that Department to "report in writing 
to the governor the total expenditures of his department for each month within thirty days after the 
end of each month." 



94 P.D. 12 

An examination of the statutes establishing and funding the medical 
assistance program, however, reveals no attempt by the Legislature to 
grant such authority. In fact, the opposite is true: the Legislature has 
explicitly restated the well-established limitation on Department of Public 
Welfare expenditures in Chapter 118E. For example, §3 provides that the 
Department shall cooperate with federal authorities in the administration 
of the medical assistance program "within the limits of the funds which 
have been appropriated for the purpose of this chapter;'* §4 provides that 
the Department shall take such action as is necessary to conform with 
the requirements of Title XIX, but must do so "within the limits of avail- 
able funds appropriated for this chapter;'* and finally, as noted in the 
Senate's Order, the specific Fiscal 1976 appropriation for the medical 
assistance program operated under G.L. c. 118E, Item 4402-5000, pro- 
vides "that no expenditure or commitment made pursuant to this item . . . 
shall be incurred in excess of available funds which have been appropri- 
ated therefor."' 

To conclude, I am of the opinion that under Massachusetts law the 
Commissioner of the Department of Public Welfare could not expend 
funds or incur obligations in Fiscal 1976 for the medical assistance pro- 
gram in excess of the amount appropriated by Item 4402-5000. Cf. 
Opinion of the Justices, Mass. Adv. Sh. (1975) 2521. 2528. The only 
remaining question is whether federal law requires a different result. 

The Commonwealth's existing medical assistance program was estab- 
lished pursuant to and in conformance with Title XIX of the Social Secur- 
ity Act. 42 U.S.C. §§1396 et seq. Title XIX, known as "Medicaid"*, 
provides for grants to states which have submitted to, and had approved 
by. the Secretary of Health, Education and Welfare state plans for medical 
assistance. 42 L.S.C. £1396. The stated purpose of the Medicaid program 
is to enable each state "as far as practicable"' to provide assistance to its 
needy citizens. Id.; Opinion of the Justices, Mass. Adv. Sh. (1975) 2521. 
2532. The approved medical assistance programs operated under it are 
administered by the state (42 U.S.C. 5 1396a), but are jointly funded by 
the states and the federal government. Id. U396b. States are not required 
to operate such programs but if they elect to do so, they must comply with 
the requirements of Title XIX. Id. .5 H 396a and c. If the Secretary of 
Health. Education and Welfare determines that an approved state plan 
has been altered or is being administered in a manner that fails substan- 
tially to comply with federal law. he may terminate or reduce further pay- 
ments to the state. Id. § 1 396c. 

Title XIX does not set forth a specific amount of money which a state 
must expend for its medical assistance program. Nor does it explicitly 
require a state to make an open-ended appropriation 6 for its program or 
prohibit a state from lirritine: the amount of money that it will expend on 
the program during one fiscal year. The question, then, is whether Title 



5 I use the term "open-ended appropriation" to mean "without a specific dollar limitation", and not in 
the more limited sense, referred to in Massachusetts General Hospital v. Sargent. 397 F.Supp. 1056. 
1060 (T). Mass. 1975). that a current year's Medicaid appropriations could be used to pay both current 
and prior years' obligations. 



P.D. 12 95 

XIX imposes an implicit requirement on a state to spend a specific amount 
for its medical assistance program, or. stated conversely, whether the law 
impliedly prohibits a limitation on expenditures for one fiscal year. Based 
on a review of Title XIX and its accompanying regulations, my answer to 
this question (as stated in either form ) is '"No"". 

Title XIX provides that a state plan must make medical assistance 
available to all persons who qualify for categorical federal programs of 
cash assistance. 42 U.S.C. §1396a(10>; in addition to these mandatory 
groups, a state plan may include several other classes of individuals. Id. 
Title XIX also provides that a state must, at a minimum, provide certain 
categories of medical services, id. §§1396a(13 B ■. 1396diai (1) 
— (5 ): but a state may decide to provide additional categories as well 
§1396d(a). Nevertheless, the amount, scope, and duration of even the 
mandatory services are to be determined by the state. 45 C.F.R. § 249. 10 
(5) (i). Although federal regulations require that items of medical care 
and services must be sufficient in amount, duration and scope reasonably 
to achieve their purposes, there is no requirement that they be provided 
for a specific period of time. Nor is there any federal requirement that a 
state plan be in effect for a full calendar or fiscal year. 

In sum. Title XIX describes a group of persons who must be covered 
under a state medical assistance program as well as a minimum level of 
services which they must receive, but it does nor mandate the length of 
time during which a state plan must be operated. Consequently, it cannot 
be said that federal law implicitly requires a reasonably foreseeable or 
specific amount of state expenditures on such a plan or. conversely, pro- 
hibits a limitation upon the expenditure of state funds. 7 

This conclusion is in accord with the view that the states must have the 
necessary flexibility to deal with their fiscal crises. This view was adopted 
by Congress in 1972 when it repealed 42 U.S.C. §1396a(d), s which had 
provided that a state could not reduce its expenditures for the state's share 
af Medicaid funds from one year to the next. The same principle has also 
seen consistently recognized by the United Stares Supreme Court in cases 
:oncerning other programs of cooperative federalism under the Social 
Security Act. See, e.g., Dandridge v. Williams. 39" U.S. 471, 48--^" 
(1970): Rosado v. Wyman, 39" U.S. 39". 408 I 1970); King v. Smith. 
392 U.S. 309. 318-19 (1968 



See Morris v. Williams, 67 Cal. 2d 733, 433 P. Id 697, 708-09 [1967); Caafom 

v. Brian. 30 Cal. App. 3d 6?". 106 Cal. Rptr. 555. 568 1973); Briarctiff Haven. Inc. v. 1 
of Human Resources, 403 F.Supp. 1355. 1363 (NJJ. Ga. 1975). 42 U.S ( 

beginning of each quarter the Secretary shall estimate and pay to a state matching federal funds b 
upon anticipated state expenditure for the ensuing quarter. This estimate is based on a re - 
state containing its estimate of the total sum to be expended in the quarter, stating the an 
appropriated or made available by the state for such expenditures and. "if such amount is less than 
the State's proportionate share of the total sum of such estimated expenditures, [identifying] the 
source or sources from which the difference is expected to be derived." I do not read this provision as 
requiring operation of a state plan for at least one quarter of a year. 
'See 3 U.S. Cong. Admn. News 50S6-S" 1973 



96 P.D. 12 

It is therefore my opinion that the provisions of Massachusetts law 
which prohibit the Commissioner of the Department of Public Welfare 
from expending funds or incurring obligations for the medical assistance 
program in excess of appropriated amounts do not conflict with any re- 
quirements of federal law. Accordingly, I have answered the first ques- 
tion posed above "no" and the second "yes." 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 9. October 14, 1976 

Frank A. Hall, Commissioner 
Department of Correction 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Hall: 

You have requested my opinion on eight questions relating to trans- 
portation of prisoners to court. Specifically, you have asked: 

1. Should Department of Correction (DOC) transportation 
officers be compensated by the county for the use of their own 
private vehicles at the rate of ten cents per mile or twenty cents 
per mile, for each mile driven in carrying prisoners to or from 
court? 

2. Should DOC transportation officers be compensated by the 
county for each mile actually driven in their own private vehicles 
while transporting prisoners to or from court, or should they be 
compensated instead for mileage as measured on a standard 
shipper's and carrier's chart between the town in which the 
institution is located and the town in which the court is located? 

3. Should DOC transportation officers be given extra compen- 
sation upon certification of need for extra security measures, or 
when the mileage allowance is manifestly inadequate, pursuant 
to G.L. c. 262, §47, and Superior Court Rule 10? 

4. Should DOC transportation officers be given an extra allow- 
ance for mileage pursuant to G.L. c. 248, §48 in addition to 
compensation under G.L. c. 262, §21, when carrying more than 
one prisoner? 

5. Are the various county courts bound by G.L. c. 248, §9 to 
certify in advance the expense which will be allowed in the 
service of a writ? 

6. Is the DOC obligated to use state-owned vehicles and state- 
salaried correction officers in the service of a county writ with- 
out compensation by the county? 



P.D. 12 97 



7. Is the county treasurer obligated pursuant to G.L. c. 213, §8 
and c. 35, §12, to pay a bill for service of a writ as ordered by 
a justice of a county court, or may he adjust the bill at his 
discretion? 

8. Should DOC transportation officers be compensated at the 
rate of twelve cents per mile pursuant to state regulation, or at 
the rate of twenty cents per mile pursuant to G.L. c. 262, §21, 
for the use of their own private vehicles in carrying prisoners on 
transfers from institution to institution, back to institution after 
parole violation or escape, or other transportation not pursuant 
to a habeas corpus writ? 

I will answer each of the questions in order. 

1. With respect to the amount of compensation to which DOC officers 
are entitled for the use of their private vehicles in transporting prisoners 
to or from court, it is my opinion that they should be compensated at the 
rate of twenty cents a mile for every mile the prisoner is actually in the 
custody of the officer and physically within the officer's vehicle. This would 
include the miles driven transporting a prisoner from an institution to a 
court, as well as from the court back to the institution, if a round trip is 
made by the same officer with the same prisoner. 1 

General Laws, c. 262, §21 governs the amount of reimbursement 
allowed an officer for the use of his private vehicle in transporting prisoners 
to or from a court. 2 The terms of the statute, as amended by St. 1959, c. 
581, provide in pertinent part that: 

In the service of precepts in criminal cases, the officer shall be 
allowed the actual, reasonable and necessary expenses incurred 
in going or returning with the prisoner, and if he necessarily 
uses his own conveyance, he shall be allowed therefor twenty 
cents a mile for the distance traveled one way, except that in the 
service of such precepts of the district court of Chelsea, if he 
necessarily uses his own conveyance, he shall be allowed, if the 
distance traveled is less than ten miles, thirty cents a mile for the 
distance traveled, both ways; and if he uses the conveyance of 
another person he shall be allowed the amount actually ex- 
pended by him therefor . . . (Emphasis supplied)/' 



iFor example, if an officer drives from his home to an institution, picks up a prisoner, transports the 
prisoner to a Court and then continues to another assignment without the prisoner, he should be 
compensated only for the miles driven from the institution to the court during which time the prisoner 
is physically in the officer's automobile. 

^Expenses incurred under this section are paid by the Commonwealth's counties. The provision in the 
Commonwealth's budget act for fiscal year 1977 (St. 1976. c. 283, §6), limiting the allowance to state 
employees for expenses incurred in operating their own automobiles on official business to twelve cents 
per mile, appears to apply only to expenses paid for by the Commonwealth and is therefore inappli- 
cable. In any event, it is my opinion that the specific provisions of G.L. c. 262, §21 must take prece- 
dence over the more general language of Section 6 of the Budget Act in determining the expense 
allowance to be made for transporting prisoners to or from a court. See e.g., Pereira v. New England 
LNG Co., Inc. 364 Mass. 109 (1973). 

3 On its face, G.L. c. 262, §21 applies only to the service of precepts in criminal cases by sheriffs, deputy 
sheriffs and constables; however. G.L. c. 262, §43 provides that whenever any public officer performs 
a duty or service described in Chapter 262, he shall be reimbursed "at the rate prescribed in this 
chapter for like services." A precept is defined as a "command or mandate in writing", Adams v. Vose, 
1 Gray 51, 67 Mass. 51 (1854), and includes all warrants and processes. Id. at 58. 



98 P.D. 12 

I find this statutory language to be ambiguous when considered in re- 
lation to your question. The first part of this section — up to the clause 
referring to the Chelsea district court — refers only to the reimbursement 
rate an officer is to receive in "going" with a prisoner or in "returning" 
with a prisoner and speaks of the distance traveled "one way"; it does not 
explicitly address the question of a round trip. The clause concerning 
service of precepts of the Chelsea district court does, however, introduce 
the idea of mileage reimbursement for an officer's travel "both ways." The 
question posed by the juxtaposition of these two clauses is whether the 
Legislature intended an officer transporting a prisoner from an institution 
to a court — other than the Chelsea district court — and back again to 
be reimbursed at the rate of twenty cents a mile for only one or for both 
ways. 

Basic principles of statutory interpretation require that when the 
language of a statute is ambiguous, resort may be had to certain aids in 
interpretation, including the legislative history. See, e.g. Massachusetts 
Mutual Life Insurance Co. v. Commissioner of Corporations & Taxation, 
363 Mass. 685, 296 N.E. 2d 805 ( 1 973 ) . In the end, a statute must be con- 
strued so "as to make it an effectual piece of legislation in harmony with 
common sense and sound reason." Morrison v. Selectmen of Weymouth, 
279 Mass. 486, 492, 181 N.E. 786 (1931); Atlas Dist. Co. v. Alcoholic 
Beverages Control Commission, 354 Mass. 408, 414, 237 N.E. 2d 609 
(1967). Given my conclusion about the ambiguities in the language of 
§21, I have turned to the legislative history of that section to answer the 
question stated above. 

The origins of §21 date back to 1860. St. 1860, c. 191, §3 provided 
that "expenses necessarily incurred and actually disbursed in the service 
of any precept shall be allowed and paid" to the officer performing the 
service. In 1862, the provision was amended to allow for both a fee and 
expenses in the service of precepts: if the distance traveled was less than 
twenty miles, the officer was to be paid a fee of five cents a mile each way, 
and the actual reasonable expenses necessarily incurred in "going or re- 
turning with the prisoner," not to exceed fifteen cents a mile for the dis- 
tance traveled one way. It is clear that the statute contemplated an 
individual officer would himself be making only one trip with the prisoner, 
for the distances were to be computed "between the place of service and 
the place of return." St. 1 862, c. 2 1 6, § 1 ( 3 ) . 

In 1882, the statute governing reimbursement for travel expenses in the 
service of precepts was amended again. St. 1882, c. 199, §9 first introduced 
the language similar to that found in the present statute: 

In the service of any precept in criminal cases, the officer shall 
be allowed the actual reasonable and necessary expenses incurred 
in going or returning with the prisoner, and, if he necessarily 
uses a horse and carriage, he shall be allowed not exceeding 
fifteen cents a mile for the distance traveled one way, to be in- 
cluded in such necessary expense. . . . 



>.D. 12 99 

The reference to horse and carriage is significant. The statute was written 
i an era preceding automobile transportation. Distances were not covered 
s quickly or conveniently as they are today. It is reasonable to assume 
hat the legislators in 1882 did not contemplate prisoners would be carried 
ound-trip in the same day from prison to court and back to prison. Pay- 
cient was to be made for the distance required when the prisoner was 
ctually being transported, either in going to court or in returning from 
ourt. 

The language of the 1882 statute was substantially repeated in amend- 
nents made in 1885 and 1930. The 1885 amendments included provisions 
equiring the officer to certify that it was necessary for him to use a horse 
md carriage in the service of the precept and that he actually did travel 
he distances reported. St. 1885, c. 254. In the 1930 amendments, the 
erm "conveyance" was substituted for the terms "horse and carriage", and 
he amount of reimbursement was increased to "twenty cents a mile for 
he distance traveled one way." St. 1930, c. 370. 

The most recent amendment to G.L. c. 262. §21, namely St. 1959. 
;. 581, added the particular proviso concerning Chelsea district court. It 
s this proviso that causes the ambiguity at issue here in introducing the 
;oncept of reimbursement for distances traveled "both ways." It is my 
opinion, however, that the specific proviso in St. 1959. c. 5S1 regarding 
:he district court of Chelsea is not inconsistent with my interpretation of 
3.L. c. 262, §21, discussed above. Rather, the proviso merely recognizes 
and distinguishes a special situation anticipated by the Legislature with 
regard to the relatively short distances traveled in transporting prisoners 
to or from Chelsea. 

In sum, when G.L. c. 262, §21, as amended by St. 1959, c. 581, is read 
in its entirety, common sense and sound reason dictate the following inter- 
pretation: "In the service of precepts in criminal cases, an officer who 
necessarily uses his own vehicle should be reimbursed at the rate of twenty 
cents a mile for the distance traveled one way in transporting a prisoner 
from one point to another; and, if he returns the prisoner to the point of 
origin, either in response to the original precept or in response to a second 
precept, he is to be reimbursed at the rate of twenty cents a mile for the 
return trip as well; except that, if the service of the precept requires 
transporting a prisoner to or from the Chelsea District Court and the dis- 
tance covered is less than ten miles, the officer is to be reimbursed at the 
rate of thirty cents a mile for the distance traveled both ways, regardless 
of whether he transports a prisoner on the return trip." 

2. In answer to your second question concerning the measurement of 
mileage for which reimbursement must be paid, I am of the opinion that 
G.L. c. 262, §21 requires payment based on miles actually traveled. 

As noted above, §21 provides that: 

In the service of precepts in criminal cases, the officer shall be 
allowed the actual, reasonable and necessary expenses incurred 
. . . (emphasis supplied). 



100 P.D. 12 

Many county and state institutions are removed from the center of the 
nearest town. A standard shipper's or carrier's chart such as you describe 
in your question do not reflect these geographic realities. In light of the 
statute's express direction to reimburse for "actual expenses," reliance on 
these charts, without adjustment, would not appear to be permitted. 
Nevertheless, the terms "reasonable" and "necessary", which also appear 
in the statute, indicate that the DOC would not be precluded from devel- 
oping rules or a mileage chart of its own that would standardize the num- 
ber of miles between two institutions for which an officer might seek travel 
reimbursement. Such a chart could take into account whatever security 
considerations relating to the transportation of prisoners that the DOC 
thought appropriate. 

3. With respect to your third question regarding extra compensation 
upon certification of need for extra security measures, or "when the 
mileage allowance is manifestly inadequate", I am of the opinion that the 
awarding of such extra compensation is entirely committed to the judgment 
and discretion of the superior court justice. 

General Laws, c. 262, §47 provides that, on certain conditions, a 
superior court judge "may . . . allow extra compensation for any meritori- 
ous service for which fees allowed by law are manifestly inadequate. . . ." 
It is clear that the award of extra compensation pursuant to this section 
is at the discretion of the superior court judge, and it is beyond my author- 
ity to render an opinion which would compel or channel the performance 
of such a discretionary administrative act by a member of the judiciary. 

4. In answer to your fourth question, I am of the opinion that G.L. c. 
262, §48 4 does not allow for extra compensation in those situations where 
more than one prisoner is transported. That section of Chapter 262 clearly 
states that "if . . . two or more prisoners are conveyed at one time by the 
same officer, by virtue of mittimus, habeas corpus or state prison warrant 
. . . one traveling fee and one service only shall be allowed in conveying 
such additional prisoner or prisoners, in addition to the actual reasonable 
expense necessarily incurred." 

In other words, the cost of transporting a prisoner is determined solely 
by the amount of mileage traveled. Reimbursement for a traveling fee is 
to be at the rate of twenty cents per mile for each mile a prisoner is actually 
carried (G.L. c. 262, §21). The number of prisoners carried does not 
increase the rate. 

5. Your fifth question asks whether county courts are required by G.L. 
c. 248, §9 to certify in advance the expense which will be allowed. 

General Laws, c. 248, §9 provides that a court or magistrate granting 
an application for a writ of habeas corpus must certify on the writ the 
amount to be paid for the expense of transporting the prisoner from the 
place of his confinement. That section also provides that, "the officer [who 
has custody of the prisoner] shall not be bound to obey the writ unless 



-tin your request, you refer to G.L. c. 248, §48 as the statutory source of your fourth question. I have 
assumed that you intended to refer to G.L. c. 262, §48, and have answered accordingly. 



P.D. 12 101 

the amount [to be paid for the expense of transporting him from the place 
of imprisonment] is paid or tendered to him." 

Your question concerns the obligation of a court. The Attorney Gen- 
eral is responsible under G.L. c. 12, §3 for rendering opinions to state 
officials and state officers regarding their legal obligations, II Op. Atty. 
Gen. 100 (1899); courts are not considered "state officials" for purposes 
of these opinions. I Op. Atty. Gen. 603 ( 1898). Therefore, I must decline 
to answer this question. 

6. In question six, you ask whether the DOC is obligated to use state- 
owned vehicles and state-salaried correction officers in the service of a 
county writ without compensation by the county. 

I have not found any statute or regulation which would impose such an 
obligation. To the contrary, I have found certain statutory provisions that 
impose the costs of (1) committing all prisoners (G.L. c. 127, §122), 
(2) removing certain prisoners (G.L. c. 127, §123), and (3) transporting 
certain prisoners (G.L. c. 248, §40 and G.L. c. 276, §20M) on the coun- 
ties. The relationship between the DOC and the counties regarding trans- 
portation of prisoners and reimbursement for the costs of such transporta- 
tion is not clear. I am reluctant to answer this question without reference 
to a specific situation. However, it seems clear that a state-salaried DOC 
officer is not obligated to use his private vehicle in the service of a county 
writ without compensation from the county. 

7. Your seventh question asks whether the county treasurer is obligated 
by G.L. c. 213, §8 and G.L. c. 36, §12 to pay a bill for service of a writ 
as ordered by a justice of a county court, or whether he may adjust the 
bill at his discretion. 

On first impression both these statutes appear to require county 
treasurers to pay for services and expenses incurred in the sitting of court 
in the various counties. Like your fifth question however, this question also 
concerns the obligation of one who is not a state official, and for that 
reason I decline to answer it. See II Op. Atty. Gen. 100, supra. 

8. In response to your final question, I am of the opinion that DOC 
transportation officers should be compensated at the rate of twelve cents 
per mile for the use of their own vehicles in carrying prisoners in any 
manner, except in the service of precepts provided for by G.L. c. 262, §21. 
Reimbursement for transporting prisoners from institution to institution, 
or back to an institution after escape or parole violation, or in any other 
way which would be considered a department transfer (as opposed to 
transfer in the service of precepts in criminal cases), is determined by 
G.L. c. 30, §25. The most recent amount established by the comptroller of 
the Commonwealth under the authority of that statute is twelve cents 
per mile. 5 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

■""This amount conforms to the Legislature's authorization for such expenses in the FY 1977 budget. 
See St. 1976, c. 283, §6, discussed above in n.2. 



102 P.D. 12 

Number 10. October 21, 1976 

Commissioner John Calhoun 
Department of Youth Services 
73 Tremont Street 
Boston, Massachusetts 

Dear Commissioner Calhoun: 

You have requested my opinion on three specific questions of law, each 
raising the general question whether or not employees of your department 
may seek elective political office. You ask: 

1. Does state or federal law prohibit a full-time state employee 
from seeking: (a) local, (b) state or (c) federal elective office? 

2. Does state or federal law prohibit a full-time state employee 
from holding: (a) local, (b) state or (c) federal elective office? 

3. Does the Department of Youth Services have the authority to 
promulgate a rule governing the ability of a full-time employee 
to seek or hold elective office? 

In answer to your first question, there is no state law which prohibits 
state employees from seeking elective office. The Federal Hatch Act (5 
U.S.C. § 1502(a) (3)) does prohibit state employees from seeking elective 
office if the election is a partisan election, and the employee's principal 
job activity 

is in connection with an activity which is financed in whole or 
in part by loans or grants made by the United States or a Federal 

agency 5 U.S.C. §1501(4) 

Thus, to the extent that your employees are engaged in activities financed 
with federal funds, they violate the provisions of the Hatch Act if they 
seek partisan elective office. 1 

In answer to your second question, neither the Hatch Act nor any other 
federal law forbids per se a state employee from holding an elective office. 
In this connection, however, note should be taken of two federal cases, 
Northern Virginia Regional Park Authority v. United States Civil Service 
Commission, 437 F. 2d 1346 (D.C. Cir.), cert, denied 403 U.S. 936 
(1971) and In re Higginbotham, 340 F. 2d 165 (3d Cir.), cert, denied 
382 U.S. 853 (1965), both of which concern types of political activities 
in which elective office holders holding state jobs covered by the Hatch 
Act may not engage. 

Turning to state law prohibitions on holding an elective office, G.L. c. 
30, §21 provides that "a person shall not at the same time receive more 
than one salary from the treasury of the Commonwealth," and Article Two 
of Chapter Six of Part the Second of the Massachusetts Constitution further 
prohibits holding more than one position by certain elected officials. (The 
pertinent Article of the Constitution is attached as an addendum.) See 

iFederal law, however, permits state employees as defined above to seek a nonpartisan elective office. 
See 5 U.S.C. §1503. 



P.D. 12 103 



generally Opinion of the Justices, 332 Mass. 759 (1955). Nevertheless, 
Massachusetts law does allow for unpaid leaves of absence on the request 
3f certain elected officials. See, e.g., G.L. c. 31, §46E. Therefore, if your 
employees receive only one salary from the Commonwealth and do not 
trigger the specific prohibitions of the Massachusetts Constitution, they may 
hold elective office at any level. 

I answer your third question in the affirmative. In my opinion the Com- 
missioner of the Department of Youth Services does have the authority to 
promulgate a rule governing the ability of a full-time employee to seek or 
hold elective office. G.L. c. 18A, §1 provides in part that the Department: 

shall be under the supervision and control of a commissioner of 
youth services . . . [who] shall have full responsibility for the 
formulation and coordination of all of its functions. He shall 
appoint and may remove all employees in the department . . . 
in accordance with the provisions of chapter thirty-one. 

In my opinion, this statute includes authority to set personnel policies 
by rule, including a policy to govern Department employees' activities in 
seeking and holding political office. In drafting a rule on this subject, I 
suggest that you draw it narrowly to protect your employees' freedom of 
association and guarantee their right to equal protection of the laws. Two 
recent Supreme Judicial Court cases have dealt specifically with this mat- 
ter: O'Hara v. Commissioner of Public Safety, Mass. Adv. Sh. ( 1975) 990; 
and Boston Police Patrolmen's Association, Inc. v. Boston, Mass. Adv. 
Sh. (1975) 979. In the latter case, which concerned a Boston policeman 
who became a candidate for the office of City Councillor, the court referred 
with approval to Rule 34, §4(f) of the Police Department of the City of 
Boston, which states: 

Every member of the police department, upon becoming a can- 
didate for election to any office under the federal, state or city 
government, shall take a leave of absence without pay effective 
with the day he requests nomination papers or subscribes his 
statement of candidacy and continuing until whichever of the 
following first occurs: the election or his failure of nomination at 
the primary or preliminary election or his failure to become, or 
withdrawal as, a candidate for nomination. 

The court held that the above rule is consistent with both Massachusetts 
law and applicable constitutional provisions. Id. at 986-88. 



Very truly yours, 

FRANCIS X. BELLOTTI 

A ttorney General 



104 P.D. 12 

Number 11. November 12, 1976 

Dr. William E. Perrault 

Executive Director 

Massachusetts State Lottery Commission 

15 Rockdale Street 

Braintree, Massachusetts 02184 

Dear Dr. Perrault: 

You have requested my opinion regarding the following question: 
Does Section 38 of Chapter 10 of the General Laws require that 
an organization have been in existence as a "[fraternal] organiza- 
tion organized under the provisions of Chapter 180" for five 
years prior to its application for a Beano license, or is it enough 
that the organization be organized under Chapter 180 at the time 
the license is granted so long as the organization has been in 
existence for at least five years? 

I am of the opinion that as long as a fraternal organization is organized 
under the provisions of G.L. c. 180 at the time it applies for a beano 
license and has been in existence for at least five years immediately prior 
to the date of its application, it may be granted a license under the pro- 
vision of G.L. c. 10, §38. My reasons are as follows. 

G.L. c. 10, §38, describes several types of organizations which can 
apply for and obtain a license from the State Lottery Commission to con- 
duct the game of beano. 1 All of the organizations are compatible with the 
purpose of §38, which is to provide "funds to be used exclusively for 
educational, charitable and religious purposes." See 1973 H. Doc. No. 
7156. Specifically, a "fraternal organization organized under the provisions 
of chapter one hundred and eighty [of the General Laws]," which your 
question to me concerns, meet this statutory purpose: Chapter 180 governs 
the incorporation and existence of corporations devoted to charitable and 
certain other purposes (see G.L. c. 180, §§1 et seq.); by requiring that a 
domestic fraternal organization be organized under its provisions, the 
Legislature has ensured that any funds provided by beano will be used 
only for the purposes G.L. c. 10, §38, is intended to advance. Compare 
G.L. c. 180, §4. 



iG.L. c. 10, §38, reads, in relevant part, as follows: 

Any fraternal organization having chapters or branches in at least one other New England state, or 
any fraternal organization organized under the provisions of chapter one hundred and eighty, any 
religious organization under the control of or affiliated with an established church of the Common- 
wealth and any veterans' organization incorporated or chartered by the Congress of the United States 
or listed in clause (12) of section five of chapter forty, any volunteer, non-profit fire company or 
similar organization furnishing public fire protection, any voluntary association for promotion of the 
interests of retarded children, the Boston Firemen's Relief Fund, any volunteer, non-profit organization 
furnishing a pubiic ambulance service, and non-profit athletic associations, desiring to operate or 
conduct the game commonly called beano, or substantially the same game under another name, in 
connection with which prizes are offered to be won by chance, may upon application to the state 
lottery commission be granted a license to conduct said game in a city or town which has voted to 
allow granting of licenses for the operation, holding or conducting of said game therein; provided, that 
the application of such organization is in the case of a city, other than the city of Boston, approved by 
the majority of the city council and approved by the mayor, in a town by the board of selectmen, and 
in the city of Boston by the licensing board for said city; and provided further, that such organization 
has been in existence for at least five years immediately prior to the date of making application for 
such license. 



P.D. 12 105 



By its direct terms, the statutory language "any fraternal organization 
organized under the provisions of chapter one hundred and eighty," 
appears to demand only that such an organization be incorporated under 
that chapter at the time it applies for a beano license; the language does 
not look to the status of the organization in the past. There is however, a 
proviso at the end of the first paragraph of §38 which requires all of the 
organizations referred to previously in that section to have "been in 
existence for at least five years prior to the date of making application for 
[a beano] license." It is the relationship of this provision to the earlier 
statutory description of a fraternal organization that forms the basis of 
your opinion request. 

The proviso must be read as a limitation or restriction on the right of 
the several specific types of organizations mentioned in §38 to apply for 
and receive beano licenses. 2 See, e.g., Sears v. Child, 309 Mass. 337, 345- 
346, (1941); Attorney General v. City of Methuen, 236 Mass. 564, 573 
(1921). However, it is a cardinal rule of statutory interpretation that 
" 'where a provision general in its language and objects, is followed by a 
proviso . . . the proviso is to be strictly construed, as taking no case out of 
the provision that does not fall within the terms of the proviso, the latter 
being understood as carving out of the provision only specified exception, 
within the words as well as within the reason of the former.' " Opinion of 
the Justices, 254 Mass. 617, 620 (1926) (quoting from Endlich, Interpre- 
tation of Statutes, page 742). 

Strictly construing the proviso at the end of the first paragraph of §38, 
I have concluded that this clause does not prohibit a fraternal organization 
organized under the provisions of G.L. c. 180 for less than five years from 
receiving a beano license as long as it has had a bona fide existence in 
some other form of organization for the five years immediately preceding 
its license application. The five year "existence" requirement of the pro- 
viso appears to represent a legislative effort to insure that an organization 
not be created for the sole and immediate object of holding beano games. 
Such a purpose would not be further aided, however, by requiring in 
addition that the organization be organized under G.L. c. 180, for five 
years. Indeed, such a construction of the proviso would be contrary to the 
stated purpose of §38 as a whole to "provide forthwith funds to be used 
exclusively for educational, charitable and religious purposes" (emphasis 
supplied). 1973 H. Doc. No. 7156, supra. A construction of statute that 
is contrary to its stated intent should not be adopted. See, e.g., Common- 
wealth v. Lamb, 365 Mass. 265 (1974). 

Very truly yours, 

FRANCIS X. BELLOTTI 

A ttornev General 



-See also the penultimate clause of §38. first paragraph, which sets forth another qualification on an 
organization's ability to obtain a beano license. 



