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

Public Document 



No. 12 



®ljr (Eommomuraltl? at MsamttyuBtttB 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1979 




PUBLICATION OF THIS DOCUMENT APPROVED BY JOHN MANTON, ACTING STATE PURCHASING AGENT. 

S0G-8- 80- 156726 Estimated Cost Per Copy $2.70 



flef 
c. I 

®I|p (Hommflrmiraltlj of fHaHiiarijuisrttii 



To //ie 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, 1978. 

Respectfully submitted, 

FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
FRANCIS X. BELLOTTI 

First Assistant Attorney General 
Thomas R. Kiley 



Assistant Attorneys General 



Jose R. Allen 
Nicholas P. Arenella 
Charles Barry 
Michael J. Barry 
W. Channing Beucler 
Robert Bohn 
Margot Botsford 
John E. Bowman 4 
Jonathan Brant 
Laurie Burt 
James Caruso 26 
Robert D. Cohan 
Garrick F. Cole 
John P. Corbett 21 
Charles C. Corkin II 
James J. Cotter 23 
Leah Crothers 6 
Kathleen R. Dacey 16 
Stephen R. Delinsky 
Ernest DeSimone 
Maureen Dewan 
Paul Donaher 
Michael C. Donahue 
Eleanor A. Dwyer 20 
Irene Emerson 
Joan Entmacher 2 
Michael Farrington 5 
Charles James Barry 
James A. Fox 27 
Susan Frey 15 
Gloria A. Fry 
Carol Fubini 
Charles P. Gamer 
Frank A. Gaynor 
Brian F. Gilhgan 
Dwight Golann 5 
Paula Gold 
Paul Good 
Joseph P. Gordon 
Alexander Gray, Jr. 9 
Robert V. Greco 
William F. Green 30 
Steven Greenfogel 
Richard Gross 
Catherine Hantzis 
L. Scott Harshbarger 29 
Paul D. Hodge 22 
William E. Howell 



Edward Hughes 7 
John F. Hurley 
Daniel P. Jaffe 
Ellen L. Janos 9 
Paul Johnson 
Carolyn A. Kelliher 
Sally Kelly 
Kevin Kirrane 
Alan Kovacs 12 
Kenneth Lenze 15 
Steven M. Leonard 
William F. Linnehan 
Bernard Manning 
Michael McCormack 
Andrew McElaney 
Denzil McKenzie 
Leo McNamara 
William McVey 9 
James Meehan 10 
Barton J. Menitove 17 
Michael Meyer 
Thomas H. Miller 
William Mitchell 
Anton T. Moehrke 
John T. Montgomery 
Paul J. Muello 
Henry O'Connell, Jr. 
Terence O'Malley 
Kathleen Parker 
Steven Platten 
Alan Posner 
Robert S. Potters" 
Richard Rafferty 
Mary J. Reedy 
Louis Rizoli 
Robert Rodophele 
Barry Rosen 9 
S. Stephen Rosenfeld 
James. F. Ross 
Barbara J. Rouse 
Steven Rusconi 
Anthony P. Sager 
Stephen Schultz 
Marc S. Seigle 28 
Terry Seligman 
Paul W. Shaw 
David M. Siegal 
Mitchell Sikora 



P.D. 12 



Susan K. Sloane 
E. Michael Sloman 3 
Barbara A. Smith 
Pirska Soos 
Donna Sorgi 9 
Jonathan Souweine 24 
Timothy Spillane^ 
Donald Stern 19 
Helen Stewart 14 
Kevin Suffern 
Gail Sullivan 9 
John Toomey 1 



Terence M. Troyer 
Carl Valvo 9 
Edward Vena 9 
John J. Ward 
Betty Waxman 
Ellen R. Weiss 18 
Catherine A. White 
Estelle Wing 
Timothy J. W. Wise 
Christopher Worthington 1 
Francis Wright" 
Donald P. Zerendow 
Stephen Zeidman 



Assistant Attorney General; Director, Division of Public Charities 

Susan Sloan 



Elizabeth A. Bowen 
Edward J. Clancy, Jr. 
Allan Gottlieb 
James J. Haroulos 
Leslie Hedgebeth 
F. Timothy Hegarty, Jr 
Michael Marks 



A ssistant A ttorneys General A ssigned 

to Department of Public Works 

Robert Mulligan 
Dean Nicastro 11 
Howard Palmer 
Joseph A. Pelligrino 
T. David Raftery 
John W. Spencer 



Joseph S. Ayoub 
George J. Mahanna 



Assistant Attorneys General Assigned to 
the Division of Employment Security 



Frank J. Scharaffa 



Chief Clerk 
Edward J. White 



Assistant Chief Clerk 
Leo J. Cushing 32 



Appointed June 27, 1977 
Appointed July 11, 1977 
Appointed August 1, 1977 
Appointed August 15, 1977 
Appointed September 19, 1977 
Appointed September 26, 1977 
Appointed October 17, 1977 
Appointed October 24, 1977 
Appointed January 1, 1978 
Appointed January 17, 1978 
Appointed February 6, 1978 
Appointed March 6, 1978 
Appointed April 3, 1978 
Appointed May 4, 1978 
Appointed May 8, 1978 
Terminated July 29, 1977 



Terminated August 11, 1977 
Terminated September 9, 1977 
Terminated September 13, 1977 
Terminated October 14, 1977 
Terminated November 1, 1977 
Terminated February 8, 1978 
Terminated March 24, 1978 
Terminated March 28, 1978 
Terminated March 31, 1978 
Terminated April 28, 1978 
Terminated June 21, 1978 
Terminated August 31, 1977 
Terminated March 10, 1978 
Terminated May 24, 1978 
Appointed April 18, 1978 
Terminated December 5, 1978 



P.D. 12 



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P.D. 12 11 

Slip (Umnmmuuralth of ittassariuuirtts 



In accordance with the provisions of section 11 of chapter 12 and of 
section 32 of chapter 30 of the General Laws, I hereby submit the Annual 
Report of the Department of the Attorney General. This Annual Report is 
my fourth filed as Attorney General of the Commonwealth and covers the 
fiscal year from July 1, 1977 to June 30, 1978. It therefore covers the last 
full fiscal year of the term for which I was elected in November of 1974. 

As one might expect, the Department functioned at peak efficiency 
during the final full year of my term. During the earlier years of this 
administration we implemented a number of administrative changes 
designed to make this Department the best possible public law office. Last 
year those administrative changes were fully in effect and the programmatic 
efforts of the staff reflect the success of our earlier administrative 
innovations. 

Perhaps the best example of this process is in the work of the Criminal 
Bureau. Two years ago this Department, in cooperation with his 
Excellency, the Governor of the Commonwealth, worked to create an 
internal corruption investigative unit. In the period covered by this report, 
and as a result of investigative work by that unit, this Department obtained 
more than 100 indictments against fourteen individuals and five 
corporations in connection with a major scandal involving the 
administration of federal vocational education funds. 

As noted in the Annual Report for the last fiscal year this Department 
also entered into institutional relationships with the Department of 
Corporations and Taxation in the area of tax enforcement and with state 
and insurance industry officials involved in the area of arson detection and 
prosecution. Those administrative actions bore fruit this past fiscal year. 
This Department obtained more than one hundred and ten indictments 
against individuals for alleged failure to file tax returns in what was 
characterized as the first systematic effort to prosecute state tax delinquents 
in the history of the Commonwealth. Our efforts in the area of prosecuting 
those engaged in arson for profit were even more successful; in Suffolk 
County alone we obtained indictments against thirty-three individuals 
allegedly involved in a major arson for profit ring. Those indicted included 
building owners, lawyers, insurance adjusters, law enforcement officials 
and the actual arsonists. By the close of the fiscal year we had successfully 
disposed of more than half of those indictments by obtaining convictions or 
guilty pleas. 

Our administrative innovations were productive in other areas of the 
office as well. In previous reports I have noted the creation of affirmative 
litigation components throughout the Department. The most graphic 
illustration of the value of these units occurred this past year in the 



12 P.D. 12 



Government Bureau. We established an Affirmative Litigation Division in 
the Bureau in April of 1975, and its single most significant accomplishment 
transpired this past year when it challenged a determination by the United 
States Department of Health, Education and Welfare not to reimburse the 
Commonwealth for expenditures associated with various social services 
programs. The Affirmative Litigation Division, acting cooperatively with 
the affected agencies and the Governor and Lieutenant Governor, litigated 
the validity of the HEW determination and ultimately settled the claim for 
$74,701,181.00. It bespeaks the obvious but is worth noting that the monies 
recovered in this single action exceed the total operating budget of this 
Department throughout my term as Attorney General. 

Other highlights within the Government Bureau also resulted in 
significant savings for the Commonwealth and its citizens. We prevented 
the elimination of the Federal Emergency Energy Assistance Program 
which provides financial assistance to the needy who are faced with fuel 
emergencies and we obtained an injunction preventing HEW from 
eliminating $20 million in Medicaid reimbursements. Both of these matters 
were handled by the Affirmative Litigation Division. Another case with 
enormous financial ramifications was the successful defense of an 
emergency state statute requiring auto insurance companies to return $55 
million to its policyholders in the form of rebates. 

Some of our successes were equally significant but involved less dramatic 
amounts of money. As noted in the Annual Report, we created an Antitrust 
Division within the Public Protection Bureau at the end of the last fiscal 
year. In its first full year of operation that Division recovered nearly a 
million dollars for the Commonwealth, its cities and towns. The 
Environmental Protection Division, also within the Public Protection 
Bureau, obtained the first civil penalties ever assessed under the 
Massachusetts Clean Waters Act and under the state air pollution statute. 
These developments augur well for future environmental enforcement 
efforts, especially when considered in conjunction with our successful 
defense of the State's Coastal Zone Management Plan and our equally 
successful suit to enjoin the Secretary of the Interior from proceeding with 
oil and gas leases in the fertile George's Bank area off the Massachusetts 
coast. 

The authority of this office to bring the kind of litigation highlighted in 
the preceding paragraphs was also strengthened during the last fiscal year. 
In our defense of the so-called "Veterans Preference" statute we faced a 
challenge on the issue of whether the Attorney General had the authority to 
appeal a case to the Supreme Court of the United States over the expressed 
objections of the Governor and the nominal defendants in a particular case. 
The Supreme Judicial Court of the Commonwealth, acting on a question 
certified to it by the highest court of the land, answered that question in the 
affirmative in September of this past year, thus confirming the Attorney 
General's control of the course of federal litigation and underscoring the 
independence of the Department. 

As the above highlights demonstrate, this Department was extremely 
aggressive during the past year in its representation of the Commonwealth 
and its citizens. It is my belief that our successes are due in part to the 



P.D. 12 13 



innovative administrative programs we have implemented and that they 
should therefore continue through my second term. Obviously I could not 
reduce the accomplishments of the past year to the foregoing paragraphs. 
The extent of our efforts and accomplishments are really set forth instead in 
the pages which follow. 

MONEY RECOVERED AND SAVED 
FOR THE COMMONWEALTH AND HER CITIZENS 

I. MONEY RECOVERED FOR THE COMMONWEALTH TREAS- 
URY 

1. Rent Collected $ 134,554 

2. Collections $ 629,546 

3. Medicaid Fraud Restitution $ 130,000 

4. Medicaid Fraud Costs & Fines $ 35,000 

5. Social Security Reimbursement $74,500,000 

6. Civil Penalties in Environ- 
mental Protection Cases $ 72,000 

7. Public Charities: 

(1) Charity Filing Fees $ 85,410 

(2) Solicitation Filing Fees $ 10,598 

(3) Escheats $ 269,093 

8. Employment Security: 

(1) Overdue taxes collected $ 1,426,507 

(2) Fraudulent claims recovered $ 238,772 

TOTAL $77,531,480 

II. MONEY RECOVERED AND SAVED FOR THE COM- 
MONWEALTH'S CITIZENS 

1. Eminent Domain (Difference between 
the plaintiffs appraisal of the 

land and the Court award) $ 5,000,000 

2. Electricity Stealing Restitution $ 250,000 

3. Consumer Complaint Recoveries $ 530,751 

4. Savings in Rate Cases $68,000,000 

5. Antitrust Recoveries $ 913,000 

TOTAL $74,693,751 

I. CIVIL BUREAU 

CONTRACTS DIVISION 

The work of the Contracts Division is generally divided into three Areas: 
(A) Litigation, (B) Advice and counsel to state agencies, and (C) Contract 
review. 