106 P.D. 12 

Number 12. December 10, 1976 

Honorable Robert Wood, President 
University of Massachusetts 
One Washington Mall 
Boston, Massachusetts 02108 

Dear President Wood: 

You have requested my opinion on the applicability of the Massachu- 
setts open meeting law, G.L. c. 30A, §§ 1 1 A and 1 IB, to the University 
of Massachusetts' Board of Trustees. Specifically, you ask about the rela- 
tionship between the open meeting law and the provisions of G.L. c. 75, 
§§1 and 3, defining the range of authority of the Board. Your question is: 

Does the Board of Trustees of the University of Massachusetts 
have the autonomous authority under Mass. G.L. c. 75 to con- 
duct meetings as it may deem necessary, notwithstanding the 
provisions of Mass. G.L. c. 30A, §§ 1 1 A and 11B, as most 
recently amended by St. 1975, c. 303, §1? 1 

Until recently, the Board of Trustees had no rule which specifically 
defined or even considered the circumstances in which closed meetings — 
i.e., executive sessions — should be held. Without such a rule, your 
request for an opinion required a determination whether the autonomy 
granted the Board of Trustees under G.L. c. 75 was so extensive and un- 
equivocal as to pre-empt the application to it of general mandates such 
as the open meeting law even though the Board had not explicitly adopted 
a conflicting policy. On October 6, 1976, however, the Board of Trustees 
did adopt a rule concerning executive sessions. 2 This rule relates closely 
to the substance of your original question and will of necessity shape my 



lAs a result of the 1975 amendment you cite, there are presently two sections of G.L. c. 30A denoted as 
§1 IB. I will here refer only to the §1 IB inserted by the 1975 statute and amended again recently by 
St. 1976, c. 397, §§2-3. 

'- Executive Sessions. By vote of a majority of the trustees present at any meeting, the Board may 
enter into executive session, closed to the public. 

Executive sessions may be held only for the following purposes. 

(1) to discuss the reputation and character, physical condition or mental health as well as the pro- 
fessional competence of an individual; 

(2) to consider the discipline or, dismissal of, or to hear complaints or charges brought against 
an individual; 

(3) to discuss strategy with respect to collective bargaining or litigation if an open meeting may 
have a detrimental effect on the bargaining or litigating position of the university; 

(4) to discuss the deployment of security personnel or devices; 

(5) to consider allegations of criminal misconduct; 

(6) to consider the purchase, exchange, lease or value of property or contracts if such discussions 
may have a detrimental effect on the negotiating position of the governmental body and a 
person, firm or corporation; 

(7) to comply with the provisions of any general or specific law or federal grant-in-aid requirements; 

(8) to consider the award of honorary degrees and other awards; 

(9) to consider the hiring or promotion of personnel; 

(10) to consider matters the disclosure of which might significantly frustrate the implementation of a 
proposed university action. 
The vote shall be taken by roll call and the purpose of the session shall be announced in advance. 



P.D. 12 107 

response. In the present circumstances, I view your question as narrowed"' 
to a consideration whether the rule, adopted under the authority of 
G.L. c. 75, §3 may stand. For the reasons set forth in my analysis below, 
I conclude that it may. 

It is plain that the terms of the open meeting law, if considered in isola- 
tion, are applicable to the University of Massachusetts. General Laws, c. 
30A, §11B mandates that "all meetings of a governmental body shall be 
open to the public . . . except as otherwise provided by this section" 
(emphasis added). While no decisions in Massachusetts have addressed 
the question, the Board of Trustees clearly appears to be covered by that 
part of §11A which defines "governmental body" as "a state board . . . 
within the executive or legislative branch of the commonwealth. . . ." The 
first sentence of the University's governing statute G.L. c. 75, §1", states: 

There shall be a University of Massachusetts which shall con- 
tinue as a state institution within the department of education but 
not under its control and shall be governed solely by the board 
of trustees under section twenty of chapter fifteen (emphasis 
added). 

Because the Department of Education is part of the Executive branch, 
G.L. c. 6A, §14, the Board of Trustees comes within that Branch as well, 
and is therefore a "governmental body" within the definition of the open 
meeting law. 4 

Thus, absent a specific statutory exemption, meetings of the trustees 
would be subject to the requirements of the open meeting law. The open 
meeting law itself suggests no such specific exemption. The strongest argu- 
ment that such an exemption exists lies within the language of G.L. c. 75, 
§3, which reads in pertinent part as follows: 

Notwithstanding any other provision of law to the contrary, 
except as herein provided, the trustees may adopt, amend, or 
repeal such rules or regulations . . . for the regulation of their 
own body, as they may deem necessary . . . (emphasis added). 

The underscored language appears categorically to permit disregard 
of the open meeting law and to give the Board of Trustees free reign over 
the conduct of its meetings. Thus, by itself, section 3 would appear dis- 
positive of the question you pose/' While I ultimately conclude that §3 



3For an analysis of the difference between the broad question of pre-emption by legislative intent, 
raised by your original request, and the narrower question of actual conflict between a statute and a 
rule, now in issue, see. e.g., Florida lime <S Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-152 
(1963). 

4 This conclusion is buttressed by a recent decision of the Supreme Judicial Court treating a question of 
tort law. In Hannigan v. The New Gamma-Delta Chapter of Kappa Sigma Frat. Inc. Mass. Adv. Sh. 
( 1975 ) 1416, 1417, 327 N.E. 2d 882, 883, the Court applied the doctrine of sovereign immunity to bar a 
tort action against the U. Mass. Board of Trustees. The Court held inter alia that "the trustees are 
one and the same parly, namely the Commonwealth of Massachusetts, since the action was not 
instituted against the trustees individually, but rather against the board as a statutory entity" (citing 
G.L. c. 20. S15, and G.L. c. 75, §1). See also 1965-1966 Op. Atty. Gen. (July 19. 1965). which con- 
cluded that the Board ol Tsustees fell within the coverage of the open meeting law, as then written. 
(This opinion is discussed below.) 

5 The word "notwithstanding" when used in a similar manner in other statutes, has been given a rigid 
interpretation by other state courts. See, e.g., Dover v. Dover, 15 C.A. 2d 675, 93 Cal. Reptr. 384, 385 
(1971), State v. Superior Court of LA. County. 252 C.A. 2d 637, 60 Cal. Reptr. 653. 654 (1967) Cf. 
Board of Ed. of Maple Heights City School Dist. v. Maple Heights Teachers Ass'n., 41 Ohio Misc. 
27, 322 N.E. 2d 154, 157 (1973). However, there are no Massachusetts decisions interpreting this 
phrase. 



108 P.D. 12 

does permit the Board's new rule to stand, a number of factors suggest 
that the reach of the statute's exempting language is not free from doubt. 
These factors thereby serve to define the parameters of §3 and must be 
considered. 

First, I note that pertinent legislative history does not support the 
notion that §3 provides the trustees with a blanket exemption from other- 
wise applicable general laws. Chapter 75, §3 was enacted as part of a 
comprehensive revision of the statutes governing the University, recom- 
mended by special commission appointed by the Legislature in May, 1961.° 
The Commission's primary effort was to provide the University with fiscal 
autonomy from executive agencies. See Report of the Commission, 
January 24, 1962, House Doc. No. 3350, particularly pp. 32-33. The 
Commission spent little time in its report discussing the regulatory powers 
of the Trustees over their own body. In its sole reference to this issue, the 
Commission wrote: 

The present authority of the Trustees to make rules and regula- 
tions is adequate but a revision is recommended so as to place 
this authority in one unified section of the General Laws. Com- 
mission Report at 34 (emphasis added). 
The regulatory power that the Commission in 1962 deemed "adequate" 
included no exempting language whatsoever. Indeed, the pertinent statute 
read, prior to the Commission's proposed revision: 

The Trustees shall make reasonable rules and by-laws consistent 
with law, with reasonable penalties, for the government of the 
University and for the regulation of their own body. G.L. c. 75, 
§10 (1958 ed.) enacted by St. 1863, c. 220, §2, amended by St. 
1947, c. 344, §16 (emphasis added). 
This statute prior to 1962 thus required that Trustee rules be consistent 
with other laws. This being the case, it is at best unclear that the Legisla- 
ture in 1962, in adopting an extensive statute dealing primarily with fiscal 
autonomy and guided by the Commission Report, intended to provide the 
Trustees with a blanket exemption from all general laws. 7 

A further basis for suggesting that the exempting language of G.L. c. 75, 
§3 may be subject to some limitation is the structure of §3 itself. s Rather 



6 The Special Commission on Budgetary Powers of the University of Massachusetts and Certain Related 
Matters, established by St. 1961, c. 92. 

i\ am mindful of various rules of statutory construction relating to the appropriate use of legislative 
history. Principally, a statute must be interpreted according to the intent of the Legislature as ascer- 
tained from all the words construed by the ordinary and approved usage of the language, considered 
in connection with the cause of its enactment, the mischief or imperfection to be remedied and the 
main object to be accomplished, to the end that the main purpose of it may be affectuated. Board 
of Education v. Assessor of Worcester, Mass. Adv. Sh. (1975) 2626, 2629. Industrial Finance Corp. 
v. State Tax Commission, Mass. Adv. Sh. (1975) 967, 972. In this case, in an effort to ascertain the 
fair implications of G.L. c. 75, §3, I have considered the statutes in question "not in isolation but in 
relation to each other and to other statutes, resorting to their origins, their historic development, and 
their present language." Pereira v. New England LNG Co. Inc. 364 Mass. 109, 115 (1973). 

8 It should also be noted that a prior Opinion of the Attorney General, 1965-1966 Op. Atty. Gen. (July 
19, 1965), supra, concluded that "the trustees of the University are required by c. 30A, §11A to 
hold meetings which are public in nature." It is true that this opinion did not address the specific 
question whether G.L. c. 75, §3 constituted an exemption from the open meeting law. However, the 
General Court did not see fit. after the issuance of the opinion, to alter the conclusion reached by 
the Attornev General. In its 1975 and 1976 amendments to c. 30A, §§11 A and 11B (St. 1975, c. 303, 
§1 and St. 1976, c. 397, §§1-3) the General Court left the opinion undisturbed. While the Legisla- 
ture's failure to amend the statute in light of the Attorney General's opinion does not rise to the 
level of ratification, the Legislature's apparent tolerance of the conclusion reached by the opinion 
is entitled to some weight. Cf. F order v. Hopkins, 329 Mass. 668, 671, (1953) (Legislature pre- 
sumed to be aware of pertinent judicial decisions). 



P.D. 12 109 

than providing the Board of Trustees with an absolute exemption from 
the application of general laws in the conduct of its affairs, the section 
speaks only to the power of the Trustees to adopt, amend, or repeal rules 
or regulations for the regulation of their own body "notwithstanding any 
other provision of law to the contrary/ 1 Thus, the exemption appears to 
confer broad authority on the Trustees in the adoption of rules, but by 
necessary implication to limit their conduct in the absence of duly 
adopted rules. 

In this manner the statute implies that when the Trustees have deliber- 
ated over a particular policy for the regulation of their own body, have 
reached a collective decision and have promulgated a rule pursuant to the 
procedure set forth in §3, 9 that policy decision should take precedence 
over other general laws to the contrary. When, however, no such delibera- 
tive process has been followed, the applicable provisions of general laws 
should prevail. Such a reading (a) permits the specific statute governing 
the Trustees' powers (G.L. c. 75, §3) to be read in greatest possible 
harmony with applicable general laws. 10 (b) avoids the extreme result of 
permitting a single statutory phrase to suspend ex proprio vigore the 
operation of all general laws potentially applicable to the Board's regula- 
tion of its affairs, and (c) insures that, if the provisions of general laws 
are given way to specific measures to the contrary, 11 it will be in circum- 
stances where the Trustees have focused on the very policy question raised 
in the general law and have acted not on an ad hoc basis but rather in 
prospective, general terms appropriate to the importance ascribed to the 
issue by the Legislature. 

Thus, the proper response to your broad question would raise a trouble- 
some issue absent a specific Board regulation on open meetings. The 
issue, however, is narrowed and simplified by promulgation of the October 
6, 1976 rule. See n. 2, supra. As stated above, the question now is whether 
this regulation may stand. 

This question is not answered by prior opinions. In 1965-1966 Op. 
Atty. Gen. (July 19, 1965), supra, the Attorney General did conclude 
that the open meeting law applied to the Board of Trustees, but in a situa- 
tion where no specific rule pursuant to G.L. c. 75, §3 had been promul- 
gated. Further, in 1975-1976 Op. Attv. Gen. (Jan. 9, 1975) supra, the 
Attorney General determined that c. 75, §3 exempted the Trustees from 
the rulemaking procedures of c. 30A, §§2-9. However, in that instance 
the procedures of c. 30A conflicted directly with contrary procedures pro- 
vided by the exolicit terms of §3. See n. 9, supra. 12 The situation here is 
thus a novel one. 



f'The procedures mandated by c. 75. §3 provide: 

"The trustees shall publish such rules and regulations and shall file copies thereof with the gov- 
ernor, the commission on administration and finance, and the joint committees on ways and means." 
The controlling effect of these procedures despite conflicting rulemaking procedures in G.L. c. 30A. 
§§2-9 is discussed in 1974-1975 Op. Atty. Gen. (January 9. 1975). See p. 9 infra. 
i05ee Board of Education v. Assessor of Worcester, supra. Mass. Adv. Sh. (1975) at 2629. 
nPereira v. New England LNG Co. Inc. 364 Mass. 109, 118 (1973). 

'2£ee also 1967-1968 Op. Atty. Gen., (November 13. 1967) where language in G.L. c. 75A, §7 applicable 
to the University of Lowell Board of Trustees and parallel to G.L. c. 75. §3 was determined to pre- 
clude application of the general quorum requirements of G.L. c. 4. §6. paragraph 5. In that situation, 
notably, the Trustees had actually adopted its own quorum by-law. That opinion therefore is in 
harmony with the conclusions reached here. 



110 P.D. 12 



However, the language and structure of G.L. c. 75, §3 does provide 
the answer to your question. The statute plainly provides that once its 
conditions have been fulfilled through the promulgation of or rule by the 
Board of Trustees, then "notwithstanding any law to the contrary" the 
regulation governing the operation of the Board's own affairs must prevail. 
This interpretation gives meaning to all the language in §3. See Common- 
wealth v. Woods Hole, Martha's and Nantucket S.S. Authority, 352 Mass. 
617, 618 (1967). Moreover, it gives due recognition to the principle that 
when, as here, every effort has been made to avoid a construction that 
places two statutes in conflict, see Brooks v. Fitchburg & Leominster St. 
R'y, 200 Mass. 8, 17 (1908), and a conflict remains, the general statute 
must yield to the provision of the specific statute. Pereira v. New England 
LNG Co., Inc. supra. General Laws, c. 75, §3 unquestionably constitutes 
the kind of specific statute to which the general mandate of the open meet- 
ing law must yield once the conditions of c. 75, §3 have been fulfilled. 13 

In summary, I conclude that the broad question posed by your original 
request concerning the general authority of the Trustees to conduct meet- 
ings has been superseded by the promulgation of a comprehensive rule 
limiting the use of executive sessions. It is my opinion that this rule is valid. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 13. December 21, 1976 

rhaddeus Buczko 

State Auditor 

State House 

Boston, Massachusetts 02133 

Dear Mr. Buczko: 

The Commissioner of Public Welfare and the Commissioner of Educa- 
:ion has requested the state auditor to audit grants and contracts from the 
Departments of Public Welfare and Education to the Elma Lewis School 
Df Fine Arts (ELSFA) for fiscal year 1976. In entering into these grants 
md contracts, the ELSFA, a non-profit corporation, agreed in writing 
:o permit audits of its use of the funds, and has co-operated with the state 
auditor in the auditing procedure that is the subject of your opinion 
*equest. 



3 A recent holding of the Supreme Judicial Court, City of Boston v. Massachusetts Port Authority, 
364 Mass. 639 (1974), while distinguishable from this situation, is nonetheless instructive in suggest- 
ing limits on the exempting language of c. 75, §3. There, the Court held that air pollution regulations 
promulgated by the State Department of Public Health were binding on the Port Authority, despite 
language in its statutory charter, St. 1965, c. 465, §2, providing a broad exemption from "supervision 
or regulation of... any department, commission, board, bureau or agency of the commonwealth..." 
The Authority suggested, inter alia, that the basis for the §2 exemption was to permit it to operate 
essentially as a private business rather than a state agency. Accordingly, the Court reasoned that 
since air pollution regulations applied to all entities, public and private, there was not basis for 
applying the exemption in that instance. The Court then stated that to conclude otherwise would 
mean "that no legislation authorizing state regulation of any activity or subject, regardless of the 
breadth of its language and the generality of its application, would supersede such exemption except 
by express reference to and amendment of the enabling act . . ." 364 Mass. at 655. 

Thus, if the general statute involved were applicable to private as well as governmental bodies, as 
was the case in City of Boston v. M.P.A., more serious doubt as to the applicability of the c. 75, §3 
exemption would be raised. 



P.D. 12 111 

You have asked my opinion as to: 

( 1 ) Whether the state auditor may audit these grants and con- 
tracts to the Elma Lewis School, a non-profit corporation? 

(2) What scope such an audit may take? 

At least under the narrow circumstances existing here — i.e., a specific 
agreement by the organization being audited, permitting the audit to take 
place, and with the cooperation and acquiescence of ELSFA in the per- 
formance of the audit by the state auditor, and finally the initiation of the 
audit process not by independent assertion of authority by the auditor but 
at the request of grant-making state agencies — it is my opinion that the 
state auditor may audit certain grants to the Elma Lewis School .The scope 
of such an audit should be limited to those processes necessary to determine 
the proper receipt and use of Commonwealth grant monies. 

The primary statutory authority governing the activities of the state 
auditor is G.L. c. 11, §12, which provides in pertinent part as follows: 

The department of the state auditor shall make an audit as often 
as the state auditor determines it necessary, but in no event less 
than once in every two years of the accounts of all departments, 
offices, commissions, institutions, and activities of the common- 
wealth, including those of districts and authorities created by the 
general court. 

In the case of Auditor v. Trustees of the Boston Elevated Railway Com- 
pany, 312 Mass. 74 (1942), the Supreme Judicial Court held that, under 
§12, the auditor could not independently audit the accounts of a private 
corporation, against the will of that corporation. See also, 1930-31 Op. 
A.G. 94. Despite the prohibition on such private audits, Boston Elevated 
does not apply to the circumstances here. The relevant differences are 
as follows. 

First, unlike the situation in Boston Elevated where the auditor asserted 
independent power to compel the audit there in question, the auditor is 
acting here at the explicit request of state agencies whose power to audit 
grants to the school is clear. The Department of Public Welfare provided 
funds to the ELSFA under a contract. The contract provided for the 
purchase of after-school day care services from the ELSFA. Part 6(c) of 
this contract provides: 

All financial, program, and other books, records, documents and 
property relevant to this agreement shall at all reasonable times 
and in accordance with clause 8 be open for inspection, review, 
or audit by the Department or its authorized representatives. 

Thus, the contract specifically gives audit authority to representatives of 
the Department of Public Welfare. 

Similarly, the Department of Education made three grants to the 
ELSFA. Two of these grants were made under the provisions of the 
Vocational Education Act; the third grant was made for Magnet Education 
programs. The agreement signed by the ELSFA with the State Department 
of Education which governs the Vocational Education Act grants provides: 



112 P.D. 12 

I do hereby certify compliance with the above assurances and, 
further agree that funds will be used as stipulated in the applica- 
tion, and that supporting documents for expenditures will be 
submitted for audit. 
The grant for Magnet Educational programs was made under Section 8 of 
Chapter 636 of the Acts of 1974. Regulations under this statute state: 
The Board [of Education] reserves the right to audit the expendi- 
ture of all payments of funds made according to these regulations. 
The Boston School Department applied for this grant for services it 
stated would be provided by ELSFA, and certified in its application that 
the regulations governing expenditures of the funds would be observed. 
Thus, in each instance, audit of the use of these grants by the state has 
been specifically agreed to by the school. 

The second distinction lies in the acquiescence of the ELSFA. It has 
not objected to the conduct of the audit by the state auditor. On the con- 
trary, it has cooperated fully with the auditor. Any objections the School 
might have to the request by the state agencies that the state audior be 
utilized have been waived by the school's voluntary participation in the 
audit. Cf. Kimball v. First Baptist Society in Amesbury, 68 Mass. 517 
(1854); see also Duckworth v. Diggles, 139 Mass. 51 (1885); Fox v. 
Hazelton, 27 Mass. 275 (1830). 

Given these factors, the narrow inquiry in this opinion is whether the 
state auditor may properly accept the request of the state agencies to per- 
form this voluntary audit. 1 The use of the state auditor by the Departments 
of Public Welfare and Education to perform these audits is a logical and 
efficient method of fulfilling the statutory duty of these two agencies to 
oversee the proper disposition of funds they have granted. 2 The per- 
formance of audits is, after all, the state auditor's constitutional and 
statutory function as a state officer. E.g., G.L. c. 11, §1, et seq.; c. 29, 
§2C; St. 1976 c. 502. His expertise should be available for such situations 
unless there exist specific prohibitions on such activities. See United States 
v. Freeman, 44 U.S. 556 (1845); Multi-Line Ins. Rating Bureau v. Com- 
missioner of Insurance, 357 Mass. 19 (1970); Sutherland, Statutory Con- 
struction, §65.03 and cases cited therein.' 5 In light of the conclusion reached 
here, it is unnecessary to reach the more difficult question of the auditor's 
independent authority in §12 or elsewhere to compel an audit of these 
grants. 4 

iThus, this opinion does not treat situations involving the appropriateness of an independent audit 
against the will of a private corporation. 

2The legitimacy of the auditor's role in performing a service to state agencies has been recognized. 
Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket Steamship Authority. 352 Mass. 617, 
619 (1967). 

SThis conclusion is not inconsistent with Boston Elevated, supra, since that case involved an interpreta- 
tion of c. 11, §12 in the context of independent action by the auditor, resisted by the audited party. The 
auditor's proper role must be interpreted in the context of the particular situation and in light of the 
objects of the entire applicable legislative scheme. The scope of the auditor's independent authority 
need not be read to limit his range of permissible activity as a designee in a voluntary situation. See 
Bristol COtinty v. Secretary of the Commonwealth. 324 Mass. 403 (1949) Universal Machine Co. v. 
Alcoholic Beverages Control Commission, 301 Mass. 40 (1938). Thus this opinion in no way questions 
or qualifies the conclusions reached in other cases or opinions of the Attorney General. 

4 1 1 should be noted that an amendment to c. 11, §12 after the Boston Elevated decision specifically 
authorizes the auditor to examine the books of vendors to the Department of Public Welfare in the 
course of auditing the Department of Public Welfare. ELSFA is such a vendor. Moreover, G.L. c. 29, 
§2C authorizes the auditor to audit the expenditure of all federal grants. 



.D. 12 113 

Turning to the permissible scope of the audit of ELSFA, such questions 
ive been addressed in several opinions of the Attorney General. The 
omissible scope includes the examination of those documents necessary 

verify amounts received and to check disbursements against them. E.g., 
H5-46 Op. A.G. 95; 1942-44 Op. A.G. 28, 29; 1935-36 Op. A.G. 107; 
)30-31 Op. A.G. 94. Accordingly, you may in this instance audit the 
;counts of the ELSFA at least to the extent necessary to determine the 
ceipt and disbursements of funds under the applicable grants and 
mtracts. 

In summary, you may accept the requests of the Department of Public 
r elfare and the Department of Education to audit grants to the Elma 
3\vis School on their behalf, where there has been no objection by the 
:hool to such an audit. The audit may include examination of those 
:counts necessary to determine the receipt and expenditure of grant funds. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



umber 14. December 22, 1976 

tmes S. Cooper, Chairman 
abor Relations Commission 
)0 Cambridge Street 
oston, MA 02202 

ear Commissioner Cooper: 

You have requested my opinion regarding the following question: 
Upon reaching the mandatory retirement age of seventy specified 
in §3(2) (g) of Chapter 32 of the General Laws is Commis- 
sioner Madeline H. Miceli required to retire or may she serve 
out the remainder of her term which expires on August 25, 1978? 
is my opinion that Commissioner Miceli must retire upon attaining the 

laximum age of employment for the group in which she is classified. 
Several provisions of Chapter 32 state that members of the Retirement 

/stem must retire upon reaching mandatory retirement age. Section 3(2) 

I Chapter 32 provides: 

(e) No member and no person who was ineligible for member- 
ship because of entering or reentering the service after attaining 
age sixty, except as otherwise provided for in subdivision ( 1 ) of 
section five or in section ninety-one, or in section twenty-six of 
chapter six hundred and seventy of the acts of nineteen hundred 
and forty-one, or in chapter sixteen of the acts of nineteen hun- 
dred and forty-two as amended, shall remain in service after 
attaining the maximum age for his group or for the group in 
which he would have been classified had he become a member 
or after the date any retirement allowance becomes effective 
for him, whichever event first occurs. 



114 P.D. 12 

G.L. c. 32 §20 (5) (e) provides in part: 

It shall be the duty of such board to notify each such member or 
employee ... of the date when such member or employee will 
attain the maximum age for his group, and such member or 
employee shall not be employed in any governmental unit after 
such date except as otherwise provided for in sections one to 
twenty-eight, inclusive. 

G.L. c. 32 §1 provides in part: 

"Maximum Age", the age on the last day of the month in which 
any member classified in Group I as provided for in paragraph 
(g) of subdivision (2) of section three attains age seventy, or 
if classified in Group 2 or Group 4 attains age sixty-five, or if 
classified in Group 3 attains age fifty-five. 
Amended by St. 1967, c. 826, § 1 . 

G.L. c. 32 §3 (2) (g) provides in part: 

Group I. — Officials and general employees including clerical, 
administrative and technical workers, laborers, mechanics and all 
others not otherwise classified. 

Commissioner Miceli was first appointed as a Labor Relations Com- 
missioner in 1965 while employed in State service in a different capacity 
and while an active member of the Retirement System. Her membership 
in the State Retirement System has continued until the present time. 

The fact that Commissioner Miceli reached age seventy on September 9, 
1976 does not change her status as a member; nor would any waiver of 
her pension pursuant to G.L. c. 32 §90B change that status. Section 3(1) (c) 
of Chapter 32 provides in part that "[a] member shall retain his member- 
ship in the System so long as he is living and entitled to any present or 
potential benefit therein." (Emphasis added.) Thus, having been an active 
member in service of the Retirement System upon reaching age seventy 
and being entitled to a pension upon retirement, it is impossible for Com- 
missioner Miceli to shed the status of "member" in order to avoid the 
statutory requirements that accompany this status. The case of Williams v. 
Contributory Retirement Appeal Board, 304 Mass. 601, 608 (1939) 
supports this position in holding that an elected official who chose to be- 
come a member of a county retirement system "was not at liberty to with- 
draw from membership as he was about to reach the time fixed for 
retirement, and thereafter continue to serve for the remainder of the term 
for which he had been elected." 

Just as Commissioner Miceli can take no steps to withdraw as a member 
of the Retirement System upon reaching age seventy in order to finish the 
remainder of her term, she cannot continue her employment by waiving 
her pension or retirement allowance pursuant to §90B of Chapter 32. The 
waiver language of §90B, even as broadly construed by a 1972 Attorney 
General Opinion, only permits a retired employee to waive his pension and 
thereby render himself eligible for re-employment by the Commonwealth 



P.D. 12 115 

jp to, but not beyond, the mandatory retirement age. 1972 Op. Atty. Gen. 
Mo. 71/72-15 (January 10, 1972). Because §90B focuses on return to 
ictive service from "premature retirement," it has no application to the 
situation of Commissioner Miceli who has reached the age of mandatory 
■etirement during the course of her unexpired term with the Labor Rela- 
ions Board. 

Commissioner Miceli thus falls squarely within the above-cited provi- 
sions for mandatory retirement upon reaching the maximum age specified 
"or her employment group. She does not qualify for any of the statutory 
exceptions to mandatory retirement listed in §3(2) (e) of Chapter 32. 
[n this regard, her status as an appointed official must be contrasted to 
he status of elected officials who are specifically exempted from the 
'equirement of mandatory retirement upon reaching maximum age. G.L. 
:. 32 §5(1) (d) provides: 

Notwithstanding any provision of this chapter to the contrary, 
any member holding office by popular election at the time of 
attaining maximum age for his group, whether or not he is then 
entitled to a superannuation allowance, may continue to serve in 
such office until the expiration of any succeeding term or terms 
for which he may subsequently be re-elected thereto and during 
such term or terms he shall not be subjected to compulsory 
retirement but shall continue as an active member of the Retire- 
ment System and deductions shall be made from his regular 
compensation so long as he holds such office and the time of 
holding such office shall be considered creditable service for the 
computation of his retirement allowance. 

No such broad exception to the requirement of mandatory retirement upon 
reaching maximum age applies in the case of appointed officials. 

Commissioner Miceli's situation is similar to the facts of a 1961 Attorney 
General Opinion. That opinion concluded that the Executive Director of 
the Chicopee Housing Authority, who was a member of the Retirement 
System and who wanted to forego his retirement allowance upon attaining 
age seventy in order to remain in his position, had to retire. 1961 Op. 
Atty. Gen. No. 105 (November 10, 1961). That Opinion referred to 
G.L. c. 32 §§3(2) (e) and 20(5) (e) as authority for the position that 
retirement was mandatory. In like manner Commissioner Miceli, as a 
member of the Retirement System who does not fall within an exception 
to the mandatory retirement provisions of G.L. c. 32 §§3(2) (e) and 
20(5) (e), must terminate her employment with the State prior to the 
expiration of the term to which she was appointed. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



116 P.D. 12 

Number 15. December 28, 1976 

Wallace C. Mills 

Clerk of the House 

State House 

Boston, Massachusetts 02133 

Dear Mr. Mills: 

You have forwarded to me an order of the House of Representatives 
which seeks my opinion on the following question: 

Does section fifty-four A of chapter seventy-one of the General 
Laws require school committees to have a person as defined in 
said section in personal attendance at every interscholastic foot- 
ball game played by any teams representing a public secondary 
school? 

The legislative history of this statute indicates that it does not require 
such personal attendance at interscholastic football games. 

General Laws, c. 71, §54A, as amended by St. 1975, c. 569 provides, in 
pertinent part, as follows: 

A physician employed by a school committee or a person who has 
completed a full course in emergency medical care as provided 
in section six of chapter one hundred and eleven shall be assigned 
to every interscholastic football game played by any team repre- 
senting a public secondary school in the commonwealth . . . 
(emphasis supplied). 

In 1972, the legislation which was to become G.L. c. 71, §54A was 
initially introduced in the legislature as House Bill 2270. The original 
language of House Bill 2270 provided that "[a] physician employed by a 
school committee shall be in attendance at every interscholastic game." 
1972 House Doc. No. 2270. (Emphasis supplied.) However, the language 
of the original bill was changed in committee and when House 2270 was 
subsequently enacted as St. 1972, c. 74, the language "in attendance" was 
deleted and the word "assigned" was substituted in its place. 

In 1975, the legislature amended G.L. c. 71, §54A to expand the class 
of medically trained persons qualified to be assigned to interscholastic 
football games. St. 1975, c. 569. At that time, legislation was again intro- 
duced which would have required that physicians actually "be present" at 
such games. 1975 House Doc. No. 4394. However, the General Court, in 
amending G.L. c. 71, §54A chose instead to enact 1975 House Doc. No. 
6534 which retained the "shall be assigned" language intact. 

The legislature is presumed to understand and intend all consequences 
of its own measures. Spaulding v. McConnell, 307 Mass. 144, 149 (1940). 
Moreover, in construing a statute, "reason and common sense are not to 
be abandoned in the interpretative process . . ." Van Dresser v. Firlings 
305 Mass. 51, 53, (1940). Here, had the legislature desired to require 
personal attendance of medical personnel at interscholastic football games, 
it could have adopted the language which was proposed and rejected in 



P.D. 12 117 

1972 and again in 1975. x The legislature's rejection of language requiring 
personal attendance compels the conclusion that medical personnel must 
be assigned and available, but need not be in actual attendance at secondary 
school interscholastic football games. 2 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 16. January 18, 1977 

James W. Callanan 

Executive Secretary 

Board of Retirement 

One Ashburton Place 

Boston, Massachusetts 

Dear Mr. Callanan: 

You have requested my opinion on behalf of the Board of Retirement 
as to the appropriate disposition of conflicting claims under chapter 32 of 
the General Laws. Specifically, you have informed me that a state em- 
ployee was criminally indicted in the United States District Court for the 
District of Massachusetts. In accordance with G.L. c. 30, §59, the em- 
ployee was suspended without pay pending the completion of the criminal 
proceedings. At the trial, the jury returned a guilty verdict with respect to 
most of the charges against the employee at which time the employee 
fatally shot himself in the courtroom. The employee's death occurred prior 
to the entry of judgment of conviction by the court. See F. R. Crim. P. 
32(b) (1). Subsequently, the presiding judge allowed a motion to dismiss 
the case against the employee as moot. 

Based on the above stated facts, you have asked whether the deceased 
employee was eligible for retirement benefis. 1 It is my opinion that the 
employee was not eligible for retirement benefits at the time of his death 
for the following reasons. General Laws c. 30, §59 provides in pertinent 
part as follows: 

An officer or employee of the commonwealth, or of any depart- 
ment, board, commission, or agency thereof . . . may, during 
any period such officer or employee is under indictment for mis- 
conduct in such office or employment, ... be suspended by [the 
appointing authority], whether or not such appointment was sub- 
ject to approval in any manner . . . 



il have been informed that subsequent to the enactment of St. 1972, c. 74. it had been the practice of 
most school committees to have a physician on call — not in attendance. Moreover, I have been 
informed that the legislature was aware of this practice. Thus, its failure to substitute the words ' in 
attendance" for the word "assigned", in light of this knowledge, bolsters the conclusion that it did not 
intend to require personal attendance. 

21 do not decide what sorts of arrangements between school committees and medical personnel satisfy 
the requirement that such personnel be assigned to such games. Of course, school committees may 
choose to have physicians or medically trained personnel in attendance at such games as a means of 
complying with G.L. c. 71, §54A, but such attendance is a matter for school committee judgment 
rather than statutory mandate. 

iThe significance of this determination is as follows. If the employee was eligible for retirement benefits, 
those benefits would be payable to his surviving spouse under G.L. c. 32, §12(2) (d). However, if he 
was ineligible for retirement benefits, his named beneficiaries — here, his children — are entitled to 
receive a refund of the employee's actual contributions to the retirement system. See G.L. c. 32, §11. 



118 P.D. 12 

Section 59 further provides: 

Any person so suspended shall not receive any compensation or 
salary during the period of such suspension, . . . nor shall any 
person who retires from service while under such suspension be 
entitled to any pension or retirement benefits, notwithstanding 
any contrary provisions of law, but all contributions paid by him 
into a retirement fund, if any, shall be returned to him. 
If the criminal proceedings against the person suspended are 
terminated without a finding or verdict of guilty on any of the 
charges on which he was indicted, his suspension shall be forth- 
with removed, . . . 

At the time of the employee's death, the jury had returned a guilty 
verdict. Section 59 provides for removal of the suspension only after a 
termination of the criminal proceedings without a finding or verdict of 
guilty. See generally 1966 Op. A.G. p. 67. Accordingly, at the time of his 
death, the employee was still suspended from his position under Section 
59 because the criminal proceedings had not ". . . terminated without a 
finding or verdict of guilty . . . ." G.L. c. 30, §59. 

General Laws, c. 30, §59 does not specifically provide for the disposition 
of retirement funds in this particular factual situation. However, in inter- 
preting statutes, the statute, if reasonably possible, must be construed to 
carry out the legislative intent. Industrial Finance Corp. v. State Tax Com- 
mission, Mass. Adv. Sh. (1975) 967; Commissioner of Corporations & 
Taxation v. Board of Assessors of Boston 324 Mass. 32 (1949). One 
clear purpose of Section 59 is to insure that a person found guilty of mis- 
conduct in the performance of his official duties, does not participate in 
benefits normally afforded state employees who have successfully com- 
pleted a career in state government. See 1966 Op. A.G. p. 55. 

Here, at the time of his death, the employee had been found guilty by 
the jury and was awaiting the formal entry of a judgment of conviction and 
the passing of sentence. See F. R. Crim. P. 32(b) (1). The terms "judg- 
ment" and "sentence" are ordinarily synonymous. Either term denotes the 
action of a court in a criminal case formally declaring to the accused the 
legal consequences of the guilt which he has confessed or of which he has 
been convicted. Hunter, FEDERAL TRIAL HANDBOOK §91.1 (ed. 
1974). Cf. Morris v. United States, 156 F.2d 525 (9th Cir. 1946). Thus, 
at the time of the employee's death, a legal decision had been rendered by 
a jury that the employee was guilty of most of the criminal charges 
against him. 

In the situation that you have described, the proceedings terminated 
with a finding of guilty followed by a dismissal for reasons of mootness 
because of the employee's intervening death. The clear purpose of Section 
59 would not be served if that statute were interpreted as requiring the 
payment of survivor benefits to the spouse of an employee who has been 
found guilty of criminal conduct simply because a formal entry of judg- 
ment had not occurred. Such a result would negate a specific intent of a 
portion of G.L. c. 30, §59 that employees whose employment terminates 



P.D. 12 119 

while under suspension or who are found guilty of acts which constitute 
misconduct in office are not entitled to receive retirement benefits. See 
Bessette v. The Commissioner of Public Works, 348 Mass. 605, 610 
(1965). See also G.L.c. 32, §10(2) (c). 

Accordingly, it is my opinion that at the time of his death the employee 
was not eligible for retirement benefits but could receive only a refund of 
his actual contributions to the retirement system. See G.L. c. 32, §11.- 

Very truly yours, 

FRANCIS X. BELLOTT1 

Attorney General 



Number 17. January 27, 1977 

John R. Buckley 

Secretary of Administration and Finance 

State House 

Boston, Massachusetts 02133 

Dear Secretary Buckley: 

You have requested my opinion concerning the following question: 
May the Commissioner of the Department of Corporations and 
Taxation designate a person pursuant to Chapter 14, Section 1 
temporarily to fill a vacancy in the position of Director of 
Accounts resulting from the retirement of the Director? 
The recent retirement of the Director of Accounts occasions your re- 
quest. General Laws c. 14, §1 provides in relevant part: 

The commissioner may designate a competent employee in the 

bureau of accounts to perform the duties of the director of 

accounts in case of his absence, death, or disability; and notes 

of counties, towns and districts, when certified by such employee, 

shall have the same validity as if certified by the director. 

It is my opinion that this statute grants to the Commissioner authority to 

designate an employee in the bureau of accounts to act as director on a 

temporary basis pending the selection and appointment of a new director 

where retirement has caused a vacancy in that position. 

"[D]eath" and "disability" are relatively specific circumstances under 
which the temporary designation of a director is allowed. In order to 
supplement them, however, the legislature has seen fit to add a general 
category of "absence." The term "absence," unlike "death" or "disability," 
does not suggest a particular cause of or length of time for nonperfor- 
mance. 1 Had the legislature contemplated a narrowly defined set of cir- 
cumstances under which designations were to be allowed, it would have 
avoided the term "absence" altogether or else modified the term to indicate 



2 As a consequence of this opinion, it follows that the employee's spouse is not entitled to a survivor's 
allowance under G.L. c. 32. §12(2) (d), and his children are entitled to share equally in the refund 
of his actual contributions to the system. 

iln this sense the flexibility of the term is even greater than "vacancy," which generally describes a 
permanent inability to act. See Op. Atty. Gen. No. 75/76-73 (June 11, 1975). 



120 P.D. 12 

that only certain types of absences would qualify. Compare G.L. c. 11, §2; 
c. 10, §5.- 

Further support for a broad construction of the term "absence" in 
G.L. c. 14, § 1 is derived from the emergency preamble to the Act inserting 
that section in the General Laws, St. 1954, c. 429. The preamble defines 
the purpose of the Act as "provid[ing] for uninterrupted service in the 
Bureau of Accounts." This indication of legislative intent is consistent 
with a liberal construction of the term "absence" in the statute, as only an 
expansive reading of the term would allow for a temporary designation in 
every situation where it became necessary to maintain uninterrupted service 
by the Bureau. A statute should be construed to effectuate an express 
legislative purpose. Board of Education v. Assessor of Worcester, 1975 
Mass. Adv. Sh. 2626, 2629-2630, 333 N.E. 2d 450, 452-453 (1975). 

General Laws c. 14, §1 aside, the broad administrative powers vested 
in the Commissioner under G.L. c. 14, §3 would seem to include the 
authority temporarily to designate an acting director of accounts upon 
retirement of the permanent director. 

The first paragraph of §3 provides: 

The commissioner shall be responsible for administering and 
enforcing all laws which the department is or shall be required 
to administer and enforce. He shall be the executive and adminis- 
trative head of the department and each division, bureau, section 
and district office thereof shall be under his direction, control 
and supervision. 

The section then goes on to grant the Commissioner extensive authority 
over the organization of the Department and the appointment, assignment 
and transfer of its employees. It is my opinion that the Commissioner's 
supervisory authority and responsibilities as defined by §3 are broad 
enough to authorize the designation of a temporary director of the bureau 
of accounts prior to the appointment of a permanent director upon the 
previous director's retirement. When there is insufficient time to appoint 
a permanent director, for example, such a designation would be necessary 
in order to ensure that the duties of the bureau's director continue to 
be executed. 3 



2These provisions, also relating to "absences" of persons filling positions in the Commonwealth, explic- 
itly characterize the absences as temporary or else treat them as one of a broader class of disabilities. 
G.L. c. 11, §2 provides in part: 

If, by reason of sickness, absence or other cause, the auditor is temporarily unable to perform 
the duties of his office, the first deputy shall perform the same until such disability ceases. 
G.L. c. 10, §5 provides in part: 

During the illness, absence or other disability of the treasurer, his official duties shall be per- 
formed by the said deputies in the order of seniority. 
In contrast, the use of the term "absence" in G.L. c. 14, §1 is neither specifically limited to temporary 
situations nor made a sub-category under the umbrella of disabilities. Rather, it is a separate category 
co-equal to "death" and "disability." Where an alleged inconsistency exists among statutes it is a 
familiar rule of construction that they be interpreted to give a reasonable effect to all. Everett v. 
Revere, 344 Mass. 585, 589, 183 N.E. 2d 716, 719 (1962). A broad reading of "absence" as used in 
G.L. c. 14, §1 would accomplish this objective. 
3An opinion of a prior Attorney General, 1963-64 Op. Atty. Gen. No. 98 (August 28, 1964) [sic], sup- 
ports the conclusion I have reached here. That opinion recognized the authority of the Commissioner 
of Corporations and Taxation to make a temporary appointment of a chief of a bureau when the 
former holder of the position took a leave of absence — despite the lack of specific statutory founda- 
tion for its exercise. 



P.D. 12 121 

In sum, I am of the opinion that under the specific and general powers 
delegated to the Commissioner by G.L. c. 14, §§1 and 3, respectively, the 
Commissioner may designate or appoint an employee of the bureau of 
accounts to fill the position of director pending the selection, appointment 
and approval of a permanent director when the previous occupant of that 
position has retired. Accordingly, I also conclude that pursuant to the last 
clause of c. 14, §1, the notes of counties, towns and districts certified by 
such a designee will possess the same validity as those certified by a 
permanent director. I wish to emphasize, however, the temporary nature 
of this designation. The Commissioner should make every effort to appoint 
and seek approval of a permanent director as soon as possible in order to 
comply with the statute's requirement that there is to be a permanent 
director of accounts. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 18. January 28, 1977 

Speaker of the House of Representatives 

Clerk of the House of Representatives 

State House 

Boston, Massachusetts 02133 

Dear Speaker McGee and Clerk: 

On August 25, 1976, the House of Representatives issued House Order 
No. 5323 requesting the Attorney General to render an opinion relative 
to "the constitutionality of the establishment by the Department of Public 
Works of a diamond lane, so called, restricting the use of inside lanes of 
the Southeast Expressway to cars having four or more passengers." It is 
my opinion that such action would be constitutional. 

The establishment of a diamond lane by the Department of Public 
Works, as regulation of highway use, is a permitted exercise of the state's 
police power. It has long been recognized that the police power of a state 
encompasses a broad authority to regulate the use of its highways. See e.g., 
Neu v. McCarthy, 309 Mass. 17, 19 (1941 ), where the court stated: 

The State, as the original and general sovereign, establishes and 
maintains the public ways and regulates their use .... [GJeneral 
control remains in the State and may be exercised by it to secure 
safe and orderly use of the ways for the benefit of all persons 
and agencies .... 

Accord, Opinion of the Justices, 297 Mass. 559, 563 (1937). See Bibb v. 
Navajo Freight Lines, 359 U.S. 520, 523 (1969). Cf. Boston v. McCarthy, 
304 Mass. 18, 20-21 (1939) (regulatory power over sidewalks and 
public ways). 

In view of this expansive regulatory authority over highway use, it is 
clear that the Commonwealth (or its agent, the Department of Public 
Works) may reasonably determine that the establishment of a diamond 



122 P.D. 12 

lane would promote the public safety and convenience. Restriction of an 
inside lane of the highway to cars of four or more passengers may accomp- 
lish one or more of the following permissible legislative ends: provide an 
incentive for car pooling because of speedier access to, and egress from, 
the city of Boston; reduce the number of cars using the Southeast Express- 
way thereby effecting a more orderly flow of traffic; reduce accidents; 
lower air pollution; conserve fuel; reduce maintenance costs. The only 
remaining question is whether there exist "any countravailing interests] 
of constitutional dimensions", Neu v. McCarthy, supra at 19, which might 
nevertheless render establishment of such a lane unconstitutional. 

I have concluded that there are no such interests. Clearly the presence 
of a diamond lane does not unreasonably interfere with a citizen's right to 
travel. Cf. Shapiro v. Thompson, 394 U.S. 618, 629-631, (1969). It is 
also plain that the lane would not violate equal protection rights. In view 
of the many reasons (some of which are cited above) that can be given in 
support of the lane's establishment, regulation providing for the lane does 
not discriminate arbitrarily against any class of drivers or travelers. Nor 
could a diamond lane be considered an undue burden on interstate com- 
merce. As the Supreme Court of the United States has stated: 

The power of the State to regulate its highways is broad and 
pervasive. We have recognized the perculiarly local nature of 
this subject of safety, and have upheld state statutes applicable 
alike to interstate and intrastate commerce. Bibb v. Navajo 
Freight Lines, supra at 523. 

No other constitutional rights or interests appear pertinent to the estab- 
lishment of a diamond lane. 

In summary, it is my opinion that establishment of a diamond lane 
represents a constitutional and valid exercise of the Commonwealth's police 
power to regulate the use of its highways. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 19. February 1, 1977 

The Honorable Michael S. Dukakis 

Governor 

State House 

Boston, Massachusetts 02133 

Dear Governor Dukakis: 

You have requested my opinion whether Commonwealth employees 
who are in the National Guard are entitled to receive state pay as well as 
federal pay for days they perform certain military duty. Specifically, you 
have asked the following question: 



P.D. 12 123 

In view of the provisions of G.L. c. 33, §59A, enacted sub- 
sequently to c. 33, §59, and of c. 33, §83(d), are (i) full-time 
officers, and (ii) non-commissioned officers and non-military 
division state employees entitled to receive state pay for days for 
which they receive so-called FTTD pay from the United States 
for military duty? 
It is my opinion that non-commissioned officers and non-military divi- 
sion state employees and the Adjutant General, but not other full-time 
state staff officers, may receive regular state pay for days for which they 
receive FTTD pay. 

To maintain their readiness, units and individual members of the 
National Guard participate, upon orders of the Governor transmitted by 
the Adjutant General, in full-time training duty (hereafter FTTD), in- 
cluding encampments, maneuvers, outdoor target practice, or other exer- 
cises for field instruction. FTTD also includes attendance at Army, Air 
Force or National Guard schools, participation in small arms competitions, 
attendance at service schools, and attachment to corresponding service 
branches, 32 U.S.C.A. §§503, 504, 505. 1 

These training duty activities are performed not only by enlisted per- 
sonnel and non-commissioned officers, but also by state staff officers in 
the Military Division of the Executive Branch of the Commonwealth. The 
latter participate in these activities in addition to their regular staff 
responsibilities. 2 All National Guard personnel, regardless of rank, receive 
military pay directly from the United States for participation in these types 
of full-time training duty, as provided by 37 U.S.C.A. §204(a),' ! even 
though the duty is performed while in state rather than federal status. 4 

I will first answer your question regarding enlisted personnel and non- 
commissioned officers, and then regarding full-time officers. 
A. Enlisted personnel and non-commissioned officers 
State employees and officials are entitled to receive their regular civilian 
pay from the Commonwealth while performing certain types of duty in 
the Guard, pursuant to G.L. c. 33, §59. This statute provides, in pertinent 
part, as follows: 

Any person in the service of the commonwealth . . . shall be 
entitled, during the time of his service in the armed forces of the 



'See also, National Guard Regulation 350-1, ch. 1, §l-5(i) which defines FTTD as follows: 

i. Full-time training duty. Full-time training or duty, with or without pay, authorized for 
members of the Army National Guard under title 32 U.S.C. Sections 316 and 502-505. This 
duty is performed in State status (as opposed to federalized or State active duty status) and 
includes, but is not limited to, AT [annual training], attendance at Army service schools, Army 
area schools, participation in small arms competition, attendance at military conferences, 
short tours for special projects, special tours in the National Guard Bureau, ferrying of aircraft, 
and participation in exercises or other similar duty. 

-See G.L. c. 33, §15 (composition, powers and duties, and compensation of state staff). 

3 37 U.S.G.A. §204(a) provides as follows, in pertinent part: 

(a) . . . [T]he following persons are entitled to the basic pay of the pay grade to which assigned 
or distributed, in accordance with their years of service computed under section 205 of this 
title . . . 

(2) ... a member of the National Guard who is not a Reserve of the Army or the Air Force, 
who is participating in full-time training, training duty with pay, or other full-time duty, 
provided by law. including participation in exercises or the performance of duty under section 
3033, 3496, 3451, 8033, 8496, or 8541 of title 10, or section 503, 504, 505, or 506 of title 32. 

^See National Guard Regulation 350-1. ch. 1, §l-5(i), supra., p. 2, fn. 1. See also, Lind v. Nebraska 
National Guard, 144 Neb. 122, 12 N.W. 2d 652, 655 (1944). 



124 P.D. 12 

commonwealth, under section thirty-eight, 5 ... to receive pay 
therefor, without loss of his ordinary remuneration as an em- 
ployee or official of the commonwealth . . . and shall also be 
entitled to the same leaves of absence or vacation with pay given 
to other like employees or officials. 

The "armed forces of the Commonwealth" referred to in §59 consist of 
the active and inactive units of the National Guard, G.L. c. 33, §10. 
Because FTTD is duty ordered by the Governor, "service in the armed 
forces of the Commonwealth" under §38 includes FTTD. Therefore, inso- 
far as a Commonwealth employee or official serving as an enlisted person 
or noncommissioned officer is performing FTTD service pursuant to §38, 
G.L. c. 33, §59 mandates that there be no reduction in his or her state 
pay. G Thus, the employee must receive FTTD pay in addition to regular 
state pay. 

G.L. c. 33, §59A, 7 to which you refer in your question, is not relevant 
to the present issue. This statute expressly applies only to "assigned weekly 
or weekend drills," which are not full-time training duty. 37 U.S.C.A. 
§204(a). Compare 32 U.S.C.A. §§503-505 with 32 U.S.C.A. §502(a). 

B. The State Staff 

State staff officers in the Guard also may be ordered to participate in 
FTTD by the Governor. Whether or not they are entitled to receive their 
regular state pay as military officers for periods of FTTD is a question of 
statutory right, rather than common law rules. 8 

Officers of the state staff, except for the Adjutant General, are entitled 
to receive their respective salaries "[e]xcept when ordered on duty under 
section thirty-eight." G.L. c. 33, §15 (j). FTTD is duty under §38. (See 
p. 4, supra.) State pay for FTTD, as §38 duty, must be made under G.L. 
c. 33, §83 (a). 9 However, this pay is to be reduced by the amount of pay 
received from the federal government for the same service, pursuant to 
G.L. c. 33, §83(d), which provides as follows: 



5G.L. c. 33, §38, provides as follows: 

The commander in chief may order out any part of the organized militia for escort and other 
duties including special duty and emergency assistance to state and local civil authorities in 
the preservation of life and property. G.L. c. 33, §38. (Emphasis supplied.) 
The Governor is the Commander-in-Chief. Mass. Const. Pt. 2, c. 2, §1, Art. 7. The armed forces of 
the Commonwealth, i.e., the National Guard, are part of the organized militia. G.L. c. 33, §4. 
6Numerous Opinions of my predecessors have applied the protective provisions of §59 to Commonwealth 
employees and officials for performance of military service. See, 1962 A.G. Op. 41; 1956 A.G. Op. 62; 
1951 A.G. Op. 14; 1941 A.G. Op. 18; 1940 A.G. Op. 105; 1940 A.G. Op. 33; and 1939 A.G. Op. 124. 
In the absence of the provisions of §59, a state employee would not be entitled to compensation for 
times when he or she was absent from work. 1939 A.G. Op. 124. 
7G.L. c. 33, §59A, provides as follows, in pertinent part: 

Any person in the service of the commonwealth . . . shall he entitled during the time of his 
service in the armed forces of the commonwealth . . . to be released from his work, without 
compensation, in order to attend assigned weekly and weekend drills which require absence 
from his normally scheduled work tour. Such release from work shall not affect his leaves of 
absence or vacation with pay, and he shall receive the same leaves of absence or vacation with 
pay given to other like employees or officials. (Emphasis supplied.) 
8"A soldier's entitlement to pay is dependent upon statutory right," rather than upon common-law 

rules governing private contracts. Bell v. United States, 366 U.S. 399, 401 (1961). 
^G.L. c. 33, §83(a) provides as follows: 

For duty performed under the provisions of sections thirty-eight, sixty and sixty-one there shall be 
allowed and paid from funds appropriated therefor to members of the armed forces of the common- 
wealth the same rate of pay of like grade as would be received by them if they were on an active duty 
status in the armed forces of the United States with less than two years' service, and such subsistence, 
travel or other allowance as the adjutant general may authorize. 



P.D. 12 125 

For duty performed under the provisions of [section] thirty-eight 
. . . the pay and allowances authorized by this section shall be 
reduced by any amounts received from the United States gov- 
ernment as pay or allowances for military service performed 
during the same pay period. 

Therefore, an officer of the state staff, except for the Adjutant General, 
may receive only the excess, if any, of his §83 (a) pay over federal FTTD 
pay for time spent performing full-time training duty. 

In addition, analysis of the language of G.L. c. 33, §59, (quoted at 
p. 4, supra) reveals its inapplicability to full-time Guard officers in the 
state staff, including the Adjutant General. The statute provides entitle- 
ment to state pay to "[a]ny person in the service of the commonwealth . . . 
during the time of his service in the armed forces of the commonwealth." 
(Emphasis supplied.) Since state staff members are always serving "in the 
armed forces of the commonwealth," that phrase if applied to state staff 
would lose its meaning and become mere surplusage. This would contra- 
vene the established rule of statutory construction that in construing a 
statute, all of its terms must be given meaning and effect. Town Crier, 
Inc. v. Town of Weston, 361 Mass. 682 (1972); Commonwealth v. Mercy 
Hospital, Adv. Sh. (1974) 43. 

Similarly, the purpose of G.L. c. 33, §59, is not consistent with its 
applicability to full-time military employees of the Commonwealth. The 
purpose of the statute is to protect state employees from suffering loss of 
pay or rights to leaves and vacation on account of service in the Guard, 
so as not to discourage membership in the Guard by state employees. 
Because state staff members must be officers of the Guard to be eligible 
for initial appointment to a position in the state staff, 10 the purpose of §59 
shows it to be irrelevant and inapplicable to full-time Guard officers on 
the state staff. In two earlier Opinions, the statutory phrase "in the service 
of the Commonwealth" was expressly found to mean "in the civilian 
service of the Commonwealth". 1940 A.G. Op. 33; 1939 A.G. Op. 124. 

The Adjutant General, who is the executive and administrative head of 
the Military Division of the Executive Branch of the Commonwealth, 
receives state pay at the same level as a corresponding officer in the regular 
military service of the United States. G.L. c. 33, §15(b). There is no 
statutory provision prohibiting the Adjutant General from receiving his 
regular state pay for duty under §38, n or reducing his regular pay by the 
amount of federal pay received for participation in §38 duty. 12 

C. Conclusion 

For the reasons stated above, it is therefore my opinion (a) that com- 
monwealth employees and officials who are enlisted personnel or non- 
commissioned officers are entitled to receive their regular state pay for 
the same time period for which they receive FTTD pay from the United 
States; (b) that state staff officers are entitled to receive state pay for 



iog.L. c. 33, 515(a). 

UC7. G.L. c. 33, §15(j) (compensation of state staff officers aside from Adjutant General). 

12 C/. G.L. c. 33. §83(d), which provides for such a reduction from pay received under §83. 



126 P.D. 12 

full-time training or duty only to the extent such state pay exceeds the 
amount of FTTD pay they receive from the United States; and (c) that 
the Adjutant General is entitled to receive his regular state pay for the 
same time period for which he receives FTTD pay from the United States. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 20. February 14, 1977 

Alexander E. Sharp, II, Commissioner 
Department of Public Welfare 
600 Washington Street 
Boston, Massachusetts 02111 

Dear Commissioner Sharp: 

You have asked my opinion on the following question: 

In view of the decisions of Judge Walter Skinner of the United 

States District Court of December 9 and December 21, 1976, 

and January 3, 1977, in lngerson v. Sharp (CA 76-3255-S), is 

the Commonwealth required to withdraw from the Emergency 

Assistance Program under 42 U.S.C. §606(e)? 

For the reasons set forth below, I conclude that the court decisions to 

which you refer do not compel you to withdraw from the Emergency 

Assistance Program. 

The lngerson litigation, initiated in September, 1976, was a class action 
challenging two restrictions on the availability of benefits under the 
Massachusetts Emergency Assistance Program. The plaintiffs in lngerson 
claimed that the two restrictions, described below, conflicted with Section 
406(e) of the Social Security Act, 42 U.S.C. §606(e), and were therefore 
invalid under the Supremacy Clause 1 of the United States Constitution, 
Article VI, cl. 2. 2 

The Emergency Assistance Program (hereafter EA) is one part of the 
statutory Social Security System; it is designed to alleviate the condition of 
needy children through a cooperative state-federal system. Under this 
system, the federal government reimburses fifty percent of a state's expendi- 
tures to those who qualify for assistance. As with all the benefit programs 
created by the Social Security Act, participation by a state in the EA 
Program is voluntary. However, the federal government will reimburse 
the state only if its program satisfies federal requirements. 

The federal EA Program authorizes the state to render emergency 
financial aid to a household with one or more needy children under 21, 
living with certain relatives specified in the Act, 42 U.S.C. §606(a), if the 

iThe Supremacy Clause, in pertinent part, dictates that "This Constitution and the Laws of the United 
States . . . shall be the Supreme Law of the Land; and the Judges in every state shall be bound thereby, 
anything in the Constitution or Laws of any State to the contrary notwithstanding." 

-The plaintiffs also claimed that the restriction violated the Equal Protection Clause of the Four- 
teenth Amendment. The district court did not reach these claims, and they do not bear on the question 
raised in your opinion request. 



P.D. 12 127 

household is without available resources, and the assistance is necessary 
to avoid destitution or loss of shelter. Massachusetts has participated in the 
EA Program since 1968. The Massachusetts plan provides for payments 
to meet a variety of emergencies, including threat of eviction on account 
of rent arrearages, and cutoffs of fuel and utility for nonpayment of over- 
due bills. 

The EA Program was limited recently by the two restrictions which the 
plaintiffs in Ingerson challenged. The first restriction, imposed by regula- 
tion, limits payments for shelter, fuel and utility arrearages to no more than 
the "amount . . . incurred within the 4 months prior to the date of applica- 
tion for payment under the EA program." Massachusetts Public Assistance 
Policy Manual, ch. IV, §A, pt. 4(C) & (D). The second restriction was 
created, not by regulation, but by state statute, G.L. c. 118, §2, f4. It 
reads as follows: 3 

No payment of overdue rent or utility bills shall be made under 
this chapter to a person who has received assistance [e.g. Aid 
to Families with Dependent Children or General Relief] and 
who has failed to pay such rent or utility bills when due. 

Judge Skinner found that both restrictions were invalid, because, in his 
view, they placed limits on EA eligibility inconsistent with the intent of 
the federal statute creating the EA Program, and therefore violated the 
Supremacy Clause. 4 Ingerson v. Sharp, decision of December 9, 1976, p. 8. 
Accordingly, on December 21, 1976, Judge Skinner ordered that: 

So long as Massachusetts continues to participate in the joint 
federal-state Emergency Assistance Program, the defendants are 
hereby permanently enjoined from applying [the two restrictions]. 

You question whether Massachusetts is required to withdraw from the 
federal program on account of this decision. Your concern arises from at 
least two factors which are common to Supremacy Clause cases alleging 
state law conflict with a provision of the Social Security Act. First, the 
federal program which created the conflict between state and federal law 
is a voluntary one; Massachusetts has the option of withdrawing from it at 
any time. Second, if Massachusetts were to withdraw from the federal EA 
Program, thereby foregoing federal reimbursement, there would no longer 
exist a conflict between state and federal law, because the federal law 
would no longer apply in Massachusetts. Massachusetts could therefore 
continue to operate a wholly state-funded EA Program, with the restric- 
tions intact. The question then is whether you are required to withdraw 
from the federal program in order to permit the state statute to continue 
to operate. 5 Recognizing that legislative mandates are absolutely binding 



3This statutory provision was engrafted onto G.L. c. 118, §2 by Stat. 1975, c. 684, §25A 1/2. 

•»For a general treatment of the application of the Supremacy Clause to invalidate state laws conflicting 
with federal statutes, see Florida Lime Avocado Growers v. Paul. 373 U.S. 132 (1963). A court's 
finding of conflict forces the invalidation of state law regardless whether the federal statute is directly 
binding on all states or, as here, optional with each state. See Townsend v. Swank, 404 U.S. 282, 
285 (1971). 

sObviously, no problem of this sort arises from the court's invalidation of the Department of Public 
Welfare's regulation. The Department, having promulgated the regulation, is free to repeal it wtihout 
running afoul of state law. G.L. c. 30A, §3. 



128 P.D. 12 

on public officials, you seek to know what that mandate is, under c. 118, 
§2, or other relevant law, now that the federal district court has found the 
state and federal statutes in conflict. 

The answer to your question turns on an interpretation of legislative 
purpose: Can the Legislature be viewed as intending, when it enacted the 
limitations in G.L. c. 118, §2, f4, that federal reimbursement under the 
EA Program was to be sacrificed in order that these limitations be pre- 
served. Only if such an intent can be inferred would you be required to 
withdraw from the federal program. No canon of statutory construction 
gives credence to such an inference. Indeed, unless the Legislature speaks 
specifically to the issue, there would be no basis for concluding that, in 
passing a statute, it was contemplating the steps that should be taken upon 
a finding of the law's invalidity. 

Accordingly, it is my judgment, after a careful review of all relevant 
material, that no intent to mandate withdrawal from the EA Program can 
fairly be inferred from the language of paragraph 4 or the provisions of 
any other state statute. To the contrary, other relevant statutes make plain 
that the overriding mandate from the Legislature is to obtain federal finan- 
cial participation under the Social Security Act, and the Commissioner is to 
use his efforts to further this goal. For example, G.L. c. 118, §5 mandates 
that: 

The department shall, in addition to its annual report, make such 
reports to the Secretary of Health, Education and Welfare under 
the Federal Social Security Act, as amended, as may be neces- 
sary to secure to the commonwealth the benefits of said act. 

With equal emphasis the General Court, in G.L. c. 18, §10, has in- 
structed the Department of Public Welfare to: 

take such action as may be necessary or desirable for carrying 
out its programs and purposes in conformity with all require- 
ments governing federal aid to the commonwealth. 

Moreover, the Supreme Judicial Court has held that the state and 
federal statutory schemes governing aid to families with dependent children 
are designed to be "harmonious." Carroll v. Acting Director of Public 
Welfare of Cambridge, 355 Mass. 182, 187 (1969). Notably, G.L. c. 118, 
§2 is a cornerstone of the state scheme referred to by the Carroll court. 