A. LITIGATION 

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

Chapter 258 of the General Laws is, for the most part, the controlling 



14 P.D. 12 

statute. Essentially, it is mandatory that all actions against the 
Commonwealth 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 the end of the fiscal year, there are 355 active cases in the Division. 
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. The work of the 
Division in the preparation and trial of contract matters continues to be 
greatly facilitated by the recent augmentation of the staff with the services 
of a professional engineer. His assistance in investigation, practical advice 
and expertise has been invaluable to the attorneys. 

Trials are prolonged, not solely because of the complexity of issues, but 
also because of the fact that most cases involve at least three or four parties. 
Increasingly, the trend has been toward claims alleging deficiencies in plans 
and specifications necessitating separate or third party actions involving 
consultant engineers. 

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

The Contracts Division has intensified its opposition to the issuance of 
preliminary, or temporary, injunctive relief against the 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 injunctive relief. 

During the last half of the fiscal year, the judicial 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. 

BAD VICE A ND CO UNSEL TO STATE A GENCIES 

Every day, the Division receives requests for assistance from state 
agencies and officials. Their problems involve formation of contracts, 
performance of contracts, bidding procedures, bid protests, contract 
interpretation, and a myriad of other matters. Many of these agencies have 
no counsel or are subdivisions of the Executive Office of Administration & 
Finance. 

The Division has done a considerable amount of work for the State 
Purchasing Agent's Office, the Department of Public Works, Metropolitan 
District Commission, Bureau of Building Construction, Group Insurance 
Commission, Secretary of Transportation, Regional Community Colleges, 
Data Processing Bureau, Mental Health, Youth Services, and Water 
Resources. 

C. CONTRACT REVIEW 

We review all state contracts, leases and bonds submitted to us by state 
agencies. During the fiscal year, we approved as to form a total of 2,453 



P.D. 12 15 

such contracts. In many cases, 285 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, 1977 233 

August 280 

September 254 

October 193 

November 147 

December 215 

January, 1978 157 

February 189 

March 206 

April 173 

May 236 

June 170 



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. 

EMINENT DOMAIN DIVISION 

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

We also provide a legal advisor to the Real Estate Review Board to assist 
in settling damage claims on takings of government-owned land for 
highway purposes, and in some instances, we are called upon to testify 
before the Executive Council before they will approve land damage 
payments. 

Advisory services, both written and oral, are rendered to practically 
every state agency in existence, whether it be Executive or Legislative in 
nature. Every agency which has an eminent domain or real estate question 
or problem either writes or calls this division for advice, help or opinion. 

Chapter 79 of the General Laws prescribes the procedure in 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 prior owners the right to proceed through the 
courts to recover more money. In the event of a finding by the court or jury, 
the pro tanto payment is subtracted from the verdict and the taking agency 
pays the balance, with interest, running at the rate of 6% from the date of 



16 P.D. 12 



the taking to the date of the judgment. In years past, during the road 
building boom of the sixties, land damage matters caused congestion in the 
civil sessions of the Superior Court. Special land damage sessions including 
summer sessions were set up to accommodate the trial of these cases and it 
was the practice to refer cases to auditors for their findings. The auditor 
system was not entirely satisfactory because too many cases previously tried 
to auditors were retried to juries. In 1973, the Legislature passed Section 22 
of Chapter 79 which provides for the trial of land damage matters to a 
judge in the Superior Court jury waived in the first instance; a trial by jury 
may be had first only if both parties file waivers, in writing, waiving their 
right to a jury waived trial. The statute also requires the court make 
subsidiary findings of fact when the case is heard. If either party is 
aggrieved by the finding, they may reserve their right to jury trial by so 
filing within ten days of the finding. 

It has been the practice of our division to try all our matters in accord 
with Section 22 before a Justice in a jury waived session. We have found, in 
many instances, it is not necessary to retry the case because the findings 
usually contain a clear statement of the subsidiary facts to support the 
decision for the finding. 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 for solution. 

If occupied buildings are situated on parcels taken by eminent domain, 
the occupants become tenants of the Commonwealth and the question of 
rent is handled by the division, with the assistance of a Special Assistant 
Attorney General plus a Rent Administrator both of whom are on loan 
from the Department of Public Works temporarily assigned to the Eminent 
Domain Division. It is the function of the Rent Collection staff to work 
closely with the trial attorneys of this division to see to it that a proper 
accounting for all rent due the Commonwealth is made at the time of the 
land damage trial concerning the parcels in question. If there is no land 
damage matter pending, then it is the duty of this section to collect monies 
due on rent by negotiation or litigation. 

Shortly, this section will be reassigned to work at and under the primary 
direction of the Department of Public Works at 100 Nashua Street, Boston, 
Massachusetts. 

The division consists of a Chief, ten trial attorneys, six secretaries, three 
investigators, one legal engineer, one rent administrator and one 
administrative clerk. In addition to the trial of land damage matters, the 
division has the responsibility of reviewing petitions to register land filed in 
the Land Court to determine whether the Commonwealth or any of its 
agencies or departments has, or may have, an interest which may be 
affected by the petition. This responsibility requires the close examination 
of the petitions and plans filed in connection therewith. If the 
Commonwealth's interest is involved, the division insures that its interest is 
fully protected and no decree issues from the Land Court without the 
withdrawal of the appearance of the Attorney General. 

Rental agreements, contracts, deeds and documents relating to land 
under the control of any of the state's departments or agencies find their 
way to the Eminent Domain Division to be approved as to form. It is also 



P.D. 12 17 



the function of the division to make itself available for consultation and the 
rendering of advice in connection with the Commonwealth's problems 
relating to land. 

During the fiscal year July 1, 1977 through June 30, 1978, the following 
information figures are indicative of this extremely busy division: 

New Land Court Cases 132 

Land Court Cases Closed 164 

New Land Damage Complaints Received 106 

Land Damage Cases Disposed of by Superior Court 173 

Total Land Damage Cases Closed 217 

Rent Owed to Commonwealth Collected $ 134,554.50 
Money Saved the Commonwealth During 
this Period as Indicated by the 
Difference Between Plaintiffs 

Appraisal and Court Award $5 million+ 



Pending Cases Eminent Domain Division as of 
June 30,1978 



Eminent Domain Cases 








665 


Land Court Cases 








251 


Rent Cases 








627 


Total 








1,543 


Breakdown of Pending Superior Court Eminent 
Domain Cases by County as of June 30, 1978 




Barnstable 








20 


Berkshire 








3 


Bristol 








29 


Essex 








122 


Franklin 








4 


Hampden 

Hampshire 

Middlesex 








29 

16 

135 


Norfolk 








42 


Plymouth 
Suffolk 








27 
121 


Worcester 








117 



During the administration of Attorney General Francis X. Bellotti, great 
strides have been taken to make the Eminent Domain Division the most 
effective it has been probably in the long history of the Attorney General's 
Office. The outstanding caliber of its trial lawyers and staff has resulted in 
the closing out of approximately 600 cases, the great majority by Superior 
Court trial and the balance by strictly approved negotiated settlements. 
Approximately $600,000 has been collected in delinquent rents owed to the 



P.D. 12 



Commonwealth. For the 1977 - 1978 fiscal period alone, the division's 
activities resulted in a savings for the Commonwealth in excess of 5 million 
dollars.* 

INDUSTRIAL ACCIDENTS DIVISION 

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

There were 11,742 First Reports of Injury for state employees filed 
during the last fiscal year with the Division of Industrial Accidents, an 
increase of 1,032 over the previous fiscal year. Of the lost time disability 
cases, this Division reviewed and approved 1,777 new claims for 
compensation, and 127 claims for resumption of compensation. In addition 
to the foregoing, the Division worked on and disposed of 171 claims by 
lump sum agreements and 31 by payments without prejudice. 

This Division appeared for the Commonwealth on 666 formal 
assignments before the Industrial Accident Board and before the Courts on 
appellate matters. In addition to evaluating new cases, this Division 
continually reviews the accepted cases; that is, those cases which require 
weekly payments of compensation, to bring them up to date medically and 
to determine present eligibility for compensation. 

Total disbursements by the Commonwealth for state employees' 
industrial accident claims, including accepted cases, Board and Court 
decisions and lump sum settlements, for the period July 1, 1977 to June 30, 
1978, were as follows: 

General Appropriation (Appropriated to the 

Division of Industrial Accidents) 

Incapacity Compensation $4,762,415.46 

Medical Payments 1,889,994.51 

TOTAL DISBURSEMENTS $6,652,409.97 

Metropolitan District Commission 

(Appropriated to M.D.C.) 

Incapacity Compensation $ 438,680.30 

Medical Payments 114,143.85 

TOTAL DISBURSEMENTS $ 552,824.15 

This Division also has the responsibility of collecting payments due the 
"Second Injury Fund" set up by Chapter 152, section 65, and defending the 
fund against claims for reimbursement made under Chapter 152, section 37 
and 37A. During the past fiscal year this Division appeared on 67 occasions 

*This figure being the difference between plaintiffs appraised value and final award. 



P.D. 12 19 



to defend this fund against claims for reimbursement by private insurers. 
As of June 30, 1978, the financial status of this fund was: 

Unencumbered Balance $ 70,836.01 

Invested in Securities 825,000.00 

TOTAL $ 895,836.01 

Payments made to fund $ 186,703.93 
Payments made out of fund 289,251.47 

Pursuant to Section 1 1A (Acts of 1950, C. 639, as amended), the Chief of 
this Division represents the Attorney General as a sitting member on the 
Civil Defense Claims Board. This involved reviewing and acting upon 
claims for compensation to unpaid civil defense volunteers who were 
injured while in the course of their volunteer duties. During the past fiscal 
year the Chief of this Division appeared at both sittings of this Board and 
acted on 3 1 claims. 

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

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



TORTS DIVISION 

The Torts Division is composed of three sections: Torts, Collections, and 
Petitions for Compensation for Victims of Violent Crimes. 

We presently have five lawyers in addition to the Chief. There are four 
investigators assigned to this division. We have a total of seven secretaries 
and clerk typists. One legal assistant is presently on leave. 

The procedural operation of the division continues to work efficiently 
and all matters are handled on an up-to-date and current basis. 

We have had favorable results for the most part in our defense and 
handling of our many Tort cases. We opened 328 Tort cases in this fiscal 
year. Law suits brought against the Commonwealth and its employees 
totaled 173. Releases and executions received were in the sum of 
$292,186.41. 

There were 353 Violent Crime cases opened during the period. We have 
been successful in all cases heard before the Appellate Division of the 
District Courts. We desire that victims be compensated in accordance with 
the provisions of the law, but we resist and defend against those we consider 
to be unfounded and unwarranted. 

After working with the Administrative Office of the District Courts for 
almost two years, the new procedural rules that we proposed were finally 



20 P.D. 12 



promulgated on May 8, 1978. The necessity of court appearance on 
uncontested cases is now eliminated. 

The total collections received during this fiscal period amounted to 

$629,546.38. A complete report of collections follows. 