In my judgment therefore, the Legislature did not intend, in enacting 
C. 118, §2, f4, that Massachusetts withdraw from the EA part of the 
Social Security Act in order to avoid the effect of a federal court finding 



fi Two other principles of construction have no bearing on your question. One principle prefers an inter- 
pretation of a statute, if fairly possible, that avoids a finding of unconstitutionality. See, e.g., Baird v. 
Belloiti, Mass. Adv. Sh. (1977) 96, 99. That doctrine does not reach the question of what inferences 
about legislative intent are appropriate once a finding of unconstitutionality has already been made. 
The second principle of construction concerns the separability of unconstitutional sections of a state 
statute from other sections, so as to preserve the validity of the remainder of the law. See generally 
Sutherland, Statutory Construction. §§44.01 et seq. (4th ed. 1973). As an illustration, the court in 
Ingerson properly separated the invalid clause, G.L. c. 118, §2, cl. 4, preserving the validity of the 
remainder of §2. 



P.D. 12 129 

of invalidity. 7 Accordingly, you are not required to withdraw from the 
Emergency Assistance Program. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 21. March 4, 1977 

John R. Buckley, Secretary 
Executive Office for 

Administration and Finance 
State House 
Boston, Massachusetts 02133 

Dear Secretary Buckley: 

You have requested my opinion as to whether the proposed Westover 
Occupational Resource Collaborative Trust would be an instrumentality 
of the Commonwealth so that it could qualify to receive surplus real 
property from the United States for use as an occupational education 
facility. "[T]he States and their political subdivisions and instrumentali- 
ties" may be grantees of surplus real property for educational purposes 
under federal law. 1 

Specifically, you have requested an answer to the following question, based 
upon state, not federal, law: 2 



TNote should be taken that because the federal district court has enjoined you from applying G.L. c. 
118, §2, f4, so long as participation in the federal EA Program continues, you are not subject to 
liability under G.L. c. 29, §66, which imposes criminal sanctions upon officers who violate any pro- 
vision of state law relating to the expenditure of public funds. Prosecution in a state court under §66, 
given the federal court order, would itself constitute a violation of the Supremacy Clause, Article VI, 
cl. 2, of the United States Constitution. See Ingerson, decision of December 21, 1976, pp. 2-3. 
•See 40 U.S.C. §484 (k) (1), which provides in pertinent part as follows: 

(k) (1) Under such regulations as he may prescribe, the Administrator [of General Services] is 
authorized, in his discretion, to assign to the Secretary of Health, Education, and Welfare for 
disposal such surplus real property, including buildings, fixtures, and equipment situated 
thereon, as is recommended by the Secretary of Health, Education, and Welfare as being 
needed for school, classroom, or other educational use, or for use in the protection of public 
health, including research. 

(A) Subject to the disapproval of the Administrator within thirty days after notice to him by 
the Secretary of Health, Education, and Welfare of a proposed transfer of property for school, 
classroom, or other educational use, the Secretary of Health, Education, and Welfare through 
such officers or employees of the Department of Health, Education, and Welfare as he may 
designate, may sell or lease such real property, including buildings, fixtures, and equipment 
situated thereon, for educational purposes to the States and their political subdivisions and 
instrumentalities and tax-supported educational institutions which have been held exempt from 
taxation under section 101(6) of Title 26 . . . (Emphasis added.) 
2It should be noted that the determination of whether an entity is a political subdivision or instrumen- 
tality of a state, as those terms are used in a federal statute, is governed by federal, not state law. 
Accord, National Labor Relations Board v. Natural Gas Utility District, 402 U.S. 600, 602-603 (1970); 
Popkin v. N.Y. State Health and Mental Hygiene Facilities and Improvement Corp., 409 F. Supp. 430, 
431 (S.D. N.Y. 1976); First State Bank of Gainesville v. Thomas, 38 F. Supp. 849, 851 (N.D. Tex. 
1941 ); see, Boston Elevated Ry. Co. v. Welch, 25 F. Supp. 809, 810 (D. Mass. 1939); cf. United States 
v. Brown, 384 F. Supp. 1151, 1159-1160 (E.D. Mich. 1974). But see Mallory v. White, 8 Supp. 989, 
992 (D. Mass. 1934). "In the absence of a plain indication to the contrary ... it is to be assumed 
when Congress enacts a statute that it does not intend to make its application dependent on state 
law." Jerome v. United States, 318 U.S. 101, 104 (1943). However, because my opinion concerning 
the status of the proposed trust under state law is apparently necessary to an application for acquisition 
of the property to the Department of Health. Education, and Welfare, I will answer your request. My 
conclusion would be the same if based upon federal law. See First State Bank of Gainesville v. Thomas, 
supra. 851; Boston Elevated Ry. Co. v. Welch, supra, 810-811; cf. Essex Public Road Board v. Skinkle. 
140 U.S. 334, 339 (1890). 



130 P.D. 12 

Is the Westover Resource Cooperative Trust (sic) as described 
in the proposed trust agreement ... a "political subdivision and 
instrumentality" under the laws of the Commonwealth of 
Massachusetts? 

See also, 45 C.F.R. §§12.1 — 12.14. 

It is my opinion that the proposed trust is a governmental instrumentality 

under state law. 

Ten towns and two regional school districts in Hampden and Hamp- 
shire counties have entered into a collaborative agreement, pursuant to 
G.L. c. 40, §4E, 3 to conduct a joint educational program to be known as 
the Westover Occupational Resource Collaborative (hereafter "WORC"). 
WORC is attempting to acquire surplus real estate of the United States 
at the deactivated Westover Air Force Base, Chicopee, as a facility for 
its program. 

The proposed Westover Occupational Resource Collaborative Trust 
(hereafter "WORC Trust"), by the terms of the trust instrument, "is 
established ... to provide a convenient instrumentality of the Common- 
wealth of Massachusetts to receive and to manage surplus real estate at 
Westover Air Force Base, Chicopee, Massachusetts . . . for the benefit 
of cities, towns and regional school districts joining together under a 
collaborative agreement to jointly conduct educational programs and 
services pursuant to Chapter 40, Section 4E, of the Massachusetts General 
Laws. . . ." The beneficiaries of the trust are to be the cities, towns and 
regional school districts which are participating in the collaborative agree- 
ment. The trust property is to be held "for the benefit of the beneficiaries 
for use in connection with the collaborative." 

The trust agreement further provides that each participating school 
committee shall select from its membership one trustee to serve on the 
board of trustees and shall appoint successor trustees from its member- 
ship. Any trustee may be removed at will by the school committee that 
appointed him or her, and is disqualified from serving as a trustee upon 
termination of membership on such school committee. The trust instru- 
ment may be amended, and the trust itself terminated, only with the 
approval of the school committees representing a majority of the bene- 
ficiaries. Upon termination, the proceeds of the trust property after liqui- 
dation are to be distributed equally among its then beneficiaries. 

It is well settled that cities and towns are political subdivisions and 
instrumentalities of the Commonwealth, Burnham v. Mayor and Alderman 
of Beverly, 309 Mass. 388, 389 (1941), as are regional school districts, 
see Regional District School Committee of Bridgewater Raynham Regional 
School District v. Town of Bridgewater, 347 Mass. 289, 294 (1964). No 
Massachusetts court has determined whether a trust such as the proposed 
WORC Trust, created for the benefit of these local entities and with 



•''G.L. c. 40, §4E, authorizes school commitees to conduct joint educational programs and services to 
supplement or strengthen school programs and services, in cooperation with the Commonwealth's 
Department of Education and with funds managed by an educational collaborative board. 



P.D. 12 131 

trustees appointed by them, would constitute a "political subdivision or 
instrumentality" of the Commonwealth.' 1 

However, the Supreme Judicial Court has described certain identifying 
features of an "instrumentality of government" of the Commonwealth. 
Such an entity must be within or attached to the government; its members 
must be public officers, subject to removal by, and under the direction of, 
government officials; and its subordinate employees must be treated as 
state employees subject to civil service law and rules. Opinion of the 
Justices, 309 Mass. 571, 578-582 (1941); Opinion of the Justices, 271 
Mass. 582, 592-594; see also, Norton v. Attorney General, 269 Mass. 
503, 509-510, 512 (1929). 4 

Considering the WORC Trust in light of those principles, I conclude 
that the Trust qualifies as an instrumentality of government. The purpose 
d( the WORC Trust is to acquire and manage facilities in which the joint 
Dccupational education programs of the participating municipalities will 
be conducted; it thus serves a public purpose. The trustees, as members 
:>f the participating school committees, are public officers. Sweeney v. 
City of Boston, 309 Mass. 106, 108 (1941); Warburton v. City of 
Quincy, 309 Mass. Ill, 114 (1941). Each trustee may be removed by 
his or her respective school committee, and may not serve as trustee 
beyond his or her tenure on such committee. The trust instrument may 
be amended, and the trust terminated, only by action of a majority of the 
participating school committees. Accordingly, I find that the WORC Trust 
is sufficiently within the control of, and attached to, the participating local 
governmental entities to satisfy the requirements discussed above at p. 5, 
for being an instrumentality of government. 5 

Therefore, it is my opinion that under the laws of the Commonwealth 
the proposed WORC Trust would be an instrumentality of government 
of the Commonwealth. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



'Decisions stating that certain public authorities and corporations are analogous to municipal corpora- 
tions as ''an arm of the State, " e.x- Opinion of the Justices, 334 Mass. 721, 734-735 (1956) (Massachu- 
setts Port Authority); Massachusetts Turnpike Authority v. Commonwealth, 347 Mass. 524. 527 
(1964) (Massachusetts Turnpike Authority); Collins v. Selectmen of Brookline, 325 Mass. 562, 564 
(housing authority); Opinion of the Justices, 334 Mass. 760, 763 (1956) (urban development corpora- 
tions) are not relevant to the questions here presented, which involves a trust with a single purpose 
and limited powers. 

^Compare Unemployment Compensation Commission v. Wachovia Bank & Trust Co., 215 N.C. 491, 
2 S.E. 2d 592, 595-596 (1939) (factors to be considered in determining whether an agency is or is not 
an instrumentality of government include (1) whether it was created by government, (2) whether it is 
wholly owned by the government, (3) whether it is operated for profit, and (4) whether it performs 
some essential government function). 

'Because the WORC Trust does not contemplate or provide for the hiring of employees, 1 need not 
consider the question whether or not subordinate employees are subject to the civil service laws and 
rules. 



132 P.D. 12 

Number 22. March 14, 1977 

Frank Grice, Director 
Division of Marine Fisheries 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mr. Grice: 

You have requested my opinion as to the requirements for the issuance 
of commercial fisherman permits for the taking of lobsters in coastal waters 
pursuant to Section 1 of Chapter 484 of the Acts of 1975, as amended 
by Chapter 729 of the Acts of 1975. 

Specifically, you direct my attention to that portion of Section 1 pro- 
viding for the issuance of additional permits and you ask if the Marine 
Fisheries Advisory Commission can apply the same criteria — a showing 
of substantial hardship — to renewal permit applicants as it does to new 
applicants. For the reasons set forth below, I answer your question in 
the affirmative. 

As amended, Section 1 of Chapter 484 now reads: 

"Notwithstanding the provisions of section thirty-eight, the 
director shall not issue more than thirteen hundred commercial 
fisherman permits for the taking of lobsters in coastal waters 
annually. The director may give priority in the issuance of such 
permits for a new calendar year, consistent with the provisions 
of this section, to applicants who have held such a permit and 
fished for lobsters during the preceding year. Subject to the 
approval of the marine advisory commission, the director may 
issue up to one hundred and thirty additional permits if the 
applicant had been issued a commercial fishermen's permit for 
the taking of lobsters in coastal waters for any year since nine- 
teen hundred and seventy or if he finds that the applicant would 
suffer a substantial hardship if the permit were not granted." 
(emphasis supplied) 

You have informed me that after issuing thirteen hundred permits, the 
Director held all further applications, including those of individuals who 
held permits since 1970, for consideration by the Advisory Commission. 
The commission decided to issue one hundred and thirty additional per- 
mits. 1 In doing so, the Commission used the "substantial hardship" 
criterion to judge all additional applications both renewal and original. 



'Although not expressly raised by your request, I note that the Marine Advisory Commission made the 
decision to issue the additional permits. Chapter 484, Section 1 specifically provides that "the director 
may issue up to one hundred and thirty additional permits" (emphasis supplied), subject to the 
approval of the commission. It is a familiar principle of statutory construction that express mention 
of one matter excludes by implication all other similar matters not mentioned. Bristol County v. 
Secretary of the Commonwealth, 324 Mass. 403 (1949) and cases cited therein. Where, as in this 
instance, the statute expressly authorizes the director to issue additional permits and the commission 
to approve such permits, the commission may not exercise the authority granted to the director by the 
Legislature. Although the director, as the person to whom the Legislature has itself delegated the 
particular function of issuing the additional permits, may exercise whatever powers may be reasonably 
necessary to perform that function, 64-65 Op. Attorney General 134, the decision whether or not to 
issue the additional permits must be made by the director himself. A re-delegation of his decision- 
making power is unlawful as an exercise of governmental power without legislative authority. 64-65 
Op. Attorney General 229; see also 5 Op. Attorney General 1970, 628; Attorney General v. Trustees 
of Boston Elevated Railway Co., 319 Mass. 642 (1946). 



P.D. 12 133 

The decision to use this standard was based, in part, on the consideration 
that renewal applicants had been given a prior opportunity to apply for 
permits and had not done so. The use of the ''substantial hardship" test 
resulted in the denial of permits to some individuals who had held permits 
since 1970. 

A literal reading of Chapter 484, §1 indicates that there are two 
separate and independent criteria which the Director, subject to the 
approval of the commission, may use in judging applications once he has 
decided to issue the additional one hundred and thirty permits: (1) that 
the applicant had been issued a permit in any year since 1970, or alterna- 
tively (2) that the applicant would suffer a substantial hardship if the 
permit were not granted. It is significant that the statute specifically inserts 
the word "or" between these two criteria. Generally the word "or" in a 
statute is not the equivalent of the word "and"; only when a contrary 
intent clearly appears from the context of the statute or its legislative 
history, are the two words interchangeable. United States v. Fisk, 70 U.S. 
445 (1865); Piet v. United States, 176 F.Supp. 576, 583 (S.D. Cal. 
1959); Eastern Massachusetts St. Ry. Co. v. Massachusetts Bay Trans- 
portation Co., 350 Mass. 340 (1966). See, generally, 82 C.J.S. §335. In 
my opinion the word "or" in Chapter 484, Section 1 indicates an inten- 
tion to designate alternative or separate categories. Accordingly, where 
the Director desires to do so, he may employ either criteria as the exclu- 
sive criteria to select applicants for additional permits. 

For these reasons, I answer your question in the affirmative. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 23. March 15, 1977 

Commissioner Marie A. Matava 

Commission for the Blind 

1 10 Tremont Street 

Boston, Massachusetts 02108 

Dear Commissioner Matava: 

You have requested my opinion on two matters relating to the scope 
of authority of the Commission for the Blind. Specifically, you have asked: 

1. May the Commission fund a state-wide screening program 
of nursing home residents, sponsored by the Massachusetts 
Society for the Prevention of Blindness, aimed at the detection 
of conditions potentially leading to blindness, in order that 
medical and/or low vision services could be provided? and 

2. May the Commission make recommendations to the Cowan 
Foundation, a private foundation, concerning the funding of 
services to the blind? 

It is my opinion that both questions should be answered in the affirmative. 



134 P.D. 12 

First, with respect to the authority of the Commission to fund the 
proposed screening program, G.L. c. 6, § 145(a) defines the role of the 
Commission to include such activity. In pertinent part, that statute 
provides: 

The commission shall continuously study problems relating to 
blindness and make investigations, demonstrations and reports 
thereon, and shall establish and maintain contact with such 
physicians and other qualified persons or facilities available to 
render competent services to the blind. . . . 

As described in your letter, the screening program's purpose would appear 
to be consonant with the mandates of §145 (a). Certainly, the detection 
of conditions leading to potential blindness is within the realm of "prob- 
lems relating to blindness." In addition, the screening program would 
appear to come within the usual definition of investigation, i.e., "the 
process of inquiring into or tracking down through inquiry," Mason v. 
Peaslee, 173 Cal. App. 2d 587, 343 P. 2d 805, 808 (Ct. App. 1959). 
See also, McGahon v. Wagner, 8 Misc. 2d 337, 170 N.Y.S. 2d 251, 254 
(Sup. Ct. 1957) (studies made for the prevention of mental health and 
the prevention of psychiatric disorders are "investigations.") 

Although G.L. c. 6, §145 does not expressly authorize funding for the 
type of program you describe, the Commission's power to do so derives 
implicitly from the broad range of duties enumerated in the statute and 
imposed upon the Commission. In the absence of explicit statutory limi- 
tation, the Commission is deemed to have been afforded the incidental 
authority to employ all ordinary means necessary for the full and efficient 
exercise of its powers and the satisfactory performance of its duties. See 
School Committee of New Bedford v. Commissioner of Education, 349 
Mass. 410, 414 ( 1965); Bureau of Old Age Assistance of Natick v. Com- 
missioner of Public Welfare, 326 Mass. 121, 124 (1950). It is therefore 
my opinion that G.L. c. 6, §145 and the Commission's implicit powers 
derived therefrom, would permit the Commission to fund the Society's 
proposal. 

With respect to your second question, concerning the Cowan Founda- 
tion, §130 of G.L. c. 6 appears to grant the Commission the authority to 
provide the Foundation advice and guidance in its distribution of funds 
to enhance services to the blind. In part, G.L. c. 6, §130 provides that: 

The commissioner may ameliorate the condition of the blind by 
devising means to facilitate the circulation of books, by promot- 
ing visits among the aged or helpless blind in their homes, by 
aiding individual blind persons in accordance with sections one 
hundred and thirty-one to one hundred and thirty-one E, in- 
clusive, or by other means as he may deem expedient. . . . 
(emphasis supplied). 

It is apparent that the Commission has been granted broad power under 
this section; in such circumstance the content of the Commission's regula- 
tions on a specific subject takes on added moment. "[The] importance 
[of agency regulations] is never greater than where ... an agency must 



P.D. 12 135 

interpret legislative policy which is only broadly set out in governing 
statutes." School Committee of Springfield v. Board of Education, 362 
Mass. 417, 442 (1972), appeal after remand, 365 Mass. 215 (1974). 1 

In this regard, Regulation 4450, entitled "Community Planning", pro- 
vides guidance in determining the scope of G.L. c. 6, §130, for purposes 
of the instant question. That regulation provides, in part: 

The Commission for the Blind will cooperate with and work 
with local leadership and participate in community planning to 
promote community action and needed rehabilitative and pre- 
ventative services in respect to the problems and needs of blind 
persons . . . Community planning is defined as activities of the 
staff in providing leadership and/or participating with other 
community agencies, organizations and interested citizens in the 
development and/or extension of the broad range of resources 
and facilities to meet the social and economic needs of the com- 
munity, especially those of recipients of assistance and other 
low-income groups . . . 

The Commission, in promulgating Regulation 4450, has underscored 
its own recognition of the statutory obligation to cooperate with other 
agencies and parties involved in assisting blind persons. The Cowan Foun- 
dation is one such agency which plans to distribute funds to provide ser- 
vices to the blind. In so doing it will obviously help extend the "broad 
range of resources and facilities to meet the . . . economic needs of the 
community". Regulation 4450. 

Thus, it is my opinion that the general authority granted the Commis- 
sion by G.L. c. 6, §130, as further defined by the Commission's duly- 
promulgated Regulations gives the Commission authority, when requested, 
to provide advisory assistance to the Foundation. 2 

Sincerely, 

FRANCIS X. BELLOTTI 

Attorney General 



• See also. Op. Atty. Gen., December 12, 1964, p. 152. at p. 153: 

The agency is thus in effect authorized to make the initial interpretations of its statute in light 
of its expertise in the subject matter . . . Where the Legislature has enacted a statute which 
contains broad or ambiguous language, such interpretative regulation can be an important 
contribution by the agency. 

2Your letter of December 27, 1976 raised an additional question to which I am unable to respond. It 
concerns a possible conflict of interest, under G.L. c. 268A. Apparently, the money for the screening 
program would go to an organization, the Massachusetts Society for the Prevention of Blindness, 
whose Executive Director also serves as a member of your advisory board, G.L. c. 6, §129. Section 10 
of c. 268A states that a state employee shall be entitled to an opinion of the Attorney General upon 
any question arising under the law "relating to the duties, responsibilities and interests of such 
employee." I am therefore unable to render an opinion unless I receive a request directly from the 
employee. In any event, the existence of a possible conflict of interest has no bearing on the legality 
of the programs discussed in the foregoing opinion. 



136 P.D. 12 

Number 24. March 15, 1977 

Mr. John P. Larkin 

Executive Secretary 

Alcoholic Beverages Control Commission 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Larkin: 

You have requested my opinion regarding the proper construction of 
G.L. c. 138 §25B(c). For reasons more fully articulated below, I believe 
that an owner of a brand of alcoholic beverage is "unable" to take the 
action required by the statute when he is unwilling to do so. I therefore 
conclude that the Alcoholic Beverages Control Commission (Commis- 
sion) may, in accordance with Section 25B(c) (3), authorize a liquor 
wholesaler to file a schedule of wholesale prices without first establishing 
the incapacity of the owner to take such action. 

G.L. c. 138 §25B prohibits the sale within the Commonwealth of any 
brand of alcoholic beverage to wholesalers, unless schedules containing 
certain information are filed with the Commission. Paragraph (c) of this 
Section provides as follows: 

(c) The schedule containing the bottle and case price to whole- 
salers shall be filed by (1) the owner of such brand, or (2) a 
wholesaler selling such brand and who is designated as agent for 
the purpose of filing such schedule if the owner of the brand 
is not licensed by the commission, or (3) with the approval of 
the commission, by a wholesaler, in the event that the owner of 
the brand is unable to file a schedule or designate an agent for 
such purpose, (emphasis supplied) 

Your question specifically concerns the usage of the word "unable" in 
this context. It requires determining whether an owner must be incapable 
of filing a schedule of prices (or of designating an agent to do so) before 
the Commission may allow a wholesaler to file the schedule. 

In construing a statute, words are to be interpreted in light of the 
purpose served by the act. See, Atlas Distributing Co. v. Alcoholic Bev- 
erages Control Commission, 354 Mass. 408, 414 (1968). Every effort 
must be made to give effect to the perceived legislative purpose, even 
though this may require that the common or plain meanings of words are 
to be disregarded in favor of meanings which will accomplish the statutory 
goal. United States v. American Trucking Association, Inc., 310 U.S. 534, 
543-544 (1940); Selectmen of Topsfield v. State Racing Commission, 
324 Mass. 309, 314 (1949). 

The word "unable", as it is most commonly used, denotes that a person 
is incapable of performing an act. See, Webster's Third New International 
Dictionary, 2481 (P.B. Cove ed. 1964); State v. Higbee, 328 Mo. 1066, 
43 S.W. 2d 825, 829 (1931). However, if this definition were to be 
adopted in the instant case, it would be difficult to conceive of a situation 



P.D. 12 137 

in which the owner of a brand would actually be incapable of filing a 
schedule of prices in accordance with §25B(c) (1), or of designating an 
agent to do so in accordance with §25B(c) (2). Such a restrictive defini- 
tion would deprive §25B(c) (3) of any practical effect. It would thus 
defeat the apparent legislative intent to provide an alternative way to 
secure information on wholesale brand prices in the event that the pro- 
cedures contained in §25B(c) (1) and (2) fail. 

I conclude that, in order to effect the statutory purpose of §25B(c) (3), 
the word "unable" must be interpreted to include the concept of "unwill- 
ingness". Accord, State v. City of Seattle, 66 Wash. 329, 402 P. 2d 486 
(1965). I therefore construe this section to authorize the Commission, 
in its discretion, to allow a wholesaler to file a price schedule whenever the 
owner of a brand is unwilling to do so. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 25. March 21, 1977 

Honorable John R. Buckley 

Secretary 

Executive Office for Administration 

and Finance 
State House 
Boston, Massachusetts 02133 

Dear Secretary Buckley: 

In letters dated December 21, 1976 and January 19, 1977, you have 
asked me three questions concerning the interpretation of St. 1976, c. 434. 
Chapter 434 charges you with establishing a program to ensure that at 
least five per cent of all goods and services purchased by the Common- 
wealth are purchased from "small businesses." 1 Your questions are as 
follows: 

( 1 ) Are purchases made by entities such as the University of 
Massachusetts, the Massachusetts Port Authority, the Massa- 
chusetts Turnpike Authority, and the Massachusetts Bay Trans- 
portation Authority to be included in the program? 

(2) Should administrative expenditures and expenditures for 
consultant services be included in computing the base from 
which at least five per cent is to be allocated to small business 
purchases? 

(3) Should expenditures made from trust funds be excluded in 
computing the above-described base? 

'A "small business" is defined in St. 1976, c. 434, §2(6) as a business which is independently owned 
and operated, has its principal place of business within the commonwealth, which is not dominant in 
its field of operation, and is not a corporation which is a member of an affiliate." 



138 P.D. 12 

With regard to your first question, St. 1976, c. 484, §3, provides that 
the small business purchasing program "shall apply to all purchasing 
agencies." Section 2(4) of St. 1976, c. 484 defines a "purchasing agency" 
as "any agency, department, board, commission, office or authority of the 
commonwealth." Thus, if the statutory language is considered solely on 
its face, each of the entities listed by you would appear to be included 
within its scope. However, upon more careful consideration, it is my con- 
clusion that only one of such entities, namely the Massachusetts Bay 
Transportation Authority, constitutes a "purchasing agency" within the 
meaning of St. 1976, §2(4), and accordingly, only the purchases of that 
authority are to be included in the small business purchasing program. 
I shall discuss each entity individually. 

General Laws c. 75, §1 provides: 

There shall be a University of Massachusetts which shall con- 
tinue as a state institution within the department of education 
but not under its control and shall be governed solely by the 
board of trustees established under section twenty of chapter 
fifteen. In addition to the authority, responsibility, powers and 
duties specifically conferred by this chapter, the board of trustees 
shall have all authority, responsibility, rights, privileges, powers 
and duties customarily and traditionally exercised by governing 
boards of institutions of higher learning. In exercising such 
authority, responsibility, powers and duties said board shall not 
in the management of the affairs of the university be subject to, 
or superseded in any such authority by, any other state board, 
bureau, department or commission, except as herein provided. 

The quoted language plainly accords to the trustees of the University a 
great deal of autonomy in the management of its affairs. This autonomy 
is confirmed by the provisions of G.L. c. 75, §3, which state: 

Notwithstanding any other provision of law to the contrary, 
except as herein provided, the trustees may adopt, amend or 
repeal such rules and regulations for the government of the 
university, for the management, control and administration of 
its affairs, for its faculty, students and employees, and for the 
regulation of their own body, as they may deem necessary, and 
may impose reasonable penalties for the violation of such rules 
and regulations. The trustees shall publish such rules and regu- 
lations and shall file copies thereof with the governor, the com- 
missioner of administration and finance, and the joint committee 
on ways and means. 2 
That the autonomy of the trustees extends not only to matters of a purely 
academic nature but also to financial matters is plain. General Laws c. 75, 
§8, provides that the trustees may, at their own discretion, transfer funds 
among subsidiary budget accounts. Of even greater relevance to the 



-Recently, I issued an opinion to the effect that, pursuant to the provisions of §3, the trustees may 
promulgate a regulation exempting themselves from certain of the requirements of G.L. c. 30A, §1 IB 
(The Open Meeting Law). See Op. Atl'y. Gen'l. 1976/77, No. 12. 



P.D. 12 139 

instant question is G.L. c. 75, §13, which gives the trustees substantial 
independence in the area of purchasing. Section 13 states: 

Notwithstanding any other provision of law to the contrary, the 
trustees or officers of the university designated by them shall 
have the authority to make any purchase or purchases in the 
amount of five hundred dollars or less, and to purchase without 
limitation of amount library books and periodicals, educational 
and scientific supplies and equipment, printing and binding, 
emergency repairs and replacement parts, and perishable items, 
without recourse to any other state board, bureau, department 
or commission; provided, that in so doing the university shall 
follow modern methods of purchasing and shall, wherever prac- 
ticable, invite competitive bids. Except as herein provided, the 
state purchasing agent shall on the certification of availability of 
funds purchase all items specified on requisitions submitted to 
him by the university; provided, that the university shall have 
the right to review all bids received on university requisitions 
and to make binding recommendation on the award of the con- 
tract based on the judgment of the university as to which of the 
bids best meet the university's specification on which the bids 
were received. 

Thus, the authority of the trustees is, in all significant respects, paramount 
to that of other state agencies. 

The nature of the trustees' authority reflects a recognition on the part 
of the General Court that an institution of higher learning can thrive only 
in an atmosphere of complete academic freedom. The extension of that 
authority into the areas of budget and purchasing reflects a further recogni- 
tion that, ultimately, academic freedom is intimately related to fiscal 
independence. See generally Report oj the Special Commission on Bud- 
getary Powers oj the University oj Massachusetts and Related Matters, 
1962 House Document No. 3350. 

It is my opinion that to subject the University of Massachusetts to the 
small business purchasing program established under St. 1976, c. 484, 
would interfere with the fiscal autonomy of the University in a way not 
intended by the General Court. Any external direction concerning the 
sources from which the University may make its purchases is necessarily 
a restriction on the trustees' fiscal discretion. This being the case, I must 
conclude that the University is not a "purchasing agency" as defined in 
St. 1976, c. 484, and is therefore not subject to the small business pur- 
chasing program. See also Opinion oj the Justices, 363 Mass. 889 (1973) 
(University of Massachusetts possesses authority to enter into a tenancy 
of real estate without obtaining approval under G.L. c. 8, §10A, and 
without regard to restrictions imposed by annual appropriations acts). 
Massachusetts Port Authority 

The Massachusetts Port Authority is established by the provisions of 
G.L. c. 91 App., § 1-2. which provide in part: 



140 P.D. 12 

There is hereby created and placed in the department of public 
works a body politic and corporate to be known as the Massa- 
chusetts Port Authority, which shall not be subject to the super- 
vision or regulation of the department of public works or of any 
department, commission, board, bureau or agency of the com- 
monwealth except to the extent and in the manner provided in 
this act. The Authority is hereby constituted a public instrumen- 
tality and the exercise by the Authority of the powers conferred 
by this act shall be deemed and held to be the performance of 
an essential governmental function. 

By its terms, §1-2 makes the Authority independent of control by other 
state agencies. Moreover, through the operation of G.L. c. 91 App., §1-8 
(authority to issue bonds) and G.L. c. 91 App., §1-14 (power to charge 
user fees), the Authority is self-supporting. Ultimately, it is intended that 
the Authority operate essentially as a private business. See generally 
Report of the Special Commission on the Massachusetts Port Authority, 
1956 House Document No. 2575. 

To subject the Authority to the provisions of St. 1976, c. 484 would 
conflict with the intent that its operations be independent in character. 
Just as a private business may purchase from whom it deems desirable, 
so too, the Authority must be permitted to choose its own suppliers. An 
alternative result would prevent the members of the Authority from acting 
solely on the basis of sound business judgment. I therefore conclude that, 
like the University of Massachusetts, the Massachusetts Port Authority is 
not a "purchasing agency" within the meaning of St. 1976, c. 484, §2(4), 
and is therefore not subject to the Commonwealth's small business pur- 
chasing program. Contrast Boston v. Massachusetts Port Authority, 364 
Mass. 639, 649-658 (1974) (Authority is subject to pollution regulations 
promulgated by Department of Public Health because they are applicable 
to both state agencies and private businesses). 
Massachusetts Turnpike Authority 

The enabling legislation of the Massachusetts Turnpike Authority is 
contained in G.L. c. 81 App. Section 1-3 of that chapter provides, in part: 

There is hereby created and placed in the state department of 
public works a body politic and corporate to be known as the 
"Massachusetts Turnpike Authority", which shall not be subject 
to the supervision and regulation of the department of public 
works or of any other department, commission, board, bureau 
or agency of the commonwealth except to the extent and in the 
manner provided in this act. The Authority is hereby constituted 
a public instrumentality, and the exercise by the Authority of 
the powers conferred by this act in the construction, operation 
and maintenance of the turnpike shall be deemed and held to be 
the performance of an essential governmental function. 

From a reading of the quoted language, it can be seen that, as is the case 
with the Port Authority, the Turnpike Authority is essentially independent 



P.D. 12 141 

of control by other state agencies/' Moreover, like the Port Authority, the 
Turnpike Authority is self-supporting. It is financed through bonds which 
it issues pursuant to G.L. c. 81 App., §1-8, and through tolls which it 
collects pursuant to G.L. c. 81 App., §1-10. Thus, it appears that, like 
the Port Authority, the Turnpike Authority was intended to operate in a 
manner similar to that of an independent business. See generally Opinion 
of the Justices, 334 Mass. 721, 734 (1956) ("It seems . . . that the 
[Turnpike] Authority must constitute an entity in and of itself and must 
have an existence apart and distinct from that of the commonwealth"). 
See also Boston v. Massachusetts Port Authority, 364 Mass. 639, 655, fn. 
29 (1974) (noting similarities between enabling legislation of the two 
authorities). 

Since I am of the opinion that the Turnpike Authority was intended to 
operate as does a private business, I must, for the reasons that were 
applicable to the Port Authority, conclude that the Turnpike Authority 
also lies outside the scope of the Commonwealth's small business purchas- 
ing program. 

Massachusetts Bay Transportation Authority 

The statutory authorization for the Massachusetts Bay Transportation 
Authority (MBTA) is contained in G.L. c. 161A, §2, which provides: 

The territory within and the inhabitants of the fourteen cities 
and towns and the sixty-four cities and towns are hereby made a 
body politic and corporate and a political subdivision of the 
commonwealth under the name of Massachusetts Bay Transpor- 
tation Authority. The authority shall have power to hold prop- 
erty, to sue and be sued in law and equity and to prosecute and 
defend all actions relating to its property and affairs. The 
authority shall be liable for its debts and obligations, but the 
authority shall not be subject to attachment nor levied upon by 
execution or otherwise. Process may be served upon the treasurer 
of the authority or, in the absence of the treasurer, upon any 
member of the board of directors of the authority. 

Unlike the case of the entities previously discussed, the enabling legisla- 
tion of the MBTA provides it with no general exemption from control by 
other state agencies. Rather, its exemption, contained in G.L. c. 161 A, 
§3(i), is limited to the following: 

Except as otherwise provided in this chapter, the directors of 
the authority shall determine the character and the extent of the 
[transportation] services and facilities to be furnished, and in 
these respects their authority shall be exclusive and shall not be 
subject to the approval, control or direction of any state, muni- 
cipal or other department, board or commission. 



3It should be noted that, unlike the Port Authority, the Turnpike Authority is subject to state control 
in one respect. By virtue of G.L. c. 81 App., §l-5(m), it is subject to the laws regarding public con- 
struction contracts in the same manner as are other state agencies. 



142 P.D. 12 

"hus, the Authority may determine the character and extent of transporta- 
ion services in an independent manner. However, in other respects, the 
authority is subject to substantial state control. For example, G.L. c. 
61 A, §5(q), states that "the capital investment program and plans of 
he authority for mass transportation shall be prepared under the direction, 
ontrol and supervision of the [Executive Office for Transportation], in 
onjunction with other transportation programs and plans." Moreover 
j.L. c. 161, §5(i), provides that the budget of the Authority is also sub- 
set to review by the Executive Office for Transportation. Further, G.L. 
. 161A, §20, vests the Governor with authority, in the event of a public 
mergency, to assume control of the Authority's operations temporarily, 
jeneral Laws c. 161 A, §22, provides that in the event of a conflict 
letween the regulatory powers of the Authority and those of the Depart- 
tient of Public Utilities, the latter agency shall prevail. Finally, G.L. c. 
61 A, §§28 and 28A provide that, with the approval of the Executive 
)ffice for Administration and Finance, the Commonwealth may afford 
he Authority contract assistance by absorbing certain of its expenses. 

Given the statutory framework set forth above, I am unable to discern 
ny intent on the part of the General Court to exempt the Authority from 
he operation of programs such as that established by St. 1976, c. 484. 
"herefore, I conclude that the Authority is a "purchasing agency" within 
he meaning of St. 1976, c. 484, §2(4) and is subject to the Common- 
wealth's small business purchasing program. 

I now turn to your second question, whether administrative expenditures 
nd expenditures for consultant services should be excluded in computing 
he base from which at least five percent is to be allocated to small busi- 
less purchases. Section 3 of St. 1976, c. 484 provides, in part: 

... it shall be the responsibility of the [Secretary of Administra- 
tion and Finance] to ensure that, with respect to each fiscal year, 
the aggregate amount of the purchases included in this program 
shall equal or exceed five per cent of the aggregate amount of all 
purchases made by the commonwealth. 

rhe term "purchases" is defined in St. 1976, c. 484, §2(3) as follows: 

. . . contracts by which a purchasing agency agrees to buy goods 
or services from a specified vendor at a specified price and 
according to various specified conditions. 

leading the two sections literally, one might conclude that virtually any 
xpenditure made by an agency must be included in computing the ex- 
•enditure base. However, there are some expenditures which the General 
^ourt could not have intended to include in that base. One example is 
he salary of agency personnel. Another is the cost of utilities. Thus, 
urther refinement of the term "purchases" in §3 is called for. By the 
erms of §2, the responsibility of rendering such refinement rests with the 
iecretary of Administration and Finance. Section 2 provides: 

The secretary, after consultation with the commissioner, shall 
establish more detailed definitions which shall use, among other 



P.D. 12 143 

things, sales volume and number of employees. The definitions 
may vary from industry to industry to the extent necessary to 
reflect differing characteristics of such industries. 

The General Court clearly intended to vest the Secretary with a great deal 
of discretion in this area. In these circumstances I shall withhold my 
views on which purchases are to be included in the expenditure base and 
defer to your judgment. Accordingly, I respectfully decline to answer 
your second question. 

Your final question is whether expenditures made from trust funds are 
to be included in computing the expenditure base for purposes of the 
program. As in your second question, this inquiry deals with a subject 
which falls within your zone of discretion under the statute. Accordingly, 
I again defer to your judgment and respectfully decline to answer your 
third question. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 26. March 25, 1977 

John J. Carroll, Commissioner 

Department of Public Works 

100 Nashua Street 

Boston, Massachusetts 02114 

Dear Commissioner Carroll: 

You have asked my opinion on the applicability of G.L. c. 141, relating 
to the jurisdiction and powers of the Board of State Examiners of Elec- 
tricians, to certain work performed by or under the supervision of the 
Department of Public Works. You have posed six questions which are 
set forth in the margin. 1 Nevertheless it is my view that your request 
essentially raises but two related issues, and I have organized this response 
accordingly: (1) Is general lighting work on public ways performed by 
the Commonwealth of Massachusetts, (i.e. the Department of Public 
Works, its agents or employees,) subject to the supervisory licensing 
authority granted to the State Board of Electricians by G.L. c. 141? (2) 



1. Is work by the Massachusetts Department of Public Works in and on state highways which are 
the property of the Commonwealth subject to the licensing authority of the Board of State Exam- 
iners of Electricians under M.G.L. c. 141? 

2. Is work by the Massachusetts Department of Public Works in and on local public ways subject 
to the licensing authority of said Board under M.G.L. c. 141? 

3. Is traffic light installation work exempted from M.G.L. c. 141 by the section 7 lighting of public 
ways exemption? 

4. Is traffic light installation work outside the business of installing wires and conduits for carrying 
electricity for light, heat or power purposes and therefore not subject to the licensing authority of 
said Board M.G.L. c. 141? 

5. Does the exemption for lighting of public ways in section 7 of M.G.L. c. 141 apply to street light- 
ing installed by employees of the Department? 

6. Does the exemption for lighting of public ways in section 7 of M.G.L. c. 141 apply to street light- 
ing installed by private contractors or sub-contractors working under contract to the Department? 



144 P.D. 12 

[s there any difference in treatment or interpretation of the applicability 
?f G.L. c. 141 when the work being performed is related to traffic light 
nstallation rather than general street lighting? For the reasons detailed 
jelow, it is my opinion that neither general street lighting nor traffic light 
work performed by the Department or its agents and employees on public 
.vays is subject to the licensing requirements contained in G.L. c. 141. 

General Laws c. 141. §1 provides that "*[n]o person, firm or corpora- 
ion shall enter into, engage in. or work at the business of installing wires. 
:onduits. apparatus, fixtures or other appliances for carrying or using 
electricity for light, heat or power purposes" without having received a 
icense and certificate from the state examiners of electricians. However. 
:he Commonwealth is not a "person, firm or corporation.*' G.L. c. 4 §7. 
:he general definitional section for all of the General Laws, defines "per- 
son" as including '"corporations, societies, associations and partnerships", 
?ut contains no mention of the Commonwealth, its departments or agen- 
:ies. "[I]t is a widely accepted rule of statutory construction that general 
Aords in a statute such as "persons" will not ordinarily be construed to 
nclude the state or political subdivisions thereof." Hansen v. Common- 
wealth. 344 Mass. 214. 219 (1962): Perez v. Boston Housing Authority, 
1975 Adv. Sh. 2294. 331 N.E. 2d 801. Thus, unless explicitly included. 
:he Commonwealth ordinarily 2 is not held to be subject to general regulat- 
ng statutes. Perez, supra. The language of G.L. c. 141. interpreted in light 
3f this general rule, does not subject the Commonwealth to the licensing 
authority of the Board. 3 

This rule requiring explicit reference to the Commonwealth arises from 
:he fact that agency licensing power derives from the police power of the 
'ature. acting under the authority of the State Constitution. Op. Atty. 
3en. (1957-1958") p. 65. The assumption is that the state, which exer- 
:ises the police power to protect the public health and safety, will not 
disobey its own laws. Therefore, such laws do not apply to the state unless 
:he statutory language and purpose clearly indicate that it was the intent of 
:he Lesislature that thev applv. Sutherland. Statutory- Construction, Vol. 
[II. §62.01. 

On the basis of the express language of the statute and general rules of 
statutory interpretation. I therefore conclude that the Commonwealth is 
not a "person, firm or corporation" within the context of G.L. c. 141 §1 
and that the licensing requirements of G.L. c. 141 do not apply to lighting 
A-ork performed by the Commonwealth on public wa;. 



^Exceptions to this general rule are summarized in 4 Op. Atty. Gen. 432 (1915). In my opinion the 

-plicable to your request and do not warrant further discussion. 
'Further, comparison of G.L. c. 141 with other regulatory' statutes reveals that where the Legislature 
:o include the Commonwealth, it does so explicitly. See, e.g.. G L c. 143 ?2A (inspection of 
~- - --■ G-l I '. 50A (regulation of public health). 

'More: . - - ere not the general rule, it is questionable whether the Commonwealth would 

[ ;-'ing] into. engage[ing] in, or work[ing] at the business of installing wires, so as to 
come within the ambit of the statute. Clearly, the Commonwealth is not engaged in this activity for 
profit, a typical connotation of the word "business". See. also. DeBlais v. Commissioner of Corpora- 
tions and Taxation Tit Mass 437, -?9 M931 ): Whipple v. Commissioner of Corporations and Taxa- 
Mass. 476, 4«5-486 (192* 



P.D. 12 145 



Because the Commonwealth does not come within the terms c: . 14 
both its street and traffic lighting work are exempt:" the DPW --. 
fore pursue its statutory duties outlined in G.L. c. 85. §2, and m_ ... 
and maintain on state highways and on ways leading thereto, and on all 
main highways between cities and towns, such direction r . lights. 

. . . mechanical traffic systems. ... as i: for promoting 

the public safety and . . hout being subject to the pro- 

visions of G.L. c. 141. 

Vei 
FRANCIS X.'BELLOTTI 
trney General 



Number 2". March 3 

John R. Buc-. \ 

Secretary oj Administration and Finance 

State House 

Boston. MA 0215? 

Dear Mr. Buckley: 

You have requested my opinion concern ,:her consultants 

imteen and inte- ;red employees while serving 

under the supervision and control of an officer or employee of the 
monwealth. thereby permitting their use of state-owned motor 
for authorized travel on official bus:: 

As stated in a prior opinion of the Attornej General, 1975-76 Op. 
Atty. Gen. No. 26 (September 10. 19~5 (, G.L . I 3B provides lim- 
ited indemnification to officers and err. - . : the Commonwealth and 
of the Metropolitan District Commi> perating state-c 

vehicles under the condi: specified in that section with 

that Attorney Genera] Opinion I shall confine my analysis of the emp 
status of consultants, volunteers and inte the common law definitions 

of the relevant terms Such an analysis requires that I focus on the c-. r 
of supervision and control exerted over consultants, volunteers and interns 
by an officer or employee of the Common • - since :hat is the critical 

factor in determining whether persons filling such positions are. them- 
selves, considered to be emplovees of the Commonwealth for pur] 
G.L c 2 ?B. 

It is my opinion that there is insufficien: on and : 

cised over persons functioning in a consultant capaci: 
individuals the status of "era for purpose? of G.L. : [2 33. In 

Griswold v. Director Dfi " . iployment $15 Mass : " 

(1944^ the Supreme Judicial Court indicated that super sior and - 
trol exerted over an employee extends I the means and methods of per- 



"Be.-ause it is my opinion that 141 does r ~ ~ ~ 

h I - sue raise b • ns 3. 5 arc 6 cencemir-s exe~r 

- 3 I also do not react so oaptfc - - .;uest concerning the respective juris- 



146 P.D. 12 

forming work as well as ultimate control over the results to be accom- 
plished. Consultants, however, operate within no such limitations. In a 
former Attorney General Opinion, for instance, it was assumed that any 
consultant hired by the Vocational Rehabilitation Planning Commission 
would render professional services without immediate supervision by any 
officer or employee of the Commonwealth and, therefore, would be a 
"non-employee." 1966-67 Op. Atty. Gen. p. 70 (August 30, 1966). In 
fact, that opinion characterized the relationship between a consultant and 
an agency of the Commonwealth as one in which the agency would be 
the consultant's client rather than employer. Therefore, a consultant would 
not be entitled to the limited indemnification accorded to employees of 
the Commonwealth when operating state-owned vehicles under the con- 
ditions specified in G.L. c. 12, §3B. 

With respect to volunteers I am of the similar opinion that they may 
not be considered to be employees even while serving under the supervi- 
sion and control of an officer or employee. In arriving at this conclusion I 
have contrasted the situation of volunteers with that of students employed 
by the Commonwealth on a part-time basis. When an opinion of a prior 
Attorney General took the position that such students were to be consid- 
ered employees for the purpose of c. 12 §3B while operating a motor 
vehicle in the course of such employment, the opinion emphasized that 
the employee status resulted from the performance of: 

services subject to the will and control of their supervisor both 
as to what shall be done and how it shall be done. We have the 
right to discharge such individuals and we furnish any tools 
required and a place to work. We consider their wages to be 
taxable, and therefore, report their earnings for income tax 
purposes. 1962-63 Op. Atty. Gen. p. 179 (May 1, 1962) 

With respect to volunteers, it is plain that the same indicia of control are 
lacking even though a degree of supervision may exist. 

Finally, with respect to interns, in order to determine their employee 
status under c. 12 §3B I would need to know their precise job descrip- 
tion, title, and salary status. Whereas a non-salaried intern would resemble 
a volunteer, a salaried intern would more closely resemble a "work-study" 
student or other part-time employee of the State who would be an em- 
ployee for the purpose of c. 12 §3B according to the Attorney General 
Opinion rendered May 1, 1962. 1 Thus, no definitive response can be given 
in relation to a general "intern" category. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



II should note that any decision I would reach with respect to a salaried intern would not be influenced 
by the type of account out of which such an individual was paid. The Attorney General Opinion of 
May 1, 1962 which determined that students and others employed on a part-time basis by the State as 
the term is used in G.L. c. 12 §3B took this position despite the fact that the wages of such individuals 
were paid from funds under subsidiary account — 03 "Services — Non-Employees." 



P.D. 12 147 

dumber 28. April 5, 1977 

vlr. Thomas C. McMahon 
director 

Division of Water Pollution Control 
00 Cambridge Street 
Boston, MA 02108 

)ear Mr. McMahon: 

You have requested my opinion on a series of questions concerning 
he administration of the Massachusetts Clean Waters Act. G.L. c. 21, 
I §26-53. Under that Act, the Division approves applications by municipal- 
ties 1 for federal aid, and makes grants of state aid to municipalities for the 
levelopment of wastewater treatment facilities. G.L. c. 21, §33. These 
irojects are undertaken and funded in three stages: preliminary planning 
Step I); final design (Step II); and construction (Step III). Your request 
eeks a clarification of how municipalities may, consistent with the statutes 
ontrolling municipal finance, encumber and expend these state and 
ederal grant funds. 

I shall address the questions you have posed in three groups: (I) the 
irst and second questions concern the expenditure of federal and state 
unds; (II) the third, fourth, and fifth questions concern the amount of 
ocal appropriation necessary to authorize municipal borrowing in antici- 
pation of federal and state grants; (III) the sixth and seventh questions 
:oncern the amount of local appropriation required to authorize execution 
)f contracts for water pollution control projects. 2 I answer as follows: it is 
ny opinion that the questions you pose may be answered in the affirma- 
ive, with the exception of question (5). which is answered in the negative. 

'.. Expenditure of State and Federal Grants 

1. May a municipality or district proceed with a given Step of a 
water pollution control project and expend state and federal 
funds made available to it for said Step through grants and ad- 
vances if it has appropriated only an amount equivalent to the 
local share of the Step? 

2. May a municipality or district proceed with a given Step of a 
water pollution project and expend state and federal funds made 
available to it for said Step through grants and advances if, be- 
cause state and federal funding totals 100% of the costs of the 
Step and the local share of said Step is zero, it has not made any 
appropriation for that Step? 

Chapter 44 of the General Laws governs municipal finance in the Com- 
nonwealth. Section 53 of that statute directs that all municipal receipts 
are to be paid into the local treasury, and that funds may be spent there- 
"rom only after appropriation. 3 Excepted from the general rule of Section 



Applications may also be made by water pollution abatement districts. See G.L. c. 21. §30A. 

! My answers to these questions make no distinction between municipalities and water pollution abate- 
ment districts and apply equally to both forms of local government. See G.L. c. 21. §30A. 

'Appropriation is the act of a legislative bodv designed to "set it [the money] aside or assign it to a 
particular purpose of use." Keller v. Sullivan'. 201 Mass. 34. 35-36 (1909); See Opinion of the Justices. 
323 Mass. 764, 766 (1949). 



148 P.D. 12 

53 are "sums allotted by the commonwealth to cities, towns or districts 
for water pollution control purposes." G.L. c. 44, §53(1). Municipalities 
may spend these funds without specific appropriation, so long as they are 
used either for the purpose for which the Commonwealth allotted them, 
or to meet temporary loans issued by the municipality in anticipation of 
allotment by the Commonwealth. A similar exception to the Section 53 
mandate exists with respect to federal grants. Municipalities may accept 
these monies and expend them "without further [local] appropriation." 
G.L. c. 44, §53A. 

On the basis of G.L. c. 44, §§53(1) and 53 A, I answer questions 1 
and 2 in the affirmative. Although a state or federal grant may require a 
local appropriation, the municipal finance statutes do not condition a 
municipality's ability to expend such grant monies upon an appropriation 
of local funds. 

II. Municipal Borrowing in Anticipation of Federal and State Grants 

3. May a municipality or district borrow in anticipation of 
receipt of federal or state grants for a given Step where it has 
only appropriated money for a portion of the Step not eligible 
for, and not to be funded by, state and federal grants? 

4. May a municipality or district borrow in anticipation of 
receipt of federal or state grants for a given Step where it has 
only appropriated an amount of money equivalent to the local 
share of that Step? 

5. May a municipality or district borrow in anticipation of 
receipt of federal or state grants for a given Step, where, be- 
cause the state and federal funding totals 100% of the costs of 
the Step and the local share of said Step is thus zero, it has not 
made an appropriation for that Step? 

Municipalities have no inherent power to borrow, and may only incur 
debt for the purposes specified, and in the manner prescribed by statute. 
Brown v. City of Newburyport, 209 Mass. 259, 265 (1911). G.L. c. 44, 
§6A and St. 1945, c. 74, §3, as amended by St. 1963, c. 92, §1, authorize 
municipalities to incur debt in anticipation of receiving state and federal 
grant funds. These statutes, as well as G.L. c. 44, §31, also establish 
conditions which must be satisfied prior to such borrowing. 

G.L. c. 44, §6A and St. 1945 c. 74, §3, as amended, provide that a 
municipality which has provided a sum of money to be used with state 4 



4 G.L. c. 44, §6 A provides in part: 
. . . If a city, town or district has appropriated a sum of money for the purposes of water pollution 
control to be used with a sum or sums allotted by the division of water pollution control in the depart- 
ment of environmental quality engineering, and is required primarily to pay that proportion of the 
expense for which reimbursement is to be received from the commonwealth . . . for the purpose of 
providing the necessary funds for which reimbursement is to be made . . . the treasurer [with the 
approval of the selectmen of a town, of the prudential committee of a district or of the official author- 
ized by a city charter] . . . may . . . incur debt outside the debt limit and issue notes therefor for a 
period not exceeding two years from their dates . . . (emphasis provided). 



P.D. 12 149 

or federal"' funds for water pollution control projects may incur debt out- 
side its debt limit in anticipation of receiving such state or federal funds. 
These statutes expressly condition municipal borrowing upon the appro- 
priation of local funds for use in conjunction with state or federal funds. 
However, it is my opinion that these statutes only require a municipality 
to appropriate the amount of local funds to be provided at a given Step, 
and do not require a municipal appropriation of the total funds to be 
borrowed. 1975-76 Op. Atty. Gen. 40. 

Similarly, I conclude that c. 44, §31 does not require a municipality to 
appropriate funds for the total debt incurred in anticipation of receiving 
state or federal funds. Section 31 prohibits municipal departments from 
incurring liabilities in excess of their appropriations. However, where 
implementation of a state policy depends upon municipal action, Section 
3 1 has been narrowly interpreted. Board of Health v. Mayor of North 
Adams, Mass. Adv. Sh. (1975) 2708. Thus, where a city undertakes a 
long-term capital outlay project pursuant to a state statute encouraging 
such projects, §31 does not require an initial municipal appropriation in 
the full amount of the project's costs. Lynn Redevelopment Authority v. 
City of Lynn, 360 Mass. 503 ( 1971 ). 

In the present case, the Massachusetts Clean Waters Act, G.L. c. 21, 
§§26-53, and the 1972 Amendments to the Federal Water Pollution Con- 
trol Act, 33 U.S. C. §§1251 et seq., establish a clear policy encouraging 
the development of wastewater treatment facilities. Requiring a munici- 
pality to appropriate the total amount of debt when borrowing in anticipa- 
tion of state or federal funds would impose a substantial burden on the 
municipality which is inconsistent with that policy. Therefore, I conclude 
that c. 44, §31 only requires a municipality to appropriate that amount of 
money which it will expend from its own funds at a given Step, prior to 
incurring debt under c. 44, §6A or St. 1945 c. 74, §3, as amended. Board 
of Health v. Mayor of North Adams, supra at 2723-2724; Lynn Redevel- 
opment Authority v. City of Lynn, supra at 504-506. 

In the cases presented by Questions 3 and 4, the conditions imposed by 
these statutes are satisfied. Municinal appropriations for ineligible costs 
clearly associated with a particular Step, or for the local share of eligible 
costs of a Step, provide funds needed to successfully complete that Step. 
Such appropriations satisfy the express requirement of c. 44, §6A and 
St. 1945, c. 74, §3, as amended, that local furds be provided for use with 
the state or federal funds. They also satisfy the requirements of c. 44, §31 
by funding municipal liability at a given Step. 

Question 5, when read in conjunction with the two preceding Questions, 
assumes a state of facts in which there are no municipal costs associated 



5St. 1945, c. 74 §3, as amended by St. 1963. c. 92. §1. provides: If a county, city, town or district shall 
have an agreement with the federal government whereby such government grants such county, city, 
town or district a sum of money to be used with funds provided by said county, city, town or district 
for a public works project . . . and shall be required primarily to pay that portion of the expense for 
which reimbursement is to be received from the grant, the treasurer of such county, city, town or 
district, ... in anticipation of the receipt of the proceeds of such grant, may incur debt, which, in 
the case of a city, town or district, shall be outside the debt limit, to an amount not exceeding the 
amount of the grant as shown bv the grant agreement, and mav issue notes therefor, pavable in not 
exceeding two years from their dates. (Emphasis provided). 



150 P.D. 12 

with a particular Step and no corresponding appropriation. If there is no 
municipal appropriation at a given Step, then there would be no local 
funds available for use with the state or federal funds provided at that 
Step. Since each Step is funded separately, local funds appropriated at 
an earlier Step are not in fact used with the state or federal funds com- 
mitted at a later Step. In such cases, although c. 44, §31 is satisfied, the 
conditions of c. 44, §6A and St. 1945 c. 74, §3, as amended, are not. 
Accordingly, a municipality may not borrow in this case. 

In summary, I conclude that a municipality may, consistent with the 
governing statutes, borrow in anticipation of receiving state or federal 
funds where it has made appropriations for the ineligible costs, or for the 
local share of eligible costs, associated with a given Step. A municipality 
may not borrow in anticipation of receiving state or federal funds at any 
Step if it has not made an appropriation of funds to be used at that Step. 

III. Muncipal Contracts in Excess of Local Appropriation 

6. May a municipality or district execute contracts for a Step of 
a water pollution control project where it has not appropriated 
the full amount of the costs of the Step, but has only appropri- 
ated an amount equivalent to its local share of the costs of the 
Step? 

7. May a municipality or district execute contracts for a Step 
of a water pollution control project where, because state and 
federal funding totals 100% of the costs of the Step and the 
local share of the Step is thus zero, it has not made any appro- 
priation for that Step? 

Municipalities are authorized to make contracts for various purposes, 
including the construction of sewage treatment and disposal systems. G.L. 
c. 44, §4. However, in executing any contract relating to a water pollution 
control project, a municipality must comply with G.L. c. 44, §§31 and 
31C. Section 31 is discussed at Part II of this opinion. It generally pro- 
hibits municipal departments from incurring liabilities in excess of 
their appropriations. Id. Section 31C provides in relevant part: 

No contract for the construction of any . . . public work by any 
city or town costing more than two thousand dollars shall be 
deemed to have been made until ... an appropriation in the 
amount of such contract is made available therefore. 

For the reasons set forth in Part II, supra, it is my opinion that these 
statutes do not require a municipality to appropriate the total amount of a 
Step's costs prior to executing contracts for that Step. Where a municipal- 
ity is entitled to receive state or federal funds at a particular Step of a 
water pollution control project. G.L. c. 44, §§31 and 31 C require a muni- 
cipal appropriation in an amount equal only to the costs which the 
municipality will pay from its own funds. See authorities cited in Part II, 
supra. Such an interpretation is consistent with the numerous decisions 



P.D. 12 151 

upholding multi-year municipal teaching contracts" and long term muni- 
cipal service contracts." 

Therefore, I conclude that a municipality may execute contracts for the 
development of water pollution control facilities where it has only 
appropriated an amount equal to its costs at a given Step. Similarly, I 
conclude that a municipality may execute such contracts without making 
any appropriation therefore if it is entitled to receive state or federal funds 
covering the entire cost of a Step. 

Verv truly yours, 

FRANCIS X.'bELLOTTI 

Attorney General 

Number 29. April 14, 1977 

Frank T. Keefe 

Director of State Planning 

John W. McCormack Building 

One Ashburton Place 

Boston, Massachusetts 02108 

Dear Mr. Keefe: 

You have advised me of the following facts. In 1968, pursuant to the 
provisions of G.L. c. 40B, §§9 and 10, the towns of Plymouth and King- 
ston became members of the Southeastern Regional Planning and Eco- 
nomic Development District. No change in the status of either town's 
membership in the District occurred until April, 1974. at which time 
Plymouth, by a majority vote at its annual town meeting, elected to termi- 
nate its membership in the District. Subsequently, in April of 1976, again 
by a majority vote at its annual town meeting, the town elected to apply 
for membership in the Old Colony Planning District. Thereafter the Old 
Colony Planning Council, by a majority vote, elected to accept Plymouth's 
application. 

Similarly, in May of 1975, the Town of Kingston, by a majority vote 
at its annual town meeting, elected to terminate its membership in the 
Southeastern Regional Planning and Economic Development District. At 
the same time it, too, elected to apply for membership in the Old Colony 
Planning District. As was the case with Plymouth, the Old Colony 
Planning Council elected to accept Kingston's application. 

On September 23, 1976, in a letter to the Director of the Federal Office 
of Management and Budget, the Commissioner of Commerce and Devel- 
opment redefined the boundary of the Old Colony Planning District to 
include the towns of Plymouth and Kingston. At the same time, he deleted 
those two towns from the Southeastern Regional Planning and Economic 
Development District. Both actions were the result of the purported 
changes in district described above. 



"See Watt v. Chelmsford. 328 Mass. 430 (1952); Hares v. Brockton, 313 Mass. 641 (1943); Ring v. 

Woburn. 311 Mass. 679. (1942); Callahan v. Woburn, 306 Mass. 265 (1940V 
~>See Salisbury Water Supplr Co. v. Town of Salisbury, 341 Mass. 42 (1967); Wilson v. Brouder. 291 

Mass. 389 (1935); Clark v. City of Fall Rirer. 219 Mass. 581 (1914). 



152 P.D. 12 

In light of the facts set forth above, you have asked me a series of 
questions which I summarize as follows: 

1. Have the towns of Plymouth and Kingston effectively termi- 
nated their membership in the Southeastern Regional Planning 
and Economic Development District and acquired new mem- 
bership in the Old Colony Planning District? 

2. If so, have the boundaries of the respective districts auto- 
matically changed to reflect the changes in their membership? 

With one qualification, it is my conclusion that the two towns have 
effected a change in district and that the boundaries of the districts in- 
volved have automatically changed. 

With respect to your first question, G.L. c. 40B, §10, provides two 
methods by which membership in the Southeastern Regional Planning 
and Economic Development may be terminated. The section states: 

. . . The [Commissioner of Commerce and Development] may 
from time to time review the boundaries of the district and, if 
he deems it in the best interest of the district, he may with 
approval of a majority of the members of the Southeastern 
Regional Planning and Economic Development Commission in- 
clude additional cities and towns, or he may exclude cities and 
towns from said district; provided, however, that prior to such 
increase or decrease in the membership of the district, the com- 
missioner shall consult with the mayor of a city, or the city man- 
ager in a city having a Plan D or Plan E form of government, 
or the selectmen of a town to be included or excluded from such 
district. 

The city or town may, after it has been a member of a regional 
planning and economic development district for a period of not 
less than five consecutive calendar years, terminate its member- 
ship in the district by a two thirds vote of the city council or by 
vote of a town meeting or town in favor of terminating such 
membership. Said termination shall become effective at the end 
of the calendar year within which said termination is voted. 

It can be seen from the quoted language that one method of termination 
requires action on the part of both the Commissioner of Commerce and 
Development, and the Regional Planning and Economic Development 
Commission. Although you have indicated that the Commissioner of 
Commerce and Development has deleted the towns of Plymouth and 
Kingston from the Southeastern Regional Planning and Economic Devel- 
opment District, there is nothing before me to indicate that a majority of 
the Regional Planning and Economic Development Commission has 
approved his actions. Without such approval, the membership of Plymouth 
and Kingston could not have been terminated under the first method set 
forth in §10. 

The second method set forth in §10 for terminating membership in the 
district requires that the town seeking termination has been a member of 



P.D. 12 153 

the district for five consecutive years and that there be a town meeting 
vote in favor of termination. The information which you have provided 
me indicates that the Towns of Plymouth and Kingston have met both of 
those requirements. Accordingly, I conclude that as of January 1, 1975, 
the Town of Plymouth effectively terminated its membership in the district. 
I further conclude that as of January 1, 1976, the Town of Kingston 
effectively terminated its membership in the district. 