Departments Amount No. of Claims 

Collected Processed 

Mental Health $160,700.15 37 

Public Health 86,232.62 227 

D.P.W. 69,597.60 306 

M.D.C. 8,157.68 10 

Education 18,523.21 282 

State Colleges 19,020.10 360 

Administration & Finance 3,245.23 6 

Commission for the Blind 61.80 1 

Corporation & Taxation 18,769.41 1 

Corrections 1,705.05 12 

Environmental Management 10,100.00 2 

Industrial Accidents 1,240.36 2 

Labor & Industries 125.00 4 

Military Division 320.00 5 

Milk Control Commission 400.00 1 

Public Safety 6,561.85 16 

Retirement Board 150.00 5 

Secretary of State 394.72 7 

Soldiers' Home 4,974.32 1 

Treasury 79,896.44 8 
Treasury 

(Probate Collection) 139,370.83 — 

TOTAL $629,546.38 1,293 
NOTE: 929 No. of claims being paid on account 

364 No. of completed claims (paid & closed) 

553 No. of claims opened 
1,597 No. of claims referred 
2,319 No. of claims disposed of as being uncollectible 



II. CRIMINAL BUREAU 

In fiscal 1977-1978, the Criminal Bureau was comprised of the following 
components: Trial Section, Appellate Section, Nursing Home Task Force, 
Organized Crime Unit, Violent Crime Unit, Drug Abuse Division and 
Division of Employment Security. The traditional responsibilities 
continued, but with greatly expanded efforts in the prosecution of arson, 
public corruption, tax violation and nursing home fraud. 

Trial Section: In addition to prosecuting economic crime cases ranging 
from welfare provider fraud, insurance fraud, banking law violations, 
conflict of interest violations, larceny and small loans violations, the Trial 
Section launched a massive attack on the problem of arson, particularly in 
Suffolk County. In the Fall of 1977, this investigation culminated in the 
return of 121 indictments against 33 individuals. Among the crimes charged 
were arson, burning to defraud and murder, and among the defendants 
were attorneys, real estate investors and public officials. There have already 
been several convictions after trial, and several more pleas of guilty, with 
sentences being meted out of up to 18 to 20 years. 

In the preceding fiscal year, a major investigation into the abuses of the 
Commonwealth's state tax system had been undertaken. That investigation 
has now seen greater activity in the prosecution of tax violations than had 
ever occurred in the history of the Department. In a twelve month period. 



P.D. 12 21 

113 indictments were returned containing 1,230 counts against 56 
individuals and corporations, involving over $900,000. 

New ground was also broken in the prevention of "electricity stealing." 
During the fiscal year, 57 indictments were returned related to the 
tampering with electric meters in order to defraud the electric company. A 
conservative estimate would indicate that over a quarter of a million dollars 
has been recovered by way of restitution and fines. Also of note is the 
exhaustive investigation into corruption within the Commonwealth's 
Vocational Education program. Over 100 indictments were returned 
against 14 individuals and 5 corporations. As to those defendants already 
convicted, dispositions have involved incarceration, restitution and fines. 

Organized Crime Unit: In addition to its participation in the arson 
investigation and prosecutions, the Organized Crime Unit continued to be 
involved in such diverse areas as gaming, bribery, cigarette smuggling and 
theft from state agencies. This Unit also cooperates with other agencies in 
combating the activities of criminal organizations and provides technical 
assistance to law enforcement officers and district attorneys. Included in the 
technical assistance supplied are photographic aid and advice and expert 
testimony in such novel areas as voice print identification. 

Nursing Home Task Force: The Attorney General's Nursing Home 
Task Force represents an effort to establish a comprehensive approach to 
attacking what national statistics have shown to be the lucrative crime of 
medicaid fraud. With the passage of a package of federal legislation known 
as the Medicare-Medicaid Anti-Fraud and Abuse Amendment, federal 
funding is now available to states which establish Medicaid fraud 
programs. Pursuant to this legislation, the Attorney General's Office has 
sought approval of a plan for a Massachusetts Medicaid Fraud Control 
Unit which would qualify for federal funding. At present, the Nursing 
Home Task Force employs four Assistant Attorneys General, one auditor 
and two secretaries. With the proposed federal funding, this staff will be 
greatly expanded to include at least 13 attorneys, 19 auditors and 19 
investigators with appropriate support staff. 

Over the last year, as presently constituted with its limited staff, the 
Nursing Home Task Force has successfully prosecuted several nursing 
homes in cases that netted over $130,000 in restitution and over $35,000 in 
costs and fines. 

Appellate Section: The Appellate Section continues to maintain a 
substantial caseload both in the state and federal courts. The bulk of these 
cases consists of post-conviction claims of persons convicted of criminal 
activity. In fiscal 1977-1978, 41 new suits were filed in the Federal District 
Court; 30 challenged the constitutionality of custody, 1 1 were civil rights 
suits brought by inmates of correctional institutions. Forty-nine suits, 
including 38 habeas corpus petitions, were filed in the Superior Court. 

On the appellate side, 10 new cases were filed in the Court of Appeals for 
the First Circuit; 4 cases in the Supreme Judicial Court (Full Bench) and 
one in the Appeals Court; 25 cases were filed in the Single Justice Session. 

Attorneys for the section successfully opposed 10 petitions for writs of 
certiorari filed in the Supreme Court of the United States. Of four petitions 
for certiorari filed by the section, one was granted and will be argued in the 



22 PD. 12 

Fall. The case involves the use of statements obtained in violation of 
Miranda v. Arizona, for the purpose of securing a search warrant. 

Substantial resources of the section continue to be devoted to class action 
suits brought by prisoners in the various institutions, for example, the 
Bridgewater Treatment Center and the "protective custody" cases. 

The Appellate Section also processes demands for the rendition of 
fugitives from justice. The section examines demands from both law 
enforcement officials of the Commonwealth and from governors of other 
states and renders an opinion as to the legal adequacy of each demand. 
Approximately 166 rendition demands were processed during fiscal 1977- 
1978. In addition, an attorney must appear in court whenever a rendition 
warrant is challenged. 

The Appellate Section also administers the Commonwealth's criminal 
usury laws. 

Violent Crime Unit: This Unit was active in two separate areas in 1977- 
1978. In Suffolk County, the Unit concentrated on assisting the Boston 
Police Department in evaluating cases of racial violence. In connection with 
these investigations, the Unit coordinated police activities with the efforts of 
the district attorney in Dorchester, West Roxbury and South Boston. The 
Unit recommended the direct indictment of several individuals involved in 
an assault on school children visiting the Bunker Hill Monument in 
Charlestown. The Unit participated with and assisted in the formation of 
the Boston Police Department's Community Disorder Unit. Staff attorneys 
from the Attorney General's Office presented a prosecution perspective in a 
series of lectures to members of the tactical patrol force at the Boston Police 
Academy. The Unit assisted the Metropolitan District Commission police 
in the incidents at Carson Beach in August, 1977, and monitored the 
prosecution of the more than fifty people arrested as a result of these 
incidents. 

In April of 1978, the Unit terminated the Attorney General's 
involvement with the screening unit in Norfolk County as District Attorney 
Delahunt assumed full management responsibility. During fifteen months 
of operation, intake screening procedures were established in all the district 
courts of Norfolk County and twelve separate categories of felony cases 
were designated for priority handling throughout the county. During the 
period in which Unit attorneys were assigned to the district attorney's 
office, the average time from arrest to disposition was reduced to less than 
ninety days in Superior Court. Initial statistics for the district court program 
indicated that many cases were handled from arrest to disposition in less 
than thirty days. 

Drug Abuse Division: During the past year, the Drug Abuse Division 
continued to engage in its two primary activities; the Drug Education 
Seminar, and the Speakers Program. 

The Drug Education Seminar is a two-week program which addresses 
the problem of drug abuse through the means of education. Although 
geared primarily for those in law enforcement related positions, it also 
serves other professionals working in drug-related fields. The program is 
designed to educate those involved in dealing directly with drug-related 



P.D. 12 23 

matters and on a broader plane to train these professionals who in turn can 
educate others in their respective fields. 

In conjunction with state and community colleges, 12 such seminars were 
held throughout the Commonwealth during the year for which academic 
credits were awarded. 

We have engaged the services of experts in the various related fields to 
implement this course. These individuals donate their time on a regular 
basis and represent a wide range of agencies and institutions including the 
Massachusetts State Police, Federal Drug Enforcement Administration, the 
United States Treasury Department, United States Customs Bureau, 
Massachusetts Department of Public Health, as well as, various drug and 
alcohol rehabilitation programs. 

Over the past year, representatives of the Drug Abuse Division addressed 
over fifty civic, professional, social and educational organizations on 
various aspects of drug abuse. 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. From the requests 
and attendance at these various functions, it is evident there is a great deal 
of interest by the general public in the drug abuse problem. 

Employment Security Division: The purpose and intent of the Attorney 
General's office in the Employment Security Division is to provide its 
Director with whatever legal assistance and representation is necessary to 
enforce the Employment Security Law, otherwise known as Chapter 151 A 
of the General Laws, and designated in Section 42A of the Law. 

The Employment Security Law is highly complex. Under the Law, 
employers with one or more employees become subject to it and are 
expected to comply with its provisions. The efficient and economical 
administration of the employment security program in Massachusetts 
depends in large measure on the cooperation and compliance of well- 
informed employers throughout the Commonwealth, for it is they who pay 
the entire cost of its operation. The employment security program also 
insures individuals who become unemployed through no fault of their own 
a weekly benefit check paid on a claim filed with the Division of 
Employment Security. 

Whenever an employer fails to comply with the Employment Security 
Law and does not file the necessary reports or pay the taxes due on his 
account with this Division, the matter is referred to the Attorney General 
for criminal prosecution under the provisions set forth by the Law. The 
Assistant Attorneys General make every effort to fully inform the 
employers of their rights and obligations under the Law. As a result, a 
certain percentage of the tax matters are settled immediately thereby 
avoiding the expense of prosecuting the offender and collecting the taxes 
owed through court action, representing a savings to the Commonwealth 
and its taxpayers. 

During the fiscal year ending June 30, 1978, 961 employer tax cases were 
handled by this Division. 596 cases were on hand July 1, 1977. 365 
additional cases were received during the fiscal year, and 134 cases were 
closed leaving the balance of 827 employer tax cases on June 30, 1978. 



24 P.D. 12 



$1,426,507.16 in overdue taxes was collected during fiscal year ending June 
30, 1978. Monies collected were deposited to the Unemployment 
Compensation Fund. 

Criminal complaints were brought in the Boston Municipal Court, 
charging 374 individuals with non-payment of taxes totaling $2,052,893.61, 
owed on 261 delinquent tax accounts. 30 criminal indictments were brought 
in the Suffolk Superior Court charging 15 nursing homes owners with 
failure to pay taxes due the Division of Employment Security. 

Whenever individuals are found to be collecting unemployment benefits 
fraudulently on claims they filed while gainfully employed and earning 
wages, the fraudulent matters are referred to the Attorney General's office 
for prosecution of the criminal offense. Criminal complaints are brought 
only when the facts surrounding the offense have been investigated and 
reviewed with the individual involved and criminal intent is found. Action 
is brought in the court holding jurisdiction over the offense, under G.L. c. 
266, s. 30 or G.L. c. 151 A, s. 47, to reclaim monies stolen from the Division 
of Employment Security. 

During the fiscal year ending June 30, 1978, 1061 fraudulent claims 
matters were handled by this Division. 898 cases were on hand July 1, 1977. 
163 additional cases were received during the fiscal year, and 131 cases 
were closed leaving a balance of 930 cases on hand June 30, 1978. Criminal 
complaints were brought in the courts holding jurisdiction over the 
offenses, charging 137 individuals with larceny of $218,415.00 in 
unemployment benefits fraudulently collected from the Division of 
Employment Security. The amount of $238,772.54 was collected during the 
fiscal year ending June 30, 1978, and returned to the Division of 
Employment Security for deposit to the Unemployment Compensation 
Fund. 

In addition, the Division investigated and prosecuted cases involving 
internal fraud and CETA fraud, appeared in actions brought by or against 
the Director of the Division of Employment Security challenging various 
provisions of G.L. c. 151 A, and handled appellate matters in the Supreme 
Judicial Court. 

III. GOVERNMENT BUREAU 

The Government Bureau has four main responsibilities: 

(1) defense of state officials and state agencies, principally in state and 
federal lawsuits raising issues of administrative law, constitutional law, 
and statutory interpretation; 

(2) initiation of affirmative litigation on behalf of state agencies covering a 
broad span of public issues, but focusing primarily on the conduct of 
the federal government; 

(3) preparation of Opinions of the Attorney General; and 

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

A report on these functions as well as several additional responsibilities 
follows. 
DEFENSE OF STA TE A GENCIES 

The Government Bureau represents the Commonwealth and its officials 



P.D. 12 25 



and agencies in defensive litigation in state and federal courts, and, in 
exceptional cases, before certain state and federal administrative agencies. 
These proceedings typically involve administrative law and constitutional 
issues in diverse areas of public law. In the 1977-1978 fiscal year (FY 1978) 
Government Bureau attorneys maintained an average caseload of 50 to 90 
defensive lawsuits. 

During FY 1978, the Division received 522 new cases. By quarters, the 
breakdown was the following: 

(1) July - September, 1977 139 

(2) October- December, 1977 103 

(3) January - March, 1978 121 

(4) April -June, 1978 159 

522 
By subject matter and client, these new cases fell into the following 
categories (with miscellaneous and non-current cases omitted): 

Class of Law Suit Number 

Civil Service Appeals 79 

Alcoholic Beverages Control 

Commission Appeals 42 

Registry of Motor Vehicles 37 

Department of Public Utilities 3 1 

Education 28 

Auto Surcharge Appeals 28 

Rate Setting Commission 27 

Taxation 21 

Insurance 2 1 

Personnel Administration 

(non-civil service) 19 

Defense of Cases Brought Against Judges 20 

Defense of Boards of Professional 

Registration 19 

Welfare 18 

Civil Rights (42 U.S.C. § 1983) 16 

Public Health 10 

Housing (chiefly Department of 

Community Affairs) 7 

Mental Health 6 

The relative time spent representing particular agencies cannot be 
measured accurately by the number of cases. The representation of certain 
agencies involves a substantial commitment to individual pieces of 
complex, major litigation, although the total number of lawsuits involving 
those agencies may be quite small. For example, as in fiscal year 1976-1977, 
substantial Bureau resources in FY 1978 were devoted to negotiating and 
overseeing implementation of consent decrees in five cases seeking 
improvement in the conditions and treatment in state institutions for the 
mentally retarded. Four Bureau lawyers had responsibility for these cases. 
During FY 1978, a final personnel decree was reached which provides for a 
substantial increase in personnel providing direct care to residents at these 



26 P.D. 12 



institutions. Moreover, Bureau lawyers carried on lengthy negotiations to 
determine the extent of capital improvements to buildings at three of the 
five institutions. 

During FY 1978, lawyers from the Government Bureau argued a 
number of cases before the United States Supreme Court. These included a 
case in which the Bureau successfully defended the constitutionality of a 
state statute which taxes federal savings and loan institutions located in 
Massachusetts. It also included an unsuccessful attempt to prevent the 
federal government from imposing a tax on an essential state function — the 
operation of the state police helicopter and airplanes — on the grounds that 
the tax violated the doctrine of intergovernmental tax immunity. 

Government Bureau lawyers also argued a substantial number of cases 
before the Massachusetts Supreme Judicial Court. One of the most 
significant was the so-called "auto insurance rebate" case, American 
Manufacturers Mutual Ins. Co. v. Commissioner of Ins., Mass. Adv. Sh. 
(1978) 58. In that case, Bureau lawyers successfully defended an emergency 
state statute which required auto insurance companies to return to 
policyholders fifty-five million dollars collected in premiums for 1977. 
Insurance companies leveled many arguments against the law, with 
primary weight on the claim that it unconstitutionally impaired the 
companies' existing contracts with Massachusetts drivers. The SJC accepted 
the arguments presented on behalf of the statute and upheld it. 

In another important case, Lahey Clinic Foundation, Inc. v. Health 
Facilities Appeals Board, Mass. Adv. Sh. (1978) 2523, the Lahey Clinic 
sought to enjoin the Government Bureau's client, the Health Facilities 
Appeals Board, from considering whether Lahey's planned construction of 
a major new facility in Burlington, Massachusetts, was in keeping with the 
certificate of need — a form of prior permission health care providers must 
obtain prior to making large capital expenditures — which Lahey received in 
1972. The trial court found the HFAB to be without jurisdiction, a 
determination which the Government Bureau appealed to the Supreme 
Judicial Court. The Supreme Judicial Court affirmed the judgment below 
in a decision which considered a number of important administrative law 
and health care cost issues. 

A third significant Supreme Judicial Court case which the Bureau 
argued concerned the nature and scope of special education services to be 
provided to a child with special educational needs. The Bureau defended 
two policies of the Department of Education concerning the placement of a 
child with special needs in a private school program when the school 
committee fails to develop an adequate educational program for the child. 
A town challenged those policies and the court ultimately upheld the 
Department of Education in a decision which has had a direct effect on 
many similar cases now pending in state courts. Amherst- Pelham Reg'l Sch. 
Comm. v. Department ofEduc, Mass. Adv. Sh. (1978) 2673. 

Finally, Bureau lawyers argued a number of significant cases in the 
Supreme Judicial Court on behalf of the Alcoholic Beverages Control 
Commission. For example, in Board of Selectmen of Barnstable v. A.B.C.C., 
the court reiterated that the Commission has broad powers to control 
alcoholic beverages and determined that they could overrule a local 



P.D. 12 27 



licensing board's grant of licenses because of procedural irregularities 
which occurred before the local board. Moreover, in Aristocratic Restaurant 
of Massachusetts, Inc. v. A.B.C.C. (No. 1), Mass. Adv. Sh. (1978) 558, the 
court upheld the Commission's authority to construe local licensing board 
regulations prior to their having been construed by the local board. The 
Court also upheld the A.B.C.C.'s defense of the Boston Licensing Board's 
anti-mingling regulations against vagueness, overbreadth, free speech, and 
free association attacks under the Massachusetts and United States 
Constitutions. 

An important case argued by Bureau attorneys in the United States 
Court of Appeals for the First Circuit was Arthurs v. Stern, 560 F. 2d 477 
(1977). This case was an appeal from a judgment of the District Court 
declaring G.L. c. 112, § 63 unconstitutional. Section 63 provides that the 
pendency of criminal proceedings against a person registered to practice 
one of the professions licensed under c. 1 12 is not a basis for postponing the 
conduct of disciplinary proceedings. The District Court held the statute 
unconstitutional as violative of the right against self-incrimination. The 
court of Appeals reversed and declared the statute constitutional. 

Another important federal case was Massachusetts General Hospital v. 
Weiner, 569 F. 2d 1156 (1st Cir. 1978). There, the hospital brought suit in 
the District Court for injunctive and declaratory relief challenging on 
statutory and constitutional grounds Medicaid rate regulations promul- 
gated by the Rate Setting Commission and approved by the United States 
Department of Health, Education and Welfare. The regulations established 
a plan of prospective reimbursement for hospital charges. The District 
Court granted summary judgment for defendants and the First Circuit 
affirmed. 

In addition to the cases mentioned, the Bureau also committed 
significant amounts of time to a number of other civil actions: first, 
settlement of a federal court class action discrimination suit which alleged 
that the state civil service system discriminated in all its phases against 
racial minority applicants. The final settlement of this case committed the 
Commonwealth to continue many of the affirmative action reforms it had 
begun or planned to initiate, set deadlines for such reforms and tied the 
program to specific hiring goals and timetables; second, successful defense 
in the Supreme Judicial Court of the Department of Public Utilities' 
discretion in a number of rate regulation matters; third, successful defense 
of the Personnel Administration's newly adopted examination practice of 
rounding-off exam scores to the nearest whole number, thus permitting 
appointing authorities wider latitude in hiring. 

The primary administrative development of the year was the 
implementation of a computer-assisted case management system. All 
Bureau cases and opinions are now indexed in the Department of the 
Attorney General's computer data base. Thereafter significant actions, 
pleadings, and hearings are added to the computer record. The computer 
system provides a quick, uniform, up-to-date record of the Bureau's case 
load in a manner previously unavailable. 



28 P.D. 12 



AFFIRM A TIVE LITIGA TION 

The Attorney General established the Affirmative Litigation Division 
within the Government Bureau in April, 1975. The Division's purpose is to 
provide agencies of the Commonwealth with litigation services when 
performance of their statutory functions requires resort to the state and 
federal courts. During its third full year of existence, the Affirmative 
Litigation Division increased its activity, commenced a number of major 
actions, and brought to conclusion significant litigation begun in prior 
years. 

Cases which the Affirmative Litigation Division brings may be divided 
into three broad, and often overlapping, categories: ( 1 ) advocacy litigation; 
(2) grant-in-aid related litigation; and (3) enforcement litigation. The first 
category subsumes cases which the Attorney General commences either on 
behalf of a state agency with an advocacy responsibility or in furtherance of 
his own obligation to advance the public interest. In prior years, suits 
related to the imposition of taxes by the state and federal governments and 
increases in postal rates have comprised a large portion of this category of 
litigation, and similar matters were the subject of litigation during FY 1978. 
Litigation related to grant-in-aid programs, most significantly the various 
public assistance programs operated by the Department of Public Welfare, 
accounted for a substantial portion of the Affirmative Litigation Division's 
efforts. These cases also tend to be the Division's most significant ones 
when financial value is the dominant consideration. Finally, the Division 
continued to perform the Attorney General's traditional enforcement 
function by commencing suit on behalf of state regulatory and licensing 
agencies. The following paragraphs contain brief descriptions of 
representative cases drawn from each of these broad categories. 

Advocacy Litigation 

The Attorney General continued to litigate several substantial advocacy 
matters begun in prior years during the reporting year. Brouillette v. New 
Hampshire, an action which the Attorney General commenced against the 
State of New Hampshire to recover tax payments made by Massachusetts 
residents pursuant to an unconstitutional commuter tax, progressed with 
the addition of the Commonwealth as a party plaintiff and the preparation 
of the case for decision in the New Hampshire Superior Court on the 
defendant's motion to dismiss. This case involves a dispute with the State of 
New Hampshire which the Attorney General values at several million 
dollars. 

Commonwealth v. U.S. Postal Service, a proceeding which the Attorney 
General commenced in the United States Court of Appeals for the First 
Circuit and which was subsequently transferred to the District of Columbia 
Circuit late in the reporting year, seeks judicial review of the Postal 
Service's decision to increase first class mail rates from thirteen to fifteen 
cents. In commencing this litigation, the Attorney General sought to protect 
both the interests of the Commonwealth and of its citizens from unfair 
allocations of the costs of postal service to the users of first class mail. 

Finally, a significant controversy arose during the reporting year 
between the United States Internal Revenue Service and the Com- 



P.D. 12 29 

monwealth's hundred-odd retirement systems over the reporting require- 
ments imposed by the Employees' Retirement Income Security Act of 1974 
(ERISA). The Affirmative Litigation Division undertook representation of 
the Retirement Law Commission and assisted the agency in making its 
position known to the Service. As a result of a series of meetings, the 
Service altered its reporting requirements by deleting several of the requests 
for information which the Commission believed would impose significant 
burdens upon it and the individual retirement boards of the Com- 
monwealth's counties, cities, and towns. 