Regarding admission of the two towns into the Old Colony Planning 
District, St. 1967, c. 332, §6, provides that new members will be admitted 
to the district under the following circumstances: 

Any . . . city which, by vote of its city council, and any . . . 
town which, by vote of a town meeting, applies to the [Old 
Colony Planning] council for inclusion in the district and whose 
application is approved by a majority vote of the council shall 
become a member of the district with equal rights and privileges 
with other members; provided that any such city or town is 
within an urbanized area adjoining the district and has common 
or related problems. 

Under this section three conditions must be met before a new town may 
be admitted to the district. First, there must be a town meeting vote 
applying for membership. Second, a majority of the Old Colony Planning 
Council must approve the application. Third, the town must be located 
within an urbanized area adjoining the district and have common or 
related problems. 

The information you have provided me indicates that the first two 
conditions have been met in this case. However, you have provided me 
with no information concerning compliance with the third condition. I 
therefore conclude as follows: If the Towns of Plymouth and Kingston 
are located within an urbanized area adjoining the district and have prob- 
lems common or related to those of the district, then they effectively 
become members of the district upon receiving the approval of the Old 
Colony Planning Council. However, if said towns are not located within 
an urbanized area' adjoining the district or do not have problems related 
or common to those of the district, then they have not become bona fide 
members of the district. 

With regard to your second question, whether a change in membership 
results in an automatic change in the boundaries of the district involved, 
I conclude that an automatic change does occur. According to the two 
statutes, G.L. c. 40B, §10, and St. 1967, c. 332, §6, quoted above, the 
territory of a district consists, by definition, of the territory of its respec- 
tive members. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



154 P.D. 12 

Number 30. April 29, 1977 

Hon. Charles V. Barry 

Secretary 

Department of Public Safety 

905 Commonwealth Avenue 

Boston, MA 02215 

Dear Secretary Barry: 

You have requested my opinion as to the proper interpretation of G.L. 
c. 148, §9, as amended by St. 1975, c. 764. That statute authorizes the 
Board of Fire Prevention in the Department of Public Safety (Board) to 
enact rules and regulations controlling the use and storage of explosives 
and inflammable materials. The statute also authorizes municipalities to 
regulate such matters so long as the municipal ordinance or by-law is 
"not inconsistent with [the Board's] rules and regulations". 

With respect to municipal regulations, c. 148, §9 provides that the 
municipal enactment be submitted to the Board for approval, prior to its 
taking effect. If the Board takes no action within ninety days of receipt, 
then the by-law or ordinance is deemed approved. Your question relates 
to that aspect of the approval process which specifies that "[e]ach city or 
town shall submit a copy of each such ordinance or by-law to the Board 
within ten days after the passage thereof." c. 148, §9. You ask whether 
failure to submit the appropriate copy within ten days precludes approval 
by the Board. It is my opinion that the ten-day filing requirement should 
not be used in this restrictive fashion; failure to file in time does not pre- 
clude the Board's jurisdiction. 

Section 9 does specify that the municipality "shall submit" the ordinance 
or by-law. However, the legislature's use of the word "shall" does not, by 
itself, dispose of the issue. The Supreme Judicial Court has consistently 
taken the view that time requirements set forth by statute are often direc- 
tory in nature, rather than mandatory, and that flexibility is called for in 
judging the impact of the law. See Kiss v. Board of Appeals of Long- 
meadow, Mass. Adv. Sh. (1976) 2355. "The word 'shall' as used in 
statutes, although in its common meaning mandatory, is not of inflexible 
signification and not infrequently is sustained as permissive or directory in 
order to effectuate a legislative purpose." Swift v. Registrars of Voters of 
Quincy, 281 Mass. 271, 276 (1932); see also Boston v. Quincy Market 
Cold Storage Co., 312 Mass. 638, 646-647 (1942). 

In determining when a flexible approach is appropriate, the context in 
which the time requirement appears is a key element. Whether a require- 
ment such as that contained in §9 is mandatory or directory must be as- 
certained from "the legislative intent disclosed by the enactment as an 
entirety in the light of its dorrinant purpose . . ." Swift v. Registrars of 
Voters of Quincy, supra, 276. In general, where the requirement is "in- 
tended to promote method, system and uniformity in the modes of pro- 
ceeding . . .", Torrey v. Millbury, 38 Mass. (21 Pick) 64, 67 (1838) and 
the substantive rights of third parties are not prejudiced, the provision in 



P.D. 12 155 

question will be interpreted as directory only. E.g., Schulte v. Direc.or of 
the Division of Employment Security, Mass. Adv. Sh. (1975) 3247, 3251- 
3255; Hallenborg v. Town Clerk of Billerica, 360 Mass. 513, 517 ( 1971 ). 

Section 9 is an integral part of G.L. c. 148, which is "designed to pro- 
vide licensing by fire prevention authorities of substantial use of materials 
deemed by the [department of public safety] to be highly flammable. " 
Frontier Research Inc. v. Commissioner of Public Safety, 351 Mass. 616, 
620 (1967). The filing of an ordinance or by-law by a municipality more 
than 10 days after passage of that ordinance or by-law would in no 
way thwart the public safety objectives of c. 148. It is particularly signifi- 
cant in this regard that a municipal enactment does not go into effect until 
either the board has approved the enactment or ninety days have elapsed 
without board action. The ninety days does not begin to run until the 
board has received the ordinance or by-law. Late filing in no way impedes 
the exercise of the board's regulatory authority. Nor does late filing have 
the effect of precluding citizen comment which would be otherwise avail- 
able either at the local or Board level. 

In conclusion, it is my opinion that the words "shall submit*' in >J9 are 
directory, not mandatory. If an ordinance or a by-law is submitted to the 
Board more than 10 days after enactment, the board may 1 proceed to 
decide on the merits whether or not the ordinance or by-law is consistent 
with the Board's regulations. 

Verv trulv yours, 

FRANCIS X.BELLOTTI 

Attorney General 



Number 31. April 29, 1977 

Honorable Carol S. Greenwald 

Commissioner of Banks 

Division of Banks and Banking 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Commissioner Greenwald: 

Your office has directed to me a series of questions which I summarize 
as follows: 

In cases where the savings department of a savings bank which 
sells life insurance has generated a tax credit pursuant to the 
provisions of INT. REV^CDE OF 1954, §38, and has no tax 
liability against which it may employ such credit, may the life 
insurance department, consistent with the provisions of G.L. c. 
178, §8, employ the credit to reduce its own tax liability? 
In my judgment, this transfer of excess tax credit is permissible. 



'It should be noted that this statute does not require the Board to waive the time limit. The Board has 
discretion, in order to prevent undue delay and to promote efficient administration, to reject late-filed 
by-laws and ordinances where it deems such action necessary. 



156 P.D. 12 

A savings bank operating both a savings department and life insurance 
department is required to pay federal income taxes under INT. REV. 
CODE OF 1954, §594. Pursuant to §594, the bank's total income tax 
liability consists of the sum of two partial taxes which are assessed sepa- 
rately against the savings department and the life insurance department 
as though the departments were independent corporations. The tax upon 
the savings department is computed using the formula established under 
INT. REV. CODE OF 1954, §11. The computations are shown on Inter- 
nal Revenue Form 1120. The tax upon the life insurance department is 
computed using the formula established under INT. REV. CODE OF 
1954, §§801 et seq. These computations are shown on Internal Revenue 
Form 1120L. 

Under the provisions of INT. REV. CODE OF 1954, §38, corporations 
investing in certain kinds of depreciable property are awarded a credit 
against their federal income tax. Because the savings department and the 
life insurance department are each taxed as though they were separate 
corporations, each department is eligible for this credit. 

In 1971, a savings bank selling life insurance requested the advice of 
the Internal Revenue Service as to whether it might employ an unused 
portion of the investment credit awarded one department to offset the tax 
liability incurred by the other department. The Internal Revenue Service 
ruled in the affirmative. What was determinative in its view, was the fact 
that, although the bank operated two separate and distinct departments, 
each with taxes computed independently of the other, there was ultimately 
but a single tax imposed upon the bank. See Revenue Ruling 71-386. 

Essentially, your question is whether the provisions of G.L. c. 178, §8, 
prohibit Massachusetts savings banks which sell life insurance from tak- 
ing advantage of the above-described ruling. Section 8, inter alia, imposes 
the following requirement upon such banks: 

The savings department and the insurance department shall be 
kept distinct ... in matters of accounting and of investment. 
Expenses pertaining to the conduct of both the savings depart- 
ment and the insurance department, such as office rent and the 
salaries of general officers, shall be apportioned by the trustees 
equitably between the two departments. 

For the reasons set forth below, I believe that §8 does not prohibit Massa- 
chusetts banks from undertaking the transactions authorized bv Revenue 
Ruling 71-386. 

Because a savings bank's total federal tax liability is derived from sepa- 
rate partial taxes imposed upon the savings department and the life insur- 
ance department, the total tax liability is clearly an "expense pertaining 
to the conduct of both departments" within the meaning of §8. As such, 
it must be "apportioned equitably" between the two departments. The 
question of what constitutes an "equitable apportionment" is thus the 
fundamental issue before me. In resolving that issue, I take special note 
of the legislative intent underlying the statute, which is to prevent a com- 
mingling of assets between the two departments. See, e.g., Howard v. 



P.D. 12 157 

Harris, 90 Mass. 247, 248 (1864) ("statutes are to be construed accord- 
ing to the intentions of the framers.") In this instance, I interpret the 
requirement of an "equitable apportionment" to mean that when each 
department has generated a portion of the bank's total tax liability, each 
must discharge its share. Similarly, when the bank's total tax liability has 
been created entirely by one department, that department must discharge 
all of such liability. Furthermore, if one department has produced a credit 
which serves to reduce the bank's total tax liability, the portion the bank's 
total liability attributable to that department must first be reduced by the 
amount of the credit. However, where one department's credit exceeds 
the amount of its own liability, I regard it as "equitable" under the terms 
of §8 to reduce the other department's tax liability by the amount of the 
unused portion of the credit. In my opinion, there is no commingling of 
assets of the two departments resulting from the fact that the one depart- 
ment has availed itself of the unused portion of credit earned by the 
other department. 

Accordingly, I conclude that G.L. c. 178, §8 does not prohibit one 
department of a savings bank from employing the unused portion of the 
other department's investment credit to reduce the bank's total tax 
liability. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 32. May 18, 1977 

Christine Sullivan, Secretary 

Executive Office of Consumer Affairs 

14th Floor 

One Ashburton Place 

Boston, Massachusetts 02108 

Dear Ms. Sullivan: 

You have requested my opinion concerning the obligations of certain 
boards of registration 1 to permit public access to information compiled 
and maintained by them concerning members of regulated trades and pro- 
fessions. Your inquiry raises three general questions. The first question 
presented is whether personal information required for registration or 
certification is to be made available to the public. The second is whether 
information relating to disciplinary proceedings is to be made available 
to the public. The third concerns the manner in which anv such informa- 
tion is to be made available to the public, by personal inspection of 



iThis opinion solely concerns the following boards of registration: Medicine, c. 112, §§2-12R; Podiatry, 
c. 112, §§13-22; Pharmacy, c. 112, §§24-42A; Dental Examiners, c. 112, §§43-53; Veterinary Medicine, 
c. 112, SS54-60; Architects, c. 112, §§60A-60O; Optometry, c. 112. §§66-73B; Dispensing Opticians, c. 
112, §§73C-73L; Nursing, c. 112, §§74-81C; Professional Engineers and Land Surveyors, c. 112, 
S§81D-81T; Embalmers and Funeral Directors, c. 112, §§82-87; Barbers, c. 112, §§87F-87S; Real Estate 
Brokers and Salesmen, c. 112, §§87PP-87DDD; Chiropractors, c. 112, §§89-97; Nursing Home Admin- 
istrators, c. 112, §§108-117; Electricians, c. 141. §§1 et seq. 



158 P.D. 12 

records in the possession of the various boards, or by preparation and 
distribution of lists containing the public information. To summarize my 
conclusions, it is my opinion that certain information compiled and main- 
tained by the boards of registration constitute public records and must 
be made available to the public upon request pursuant to General Laws, 
Chapter 66, §10. The manner in which such information is to be made 
available is, in certain cases, determined by statute, and in others, left to 
the discretion of the boards. 

I. IS PERSONAL INFORMATION CONNCERNING MEM- 
BERS OF REGULATED TRADES AND PROFESSIONS 
WHICH IS COLLECTED BY THE BOARDS OF REGIS- 
TRATION IN CONNECTION WITH THE LICENSING OR 
CERTIFICATION PROCESS TO BE MADE AVAILABLE 
TO THE PUBLIC? 
This general statement of your inquiry subsumes several specific ques- 
tions. Specifically, you have asked whether the names, addresses, registra- 
tion numbers, age, marital status and qualifications (educational, profes- 
sional, and personal) of members of the regulated trades and professions 
are subject to public disclosure. To answer these questions, it is necessary, 
at the outset, to establish the relationship among various statutes govern- 
ing disclosure of information held by the government. 

These statutes may be described as follows. First, the Fair Information 
Practices Act, G.L. c. 66A, inserted by St. 1975, c. 776, §1, specifically 
regulates the government's use of personal information relating to identi- 
fiable individuals. Second, there are numerous statutes which explicitly 
provide for public access to specific kinds of personal information con- 
cerning members of regulated trades or professions. Third, the Public 
Records Act, G.L. c. 66, §10 and its definitional counterpart c. 4, §7 els. 
26, as amended by St. 1973, c. 1050, §1, generally provides for public 
access to all records held by the government, unless the information falls 
within one of nine limited exemptions. 

The Fair Information Practices Act (hereinafter referred to as FIPA) 
provides that every agency of the commonwealth maintaining a personal 
data system shall: 

not allow any other agency or individual not employed by the 
holding agency to have access to personal data unless such 
access is authorized by statute or regulation, or is approved by 
the holding agency and by the data subject whose personal data 
is sought. G.L. c. 66A, §2(c). [Emphasis added] 
The boards of registration listed in footnote 1, supra, are agencies of the 
Commonwealth. G.L. c. 66A, §1 (definition of "agency"). Furthermore, 
these boards collect and maintain information concerning individual mem- 
bers of the regulated trades and professions which is identifiable as such. 
This information is, for purposes of FIPA, "personal data", and the 
records maintained by these boards are collectively "personal data sys- 
tems." Id. 

Therefore, it is my opinion that the boards of registration are subject 
to the restrictions of FIPA set forth above. Names, addresses, registration 



P.D. 12 159 

numbers and other personal data relating to members of regulated trades 
and professions may not be disclosed, unless such disclosure is authorized 
by statute or otherwise made in accordance with c. 66A, §2(c). 

Two kinds of statutes may authorize disclosure of personal data. In 
the first instance, there are specific statutes which explicitly authorize 
public access to certain information held by the boards of registration. For 
example, the Board of Registration in Medicine is expressly required to 
make available for public inspection at the office of the Secretary of State 
a record of names of registered medical doctors. G.L. c. 112, §4. The 
Board of Registration of Professional Engineers and Land Surveyors is 
required to make available for public inspection much more detailed infor- 
mation concerning licensees, including name, age, residence, business 
address, and educational and professional qualifications. G.L. c. 112. 
§81H. Despite the lack of uniformity, each board herein considered is 
under some statutory obligation to make certain personal data which it 
holds public. 2 To the extent that a specific statute requires a particular 
board to make names, addresses or other personal data available for 
public inspection, access to such information is authorized by statute and 
permitted by c. 66A, §2(c). 

In addition to the specific statutes which authorize public access to 
certain enumerated kinds of personal data, it is my opinion that the Public 
Records Law (hereinafter called the PRL) may also authorize access to 
information under c. 66A, §2(c). The PRL consists of two parts. G.L. 
c. 4, §7 els. 26 defines "Public Records" to include all ". . . documentary 
materials or data . . . made or received by any officer or employee of any 
agency, executive office, department, board, commission . . ." unless such 
data falls within one of nine exemptions. 3 G.L. c. 66, § 10(a) requires 

2The following is a list of the statutes requiring the various boards of registration to make certain infor- 
mation available to the public: Medicine, c. 112, §4 (list of names); Podiatry, c. 112. §17A (list of 
names); Pharmacy, c. 112, §25 (list of names); Dental Examiners, c. 112. g§43. 44 (list of names and 
business addresses); Veterinarians, c. 112. §57 (list of names): Architects, c. 112. §60J (names and 
business addresses); Optometry, c. 112. §67 (list of names); Dispensing Opticians, c. 112. §73F (list of 
names); Nurses, c. 112, §78 (list of names): Professional Engineers and Land Surveyors, c. 112. §81H 
(names, ages, residences, business addresses, education and qualifications and additional information): 
Embalmers and Funeral Directors, c. 112, §85 (the board's financial transactions): Barbers, c. 112. 
§87G (names, business addresses of licensees, students and apprentices'!: Real Estate Brokers and 
Salesmen, c. 112, §87XX (list of names, addresses and additional information); Chiropractors, c. 112. 
§90 (list of names); Nursing Home Administrators, c. 112, §114 (names, ages, residences, business 
address, education and qualifications, and additional information): Electricians, c. 141, §3 (list of 
names) . 

3 (a) specifically or by necessary implication exempted from disclosure by statute; 

(b) related solely to internal personnel rules and practices of the government unit, provided however, 
that such records shall be withheld only to the extent that proper performance of necessary govern- 
mental functions requires such withholding; 

(c) personnel and medical files or information; also any other materials or data relating to a 
specifically named individual, the disclosure of which may constitute an invasion of personal privacy: 

(d) inter-agency or intra-agency memoranda or letters relating to policy positions being developed by 
the agency; but this subparagraph shall not apply to reasonably completed factual studies or reports 
on which the development of such policy positions has been or may be based. 

( e ) notebooks and other materials prepared by an employee of the commonwealth which are per- 
sonal to him and not maintained as part of the files of the governmental unit; 

(f) investigatory materials necessarily compiled out of the public view by law enforcement or other 
investigatory officials the disclosure of which materials would probably so prejudice the possibility of 
effective law enforcement that such disclosure would not be in the public interest; 

(g) trade secrets or commercial or financial information voluntarily provided to an agency for use 
in developing governmental policy and upon a promise of confidentiality; but this subparagraph shall 
not apply to information submitted as required by law or as a condition of receiving a governmental 
contract or other benefit: 

(h) proposals and bids to enter into any contract or agreement until the time for the opening of bids 
in the case of proposals or bids to be opened publiclv, and until the time for the receipt of bids or 
proposals has expired in all other cases; 

(i) appraisals of real property to be acquired until (1) an agreement is entered into; or (2) three years 
have elapsed since the making of the appraisal, or until anv litigation relative to such appraisal has 
been terminated, whichever occurs first. 



160 P.D. 12 

every person having custody of any public record to permit it to be exam- 
ined by any person. The information compiled by the boards of registration 
in connection with the licensing and certification process although "per- 
sonal data" subject to protection by FIPA, also falls within the definition 
of a "public record". The question then is whether the PRL is to be con- 
strued as a statute authorizing access to personal data under c. 66A, §2(c). 

It is well established that, where two or more statutes relate to the same 
subject matter, they are to be construed together to constitute a harmoni- 
ous whole consistent with the legislative purpose. Board of Education v. 
Assessors of Worcester, 1975 Mass. Adv. Sh. 2626, 333 N.E. 2d 450 
(1975). "There is no question that the Public Records Law is designed 
to be broadly construed to permit the public to have liberal access to gov- 
ernmental records so that the business of government may be conducted in 
the open under full public scrutiny." Bellotti v. Cramer, 5 MLW 502, 
(Hampshire Super. Ct. #16186, 4/15/77). See also Department of the 
Air Force v. Rose, 325 U.S. 352 (1976), citing Environmental Protection 
Agency v. Mink, 410 U.S. 73, 80 (1973) (Federal Freedom of Informa- 
tion Act broadly conceived to permit access to official information long 
shielded unnecessarily from public view). 

Opposed to this mandate to provide maximum public access to govern- 
ment records, is the sweeping definition of "personal data" contained in 
FIPA ("any information concerning an individual which, because of 
name, identifying number, mark or description can be readily associated 
with a particular individual." c. 66A, §1). To construe §2(c) of FIPA 
narrowly to prevent access to all personal data held by the government, 
except in cases where a very specific statute (such as those cited in foot- 
note 2 supra) expressly authorizes disclosure, would effectively defeat the 
legislative purpose of the PRL. 

However, to construe the PRL as authorizing public access to certain 
personal data gives effect to each statute. The nine exemptions to the 
PRL, preserve FIPA's restrictions on disclosure of personal data in those 
cases in which there is a recognized interest in doing so. In particular, 
exemption (c) preserves the confidentiality of personal data the disclosure 
of which "may constitute an invasion of privacy." Therefore, construing 
these statutes together (Board of Education v. Assessors of Worcester, 
supra), I conclude that the PRL may constitute statutory authorization 
to obtain access to personal data under c. 66A, §2(c). Personal data 
which does not qualifv under one of the nine exemptions to the Public 
Records Act is subject to the mandatory disclosure provisions of c. 66, 
§ 10(a). Personal data which comes within one of the nine exemptions 
is not subject to mandatory disclosure and is fully protected by the restric- 
tions of c. 66A, §2(c). 4 

The application of this rule to the specific questions you have asked 
requires an analysis of the exemptions to the PRL and of the type of 



4 A similar relationship exists between the Federal Privacy Act, 5 U.S.C. §552a and the Federal Freedom 
of Information Act, 5 U.S.C. §552. The Federal Privacy Act expressly provides that its restrictions on 
access to personal information is inapplicable to records the disclosure of which is required under 
§552 . . . [emphasis supplied]. 






P.D. 12 161 



information to which access is sought. Of the nine exemptions, I find that 
only exemption (c) is relevant."' This exemption applies to "personnel 
and medical files or information; also any other materials or data relating 
to a specifically named individual, the disclosure of which may constitute 
an invasion of personal privacy." Whether this exemption applies to 
particular types of personal data depends upon a balancing of the indi- 
vidual's privacy interest in nondisclosure against the public's interest in 
being informed. Dennis-Yarmouth Regional School District v. Kelley, 
5 M.L.W. 324 (Barnstable Super. Ct., #CA 36592, 2/10/77). For 
cases discussing the balancing of interests under the Federal Freedom of 
Information Act, 18 U.S.C. §552(b) (6), see Department of the Air Force 
v. Rose, supra; Ditlow v. Schultz, 517 F.2d 166 (D.C. Cir. 1975); Rural 
Housing Alliance, Inc. v. U.S. Department of Agriculture, 498 F.2d 73 
(D.C. Cir. 1974); Columbia Packing Co., Inc. v. U.S. Department of 
Agriculture, 417 F.Supp. 654 (D.Mass. 1976); Getman v. NLRB, 450 
F.2d 670 (D.C. Cir. 1971). Exemption (c) has also been interpreted to 
mean "that if disclosure has any reasonable tendency to trespass on a 
legitimate concern of privacy, then the exemption prevents the disclosure." 
Bellotti v. Cramer, supra. In determining the extent of an individual's 
interest in keeping certain information private, whether such information 
contains intimate details of a personal nature is relevant. See Ditlow v. 
Schultz, supra at 169. See also Hastings Sons Publishing Co. v. Bastarachi, 
(Essex Super. Ct., #CA 5024, 8/13/76) (on appeal). Also relevant is 
the availability of such information from other sources. Dennis-Yarmouth 
Regional School District v. Kelley, supra; Rural Housing Alliance, Inc. 
v. U.S. Department of Agriculture, supra at 78. 

Applying these principles to the specific types of personal data listed 
in your request, it is my opinion that names, addresses and registration 
numbers of licensees do not fall within exemption (c). Licensees' names are 
specifically made public by statute (see statutes collected in footnote 2), and 
addresses are generally available through telephone directories. Registra- 
tion numbers and addresses serve primarilv to identify and distinguish 
between individual members of the trades and professions. Such informa- 
tion conveys few or no personal details about the individuals so identified. 
Therefore, I conclude that such information does not fall within exemp- 
tion (c). Dennis-Yarmouth Regional School District v. Kelley, supra 
(names, addresses and salaries of school district employees not exempted 
from public disclosure by c. 4, §7 els 26(c) ). See also Getman v. NLRB. 
supra (names and addresses of labor union members not exempted from 
public disclosure by 5 U.S.C. §552(b) (6)). Not being exempt, public 
disclosure of names, addresses and registration numbers of licensees is 
authorized by c. 66, § 10(a). 



•"•It is my opinion that personal data is not specifically or necessarily exempted from disclosure by FIPA. 
so as to come within exemption (a) of c. 4, §7 els. 26. C.66A, §2(c) expressly recognizes that other 
statutes may authorize access to personal data. To then interpret that section as exempting all personal 
data from the Public Records Law, is circular and begs the question of whether the PRL is intended 
to authorize disclosure of such information. For a case discussing exemption (a) see Ottaway News- 
pctper\. Inc. v. Appeals Court, Mass. Adv. Sh. , 5/11/77. 



162 P.D. 12 

The remaining types of personal data covered by your request are age, 
marital status, education and professional and personal qualifications. It 
is my opinion that educational and professional training and experience 
are not exempted from disclosure by exemption (c). Such information is 
evidence of the skills required of licensees in the interests of public health 
and safety. See generally Fogland v. Board of Registration in Medicine, 
357 Mass. 624, 629 (1970) (right of individual to practice a profession 
may be subject to paramount right of government to protect public 
health). In my opinion, this information is outside the scope of any rea- 
sonable or legitimate expectation of privacy which an individual might 
have. See Bellotti v. Cramer, supra; Cf. Katz v. United States, 389 U.S. 
347 (1967). Since this information does not fall within exemption (c), 
it is a "public record", and c. 66, § 10(a) authorizes its disclosure. 

However, age, marital status, and other similar personal details are the 
kinds of information in which a licensee may well have a legitimate pri- 
vacy interest. Such information is only indirectly related to professional 
ability and is of a highly personal nature. Federal courts have protected 
similar information concerning marital status and legitimacy of children, 
Rural Housing Alliance, Inc. v. U.S. Department of Agriculture, 498 
F.2d 173 (D.C. Cir. 1974), medical files, Ackerley v. Ley, 420 F.2d 
1336 (D.C. Cir. 1969), and employment or health records, Robles v. 
NLRB, 414 F.Supp. 426 (E.D. Pa. 1976). Therefore, absent an express 
legislative declaration that such information should be made public, e.g. 
c. 112, §81 1H, I find that these items of personal data are exempt under 
exemption (c). Since this information is exempt from the definition of a 
public record, c. 66, § 10(c) does not authorize its disclosure. 

My answers to the questions raised in this section may be summarized 
as follows. The information compiled by the boards of registration in con- 
nection with the licensing and certification process is personal data, the 
disclosure of which is restricted by G.L. c. 66A, §2(c). To the extent that 
specific statutes expressly make enumerated types of personal data pub- 
lic, they constitute statutory authorization to permit public access to such 
information. Absent specific statutes, the PRL provides statutory author- 
ization to permit public access to the names, education and professional 
background, addresses, registration numbers of members of regulated 
trades and professions. However, the PRL does not authorize access to 
other types of personal data such as age and marital status because such 
information is exempt from mandatory disclosure by G.L. c. 4, §7, els. 26. 

II. IS INFORMATION COMPILED BY THE BOARDS OF 
REGISTRATION IN THE COURSE OF DISCIPLINARY 
PROCEEDINNGS AGAINST LICENSEES TO BE MADE 
AVAILABLE TO THE PUBLIC? 

Your specific questions ask whether public access is to be allowed to 
the following kinds of information: (1) complaints filed against licensees; 
(2) information obtained through investigations relating to complaints; 
and (3) final dispositions of complaints. It is my opinion that all such 
information comes within the broad definition of "personal data" con- 



P.D. 12 163 

tained in FIPA. c. 66, §1. Thus, disclosure of this information must be 
authorized by statute, or otherwise made in accordance with c. 66A, 
§2(c). 

Treating first the issues presented by complaints and investigatory 
materials, I find no specific statutes expressly authorizing public access 
to such information. If public access to this information is authorized, it 
is by virtue of the PRL. 

As noted earlier, the PRL declares all records received and maintained 
by the commonwealth to be public records, unless exempt under any of 
nine exemptions, c. 4, §7, els. 26. See footnote 2 for text of exemptions. 
At least two exemptions are relevant: exemption (c), protecting personal 
privacy interests; and exemption (f), protecting certain investigatory 
material. 

As discussed in Part I of this opinion, whether or not exemption (c) 
svould protect complaints and investigatory files depends upon an exami- 
nation of the facts and a balancing of the interests involved in an indi- 
vidual case. Dennis-Yarmouth Regional School District v. Kelley, supra; 
Rural Housing Alliance, Inc. v. U.S. Department of Agriculture, supra. 
There are at least two variables which could affect this determination in a 
particular instance: the nature of the charges made in the complaint, and 
whether other information relating to the charges is already on public 
record. See generally Note, Privacy of Information in Florida Public 
Employees' Personnel Files, 27 U. Fla. L. Rev. 481 (1975); Note, Appli- 
cation of the Constitutional Privacy Rights to Exclusions and Dismissals 
from Public Employment, 1973 Duke L. J. 1037 (1973). See also dis- 
cussion in Part I of this opinion. Another exemption to the PRL which 
may apply in a particular case is exemption (f). This exemption protects 
certain investigatory materials "necessarily compiled out of the public 
view" the disclosure of which "would probably so prejudice the possibility 
of effective law enforcement that such disclosure would not be in public 
interest." The boards of registration are given statutory responsibility for 
investigating and hearing complaints against members of the regulated 
trades and professions. 1 ' In discharging this responsibility, they act as law 
enforcement or investigatory officials within the meaning of exemption (f). 
Therefore, to the extent that investigations are conducted in secrecy, and 
that disclosure of investigatory information would prejudice their efforts to 
enforce laws relating to the regulated trades and professions, it is my 
opinion that exemption (f ) would apply. See Bougas v. Chief of Police of 
Lexington, 1976 Mass. Adv. Sh. 2236. (Police records containing reports 
of police officers and letters from citizens relating to a particular incident 
resulting in criminal proceedings exempt from disclosure under c. 4, §7. 
els. 26(f) ). See also Exxon Corporation v. FTC, 384 F.Supp. 755 (D.D.C. 



'The following is a list of the statutes which authorize the various boards of registration to investigate 
complaints: Medicine, c. 112, §5; Podiatrv. c. 112. §17A; Pharmacv. c. 112. §§27 and 32; Dental Exam- 
iners, c. 112, §43; Veterinarians, c. 112, 557; Architects, c. 112. §§60H and 60N: Optometry, c. 112, 
§71; Dispensing Opticians, c. 112. §73H; Nurses, c. 112, §77: Professional Engineers and Land Survey- 
ors, c. 112. §81P; Embalmers and Funeral Directors, c. 112. §§8S. 84A and 85; Barbers, c. 112. §§87L 
and 87M; Real Estate Brokers and Salesmen, c. 112. §87AAA; Chiropractors, c. 112, §115; No express 
statutory authority was found for Electricians. 



164 P.D. 12 

1974) (Customer complaint letters relating to pending anti-trust complaint 
exempt from public disclosure as investigatory files). 

It is impossible for me to make an abstract determination that all com- 
plaint and investigatory files are, or are not, within exemptions (c) and 
(f). The boards themselves must evaluate the information contained in 
these records and related circumstances in accordance with the principles 
set forth above to determine whether these exemptions apply to particular 
records. Any decision by a board denying access to such records is subject 
to review by the Supervisor of Public Records. G.L. c. 66, § 10(b), as 
amended by St. 1976, c. 438. I note, however, that to the extent that dis- 
closure of a complaint would jeopardize an individual's reputation, a 
valid claim for the application of exemption (c) may be stated. See 
Bellotti v. Cramer, supra at 10. (Disclosure of fact that individuals had 
submitted applications for new jobs may expose them to adverse public 
comment and could be an invasion of privacy). Also, if a board deter- 
mines that a complaint or investigatory file is exempt under (c), it should 
consider deleting the personal identifying information and making an 
expurgated copy of the information available to the public. See Depart- 
ment of the Air Force v. Rose, supra. (Records of disciplinary action 
taken by Air Force Academy not exempt under privacy exemption to 
Federal Freedom of Information Act, where personal identifying informa- 
tion deleted). However, if it is determined that complaints and investi- 
gatory files do not fall within either exemption (c) or (f), or any other 
exemption, then they are public records, access to which is authorized 
bye. 66, §10(a). 