Grant-in- Aid Litigation 

The Affirmative Litigation Division's most significant grant-in-aid 
litigation, In re Masssachusetts Social Security Services Claims, an 
administrative proceeding before the United States Department of Health, 
Education, and Welfare, was settled during the fall of the reporting year. 
This case, involving a dispute with the United States over its obligation to 
reimburse the Commonwealth for expenditures incurred to provide social 
services to eligible recipients under the Social Security Act, included claims 
totaling one hundred forty-five million dollars. HEW had refused to make 
any payments to the Commonwealth since 1974, and some of the debt was 
derived from services rendered as early as 1971-72. The national nature of 
this controversy (virtually all of the fifty states had similar claims against 
HEW) and the enormous sums involved (HEW's total liability exceeded 
one billon dollars) made this litigation one of principal concern to the 
Carter Administration. Ultimately, the Attorney General, after consulting 
with the Governor, agreed to settle the Commonwealth's claim for seventy- 
four and a half million dollars. Receipt of these funds was expected soon 
after the commencement of the 1979 federal fiscal year. 

Another significant case was brought against another federal agency, this 
time the Community Services Administration, to protect the right of 
Massachusetts citizens entitled to assistance under the federal Emergency 
Energy Assistance Program (EEAP). This program provides financial help 
to poor and near-poor families who encounter fuel emergencies such as 
utility cutoffs during the coldest months. CSA had determined to end 
operation of the program on May 1, 1978, despite the availability of 
appropriated funds and a clear need for the funds to help families hard hit 
by the 1978 winter season. The Government Bureau filed suit in the United 
States District Court for the District of Columbia and, before a hearing 
could be scheduled, CSA agreed to extend the program. 

A third substantial grant-in-aid controversy involved the Com- 
monwealth's administration of its medical assistance program for the poor 
(Medicaid) and the United States Department of Health, Education, and 
Welfare's interpretation of certain utilization review requirements 
applicable to nursing homes and other facilities participating in the 
Medicaid program. This controversy arose during the prior reporting year 
and resulted in the Commonwealth's filing two federal lawsuits, one in 
Boston and one, in conjunction with four other states, in the District of 
Columbia. During the reporting year, this litigation concluded when the 
Congress amended Title XIX of the Social Security Act to preclude HEW 



30 P.D. 12 

from imposing penalties upon the states. The Commonwealth was able to 
avoid the loss of twenty million dollars in federal Medicaid reimbursement 
funds by the Attorney General's obtaining a preliminary injunction against 
HEW from the United States District Court for the District of Columbia 
pending Congressional action. 

A dispute with the United States Department of Agriculture prompted 
the Department of Public Welfare to seek the Affirmative Litigation 
Division's assistance during the winter of the reporting year. As a result of a 
decision in Aiken v. Obledo, 442 F. Supp. 628 (E.D. Cal. 1977), USDA 
directed the Commissioner of Public Welfare to adopt procedures for 
making retroactive benefits payments to certain food stamp recipients. The 
Commissioner determined that compliance with USDA's directives would 
be expensive and burdensome and sought the Attorney General's assistance 
in preventing USDA from requiring compliance with them. In response to 
the Commissioner's request, the Attorney General sought to intervene as a 
defendant in Aiken v. Obledo, then still pending in the Eastern District of 
California, and to assert cross-claims against USDA. At the close of the 
reporting year, it appeared likely that USDA would modify its instruction 
to states to avoid imposing the burdens which the Commonwealth found 
objectionable and that the litigation would be settled. 

A final grant-in-aid dispute in which the Attorney General became 
involved concerned the effort of the Department of Public Works to 
maintain the Commonwealth's eligibility for federal highway assistance 
funds. In this case, the Federal Highway Administration threatened to 
terminate highway assistance because the Commonwealth had allegedly 
failed to perform adequate truck weighing inspections. However, after an 
administrative hearing, the Federal Highway Administrator was convinced 
that the Massachusetts truck weighing program satisfied federal standards. 
Regulatory Enforcement 

The Affirmative Litigation Division commenced a number of significant 
regulatory enforcement actions during the reporting year. These cases 
sought judicial enforcement of state agency determinations or compliance 
with statutory requirements by private entities and units of local 
government. 

In Commonwealth v. Town of Andover, the Affirmative Litigation 
Division commenced an action to require an initial group of twenty-three 
cities and towns in the Commonwealth to appropriate funds required by 
their boards of assessors to perform revaluation of real property as directed 
by the Commissioner of Corporations and Taxation (now the Commis- 
sioner of Revenue). Through this litigation, the Attorney General has 
sought a declaration that the Commissioner may contract with independent 
appraisal firms to perform revaluations in cities and towns which refuse to 
appropriate funds and deduct the costs of these contracts from local aid 
distributions. At the close of the reporting year, it appeared that several 
municipalities would voluntarily comply with the Commissioner's directive 
but that the litigation would continue as to a number of other defendants, 
would continue as to a number of other defendants. 

The Affirmative Litigation Division also: (1) commenced suit against the 
Mayor of the City of Boston on the Attorney General's behalf in order to 



P.D. 12 31 

compel the Mayor to appoint members of the Boston Redevelopment 
Authority to their statutory five year terms; (2) commenced suit in the name 
of the Commonwealth against the Norwood Housing Authority in order to 
require members of the Authority and its staff to make restitution to the 
Commonwealth of Authority funds which they improperly spent for 
personal purposes; and (3) commenced a series of actions on behalf of the 
Department of Public Health to enforce the state's Determination of Need 
law. Suits for violating the statute were filed against the Newton-Wellesley 
Hospital, the Waltham Hospital, and Wing Memorial Hospital. 

OPINIONS 

The Attorney General's responsibility for rendering legal opinions is 
defined by G.L. c. 12, §§ 3, 6 and 9, and, until November 1, 1978, by G.L. c. 
268 A, § 10. Pursuant to c. 12, §§ 3 and 9, he renders written legal opinions 
to state agencies and administrative officials, the Governor, either branch 
of the General Court, and to legislative committees with respect to pending 
legislation. Under c. 12, § 6, the Attorney General provides legal opinions 
and advice to District Attorneys; these opinions, however, are most often 
furnished on an informal basis. Finally, G.L. c. 268A, § 10 directed the 
Attorney General to give conflict of interest opinions to state employees. 

Formal Opinions 

( 1 ) General comments: 

During the 1978 fiscal year, the Attorney General sought to reaffirm and 
clarify the standards that the Department uses to determine which opinion 
requests are appropriate for answering with formal opinions and which are 
not. The most important standards governing formal opinions are that (1) 
the Attorney General will render legal opinions solely to state officers and 
agencies — he does not have the responsibility or authority to give opinions 
to municipal or county officials, or to private citizens; and (2) opinion 
requests received from state officers or agencies themselves will not be 
answered by an opinion of the Attorney General if they raise hypothetical 
or abstract questions, or relate to pending litigation. 

Applying these standards, the Attorney General issued 31 formal 
opinions during FY 1978. Two of these were in fact declinations, but they 
were rendered in opinion form so that state officials would have explicit 
statements as to why the Attorney General sometimes cannot answer 
questions posed. In one case the reason was that the questions related to 
litigation pending in various federal courts; in the other, the questions were 
too general and abstract for a proper response. During FY 1978, the 
Attorney General additionally declined to issue opinions in response to 
over 100 opinion requests submitted by private citizens and municipal and 
county officials. 

The Attorney General continued to publish during FY 1978 the Opinion 
Digest, a summary of all formal opinions issued. (The Opinion Digest was 
first published in FY 1977.) The Digest is prepared every four months, and 
is distributed to state agencies and officers, county libraries, and other 
interested individuals and organizations. 



32 P.D. 12 



(2) Summary description of opinions rendered: 

Turning to the formal opinions themselves, three of the 3 1 issued during 
FY 1978 were addressed to the legislative branch. The first of these 
concerned the constitutionality of a proposed statute giving immunity from 
civil and criminal liability to the members of the Board of Registration and 
Discipline in Medicine; the other two opinions, issued in response to 
requests by the House of Representatives, involved: (1) the authority of 
executive officials to spend certain appropriated funds on particular types 
of advertising for the Commonwealth; and (2) the power of the State Fire 
Marshall under designated fire prevention regulations to approve a specific 
type of heating apparatus. 

By far the largest majority of opinions issued in FY 1978, 27 out of the 
31, were rendered to the heads of state agencies. These covered a broad 
range of subject matters and legal issues. Among the areas most touched 
upon was education, the subject of four different opinions. In the first of 
these, at the request of the Commissioner of Education, the Attorney 
General rendered an opinion construing the term "teacher" in G.L. c. 71, § 
38, a statute which requires that every school committee limit its 
appointment and promotion of teachers to those recommended by the 
superintendent. The Attorney General interpreted the word "teacher" in a 
broad fashion to cover a variety of professional positions in addition to the 
traditional classroom teacher. In another education opinion, the Attorney 
General returned to the subject of the "grandfather clauses" in St. 1972, c. 
766, concluding that the Governor can designate which agency shall bear 
the responsibility for satisfying the Commonwealth's financial obligations 
for "grandfathered" special education students. 

Issues concerning environmental protection were the subject of three 
opinions during FY 1978. In one, the Attorney General considered whether 
Article 97 of the Amendments to the Massachusetts Constitution, 
guaranteeing certain rights to environmental protection, would preclude 
without additional legislation the transfer of land owned by the 
Department of Environmental Management to the Southeastern Massachu- 
setts University. The Attorney General concluded that Article 97 did not 
require further legislative action to authorize this transfer. Another 
environmental opinion ruled that the Department of Fisheries, Wildlife and 
Recreational Vehicles had the requisite authority to issue fee regulations 
that would govern designated public access sites and facilities owned by 
municipalities. 

Several areas which were the subject of significant opinions in the 
previous fiscal year were again important during FY 1978. In the field of 
public records, the Attorney General issued an opinion which sought to 
clarify what information held by the Division of Industrial Accidents 
qualified as "public records," subject to public inspection, and what type of 
information was deemed exempt from disclosure, primarily for reasons of 
privacy. Another opinion concerned the power of the Supervisor of Public 
Records to adopt regulations establishing fee schedules for custodians of 
public records; the Attorney General determined that the Supervisor 
possessed the necessary rule-making power. 



P.D. 12 33 



In the area of campaign and political finance, the Attorney General 
issued an opinion defining the responsibility of candidates and political 
committees to keep records of contributors. Another opinion related to the 
duty of the Director of Campaign and Political Finance to respond to 
inquiries concerning the validity of reports filed by candidates and political 
committees. On the latter issue, the Attorney General determined that the 
Director was responsible for answering general questions about the 
campaign finance law, G.L. c. 55. However, he could not substitute his 
judgment as to the accuracy or completeness of filed reports for that of the 
appropriate prosecuting officers. 

Certain opinions deserve mention because of their individual 
significance. One concerned the interpretation of the word "compensation" 
in the retirement law applicable to municipal teachers. The question was 
whether severance payments made to teachers for unused sick leave 
pursuant to collective bargaining agreements should be considered as 
"compensation" for purposes of computing the teachers' retirement 
allowances. The Attorney General answered that "compensation" did 
include such bargained-for severance payments. A lawsuit is pending which 
challenges this construction of the statutory phrase. 

A second significant opinion dealt with the relation between the Division 
of Hearing Officers (DHO) and the Rate Setting Commission (RSC). The 
statute defining that relation, G.L. c. 6A, § 36, is highly ambiguous and the 
power of the DHO to order that the RSC adopt DHO rate decisions in 
administrative appeals brought by health care providers was contested. The 
Attorney General interpreted the statute to mean that the DHO had no 
such expansive authority. Rather, its hearing officers could recommend rate 
decisions to the RSC, but the Commission in turn was empowered to reject 
them. This opinion is the subject of an appeal now pending before the 
Supreme Judicial Court. 

Other opinions rendered by the Attorney General in FY 1978 concerned: 
the authority of the Department of Public Health to apply the state's 
Determination of Need law to a specific hospital; the power of the 
Commissioner of Mental Health to designate mental health area directors 
as "superintendents" of units in state hospitals, with the resulting authority 
to hire and fire staff working in those units; the jurisdiction of the Civil 
Service Commission to hear appeals that now fall within the scope of the 
state employees' collective bargaining agreements; the power of the 
Alcoholic Beverages Control Commission to regulate sales of liquor on 
military bases; and the application of the prison "furlough" statute to those 
convicted of violating the mandatory gun law. 

Conflict of Interest Opinions 

FY 1978 was the last full year in which the Attorney General was 
responsible for rendering conflict of interest opinions to state employees. By 
St. 1978, c. 210, effective November 1, 1978, the Legislature vested sole 
authority to issue such conflict opinions in the new State Ethics 
Commission. During FY 1978, the Attorney General issued 50 conflict 
opinions to state employees and declined over 50 improper requests 
received from individuals who were not state employees. 



34 P.D. 12 



Each conflict of interest opinion necessarily turns on the individual facts 
and circumstances presented by the requesting state employee. However, 
during FY 1978, the Attorney General attempted to develop a greater depth 
and consistency of response in his conflict of interest opinions so that, 
despite their individual orientation, the opinions could serve as prospective 
guides to the conduct of all state employees. 

BY-LAWS 

The By-Laws Division is responsible for reviewing all newly enacted 
town by-laws to determine whether they conform to statutory and 
constitutional requirements. During FY 1978, 710 general by-law and 933 
zoning by-law submittals were reviewed. In addition, 9 home rule charter 
actions from cities and towns were examined. 

The high increase of zoning by-laws was caused by the new Zoning Act 
which required that all local zoning by-laws be brought into conformity 
with the Act's provisions by June 30, 1978. Many of the zoning by-laws 
were complete revisions of the municipality's existing zoning by-law. 

Town Meeting procedures and local administrative organization along 
with public drinking were the dominant themes in the general by-law area. 

CO UNSELING TO STA TE A GENCIES 

In addition to the major responsibilities described above, the 
Government Bureau also counsels 30 boards of professional registration in 
the performance of statutory duties to license, regulate and discipline the 
members of the professions. Each Government Bureau attorney on the 
average advises two boards concerning the boards' administrative 
rulemaking and adjudicatory proceedings, 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 available to 
agencies lacking their own 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 adjudicative 
rules uniform from board to board. 

THE CLINICAL PROGRAM 

The Bureau continued its successful clinical program with law students 
from Boston College Law School. Fifteen third-year students participated 
in the Government Bureau's clinical program. 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 in the daily handling 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. 



P.D. 12 35 

IV. PUBLIC PROTECTION BUREAU 

ANTITRUST DIVISION 

I. Introduction 

The Antitrust Division of the Department of the Attorney General was 
formed in March, 1977 with the hiring of one full-time attorney to handle 
the ever-increasing level of antitrust work coming into the Department of 
the Attorney General. 

The division is responsible for representing the Commonwealth, both in 
its proprietary capacity and as parens patriae on behalf of the citizens of the 
Commonwealth, in Federal Court for violations of the antitrust laws of the 
United States (15 U.S.C. §1, et seq). 

Prior to the establishment of this division, all antitrust cases brought by 
the Commonwealth were handled by special assistant attorneys general 
who had expertise in such matters. The increasing level of antitrust activity, 
however, clearly indicated the need for in-house capability to deal with the 
pressing economic issues raised by the violation of the Federal Antitrust 
Laws. 

In addition to the Federal Antitrust Laws, the Attorney General is 
charged pursuant to c. 12, §10 with protecting the citizens of the 
Commonwealth from unfair trade practices engaged in within the 
Commonwealth. Under c.93 of the General Laws, the Attorney General has 
broad criminal responsibility to prosecute for monopolization, tie-ins, price 
fixing of necessaries and bid rigging. The Attorney General also has 
authority under C.93A of the General Laws to bring actions for unfair 
methods of competition affecting the citizens of the Commonwealth. Unfair 
methods of competition include the traditional antitrust violation. 

In addition to bringing affirmative litigation on behalf of the 
Commonwealth and its citizens, the Antitrust Division is also actively 
involved with counselling business and state agencies insofar as the 
antitrust laws are concerned. The purpose of this counselling is to try to 
achieve the maximum amount of competition compatible with the free 
economic system of the Commonwealth. 

To help states achieve a higher level of effectiveness in their antitrust 
enforcement, the United States Congress enacted section 116 of the Crime 
Control Act of 1976, which provided for 30 million dollars antitrust seed 
money to be given to states to increase their capabilities in combatting 
antitrust violations on a state and local level. Ultimately, Congress 
appropriated 21 million of the authorized 30 million dollars. In September 
of 1977, the Attorney General received a grant for $320,681 from the 
Department of Justice Antitrust Division to fully develop the enforcement 
capabilities within the Division. The funds have been earmarked for hiring 
staff, purchase of equipment, litigation expenses and general expenses 
associated with day to day operations of a law office. The grant is for a 
period of 18 months commencing September 1, 1977 and terminating April 
1, 1979. It is anticipated that an additional grant for approximately the 
same amount of money will be issued as of April 1, 1979 and which should 
extend into 1981. 



36 P.D. 12 

At the close of the fiscal year, the Division which started with one 
attorney was staffed by a chief, three assistant attorneys general, an 
administrative assistant, an economic consultant on a retainer basis and one 
legal secretary. 
II. Litigation 

Commonwealth v. NBMA, et al. (NDGA) — During the course of the 
year this litigation was basically concluded by the reaching of settlement 
agreements among all plaintiffs' counsel and 36 of the 38 defendants. The 
final settlement amounts were in excess of 31 million dollars and with 
interest at time of distribution, it is expected that the settlement fund will 
exceed 38 million dollars. The governmental share of the settlement will be 
either 9.4% or 15% depending upon the Congressional resolution of Illinois 
Brick. In either event, the Commonwealth of Massachusetts will receive 
2.8% of the allocation to governmental entities. In addition, we can 
anticipate a recovery of our costs in this action as well as a fairly substantial 
amount for attorneys fees. 

Commonwealth v. Amstar Corporation, et al. (EDPA) — We are 
representing the Commonwealth, the City of Boston and the City of 
Cambridge for proprietary purchases of sugar during the period 1970 
through 1975. Through June of 1978, there were 3 million dollars in 
settlements in the overall litigation. The case is in a discovery phase and 
trial is anticipated in the fall of 1979. 

Commonwealth v. Brinks, Inc., et al. (NDGA) — This suit involving 
armored car services has been settled on a global basis for 11.8 million 
dollars. Because of the vast size of the claiming universe, the claim of the 
governmental entities in the Commonwealth will be extremely small. 
Nevertheless, it is anticipated that the Commonwealth will recover more 
than 40 to 50 thousand dollars in this litigation. It is also anticipated that 
the Commonwealth will receive attorneys fees and costs in this matter. 

Commonwealth v. Medical Oxygen Service, Inc. et al. (D. Mass.) — The 
Commonwealth brought suit on its own behalf and as parens patriae on 
behalf of all users of medical oxygen equipment against four companies 
dispensing specialized medical oxygen apparatus. The charge was price 
fixing and territorial allocation among the competitors. The case is 
presently in the discovery phase. 

Commonwealth v. Ahem Corporation, et al. (D. Mass.) The Com- 
monwealth brought suit on behalf of its public agencies and political 
subdivisions alleging that seven suppliers of liquid asphalt in the 
Commonwealth had conspired since at least as early as 1960 to fix prices 
and rig bids to the Commonwealth and its public agencies and political 
subdivisions. The case is in class action discovery phases and is presently 
awaiting a number of rulings which, when made, will allow the case to 
proceed. 

Commonwealth v. Leviton Corp., et al. (EDNY) — The Commonwealth 
brought suit against a number of wiring device manufacturers alleging that 
they had conspired to fix prices on wiring devices throughout the United 
States and the Commonwealth of Massachusetts. This case was recently 
transferred by the Judicial Panel for Multidistrict Litigation from the 
District of Massachusetts to the Eastern District of New York. 



P.D. 12 37 



III. Other Activities 

1. Trade Association Survey — During the fiscal year, the Antitrust 
Division commenced a survey of all trade associations within the 
Commonwealth to determine whether or not certain of their by-laws violate 
the federal and/or state antitrust laws. This is part of an on-going program 
which is being done in conjunction with an analysis of all state regulatory 
bodies to determine whether certain of their by-laws may violate antitrust 
standards as used by the Department of Justice. 

2. New England Bid Monitoring Project — As part of the Federal 
Antitrust Seed Money, the Commonwealth has undertaken a project to 
collect and analyze bid materials submitted to the various municipalities of 
the Commonwealth, as well as the Commonwealth itself. The project 
anticipates collecting data on over 150 products from more than 100 
collection stations throughout the Commonwealth. This data will then be 
computerized and an economist will devise programs to test the data for 
indications of collusive bid activities. While this program is still at an early 
stage of development, it is anticipated that it will become a regional project 
for all of New England with data being collected from over 300 collection 
stations in the six state region. This is the most ambitious computer bid 
detection program of its type. The Department of Justice and the L.E.A.A. 
have expressed great interest in the future development of this program. 

CIVIL RIGHTS AND LIBERTIES DIVISION 

I. Introduction 

The Civil Rights and Liberties Division, established by G.L. c.12, § 11A, 
is one of the five Divisions within the Public Protection Bureau of the 
Department of the Attorney General. The Division operates to protect the 
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 
involving 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, five 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 
support personnel including three paralegals who staff a citizen complaint 
unit. In addition, the general counsel to the Security and Privacy Council is 
located physically within the Division and is available for specific case 
assignments in areas consistent with her expertise. 



38 P.D. 12 



II. Description of Activities 

Through Fiscal Year 1978, 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 
agency. Non-litigation activities included cases disposed of through 
preliminary 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 
patterns 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, whether 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 Against Physically Handicapped 

Age Discrimination 

Problems Involving Migrant Laborers 

Developmentally Disabled 

Women's Rights 

Housing 

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.71A, the Transitional 
Bilingual Education Act. The suit's objective was to ensure that every 
student within the New Bedford School system had access to education in 
his or her primary language, as required by law. After extensive 
negotiations, the School Committee agreed to implement the statute. 
Morgan v. Kerrigan. 

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

Dismissal of Collateral Attack on Morgan Order 



P.D. 12 39 

2. CORRECTION/YOUTH SERVICES 

Inmates of the John Connolly Detention Center v. Dukakis. 

Youths incarcerated 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 defendants, 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. Ongoing 
monitoring continues. 

3. EMPLOYMENT 

Bellotti v. Allyn and Bacon, Addison- Wesley and Houghton Mifflin. 

These are three employment cases alleging that publishing companies 
discriminate in their employment practices on the basis of sex and race. 
After receiving right to sue letters from the Equal Employment Opportunity 
Commission, the cases were filed in the United States District Court. 
Extensive discovery continues. 
Garden, et al. v. Houghton Mifflin. 

We intervened in this case alleging sex-based employment discrimination 
in the publishing industry. After extensive negotiations, a settlement was 
reached providing for implementation of an affirmative action plan and 
payments to members of the class. The total award in the case is for 
$880,000 back pay plus $65,000 in attorneys fees. 
Nardini v. Daka 

Complaint filed in MCAD on behalf of person alleging dismissal on 
account of race, 
a. WOMEN'S RIGHTS/EMPLOYMENT 

Grass Instruments v. MCAD 

Settlement of appeal from MCAD finding for woman dismissed from her 
job. She received cash payment because of the past discrimination. 
Attorney General v. Youth Enrichment Commission 

Complaint filed in MCAD alleging sexual harassment of women 
employees. 
Smith College v. Massachusetts Commission Against Discrimination 

Our appeal of an adverse Superior Court decision was argued before the 
Supreme Judicial Court in this case involving whether a decision not to 
grant tenure was discriminatory against women. The Supreme Judicial 
Court reversed and remanded the case to the Commission, setting a 
difficult standard for future determinations of discrimination. 