Turning to complaints which have been disposed of, it is my opinion 
that such records do not fall within exemption (c), or any other exemption 
to the PRL. The comprehensive statutory scheme regulating certain trades 
and professions witnesses the strong public interest in the professional 
conduct of individual practicioners. The final disposition of a complaint 
concerning such conduct is the official act of a public agency charged 
with the responsibility to protect public health and safety. See Fogland v. 
Board of Registration in Medicine, supra. A licensee who is exonerated 
of charges contained in a complaint, or one who is found guilty of pro- 
fessional misconduct is not, in my opinion, entitled to prevail in the 
balancing of his or her personal interest in non-disclosure and the clear 
public interest in disclosure. "Where there is an important public interest 
in obtaining information, the private interest in protecting the disclosure 
must give way to the superior public interest, especially where the inva- 
sion is not substantial." Campbell v. United Sta f es Civil Service Commis- 
sion, 539 F. 2d 48, 63 (10th Cir. 1976). See Farrell v. Village Board of 
Trustees, 83 Misc. 2d 124, 372 (N.Y.S. 2d. 905 1975) (reprimands 
given to police officers should be a matter of public records because the 
public interest outweishs anv privacy claim). Therefore, I conclude that 
final dispositions of complaints are not subject to exemption (c). Since no 
other exemption appears relevant, I further conclude that public access 
to such information is authorized by G.L. c. 66, § 10(a). 

My answers to the questions raised in this section may be summarized 



P.D. 12 165 

as follows. Complaints, investigatory materials and final dispositions of 
complaints are personal data, access to which is restricted by c. 66A, 
§2(c). The PRL authorizes access to complaints and investigatory ma- 
terial, unless such information falls within an exemption. The determina- 
tion as to whether particular complaints or investigatory files are exempt, 
is to be made by the boards of registration with due regard to all circum- 
stances and interests. Final dispositions of complaints, however, do not 
fall within any exemption to the PRL. Public access to such personal data 
is therefore authorized by c. 66, § 10 (a) . 

III. IF PUBLIC ACCESS TO RECORDS OF THE BOARDS 
OF REGISTRATION IS AUTHORIZED, IN WHAT MAN- 
NER IS IT TO BE MADE? 
Your specific questions appear to ask whether the various boards are 
required to prepare lists of information for distribution to the public, or 
whether they may simply permit interested persons to inspect records at 
their offices. Access to public records is governed by G.L. c. 66, § 10(a). 
This statute provides as follows: 

Every person having custody of any public records, as defined 
in clause twenty-sixth of section seven of chapter four, shall, at 
reasonable times and without unreasonable delay, permit them 
to be inspected and examined by any person, under his super- 
vision, and shall furnish one copy thereof on payment of a 
reasonable fee. Every person for whom a search of public 
records is made shall, at the direction of the person having 
custody of such records, pay the actual expense of such search. 
Regulations adopted by the Supervisor of Public Records on January 14, 
1977 establish the fees which may be charged for providing copies of 
public records. Reg. 2.5. 

Neither c. 66, § 10(a), nor its definitional counterpart c. 4, §7, els. 26, 
contains any express requirement that agencies assemble or compile in one 
document all information in their possession which qualifies as a public 
record. Therefore, it is my opinion that the PRL does not require the 
boards of registration to prepare lists of public information, but only 
requires that they permit inspection and provide one copy of the public 
records in their possession. See Nolan v. Rumsfeld, 535 F. 2d 890, 891, 
(5th Cir. 1976) (Federal Freedom of Information Act compels disclosure 
onlv of existing records). 

I note, however, that the statutes collected in footnote 2 expressly 
require the boards of registration to prepare lists or registers of certain 
information concerning licensees. As discussed in Part I of this opinion, 
such data are public records. The boards of registration mav, as a matter 
of administrative convenience, include additional public information in 
these lists. However, at a minimum, the boards must prepare such lists as 
are required by statute and permit inspection of any additional public 
records in their possession. 

Verv trulv vours. 

FRANCIS X. BELLOTTI 

Attorney General 



166 P.D. 12 

Number 33. May 25, 1977 

Amelia L. Miclette, Chairperson 
Civil Service Commission 
One Ashburton Place 
Boston, Massachusetts 02108 

Dear Ms. Miclette: 

You have asked my opinion on the following questions: 

1. Whether pending charges, specifications, or other information 
relating to a Civil Service Commission hearing held pursuant to 
G.L. c. 31 §43 and §46A must be made available to the public 
where the hearing is a private one; 

2. Whether testimony and exhibits of a private hearing must be 
made available to the public after a hearing; and 

3. If the answer to either of the first two questions is in the 
affirmative, whether the Commission may exercise its discretion 
to withhold highly sensitive and embarrassing material from 
the public. 

To summarize, I am of the opinion that ( 1 ) pending charges, specifica- 
tions, or other information relating to civil service hearings conducted 
under G.L. c. 31, §43 (or c. 31, §46A) are to be considered public 
records unless the Commission determines that the circumstances of an 
individual case render such disclosures "an invasion of personal privacy" 
within the scope of exemption (c) of G.L. c. 4 §7(26); (2) testimony and 
exhibits of a private hearing held under §43 must be made available to 
the public after a decision is rendered; and (3) the Commission has no 
discretion to withhold such material. 

In responding to your first question, it is necessary to examine both 
G.L. c. 31 §43 x which governs civil service disciplinary procedures and 
G.L. c. 4, §7(26), defining public records ("the public records law"). 
It is the interplay of these two statutes — and not whether a civil service 
hearing happens to be private or public — which will determine whether 
the pending charges, specifications or other information relating to a civil 
service hearing are public records and, therefore, subject to public 
inspection. 2 

General Laws, c. 31, §43 provides that persons holding office or em- 
ployment under permanent appointment shall not be discharged, removed, 
suspended, transferred or lowered in rank without notice and a hearing. 
Specifically, the pertinent provisions of that section state: 

(a) . . . Before any action affecting employment or compensa- 
tion ... is taken, the officer or employee . . . shall be given a 
full hearing before the appointing authority .... [T]he appoint- 
ing authority shall give to the employee affected a written notice 
of his decision. 



iHearings held under c. 31, §§43 and 46A are held pursuant to the hearings provisions of 
§43. Thus, for purposes of the questions you have raised, the two sections are indistinguishable. 

^On the rights of a member of the public to inspect a "public record", see G.L. c. 4, §7(26), last para- 
graph, and G.L. c. 66, §10. 



P.D. 12 167 

(b) If within ten days after receiving written notice of the 
decision of the appointing authority the person . . . shall so 
request in writing, he shall be given a hearing before a member 
of the commission .... 

(c) Any hearing under this section shall, if either party con- 
cerned so requests in writing, be public .... 

"Public records" are defined in G.L. c. 4, §7(26) as all papers and 
other documentary materials or data made or received by any officer or 
employee of any agency or commission unless the materials or data fall 
within one of the specific exemptions set forth in that section. Thus 
charges, specifications or other information regarding c. 31, §43 hearings 
constitute public records unless one of the exemptions in G.L. c. 4, §7(26) 
applies. With regard to the questions you have posed, two of these 
exemptions appear relevant. 

First, exemption (a) removes from the definition of public records 
materials and data "specifically or by necessary implication exempted from 
disclosure by statute." In this regard, G.L. c. 31, §43 (c) merits scrutiny 
because it provides that "any hearing under this section shall, if either 
party concerned so requests in writing, be public . . . ." If this section were 
interpreted to establish a presumption of private hearings, it could be 
argued that the Legislature intended specifications and other information 
regarding the hearing also to be private, and therefore exempt from the 
public records law. 

Upon analysis, however, I find that §43 (c) should be read to guarantee 
the affected employee a right to a public hearing 3 rather than to create a 
presumption of privacy. The statute mandates that the Commission hold 
a public hearing if either party so requests. It does not require the hearing 
to be closed absent such a request and, indeed, I am of the opinion that 
the Commission could on its own motion designate the hearing as public. 
See Federal Communications Commission v. Schreiber, 381 U.S. 279, 293 
(1965) (F.C.C.'s rule prescribing open investigatory hearings upheld). 
Accordingly, I conclude that §43 (c) does not specifically or implicitly 
remove the materials at issue from the public records law. 

The second exemption from G.L. c. 4, §7 Clause 26 which I believe 
pertinent is exemption (c). This clause protects against disclosures of 
materials or data relating to a specifically named individual "that may 
constitute an invasion of personal privacy." 4 



•'The purpose of such a guarantee is to protect the participants from arbitrary action. See Davis, Admin- 
istrative Law Treatise, §8.09 (1958; Supp. 1970; Supp. 1976). 

In recent years, several courts have held that a public employee who has a statutory right to a hear- 
ing before he may be removed from his job for cause is constitutionally entitled under the due process 
clause to have that hearing be public. E.g., Fitzgerald v. Hampton, 467 F. 2d 755, 762-67 (D.C. Cir. 
1972); Adams v. Marshall, 212 Kan. 595, 512 P. 2d 365, 371-72 (1973); cf. Klein v. Board of Fire & 
Police Commissioners of the City of Pana, 23 111. App. 3d 201, 318 N.E. 2d 726, 730-32 (1974). For a 
discussion of the principles underlying this due process right, see In re Oliver, 333 U.S. 257, 270, 273 
(1948). 

4 C/. 5 U.S.C. §552(b) (6) (1970), the similar but more restricted federal provision, which allows an 

exemption only where disclosure "would constitute a clearly unwarranted invasion of privacy." 

One technique for protecting the privacy of the affected individual that has been approved by courts 

in the federal context is to delete any information identifying the individual and allow the remainder of 

the record to be released. See Department of the Air Force v. Rose, 96 S. Ct. 1592, 1608 (1976). 



168 P.D. 12 

It is my opinion that a determination whether exemption (c) should 
apply to specifications, charges or other information pertaining 'o a pend- 
ing §43 hearing will depend on the facts of the individual case, and will 
require a balancing of the interests involved. See Rural Housing Alliance 
v. United States Department of Agriculture, 498 F. 2d 73, 77-78 (D.C. 
Cir. 19~4) (analogous federal exemption requires balancing of the indi- 
vidual's interest in privacy against the interest of the public in being 
informed). There are at least two variables which could affect this deter- 
mination in a particular instance: the nature of the charges against the 
public employee: and whether other information relating to the charges 
is already on public record. See generally Note, Privacy of Information in 
Florida Public Employees* Personnel Files. 27 U. Fla. L. Rev. 481 
i 1975); Note. Application of the Constitutional Privacy Rights to Ex- 
clusions and Dismissals from Public Employment. 1973 Duke L. J. 1037 
i 1973 ). It is not the function of my office to give opinions on hypothetical 
questions. Thus, in the absence of a specific factual context, I must decline 
to comment further on the applicabilitv of exemption (c) to §43 hearings. 
See IV Op. Atty. Gen. 425. 428 (1911); 1974-75 Op. Atty. Gen. No. 76. 
However, the Commission will want to consider each of these variables 
when making a disclosure decision in an individual case. 

Turning to your second question, you have asked whether testimony 
and exhibits introduced at a private civil service hearing must be made 
available to the public after the hearing. General Laws c. 31, §29 pro- 
vides that: 

[RJecords of the proceedings of the commission and of the 
administrator shall be kept on file and shall be open to public 
inspection under the rules of the commission.'' 

The term "'records of the proceedings of the Commission" in an adjudica- 
tor)' context refers to the "entire proceedings" of a hearing in which a 
decision has been rendered,' 3 G.L. c. 31, §45, and plainly includes the 
testimony and exhibits of the hearing. Thus, your second question raises 
the issue whether G.L. c. 31. §29 must be reconciled on a case-by-case 
basis with the personal privacy exemption in G.L. c. 4 §7(26) (c); or 
whether G.L. c. 31 §29 overrides G.L. c. 4 §7(26) (c) because of its 
specific requirements that these records be open to the public. 

I have concluded that the language of G.L. c. 31. ?29 is specific enough 
to override the general privacy provision of c. 4, §7(26) (c). See, e.g., 
Pereira v. Xew England LSG Co., Inc., 364 Mass. 109. 118, 301 N.E. 
2d 441, 447 (1973) ("if a general statute and a specific statute cannot 
be reconciled, the general statute must yield to the specific"'). This is true 
even if the hearing were a private one in which the facts of the case re- 
quired that during the course of the hearing the pending charges remain 
private: while during the progress of such a hearing disclosure may con- 



"Rule 16 of the Commission provides that "records of the proceedings of the Commission . . . which by 
statute are open to public inspection, shall be inspected only during regular working hours . . . ." 
■To read 529 as necessarily including materials in an adjudicatory hearing prior to decision would con- 
-::h the provisions of G.L. c. 31. 543(c), discussed supra, permitting private hearings. See Brooks 
hburg <£ Leominster St. R. 200 Mass. 8. 17 (1908) (statutes, where possible should be con- 
strued in harmony with one another). 



P.D. 12 169 

stitute an invasion of personal privacy ( see my answer to your first 
question), once the hearing is completed and the charges have been 
sustained or rejected, the public's right to know as reflected in §29 over- 
rides the privacy rights of the individual. Accordingly, it is my opinion 
that testimony and evidence of a closed hearing must be made available 
to the public after the decision is rendered. 

As to your third question regarding the Commission's discretion to 
withhold highly sensitive and embarrassing material from the public. I am 
of the opinion that the pertinent statutes. G.L. c. 31. §29 and c. 66. §10, 
do not grant you any discretion to withhold public records. As quoted 
above. G.L. c. 31. ^29 requires that "[rjecords of the proceedings . . . 
shall be open to public inspection". G.L. c. 66. §10 requires that "[e]very 
person having custody of any public record . . . shall . . . permit them to 
be inspected by any person . . . ." Both statutes thus speak in mand. 
terms and leave the Commission with no room for discretion. Given that 
the mandate to release the records is found not in the public record law 
but in G.L. c. 31. §29. the exemption in the Public Records Law for with- 
holding matters which would constitute an invasion of personal privacy 
does not apply here. See discussion of §29 supra at p. 6. Thus, even infor- 
mation which would be private during the civil service hearing under the 
public records law becomes public once the decision is rendered. 

Very trulv vours. 

FRANCIS X.BELLOTTI 

Attorney General 



Number 34. June 3. 1977 

Gregory R. Anrig 

Commissioner of Education 

182 Tremont Street 

Boston. Massachusetts 02111 

Dear Commissioner Anrig: 

You have requested my opinion as to whether the Pledge of Allegiance 
requirement (pledge) set forth in G.L. c. 71, §69. violates the First 
Amendment rights of teachers who object to leading and/or participating 
in recitation of the pledge. 

General Laws c. 71. §69. provides in pertinent part that: 

Each teacher shall cause the pupils under his charge to salute 
the flag and recite in unison with him at said opening exercises 
at least once each week the Pledge of Allegiance. 
The statute authorizes a fine of not more than S5.00 for each two- week 
period during which a teacher fails to comply with this section. You have 
informed me that a number of teachers in local school districts have re- 
fused, on First Amendment grounds, to comply with the statute, either 
because of religious objections or because they believe the phrase '"with 
liberty and justice for all." which is part of the pledge, is untrue. Based 



170 P.D. 12 

on the legal analysis which follows, it is my opinion that, with certain 
qualifications, a teacher's right to refuse to direct or participate in recita- 
tion of the pledge is constitutionally protected. 

Although the United States Supreme Court has not specifically addressed 
this question, several Supreme Court decisions provide a pertinent frame- 
work for my analysis. First, in the leading case of West Virginia Board of 
Education v. Barnette, 319 U.S. 624 ( 1943), the Supreme Court has held 
that students cannot be compelled to recite the pledge. In Barnette, the 
Court held that such a requirement invades the individual's right to free- 
dom of speech and belief. 1 

Although the Supreme Court has not directly addressed the question of 
whether teachers can be compelled to recite the pledge, the Court has 
indirectly extended the Barnett rationale from students to teachers. See 
Baggett v. Bullitt, 311 U.S. 360, 371 (1964). In Baggett, the court struck 
down a loyalty oath requirement for teachers, noting "the teacher who 
refused to salute the flag, or advocated refusal because of religious beliefs 
might well be accused of breaching his promise [in the oath]. Cf. West 
Virginia Board of Education v. Barnette." The Court's citation of Barnette 
plainly indicates a congruence between students' and teachers' rights in 
this context. 

Moreover, the Court has stated generally that First Amendment pro- 
tections extend to teachers as well as students. See Tinker v. Des Moines 
Community School District, 393 U.S. 503 (1969). In that case, the 
Supreme Court addressed the extent to which expressions of opinion — 
there the wearing of black armbands to protest the war in Vietnam — 
were subject to regulation in the public school environment. The court 
stated that: 

First Amendment rights, applied in light of the special charac- 
teristics of the school environment, are available to teachers and 
students. It can hardly be argued that either students or teachers 
shed their constitutional rights to freedom of speech or expres- 
sion at the schoolhouse gate. 393 U.S. at 506. 

In Tinker, the Court recognized the authority of states and school 
officials to prescribe and control conduct in the schools. However, the 
Court held that more than undifferentiated fear or apprehension of dis- 
turbance was necessary to overcome the right to freedom of expression. 
393 U.S. at 508. Before such a prohibition on expression could be sus- 
tained, the Court held that there must be evidence that it is "necessary to 
avoid material and substantial interference with schoolwork or discipline." 
393 U.S. at 511. Thus the silent, passive expression of opinion embodied 
by the wearing of armbands was found to be constitutionally protected. 

Most recently, the Supreme Court reaffirmed the individual's first amend- 
ment right to refrain from compelled speech in Wooley v. Maynard, 



'Following the decision in Barnette, my predecessors on several occasions issued opinions finding that 
students mav not constitutionally be compelled to salute the flag or recite the Pledge of Allegiance. 
See 1969-70 Op. Atty. Gen. 105; 1964-65 Op. Atty. Gen. 24?; 1943-44 Op. Atty. Gen. 64. The Barnette 
decision effectively overruled earlier cases which upheld the section's constitutionality as to students. 
See Johnson v. Town of Deerfield. 25 F. Supp. 918 ( D. Mass. 1939). aff'd. 306 U.S. 621: Nicholls v. 
Mayor and School Committee of Lynn. 297 Mass. 65 ( 1937). 



P.D. 12 171 

45 U.S.L.W. 4379 (April 20, 1977). The Court upheld a judgment 
enjoining criminal prosecution of two New Hampshire residents who 
covered the state motto, "Live Free or Die," contained on their auto- 
mobile license plates. The Court cited Barnette, supra, noting that "com- 
pelling the affirmative act of a flag salute involved a more serious infringe- 
ment upon personal liberties ,, than the passive display of the state motto. 
Id. at 4382. 

Furthermore, a number of lower courts have considered and upheld 
the teacher's right to refuse participation in the flag salute or Pledge of 
Allegiance. Russo v. Central School District No. 1, 469 F. 2d 623 (2d 
Cir. 1972), cert, denied, 411 U.S. 932 (1973); Hanover v. Northrup, 
325 F. Supp. 170 (D. Conn. 1970); State v. Lundquist, 262 Md. 534, 
278 A. 2d 263 (1971). See James v. Board of Education, 461 F. 2d 566 
(2d Cir.) cert, denied, 409 U.S. 1042 (1972). In each case, the teacher's 
activities were found to be constitutionally protected under the Tinker 
analysis. 

In Russo and in James, the court did recognize an additional factor 
affecting the exercise of a teacher's right to freedom of expression — the 
possibility that the teacher's views, by virtue of his or her position of 
authority, might carry more influence with students than those of other 
students, and the school's legitimate interest in preventing a teacher from 
"arbitrarily inculat[ing] doctrinaire views in the minds of students." 
James, supra, 461 F. 2d at 573. 

However, this additional interest was held of insufficient weight by itself 
to override a teacher's First Amendment rights. The state's heavy burden 
"in every first amendment case [is to show that] the regulatory policy is 
drawn as narrowly as possible to achieve the social interests that justify 
it." Id. at 574. 

It is my opinion, therefore, that unless school authorities make a factual 
showing that a teacher's conduct ( 1 ) poses a danger of material and sub- 
stantial disruption of schoolwork or discipline, or (2) constitutes an 
attempt to improperly propagandize the teacher's views, a teacher's refusal 
to participate in or lead the pledge of allegiance is constitutionally 
protected. 

The Supreme Judicial Court recently reached a similar conclusion in an 
Advisory Opinion considering the constitutionality of a proposed amend- 
ment to G.L. c. 71, §69. 2 Opinion of the Justices, 1977 Mass. Adv. Sh. 
1048. In its opinion, the Court stated that the present version of G.L. c. 
71, §69 presented the same constitutional problems as did the proposed 
amendment. 3 The Court found that the reasoning of the Supreme Court 



-The amendment. House Bill No. 5627, struck the fourth sentence of G.L. c. 71, §69, quoted above, and 

inserted in its place the following sentence: 

Each teacher at the commencement of the first class of each day in all grades in all public 
schools shall lead the class in a group recitation of the "Pledge of Allegiance to the Flag." 

After receiving the Opinion of the Justices, the Governor vetoed H. 5627. Thus the provisions of G.L. 

c. 71, §69 cited at the outset of this opinion remain in effect and your request has not been rendered 

moot. 

•''Although the Court found that the amendment might lessen the coercive aspects of the present statute, 
nonetheless, the majority found it to be unconstitutionally coercive. 1977 Mass. Adv. Sh. at 1056. The 
dissenters interpreted the amendment as providing for voluntary participation in the pledge of 
allegiance program. They agreed, however, with the majority's view that teachers could not constitu- 
tionally be required to participate in the pledge. 1977 Mass. Adv. Sh. at 1060. 



172 P.D. 12 

in West Virginia State Board of Education v. Barnette, supra, applied to 
teachers as well, and that the proposed amendment would be uncon- 
stitutional if signed into law. 

Accordingly, it is my opinion that insofar as c. 71, §69 categorically 
requires teacher participation, it is inconsistent with the First Amendment 
of the Constitution of the United States and may not be enforced. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 35. June 9, 1977 

Mr. James W. Callanan 

Executive Secretary 

Board of Retirement 

One Ashburton Place 

Boston, MA 02108 

Dear Mr. Callanan: 

You have informed me that the Retirement Board (Board) has re- 
ceived an "application for insurance coverage as a deferred retiree" 
which was transmitted to you by the Group Insurance Commission. You 
have also indicated that the Board is required to certify the eligibility of 
individuals for deferred retirement as a condition precedent to the 
approval of such an application. 1 The application which occasioned your 
opinion request was submitted to the Commission by former State Senator 
Ronald C. McKenzie; you inform me that the Board has determined that 
Mr. McKenzie would ordinarily be eligible for deferred retirement status 
under G.L. c. 32, §10(2) (b 1/2). 2 

You ask, however, whether he is rendered ineligible by the application 
of G.L. c. 32, §10(2) (c), which states: 

Any member who is removed or discharged for violation of the 
laws, rules and regulations applicable to his office or position, 
or any member whose removal or discharge was brought about 
by collusion or conspiracy, shall not be entitled to the termina- 
tion retirement allowance provided in this subdivision. 
(Emphasis added) 



HJnder the terms of G.L. c. 32A, §10, the deferred retirement plan works as follows. An insured em- 
ployee who has a right to retire but whose retirement is deferred as provided in G.L. c. 32, §10, is 
entitled to continue (but pay for) his state insurance plans. 

2This subsection was inserted by St. 1973, c. 928, §1. It provides, inter alia: 

Any member classified in Group 1, Group 2, or Group 4, who has completed ten or more years of 
creditable service, and who, before attaining age fifty-five resigns or voluntarily terminates his service 
and leaves his accumulated total deductions in the annuity savings fund of the system of which he is 
a member, shall have the right upon attaining age fifty-five, or at any time thereafter, to apply for a 
termination retirement allowance to become effective as provided for in subdivision (3) of this section. 
I have learned that former State Senator McKenzie is 43 years old, has completed eleven years of 
creditable service and that he resigned on March 31, 1977. Based on those facts, I concur in the 
Board's judgment that Mr. McKenzie would normally be eligible for deferred retirement under the 
above statute. 



P.D. 12 173 

For reasons more fully set forth below, 1 am of the opinion that Mr. 
McKenzie is not disqualified by the operation of §10(2) (c), and, accord- 
ingly, the Board should certify his eligibility to the Group Insurance 
Commission. 

I shall not recite the extended sequence of events leading up to the 
resignation of the applicant. These were matters widely reported in the 
media. He was indicted by a federal grand jury, convicted of a felony and 
sentenced to a federal penitentiary. The sentence imposed was stayed 
pending appeal and the applicant continued his service as a State Senator. 
However, on March 31, 1977, he resigned his office rather than face 
formal removal proceedings in the Senate. The question you pose, there- 
fore, is whether ex-Senator McKenzie was constructively removed prior to 
his resignation or whether his resignation is the statutory equivalent of "re- 
moval or discharge". Under either circumstance, G.L. c. 32, §10(2) (c) 
would render him ineligible for deferred retirement benefits. 

The argument that Mr. McKenzie was constructively removed from 
office is dependent on the application of G.L. c. 279, §30. That statute 
provides in essence that the office of one who has been convicted of a 
felony and sentenced to prison by a court of this state or of the United 
States, shall be vacated from the time of sentence. It is my judgment that this 
statute does not apply to a State Senator. It is overridden in this instance 
by the portion of the state constitution which states that "the Senate shall 
be the final judge of the elections, returns and qualifications of their own 
members/' Mass. Const. Pt. 2, c. 1, §2, Art. 4. This affirmative grant of 
power includes the power of expulsion, Hiss v. Bartlett, 69 Mass. 468 
(1855) and has been held to be "comprehensive, full and complete." 
Dinan v. Swig, 223 Mass. 516 (1916). See, also, 6 Op. Atty. Gen. 358 
( 1921 ). Those authorities mandate the conclusion that as a State Senator, 
Mr. McKenzie could be removed only by an affirmative act by the Senate, 
general statutes suggesting a different result nothwithstanding. His resig- 
nation effectively precluded removal by the Senate. 

I also conclude that the term "removal or discharge" is not so broad 
that it sweeps within the ambit of G.L. c. 32, §10(2) (c), a resignation 
arguably tendered to forestall removal. It is a basic maxim of statutory- 
construction that the words of a statute are to be read in accordance with 
their common and approved usase and are not to be stretched beyond 
their fair meaning in order to rationalize a particular result. DesMarais v. 
Standard Accident Ins. Co., 331 Mass. 199 (1954). See, generally, 
Prudential Ins. Co. of America v. City of Boston, Mass. Adv. Sh. (1976) 
182; Board of Ed. v. Assessor of Worcester, Mass. Adv. Sh. (1975) 2626. 

The words "removal" and "discharge" connote an affirmative act by 
one's employer and have a common usage significantly different from the 
word "resignation", which implies an act by the employee. Indeed the 
difference between the te r ms is apoarent in the terms of G.L. c. 32, §10, 
in which the words "removal or discharge" and "resigns" are repeatedly 
used to describe different situations. Since words used in different portions 
of a statute are ordinarily given the same meaning throughout, Tracy v. 
Cambridge Jr. College, 364 Mass. 367 (1973); Randall's Case, 331 Mass. 



174 P.D. 12 

303 (1954), it would be an anomaly of statutory construction to extend 
the scope of G.L. c. 32. §10(2) (c) to include resignations as well as 
removals, when they are made distinct by the immediately preceding 
language of §10. Furthermore, a broad interpretation would be incon- 
sistent with the proposition that statutes in derogation of private rights are 
to be strictly construed. Commonwealth v. Beck, 187 Mass. 15 (1904). 
In arriving at this result I am not unmindful of the public policy under- 
lying statutes like G.L. c. 32. §10(2) (c) which disqualify office holders 
who have committed unlawful acts from certain benefits. I note, however, 
that the existence of this apparent loophole, which permits resignation to 
prevent the consequences of removal, has previously been brought to the 
attention of the General Court, which has not amended the statute to 
embrace resignations after indictment or conviction. See, Op. Any. Gen. 
134 ( 1963 ). Whether the failure to amend was intentional or inadvertent, 
neither I nor the courts may presume to supply what the statute does not 
currently provide. 

For the reasons stated. I believe that the term "removal or discharge" 
should not be expanded to include a resignation. I, therefore, conclude 
that former Senator McKenzie should be certified as eligible for deferred 
retirement and be deemed eligible for continued insurance coverage. 

Verv trulv vours, 
FRANCIS X.BELLOTTI 

Attorney General 

Number 36. June 10, 1977 

John P. Larkin 
Executive Secretary- 
Alcoholic Beverages Control Commission 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston. Massachusetts 02202 

Dear Mr. Larkin: 

You have requested my opinion on the meaning of "indebtedness" as 
that word is used in G.L. c. 138. §25. x Specifically, you seek a determina- 
tion whether indebtedness under §25 should be read to include interest 



^G.L. c. 138. 525. provides, in relevant part as follows: 

It shall be unlawful for any licensee under this chapter to lend or borrow money, directly or 
indirectly, to or from any other licensee under this chapter. It shall be unlawful for any 
licensee under this chapter to receive or extend credit, directly or indirectly, for alcoholic 
beverages sold or delivered to any licensee engaged in the sale of alcoholic beverages except 
in the usual course of business and for a period of not more than 60 days. . . . [T]he credit 
shall be calculated from the date of the delivery of the alcoholic beverages to the purchaser 
to the date when the purchaser discharges in full the indebtedness for which the credit was 
extended. If any licensee does not discharge in full any such indebtedness within such 60 day 
period, the indebtedness shall b€ overdue and such licensee shall be delinquent within the 
meaning of this section. Within three days after a licensee becomes delinquent, the licensee 
who extended the credit shall mail a letter of notice by certified mail to the commission and a 
copy thereof to the delinquent licensee. The letter of notice shall be in forms provided by 
the commission. The notice shall contain the name of the delinquent licensee, the date of 
delivery' of the alcoholic beverages and the amount of the indebtedness remaining undis- 
charged. Within 5 days after receipt of such a letter of notice, the Commission shall post the 
name and address only of the delinquent licensee in a delinquent list containing the names 
and addresses of all delinquent licensees. Such postings shall constitute notice to all licensees 
of the delinquency of such licensee. 



P.D. 12 175 

or finance charges incurred on a debt as well as the amount of the debt 
itself. For the reasons detailed below, it is my opinion that the 
indebtedness in §25 does include interest and finance charges within 
its boundaries. 

"Indebtedness" is not defined in G.L. c. 13S. §25. In such a case the 
natural import of the word, according to the ordinary and approved 
usage of the language when applied to the subject matter of the a. 
to be considered in determining the intention of the legislature. Franki 
Foundation Co. v. State Tax Commission, 361 Mass 614, 617 (1971). 
See The Prudential Insurance Company oj America v. City oj Boston, 
Mass. Adv. Sh. (1976) 182. 188; Mathewson v. Contributory Retirement 
Appeal Board, 335 Mass. 610. 614 ( 195" I : G.L. c. 4 §6, Third Indebte _- 
ness is a derivative form of the word "debt*", see Black's Law Dictionary 
(4th Rev. Ed. ) p. 909. which is defined as "that which is due frorr. 
person to another whether mone ces; hich one 

person is bound to pay or perform to another." Garsson v. American 
Diesel Co., 310 Mass. 618. 622 (1942). Generally. :he word "deb:" is 
to be construed broadly rather than narr 1 

Turning to the specific question which you raised, many autho: 
have held that a contractural obligation to pay inters: gives rise :o an 
indebtedness in the amount of that ir. ; French v. Bales, 149 

Mass. 73, "9 | 1889); Gregory v. Jacobs, 56 N.Y.S. 2d 574, 576, a§ d 
269 App. Div. 921. 5" N.Y.S 2d 538 (1945 ; Heist v. Dunlop ana 
193 Ga. 462. IS S.E. 2d 837, 840 (1942). See also, 4" C.J.S.. Interest, 
§70 at 75. Additionally, it has been held generally that a debt includes 
the cost of that debt. See Heist v. Dunlop and Co., supra: Gregory v. 