4. PRIVACY 

Police Commissioner of Boston v. Municipal Court of the Dorchester District 
The Supreme Judicial Court issued a comprehensive opinion upholding 

the power of a juvenile court judge in appropriate circumstances to expunge 

the court records of juveniles found not delinquent after a hearing. 

New Bedford Standard Times v. Clerk of the Third District Court of Bristol 
The newspaper brought suit alleging that it was improperly denied access 

to the alphabetical index of criminal offenders. We represented the judge in 



40 P.D. 12 



the action and defended the lawsuit on the grounds that the information 

sought was Criminal Offender Record Information. The Superior Court 

held that part of the Criminal Offender Record Information Act was 

unconstitutional as a violation of the doctrine of separation of powers and 

ordered access for the plaintiff. Our appeal to the Supreme Judicial Court is 

pending. 

Swan; v. Department of Banking and Insurance 

Plaintiff alleged a violation of the Fair Information Practices Act on the 
grounds that records pertaining to his insurance agency were improperly 
disseminated. Our motion to dismiss was granted on the grounds that 
plaintiff could not sue under FIPA. Plaintiffs appeal is pending. 
Commonwealth v. Doe 

The Third District court of Bristol granted a motion to expunge the 
record of a state trooper who was convicted of an offense while undercover. 

5. PUBLIC RECORDS 

Attorney General v. Assessors of Woburn 

We brought suit in the Superior Court seeking an order that field 
assessment cards were public records. The Superior Court found in our 
favor and the Supreme Judicial Court affirmed overturning a 1972 decision 
on the same subject. 
Attorney General v. Collector of Lynn 

We brought suit in the Superior Court seeking an Order that lists of 
delinquent tax records are public. Worcester. Clinton, and Adams 
intervened. The Superior Court held the records not to be public. Our 
appeal to the Supreme Judicial Court is pending. 
Hatch v. Commissioner of Revenue 

We unsuccessfully defended a public records case seeking lists of 
delinquent state taxpayers. No appeal was taken. 

Boston Globe v. Commissioner of Education, and Olympus Research Corp. v. 
Attorney General 

Defense of public records actions relating to vocational education 
records. 
Supervisor of Public Records v. City Clerk of Revere 

In this action, the Superior Court upheld a regulation of the Supervisor 
setting forth the maximum fee which custodians of public records can 
charge for providing copies. 
Attorney General v. School Committee of Northampton. 

This action was commenced 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 available 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 Supreme Judicial Court found a 
violation of the Open Meeting Law and held that the privacy exemption 



P.D. 12 41 



might protect the records of the non-semi-finalists. The Supreme Judicial 

Court affirmed. 

Hastings Sons Publishing Company v. City Treasurer of Lynn. 

The Supreme Judicial Court affirmed a Superior Court decision that 
salaries paid to police employees are public. 
D'Attillo 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. The Supervisor was dismissed as a party and the records were 
made public on December 9. 1977. 
Cunningham v. Health Officer of Chelsea. 

We filed an amicus curiae brief in the Appeals Court urging reversal of a 
Superior Court determination that housing inspection reports are not public 
records. We argued that specific statutory provisions made the records 
public and, even in their absence, no exemption to the public records law 
would exempt housing inspection reports from public disclosure. The case 
awaits argument. 

6. HEALTH 

Department of Public Health v. Sheriff of Plymouth County. 

In FY 1978, we negotiated a settlement with the Sheriff of Plymouth 
County who promised to provide complete physical examinations to 
inmates committed for more than 30 days and to keep complete medical 
records as required by statute. The County Commissioners agreed to 
provide the necessary funds. 
In re. Ora G. 

After a hearing, the Probate Court authorized use of an investigatory 
drug to treat an incompetent patient from a state hospital suffering from 
advanced cancer. 
Green v. Superior Court, and Custody of a Minor 

Involvement in first appeal of the Chad Green matter arguing that 
parents have no right to withhold necessary chemotherapy for acute 
lymphocytic Leukemia where chemotherapy has strong likelihood of saving 
child's life and no alternative therapy is offered. The Supreme Judicial 
Court agreed, holding that where parents seek to withhold necessary 7 life- 
saving medical treatment from a child, the state, acting through the care 
and protection process, should intervene to protect the child. Parents cannot 
assert privacy interests on behalf of their children where to do so will lead 
to the death of the child. 

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 



42 P.D. 1: 



to the physically handicapped. The Superior Court granted most of th 
relief sought. We negotiated settlement of the rest of the issues. 
Architectural Barriers Board v. Maxwell Silverman's Toolhouse 

Suit against restaurant alleging inaccessibility to handicapped. Su 
settled when restaurant agreed to make necessary changes. 

8. AGE 

Lewis v. Massachusetts General Hospital. 

Complaint filed in MCAD alleging dismissal because of age. 

9. MIGRANT LABOR 

Commonwealth v. Cumberland Farms. 

Unsuccessful lawsuit seeking determination that single-family housin 
provided to farm workers was migrant labor camp subject to Department c 
Public Health regulation. 

10. DEVELOPMENTALLY DISABLED. 

Superintendent of Belchertown State School v. Saikewicz. 

Defendant in this case was a 67 year-old retarded resident of a stat 
school for the mentally retarded. He was found to have acute termini 
leukemia and was given only months to live. Following the recommenda 
tion of a guardian ad litem appointed by the Probate Court, a probate judg 
ordered that chemotherapy treatment not be administered because the toxi 
side effects of the disease would outweigh any benefits. The judg 
concluded that such treatment would have serious debilitating conse 
quences for the patient, might prolong his life for a short time but woul 
not cure him of the disease, and would cause severe pain and suffering fc 
the patient. Further, the patient would not comprehend what wa 
happening to him nor would he be able to cooperate with the treatmen 
The Probate Court Judge reported the case to the Supreme Judicial Com 
and his Order was upheld in a case in which the Division filed an amicu 
brief supporting the guardian ad litem. Another bureau of the Departmer 
represented the petitioning superintendent and argued in favor c 
administering the chemotherapy. After nearly one and one-half years c 
consideration, the Supreme Judicial Court issued a comprehensive decisio 
describing the rights of competent persons to decline life-prolongin 
medical treatment and of incompetent persons not to have intrusiv 
medical treatment imposed upon their limited purposes. 

In re. Bassett. 

A brief was filed in Appeals Court upholding the authority of a Probat 
Judge to grant guardianship for persons requiring guardian for som 
purposes but not for all. 
Ricciv. Greenblatt 

With attorneys from the Government Bureau, we continue to represen 
the Department of Mental Health, and other state Defendants, in this sui 
challenging the conditions of the facility and the nature of care provided t 
mentally retarded residents at the Belchertown State School as well as a 
four other state institutions for the mentally retarded. Efforts for the pas 
six months have concentrated on the implementation of the Consent Deere 



P.D. 12 43 

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/OTHER 

Secretary of State v. City Clerk of Lowell 

The Supreme Judicial Court upheld our position that persons may 
choose the name by which they are generally known and that traditions 
concerning choice of names for women or children are not legally required. 
Opinion of the Justices Concerning H.J 726. 

Comment to the Supreme Judicial Court that Bill authorizing a drill 
team at a high school to be only for girls would violate State Equal Rights 
Amendment. The Supreme Judicial Court agreed. 
Opinion of the Justices concerning H.872. 

Comment to the Supreme Judicial Court that Bill to forbid girls from 
playing on football or wrestling teams would violate State Equal Rights 
Amendment. The Supreme Judicial Court agreed. 

12. Housing 

Department of Community Affairs v. Massachusetts State College Building 
Authority 

Complaint filed in Supreme Judicial Court for Suffolk County alleging 
that the Authority should be subject to relocation assistance Act requiring 
payments to persons displaced by State College construction. 

Attorney General v. Orantes. 

Suit filed in Superior Court alleging defendant refused to sell apartment 
house to interracial couple. A preliminary injunction was issued and 
discovery is in process. 
Building Inspector of Boston v. Coolidge. 

Representation of Commissioner of Youth Services as intervenor in 
action by City to close half-way house for delinquent youths. Court refused 
action pending decision by Board of Appeal. That decision is under 
advisement after a hearing. 

13. MISCELLANEOUS 
Carr v. Civil Service. 

Representation of Superintendent of Belchertown State School in civil 
service appeal by dismissed employee. Case is awaiting decision in Superior 
Court. 
Representative N on- Litigation Activity 

1. Beginning in late July, 1977, and continuing through the first several 
weeks of August, 1977, considerable effort on the part of all personnel in 
the Civil Rights Division was devoted to activities connected to 
demonstrations at Carson Beach. Among other things, members of the staff 
monitored the activities of various groups at Carson Beach, monitored 
prosecutions in the South Boston District Court, and served to coordinate 
efforts of the various law enforcement agencies involved, including the 
MDC Police, the Boston Police, the FBI, and the United States Department 
of Justice. 

2. In September, 1977, we concluded an investigation of allegations of 



44 P.D. 12 



mistreatment of prisoners by staff and administrative officials at the Suffolk 
County House of Correction on Deer Island. On September 9, 1977, a 
report of our findings and recommendations was presented to Boston City 
Officials with a request that the officials continue the investigation of Deer 
Island and take whatever action they felt appropriate at the conclusion of 
their investigation. 

Since the filing of our report with the Boston City Officials and the 
conclusion of the Boston City investigation, the Master of Deer Island 
House of Correction and four correctional officers have resigned. In 
addition, the Penal Commissioner has refused to renew the contracts of 
three provisional correction officers. 

3. In October, 1977, we were asked by the Governor to investigate 
allegations of physical abuse and related matters at MCI Walpole. We 
concluded our investigation in April, 1978. 

4. In February, 1978, attorneys of the Civil Rights Division investigated 
the use of security cells or "Blue Rooms" at MCI- Walpole, including a 
review of standards applicable to such cells, inquiries of correctional 
administrators in other states and the Federal Bureau of Prisons with 
respect to their use of such rooms, interviews with correctional department 
personnel and social service professionals familiar with the conditions at 
Walpole and on-sight visits. Information developed in our investigation 
was presented in a series of meetings with members of the Governor's staff, 
the Commissioner of Corrections, the Secretary of Human Services, and the 
Chairman of the Governor's Advisory Committee on Corrections. 

Following these meetings, the Commissioner of Corrections agreed to 
amend a bulletin issued by him on January 26, 1978, restricting the use of 
security cells and agreed to install basic furnishings and equipment in all 
such cells in Blocks 9 and 10 at Walpole as well as at MCI-Concord. 

5. In February, 1978, we learned that certain fuel companies were 
refusing to make deliveries in the Roxbury section of Boston following the 
murder of a fuel oil company truck driver. It was our belief that fuel oil 
companies could not refuse service to any one section of the city strictly on 
geographical lines. We were sympathetic, however, with the problem of the 
fuel oil companies and offered to assist them. Fuel oil companies who were 
reluctant to send their drivers to portions of Roxbury were asked to contact 
our office. In turn, we contacted the Boston Police Department and 
arranged for a sector car to escort delivery trucks into areas of Roxbury 
until streets in those areas became more passable through removal of snow. 

6. In March, 1978, staff of the division assisted in the organization and 
delivery of a conference held for representatives of law enforcement 
agencies on the topic of battered women. 

7. Other Non-Litigation Activity included: 

a. The completion of an agreement with R.L. Polk that door-to-door 
takers of a private city directory will clearly identify that they work for a 
private concern and not for a municipality. 

b. The drafting of Amendments to the Criminal Offender Record 
Information Act, the Fair Information Practices Act, and the Public 
Records Law. 