Jacobs, supra: Gawne v. Casanova, 86 Ohio App. 230. 90 N.E 2d 

445 (1948). 

The generally accepted meaning of the word "indebtedness" therefore 
suggests that, as used in G.L. c. 138, J25, the :e"n should be construed 
to include interest and finance charges. To answt question 

ever, it is essential to determine whether this interpretation s cons stent 
with the legislative purpose of the Hamlen v. Welch, 116 F 2d 

413. 417 (1st Cir. 1940): Board or Education v. Assessors 
Mass. Adv. Sh. (1975 I 2626. 2629: Franki Foundation Co. v. St 
Commission, supra: Selectmen of Topsfield v. State Rc.cn: Commission, 
324 Mass. 309. 312-313 (1949). 

In my judgment, construing "indebtedness" to : .~- con- 

sistent with the legislative purpose that prompted enactment of §25. The 
legislative history- of G.L. c. 13S. §25, reveals the General C 
desire to prevent the dominance of retail licensees by manufacture - 
wholesalers, to the detriment of the public interest 1967 H. Doc No 
5303. Appendix D. See 196' H. Doc No. 4596, rr 7-8; 1933 Sen " 
No. 494. p. 16. The General Court viewed the control of horizontal and 



-Interest and finance charees are deemed indistineu:- -s pem* 

Health Sra. Inc of Milwaukee. Wisconsin. ?6? F. Supp '•"•- fX -~- : " 

Inc. v. Mountain 1mm tme 232 F Supp 8 • - '■ 
Cirv. Inc. v. Sanders. 151 So .3 



176 P.D. 12 

vertical monopolization together with control of credit and advertising as 
the most important and effective means of serving the public interest 
concerning the sale of alcoholic beverages. See 1967 H. Doc. No. 5303, 
App. B, p. 11, App. D, p. 13. Moreover, the Supreme Judicial Court has 
affirmed the purpose, stating that §25 was designed to avoid "the evils 
believed to result from the control of retail liquor dealers by manufactur- 
ers, wholesalers, or importers through the power of credit." James J. 
Sullivan, Inc. v. Cann's Cabins, Inc., 309 Mass. 519, 521 (1941). 3 See 
also, 17 A.L.R. 3d 396, 398. 

This purpose would be frustrated if interest were exempted from the 
mandate of §25. Nothing in the statute prohibits a creditor licensee from 
charging interest or adding a finance charge to a loan; if these charges 
were not treated as part of the "indebtedness" governed by G.L. c. 138, 
§25, the retail licensee could come to owe the creditor unpaid interest or 
finance charges accumulated without any of the constraints imposed by 
§25. Under these circumstances the creditor would be able to exert the 
same control over the retail licensee which the General Court sought to 
eliminate by enacting G.L. c. 138, §25. 

Additionally, it is important to note that there is no limit in c. 138, §25, 
as to the amount of indebtedness which one licensee can accumulate from 
credit extended by another licensee. Rather, the Legislature has attempted 
to control such indebtedness in other ways, such as limiting the period for 
payment to not more than sixty days, and requiring that the indebtedness 
be incurred in the usual course of business only for alcoholic beverages 
sold or delivered by one licensee to another. 

When the Legislature has seen fit to exempt a licensee from the effect 
of c. 138, §25, it has done so by specific statutory language. See, e.g., 
St. 1968, c. 574, §2; St. 1970, c. 768, §1; St. 1974, c. 279, §2. Thus, one 
must presume that if the Legislature had wanted to limit the definition of 
"indebtedness" to principal and exclude any interest or finance charges, 
it would have done so by specific statutory language. 

It is well-settled that a construction of a statute that would thwart its 
objective is to be avoided. See Commonwealth v. Lamb, 365 Mass. 265 
(1974); Selectmen of Jopsfield v. State Racing Commission, supra at 
314. Accordingly, I am of the opinion that the word "indebtedness" 
found in c. 138, §25, does include interest or finance charges. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



■"•G.L. c. 138, §25, has been amended several times since 1941. See St. 1968, c. 574; St. 1970, c. 768, 
§§1-3; St. 1974, c. 279, §2; St. 1974, c. 813. St. 1968, c. 574, rewrote the section and greatly expanded 
its provisions. It did not, however, alter the purpose of the section as expressed by the Court in 
James 1 . Sullivan, Inc. v. Cann's Cabins, Inc., supra. 



P.D. 12 177 

Number 37. June 28, 1977 

The Honorable James A. Kelly, Jr. 

Chairman 

Senate Ways and Means Committee 

State House, Room 332 

Boston, MA 02133 

Dear Senator Kelly: 

In accordance with the provisions of G.L. c. 12, §9, 1 hereby provide 
you, in your capacity as Chairman of the Senate Ways and Means Com- 
mittee, with my opinion on two questions of law arising under a bill cur- 
rently pending before your Committee. That bill, Senate No. 819, would 
amend G.L. c. 40 by adding a new Section 8H which would provide, 
inter alia: 

A city ordinance or a town by-law may establish a growth pol- 
icy committee which shall have as its purpose the initiation or 
continuation of a locally-oriented participatory planning pro- 
cess to enable representatives from various interest groups in the 
municipality to evaluate the effects of growth and development 
patterns on the community, to formulate future growth and 
development goals which meet the needs of the diversity of resi- 
dents in the community, to coordinate local growth and devel- 
opment goals with the goals of neighboring municipalities and 
with regional needs, and to contribute to the formulation of 
state growth and development policies and objectives. 1 

The apparent intent of the pending legislation is to authorize the con- 
tinuation of local growth policy committees, which were established in 
the several communities of the Commonwealth as a result of the Massa- 
chusetts Growth Policy Development Act, St. 1975 c. 807. The impetus 
for the legislation is provided by the fact that St. 1975, c. 807 is a tem- 
porary act which will expire, by its own terms, on July 1, 1977. 

The Ways and Means Committee has asked me whether legislation 
such as Senate No. 819 is necessary to authorize the continuation of these 
growth policy committees and, if not, what portion of the so-called 
"Home Rule Amendment" permits their continuation. For reasons more 
fully set forth below, I believe that the legislation is not necessary because, 
under Section 6 of the Home Rule Amendment, municipalities already 
possess the discretionary authority to continue local growth policy com- 
mittees. Mass. Const. Amend. Art. II, §6 as amended by Mass. Const. 
Amend. Art. LXXXIX. 

The Home Rule Amendment was intended to grant to the cities and 
towns of the Commonwealth "independent municipal powers which they 
did not previously inherently possess." Board of Appeals of Hanover v. 



•The bill also provides for the composition and selection of members of a growth policy committee; 
authorizes the committee to conduct public hearings, to receive public and private funds, and to 
request information from other public agencies; and requires it to submit an annual report to its 
municipality, its regional planning agency, and the office of State Planning. 



178 P.D. 12 

Housing Appeals Committee in the Department of Community Affairs, 
363 Mass. 339, 358 (1973); Town of Arlington v. Board of Concilia- 
tion and Arbitration, Mass. Adv. Sh. (1976), 2035, 2039. Section 1 of 
the Amendment states that it is "the intention of this article ... to grant 
and confirm to the people of every city and town the right of self-gov- 
ernment in local matters, subject to the provisions of this article and to 
such standards and requirements as the general court may establish by 
law in accordance with the provisions of this article." 2 Section 6 of the 
Amendment defines the Constitutional grant of powers to every city and 
town, as follows: 

Any city or town may, by the adoption, amendment, or repeal 
of local ordinances or by-laws, exercise any power or function 
which the general court has power to confer upon it, which is 
not inconsistent with the constitution or laws enacted by the 
general court in conformity with powers reserved to the general 
court by section eight, and which is not denied, either expressly 
or by clear implication, to the city or town by its charter. This 
section shall apply to every city and town, whether or not it has 
adopted a charter pursuant to section three, (emphasis added) 

This section "establishes a broad general grant to home rule to cities and 
towns." Board of Appeals of Hanover v. Housing Appeals Committee in 
the Department of Community Affairs, supra, 357-358; See also, Town 
of Arlington v. Board of Conciliation and Arbitration, supra, 2039. It is 
my belief that this affirmative grant of power is broad enough to authorize 
the creation or continuation of planning bodies like the local growth pol- 
icy committees contemplated by your request. 3 Under the terms of the 
Amendment, however, the broad powers may only be exercised if the 
municipal ordinances or by-laws enacted under its aegis are consistent with 
the Constitution or General Laws of the Commonwealth. Thus my analy- 
sis would be incomplete without exploring the possibility that the contin- 
uation of those bodies might be inconsistent with state law. 

In determining whether the local rule is "not inconsistent" with the 
pre-existing organic law of the Commonwealth, I have examined the rele- 
vant provisions of law and attempted to determine whether there is a 
legislative intent to preclude local action. Bloom v. City of Worcester, 
363 Mass. 136, 156 (1973). See, also, Town of Milton v. Attorney 
General, Mass. Adv. Sh. (1977) 1214, 1217. I conclude not only that 
there is no evidence of a legislative intent to preempt the field, but that the 
relevant law actually confers pertinent regulatory authority on the cities 
and towns and encourages municipal planning. The clearest manifestation 
of this fact is the text of Mass. Const. Amend. Art. LXXXVIII, adopted 
bv the voters of the Commonwealth on the same dav as the Home Rule 
Amendment itself. Article LXXXVIII provides explicitly that: 



2For such standards and requirements, see Home Rule Procedures Act. G.L. c. 43B. 
3Certain exceptions, which are not relevant here, to the broad grant of powers in §6 are specified in 
§7 of art. 89. 



P.D. 12 179 

"[t]he industrial development of cities and towns is a public 
function and the commonwealth and the cities and towns there- 
in may provide for the same in such manner as the general 
court may determine." 
I also believe that municipal ordinances which continue the growth 
committees are "consistent," in the dictionary sense, with the provisions 
of St. 1975, c. 807. 4 The predominant purpose of the Massachusetts 
Growth Policy Development Act is to achieve "coordinated and well- 
planned growth and development decisions in the Commonwealth." St. 
1975, c. 807, §1. Continuing these committees reinforces rather than 
conflicts with this legislatively articulated purpose. In addition, any city or 
town has the authority to appropriate funds for the operation of such a 
committee, by §6 of the Amendment. See also G.L. c. 40, §5. 3 

Therefore, legislation such as proposed Senate 819 is not necessary to 
authorize cities and towns to establish or continue local growth policy 
committees and to appropriate funds, if necessary, for their operation. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 38. June 29, 1977 

Charles J. Doherty, Director 

Office of Campaign and Political Finance 

8 Beacon Street 

Boston, Massachusetts 02108 

Dear Mr. Doherty: 

As Director of the Office of Campaign and Political Finance you have 
requested an opinion of the Attorney General regarding your duties and 
responsibilities under sections 13-17 of Chapter 55 of the General Laws. 1 
Specifically, you wish to be advised as to whether you have the authority 
to investigate alleged violations of sections 13-17, by virtue of your power 
under G.L. c. 55, §3 to: 

. . . investigate the legality, validity, completeness and accuracy 
of all reports and actions required to be filed and taken by can- 
didates, treasurers, political committees and any other persons 
pursuant to [chapter 55] and any other laws of the common- 
wealth pertaining to campaign contributions and expenditures. 



7hl 1 ^ e general court has m St. 1975, c. 807 mandated establishment of these committees in 
»if«^ ™ec C »° mmu .u ltl " of the s ^ ate in no wa y detracts from the conclusion that the municipalities 
fh» JrZ pos , sess authority to continue the committees. While the legislature has previously exercised 
Am^w ° ,t naC ! a 8eneral law unde r the powers retained to it by Section 8 of the Home Rule 
m»H.k ' ,. te . m P°rary exercise of power does not require all future planning decisions to be 
maae oy general legislation. 

G.L. c. 40, §5, provides in pertinent part: 

followinp m r a nr^c-:. aPprOP f riate ,! non u ey for the exe rcise of any of its corporate powers, including the 
following purposes: ... for all other necessary charges arising in such town. 

h^asthepo C werof a'town eg0i " 8 provision app,ies to a ^ and bv GL - c - 39 - §L a city council 

recein?nf 1 ^ , „ WhiC ? a !i e discussed at P- 2. infra, proscribe certain practices in the solicitation and 
receipt ot campaign funds. 



180 P.D. 12 

For the reasons set forth below, it is my opinion that the powers 
conferred on you by that section do not authorize you to investigate 
alleged violations of G.L. c. 55, §§13-17. It is a long standing canon of 
statutory construction that where the language of a statute is plain, it must 
be interpreted in accordance with the usual or natural meaning of the 
words. Gurley v. Commonwealth, 363 Mass. 595 (1973). Similarly, 
reason and common sense are not to be abandoned by the court in inter- 
preting a statute, since it is to be supposed that the legislature intended to 
act in accordance with them. Van Dresser v. Firlings, 305 Mass. 51 
(1940). The language of G.L. c. 55, §3 is clear and unambiguous. It 
literally applies only where reports must be filed- or actions taken' 5 as a 
result of requirements imposed by campaign financing statutes. Rather 
than mandatory filing or specific affirmative actions, G.L. c. 55, §§13-17 
are prohibitory in nature; they proscribe certain practices in the solicita- 
tion and receipt of campaign funds. Section 13 prohibits state, county 
and municipal employees from soliciting campaign contributions. Section 
14 prohibits the solicitation of contributions on the premises of any 
building occupied for state, county or municipal purposes. Section 15 
prohibits certain political contributions by public employees. Sections 16 
and 17 prohibit penalizing public employees for refusing to make political 
contributions and prohibit rewarding public employees for making con- 
tributions to a political campaign. Since G.L. c. 55, §§13-17 impose 
neither reporting requirements nor the taking of specific actions, your 
Section 3 powers do not appear broad enough to reach alleged violations 
of those statutes. 

There is. of course, a narrow class of cases in which the plain meaning 
of a statute must be supplemented by the legislative history of that statute. 
Board of Education v. Assessor of Worcester, Mass. Adv. Sh. (1975) 2626. 
Here, however, there is nothing in the recent legislative history of Chapter 
55 to suggest a broader reading of Section 3. The office you now hold was 
first created by St. 1973, c. 1173 and its powers received extensive con- 
sideration in succeeding years. St. 1974, c. 859; St. 1975, c. 151. The 
thrust of each of these statutes was to redraft Chapter 55 to impose ceil- 
ings on campaign contributions and filing requirements to assure com- 
pliance. But while Chapter 55 has been through three complete revisions 
since 1973, none of these revisions has resulted in any substantive 4 changes 
in Sections 13-17. If the Legislature had intended any major changes in 



-A number of sections of Chapter 55 contain explicit reporting requirements. See, e.g., G.L. c. 55, 
§§18. 20, 21 and 22. 

3Chapter 55 requires affirmative acts in several instances. For example, a candidate for certain state and 
county offices and the treasurer of a committee organized on behalf of such a candidate must designate 
a national bank, authorized to transact business in this state, or a trust company organized and existing 
under the laws of this Commonwealth, as a depository for campaign funds. A certificate of appoint- 
ment of the depository must be filed with the Director within three business days following the 
designation. Further, these candidates and treasurers must deposit all contributions within three 
days of receipt in the form received. G.L. c. 55. §19. 

4 The sections were renumbered and penalty provisions altered by the revisions. 



P.D. 12 181 

the enforcement of these long standing statutes, it would have provided 
some signal of its intent." 

Finally, the result worked by this interpretation of the statute is con- 
sistent with what I perceive to be the overall purpose and plan of Chapter 
55. The statutory scheme contemplates that the Director function primar- 
ily as a record keeper and not as an enforcement officer.' 1 There is nothing 
inherent in your record keeping function which suggests that you should 
be the investigating official. In fact, violations of sections 13-17 would not 
be discernible from the reports filed with you, since those reports reveal 
neither the employment background of a contributor, the identity of the 
person soliciting the contribution, nor the nature or location of the 
solicitation. 

For these reasons I conclude that G.L. c. 55. §3, does not vest you 
with power to investigate alleged violations of sections 13-17; enforcement 
of these sections is committed to this office, the District Attorneys and the 
police. If information regarding violations of these sections comes to your 
attention, you should make this information available to the appropriate 
law enforcement agency. As these are criminal matters they may, in the 
first instance, be referred to the District Attorney of the area where the 
violation occurred. . 

Verv truly yours, 
FRANCIS X.BELLOTTI 
Attorney General 
Number 39. June30. 1977 

The Honorable Robert Q. Crane 
Treasurer & Receiver General 
State House, Room 227 
Boston, Massachusetts 02133 

Dear Treasurer Crane: 

You have requested my opinion in regard to the following question 
of law: 

In light of §§19 and 92 of M.G.L. c. 32. is the Board of Retire- 
ment of the Treasury Department of the Commonwealth of 
Massachusetts authorized to honor the Notice of Levy of June 
16, 1976, issued by the Internal Revenue Service of the U.S. 
Department of the Treasury upon the retirement allowance of 
Margaret H. Burke, a retired member of the state employees' 
retirement system? 
For the reasons set forth below, I answer your question in the affirmative. 



5 There is an additional reason for a literal interpretation of the Director's investigatory authority. That 

authority can-ies with it the express power to subpoena witnesses and compel testimony under oath. 

Because administrative officers and agencies have no inherent power to compel the attendance and 

testimony- of witnesses that power should be grounded onlv upon explicit statutory authorization. 

1 AM JUR 2d Administrative Law §589. 91. It should not be extended bv implication. See Cabot v. 

Corcoran, 332 Mass. 44. 46-48 (1955); Op. Atty. Gen., Nov. 28, 1938, p. 122. 
SEfforts to create a special prosecutor have been repeatedly rejected by the Legislature, which has 

directed instead that prosecutions be handled by existing law enforcement officials. (1975 H5323. 

1976 H3383, 1977 H3405). Even Section 3 itself contains a directive that evidence of violations of law 

be turned over to law enforcement officials. 



182 P.D. 12 

Before considering the impact of G.L. c. 32, §§19 and 92, it is necessary 
to determine whether the levy provisions of the Internal Revenue Code 
apply to the retirement allowance established by G.L. c. 32, §§1 et seq. 
Where a person has failed to pay a federal tax, §6331 of the Internal 
Revenue Code of 1954, 26 U.S.C. §6331 (hereinafter §6331), authorizes 
the Internal Revenue Service to collect the tax by a levy upon all property 
or rights to property belonging to the delinquent taxpayer. 1 The Internal 
Revenue Service has by regulation taken the general position that: 

No provision of a State law may exempt property or rights to 
property from levy for the collection of any Federal tax. Thus, 
property exempt from execution under State personal or home- 
stead exemption laws is, nevertheless, subject to levy by the 
United States for collection of its taxes. Treas. Res. 301.6334-1 
(c). 

Moreover, the Service has specifically interpreted §6331 to authorize it 
to levy upon the accrued compensation of state employees. Treas. Reg. 
§301.633-l(a) (4) (ii). 2 

It has also taken the position that amounts owed by state governments 
and their agencies or instrumentalities as pensions to former employees 
are subject to levy for the satisfaction of unpaid federal taxes. Rev. Rul. 
55-227, 1955-1 C.B. 551. Given the nature of the "retirement allowance" 
established by G.L. c. 32, §§1 et seq.? I conclude that §6331 does apply 
in the situation you have outlined. 

I now turn to your specific question whether G.L. c. 32, §§19 and 92, 
affect the authority of the Board of Retirement (hereinafter the Board) 
to honor the notice of levy issued by the Internal Revenue Service. As a 
preliminary matter, §92 is not relevant to the subject of your inquiry. 
That section renders void only voluntary transfers of a retirement allow- 
ance. Section 6331, however, empowers the Internal Revenue Service to 
collect the unpaid tax through the power of distraint and seizure without 
the assent of the taxpayer. On its face, §92 does not apply to such involu- 
untary seizures of a retirement allowance. 



'§6331 states in pertinent part that: 

(a) AUTHORITY OF SECRETARY. — If any person liable to pay any tax neglects or 
refuses to pay the same within 10 days after notice and demand, it shall be lawful for the 
Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses 
of the levy) by levy upon all property (except as is exempt under §6334) belonging to such 
person or on which there is a lien provided in this chapter for the payment of such tax ... . 

(b) SEIZURE AND SALE OF PROPERTY. — The term "levy" as used in this title includes 
the power of distraint and seizure by any means .... 

The exceptions contained in 56334 are not relevant to your question. 
-This regulation provides that: 

Accrued salaries, wages, or other compensation of any officer, employee, or elected or 
appointed official of a State or a Territory, or of any agency, instrumentality, or political 
subdivision thereof, are also subject to levy to enforce collection of any Federal tax. This 
regulation was upheld by the United States Suprme Court in Sims v. United States, 359 U.S. 
108, 110-113 (1957). 

•'General Laws, c. 32, §1, defines a retirement allowance as the sum of the annuity and the pension 
provided by the state employees' retirement system. The terms annuity and pension are themselves 
defined by the statute: an "annuity" consists of payments derived from the accumulated deductions 
from the former state employee's regular compensation; a "pension" consists of the payments derived 
from any contributions made by the appropriate governmental unit. 



P.D. 12 183 

Section 19 of c. 32 does, on the other hand, explicitly apply to invol- 
untary transfers. That section provides in pertinent part that: 

The rights of a member to an annuity, pension or retirement 
allowance, [and] such annuity, pension or retirement allowance 
itself . . . shall not be attached or taken upon execution or 
other process. 

The language of §19 evinces a legislative intent to exempt a retirement 
allowance from seizure by any means, including levy under §6331. Thus, 
G.L. c. 32, § 19 is in direct conflict with the federal statute. 

Where a state statute directly conflicts with a validly enacted federal 
law, the Supremacy Clause of the United States Constitution provides 
that the federal statute is controlling. For a recent discussion of this con- 
stitutional principle, I refer you to Perez v. Campbell, 402 U.S. 637. 
649-652 (1971). 

Section 6331 is a valid federal statute, Sims v. United States, 359 U.S. 
108 (1959). The courts have, moreover, consistently upheld the Internal 
Revenue Service's position that a state cannot exempt the property of a 
delinquent taxpayer from execution or attachment for the collection of 
federal taxes. 4 Further, I note that the Board was the proper party under 
26 U.S.C. §6332, on which to serve the notice of levy because the Board 
is obligated by statute to provide for payment of retirement allowances 
under the state employees' retirement system. G.L. c. 32, §§20(1) (b), 
20(5) (b). Should the Board fail to surrender the amount called for in 
the notice of levy, the Board's members as well as the Commonwealth 
would become liable under 26 U.S.C. §6332 (c) in that amount to the 
United States. 5 

For the foregoing reasons, I conclude that the Board of Retirement of 
the Commonwealth's Treasury Department is constitutionally required 
to honor the notice of levy of June 16, 1976, issued to it by the Internal 
Revenue Service in relation to the retirement allowance of Margaret H. 
Burke. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



*Herndon v. United States, 501 F. 2d 1219, 1222-23 (8th Cir. 1974); United States v. Newhard, 128 F. 

Supp. 805, 810 (W.D. Pa. 1955); Kieferdorf v. Commissioner, 142 F. 2d 723, 725 (9th Cir.), cert. 

denied, 323 U.S. 733 (1944). 
SSims v. United States, 359 U.S. 108, 113-14 (1959); Commonwealth of Massachusetts v. United States. 

296 F. 2d 336, 337 (1st Cir. 1961). 



184 P.D. 12 

INDEX OF OPINIONS 

TOPIC OPINION PAGE 

Alcoholic beverages: 

1) Usage of word "unable" in G.L. c. 138, § 25B(c) 

allows liquor wholesaler to file price schedule 24 136 

2) Meaning of "indebtedness" in G.L. c. 138, § 25 36 174 

Appointments: 

Temporary appointment of director of accounts in 

Department of Corporations and Taxation 17 119 

Appropriations: 

Excess expenditure of medical assistance appropriation 8 91 

Athletics and Sports: 

Attendance of school physicians at interscholastic 

games 15 116 

Audit: 

Authority to audit state and /or federal grants to private 

non-profit corporation 13 110 

Banks and Banking: 

Transfer of excess tax credit by life insurance depart- 
ment of savings bank 31 155 

Beano Licenses: see Gambling 

Blind persons: 

Funds for screening program to detect possible blind- 
ness; guidance to private foundations on funding ser- 
vices to the blind 23 133 

Boundaries: 

Termination of membership in regional planning 

district 29 151 

Constitutionality: 

School flag salute as violation of First Amendment 

rights of teachers 34 169 

Cooperative Associations: 

Qualification of educational cooperative trust as instru- 
mentality of government 21 129 

Detention: see Juveniles 

Elections: 

1 ) Party enrollment of candidates in primaries 1 72 

2) Sticker votes 5 86 

3) Authority to investigate alleged campaign violations 38 179 
Electricity: 

Jurisdiction and powers of Board of State Examiners of 

Electricians 26 143 

Emergency Assistance Program: 

Withdrawal of Commonwealth 20 126 

Employees, Public: 

1) Seeking and holding public elective office 10 102 

2 ) Employee status of consultants, volunteers and 

interns when operating state-owned motor vehicles .... 27 145 



P.D. 12 185 

TOPIC OPINION PAGE 

Explosives: 

Interpretation of "ten day" stipulation in approval of 

municipal regulations by Board of Fire Prevention .... 30 154 

Fire Prevention. Board of: see Explosives 

First Amendment-Speech: 

School flag salute as violation of rights of teachers .... 34 169 

Flag Salute: see First Amendment-Speech 

Freedom of Information : 

1 ) Public access to information compiled by certain 

boards of registration 32 157 

2) Public access to records of private civil service 

hearing 33 166 

Gambling: 

Qualifications for beano license 11 104 

Game and Fish: 

Commercial fisherman permits for taking lobsters in 

coastal waters 22 132 

Highways: 

1 ) Establishment of diamond lanes to restrict use of 

inside highway lanes 18 121 

2) Jurisdiction and powers of Board of State Exam- 
iners of Electricians 26 143 

Home Rule: 

Necessity of legislation other than Home Rule Amend- 
ment to authorize continuation of local growth policy 
committees 37 177 

Indebtedness: 

Meaning of "indebtedness" in G.L. c. 138, § 25 36 174 

Inflammable Liquids: 

Interpretation of "ten day" stipulation in approval of 

municipal regulations by Board of Fire Prevention 30 154 

Initiative and Referendum: 

"Public policy" questions on ballot y ... 89 

Insurance: 

Transfer of excess tax credit by life insurance depart- 
ment of savings bank 31 155 

Interest: 

Meaning of "indebtedness" in G.L. c. 138. § 25 36 174 

Juveniles: 

Designation of juvenile detention facilities 3 79 

Licensing-G ranting: 

Jurisdiction and powers of Board of State Examiners of 

Electricians 26 143 

Local Development: 

Necessity of legislation other than Home Rule Amend- 
ment to authorize continuation of local growth policy 
committees 37 17, 



186 P.D. 12 

TOPIC OPINION PAGE 

Malpractice: 

Liability protection for National Guard medical per- 
sonnel 2 74 

Medicaid and Medicare: 

Excess expenditure of medical assistance appropriation 8 9 1 

Motor Vehicles: 

Employee status of consultants, volunteers and interns 

when operating state-owned motor vehicles 27 145 

Municipal Corporations: 

Necessity of legislation other than Home Rule Amend- 
ment to authorize continuation of local growth policy 
committees 37 177 

National Guard: 

1 ) Malpractice liability protection for medical per- 
sonnel 2 74 

2) State and federal pay for state employees 19 122 

Nominee Trusts : 

Income taxation 6 88 

Open Meetings: 

Authority of University of Massachusetts Board of 

Trustees under law 12 106 

Open Records: 

1 ) Public access to information compiled by certain 

boards of registration 32 157 

2) Public access to records of private civil service 

hearing 33 166 

Physicians and Surgeons: 

1 ) Malpractice liability protection for National Guard 

medical personnel 2 74 

2) Attendance of school physicians at interscholastic 

games 15 116 

Pollution: 

Municipal finance in state and federal funding of water 

pollution control projects 28 147 

Prisoners: 

Compensation for prisoner transportation 9 96 

Probation and Parole: 

Jurisdiction of Parole Board over sentencing 4 81 

Property, State: 

Qualification of educational cooperative trust as instru- 
mentality of government 21 129 

Public Funds: 

1) Authority to audit state and /or federal grants to 

private non-profit corporation 13 110 

2) Municipal finance in state and federal funding of 

water pollution control projects 28 147 



P.D. 12 187 

TOPIC OPINION PAGE 

Public Office: 

State employees seeking and holding public elective 

office 10 102 

Public Officers: 

1) Seeking and holding public elective office 10 102 

2) Eligibility of convicted state senator for retirement 

benefits 35 172 

"Public Policy" Questions: 

Questions on ballot 7 89 

Public Trust: 

Qualification of educational cooperative trust as instru- 
mentality of government 21 129 

Purchasing: 

Definition of purchasing agency for small business pur- 
chasing program; computation of expenditure base .... 25 137 

Regional Planning District: 

Termination of membership in district 29 151 

Removal of Officers: see Public Officers 

Retirement: 

1 ) Mandatory retirement at maximum age despite 

unexpired term of office 14 113 

2) Survivor benefits after criminal proceedings 16 1 17 

3) Eligibility of convicted state senator for retirement 

benefits 35 172 

4) Authority to honor Internal Revenue Service notice 

of levy on retirement allowance 39 181 

Salaries: 

State and federal pay for state employees in National 

Guard 19 122 

Sentences: 

Jurisdiction of Parole Board over sentencing 4 81 

Small Business: 

Definition of purchasing agency for small business pur- 
chasing program; computation of expenditure base 25 137 

State Agencies: see Small Business 

State Employees: see Employees, Public 

Statutory Construction: 

1) Usage of word "unable" in G.L. c. 138, § 25B(c) 

allows liquor wholesaler to file price schedule 24 136 

2) Eligibility of convicted state senator for retirement 

benefits 35 172 

3) Meaning of "indebtedness" in G.L. c. 138, § 25 .... 36 174 

ilticker Votes: see Elections 

Surplus Property: see Property, State 



188 P.D. 12 



TOPIC OPINION PAGE 

Taxation and Revenue: 

I ) Nominee trusts 6 88 

2) Transfer of excess tax credit by life insurance de- 
partment of savings bank 31 155 

3) Authority to honor Internal Revenue Service notice 

of levy on retirement allowance 39 181 

Vacancy: 

Temporary appointment of director of accounts in De- 
partment of Corporations and Taxation 17 119 

Water Pollution: see Pollution 

Westover Occupational Resource Collaborative Trust: see 
Cooperative Associations 



INDEX OF REQUESTING AGENCIES 

AGENCY OPINION PAGE 

Adjutant General 2 74 

Administration and Finance, Office of 

the Secretary of 17,21,25,27 119, 129, 137, 145 

Alcoholic Beverages Control Commission 24, 36 136, 174 

Auditor 13 110 

Banks and Banking, Division of 31 155 

Blind, Massachusetts Commission for the 23 133 

Campaign and Political Finance, Office of 38 1 79 

Civil Service Commission 33 166 

Consumer Affairs, Office of the Secretary 

of 32 157 

Corrections, Department of 9 96 

Education, Commissioner of 34 169 

Governor 19 122 

House of Representatives 6, 15, 18 88, 1 16, 121 

Labor Relations Commission 14 113 

Lottery Commission II 104 

Marine Fisheries, Division of 22 132 

Parole Board 4 81 

Public Safety, Office of the Secretary of 30 154 

Public Welfare, Department of 20 126 

Public Works, Department of 26 143 

Retirement, State Board of 16,35 117, 172 

Secretary of the Commonwealth 1, 5, 7 72, 86, 89 

Senate President, Office of 8 91 

Senate Ways and Means Committee 37 177 

State Planning, Office of 29 151 

Treasurer and Receiver General 39 181 

University of Massachusetts, President of 12 106 

Water Pollution Control, Division of 28 147 

Youth Services, Department of 3, 10 79, 102