P.D. 12 45 



c. The completion of an agreement with Lechmere Sales Corporation 
concerning illegal use of lie detectors. 

d. Notifying high school principals concerning requirements for 
notification of parents and students under Chapter 622 providing 
opportunity for girls in interscholastic sports. 

e. Settlement with various hospitals concerning practice of not fulfilling 
responsibilities of providing free care under Hill-Burton program. 

f. Investigation into red-lining practices of banks and credit grantors. 

g. Comments to MCAD on proposed rules of procedure. 

h. Meeting with federal officers concerning the formula for the program 
of supplemental food for Women, Infants, and Children. 

i. Assistance to persons not properly compensated for work missed as a 
result of the blizzard of February, 1978. 

j. Agreement with Jordan Marsh, Co. regarding making new main store 
available for the handicapped. 

k. Comments to Department of Correction on proposed regulations for 
standards for county houses of correction. 

1. Comments to Department of Correction concerning proposed prison 
facility expansion. 

m. Comments to legislators concerning proposed amendments to state 
school breakfast law which would have made school breakfast programs 
optional. 

n. Comments to the State Parole Board concerning the Board's proposed 
guidelines for release decision-making. 

o. An opinion from the Attorney General to the Commissioner of the 
Department of Correction concerning inconsistencies between the 
mandatory one year sentence gun law and furloughs. 

p. Work with the Committee on Criminal Justice concerning affirmative 
action requirements of contract agencies. 

q. Service on a special DMH task force proposing regulations for the use 
of psychotropic drugs in schools for the mentally retarded. 

CONSUMER PROTECTION DIVISION 

I. LITIGATION 

In 1977-1978 we continued strong action in all areas which have become 
a hallmark of this Division: litigation; representation of consumers before 
the Departments of Public Utilities and Insurance; complaint mediation; 
and continued work on the promulgation of new regulations further 
defining consumer's rights. 

We filed 157 new cases, and 261 were pending from last year. 
Specifically we entered into 49 Assurances of Discontinuance, and 34 
Consent Judgments. 

II. COMPLAINT SECTION 

During this period the Complaint Section logged in 12,616 complaints 
and closed out 9,584. We recovered $530,751.79 for consumers in refunds, 
savings and goods or services. We accomplished this through the 
employment of over three hundred (300) volunteer complaint mediators. 



46 P.D. 12 

The computerization of complaints began on July 1, 1977. A microfiche 
reader has been put in the Complaint Section so that the computerized 
information can be easily obtainable. 

A 100-page training manual was written and is distributed as the new 
volunteers arrive. 

A total of 5,168 consumer complaints were referred to other state 
agencies, local consumer groups and other state attorneys general. 

III. INVESTIGATIONS 

Investigations have been conducted in the areas of real estate 
developments, billing practices, unit pricing, home improvement, swim- 
ming pools, textiles and advertising. 

Our major investigation this year, however, has centered upon 
compliance with the recently promulgated Motor Vehicle Regulations. 
Most automobile dealers in the Commonwealth have been visited once, and 
some twice thus far. Investigators fill out compliance check lists pertaining 
to the various requirements set forth in the regulations. When violations are 
found, letters are forwarded to the dealers advising them of our findings. If 
after receipt of the second warning letter the dealer fails to correct the 
violations, legal proceedings are initiated. 

As well as participating in the routine investigations, investigators 
continue to work on a day-to-day basis with attorneys obtaining 
information, supplying affidavits, and assisting with field work on past, 
present and future legal proceedings. 

IV. LOCAL CONSUMER GROUPS 

We have encouraged the formation of local consumer groups. In 1977- 
1978 there were thirty (30) local consumer groups in operation throughout 
the state. 

Each month meetings were held to allow all the groups to discuss current 
consumer issues, train newcomers to the program and exchange ideas. 

A Local Consumer Aid Fund in the amount of $250,000 was established 
by the Massachusetts Legislature in the Department of the Attorney 
General for the purpose of assisting regional consumer groups throughout 
the entire Commonwealth. These funds are to supplement local funding 
and volunteer efforts. Some of the major benefits this fund will provide are 
the computerization of consumer complaints and financial assistance for 
supplies and personnel. 

Attorney General Bellotti named a seven (7) member advisory 
committee to draft guidelines for the disbursement of these funds. The 
closing date for applications was December 19,1977. 

V. REGULATIONS 

Retail Advertising — The Retail Advertising Regulations promulgated 
by the Consumer Protection Division became effective on October 17,1977. 
These regulations attempt to insure truth-in-advertising. They closely 
outline the procedures to be followed by businesses in their advertising, 
dealing with pricing, introductory offers and other commonly deceptive 
advertising practices. We are in the process of monitoring these regulations 
for compliance. 



P.D. 12 47 

Motor Vehicle — All sections of the Motor Vehicle Regulations became 
effective on June 1, 1977 and are being closely monitored for compliance by 
our office. These regulations address themselves to all aspects of the sale, 
service and repair of automobiles. 

Debt Collection — These regulations are currently in the drafting stage. 
We anticipate holding public hearings in the Spring of 1979. 

Nursing Home — The Consumer Protection Division is investigating 
nursing homes in the Commonwealth for possible violations of state and 
federal laws prohibiting discrimination against Medicaid recipients, and the 
Attorney General's Nursing Home Regulations. Complaints have been 
received alleging discrimination against medicaid recipients in regard to 
transfer policies. 

All regulations are drafted pursuant to G.L. c. 93A with the assistance of 
advisory committees whose members are appointed by the Attorney 
General. These members are chosen on the basis of the individual's 
knowledge in the subject area being addressed. Public hearings are held in 
Boston and Springfield prior to the final version affording all concerned 
citizens and businesses alike to express their opinions and offer suggestions 
on the regulations being proposed. 

VI. INSURANCE SECTION 

During 1977-1978 the Insurance Section participated in every major 
ratemaking and regulatory proceeding before the Division of Insurance. In 
addition, a number of major 93A cases were filed against automobile 
insurance agents engaging in unfair and deceptive practices. 

In the area of automobile rates, the Section played a prominent role as 
an intervenor in hearings to fix and establish 1978 rates. The hearings 
consumed 24 days, and resulted in a radical new rates design which 
eliminates age, sex, and marital status as classification variables. The battle 
over competition continued into 1978, with the Commissioner deciding, 
consistent with the recommendations of the Insurance Section, to fix and 
establish rates for 1979. 

The Insurance Section intervened also in hearings considering a license 
application by an open panel Health Maintenance Organization. We were 
instrumental in changes in the license application which should insure 
solvency of the operation. 

The Insurance Section has been investigating insurance agencies within 
the Commonwealth for overcharging consumers. Suit has been filed against 
several of these agencies and there is presently an ongoing investigation 
involving other agents. 

VII. UTILITIES DIVISION 

A. Personnel and General 

During the past year, the Utilities Division employed six lawyers, one 
accountant, two economist/financial analysts, one group coordinator/ 
administrator and three secretaries. 

The Division represented the public and participated in the hearing of 
every general electric and gas rate case before the Department of Public 
Utilities during this period and every monthly electric fuel clause case. In 



48 



P.D. 12 



addition, the Division participated in the investigation into generic rate 
decision for electric rates before the Department, and also in the 
investigation into the propriety of Boston Edison Company's construction 
program (Pilgrim II). The Division also participated in the hearings before 
the Energy Facilities Siting Council on the long-range demand and energy 
forecast of each electric utility in Massachusetts. (In general, the Attorney 
General's Utilities Division continued as the most active and most 
professional consumer representative in all matters relating to utility rates 
and regulations in Massachusetts.) 
B. Specific Cases 

1. Boston Edison Company - Rate Case - D.P.U. 19300 - decided 
February 28, 1978; company requested approximately $70 million and 
received approximately $23 million. 

2. Boston Edison Company - investigation into the propriety of its 
construction program and capacity needs - Phase I (future energy and 
demand requirements) completed and briefed; Phase II underway. 

3. Massachusetts Electric Company - D.P.U. 19376 - company 
requested $18 million and received $2 million. 

4. Brockton Edison Company - company requested approximately $4 
million and received approximately $ 1 million. 

5. New England Power Company - three successive wholesale rate 
cases before the Federal Energy Regulatory Commission in various stages 
of discovery, trial and briefing. 

6. Fitchburg Gas and Electric Light Company - company requested 
approximately $6 million and received approximately $4 million. 

7. Cape Cod Gas Company and Lowell Gas Company - prosecution of 
two 93A cases for alleged improper overcharges continued; two appeals 
from last pair of rate cases continued; preparation for pending pair of rate 
cases begun. 

8. Miscellaneous fuel charge cases. 

9. Seven long-range demand and energy forecast cases. 

VIII. SPECIFIC CONSUMER PROTECTION LEGAL ACTIONS 
A. ADVERTISING 



Defendant 


Status/ Disposition 


County/ Court 


Lloyd O. Appleton & Kingsmount 


Assurance of Discontinuance 


Suffolk 


Robert P. Auer, d/b/a 






Bob Auer & Sons Enterprise 


Assurance of Discontinuance 


Suffolk 


Bob Auer & Sons Enterprise 


Consent Judgment 


Middlesex 


B&G Industries, Inc. 


In Litigation 


Norfolk 


Richard Boisvert 


In Litigation 


Hampden 


Brigham-Gill Pontiac AMC 


Assurance of Discontinuance 


Suffolk 


Chala Foods, Inc., Lawrence 






Drake, Ind. and as he is 






President and Treasurer 






of Chala Foods, Inc., 






Charles Waystack 


In Litigation 


Middlesex 


Columbia Research Corp. 


In Litigation 


Suffolk 


Commonwealth Builder's 






Supply, Inc. 


Assurance of Discontinuance 


Suffolk 



P.D. 12 



49 



Diversified Products Corp. 

d/b/a National Marketing 

Corp. 

Eardrum of New England, 

Inc., d/b/a Eardrum 

Edwards Wayside Furniture, 

Inc. 

Norman Gear, Individually 

and as Trustee of 56 & 60 

Commonwealth Associates 

Trust & Gerald Bern 

Golub Furniture, Inc. 

The B.F. Goodrich Company 

Kaplan's Furniture 

Co., Inc. 

William Kavanagh 

Furniture Company 

Lafayette Radio 

Electronics Corp. 

Lane's Furniture Co., 

Inc. (Brockton) 

Leisure Distributors, Inc., 

d/b/a Hi-Fi Buys 

Pieraway Electric Co. 

Emmanuel Medeiros, d/b/a 

TV and Radio Center 

Ephram Miller, d/b/a 

Miller's Furniture Co. 

National Business 

Association Directory 

New England Audio, Inc., 

d/b/a Tweeter, Etc. 

New England Furniture 

Corp. 

Northeastern Powerguard 

Corp., Powerguard Eastern 

Corp., Inc. and R.A. Wilson 

Contractors, Inc. 

Max Okun Furniture Co., Inc. 

George O'Neil, d/b/a Ace 

Motors 

Seiden Sound, Inc. 

Seiden Sound, Inc. 

Leonard B. Paul, d/b/a 

Town & Country Products 

Paul E. Petit, d/b/a 

TV and Radio Center 

Wholesale Furniture and 

Carpet Warehouse and 

Wholesale Furniture Co., 

Inc. 

Peoples Furniture Co., 
Of Everett 

Stanley Shuman, d/b/a 
Excellent Car Company 
Stanley Labovitz Assignee 
for Benefit for Andrews 
Furniture Creditors 
Sunup, Inc. 
Videsign, Inc. d/b/a 
Amherst Audio 



In Litigation 


Middlesex 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Hampden 


Consent Judgment 
Assurance of Discontinuance 


Suffolk 
Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


In Litigation 


S.J.C. 


Consent Judgment 
Consent Judgment 


Hampden 
Hampden 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Middlesex 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 
In Litigation 


Suffolk 
Hampden 


In Litigation 

Assurance of Discontinuance 


Middlesex 
Suffolk 


Consent Judgment 
Consent Judgment 


Hampden 

Hampden/ 

Housing 


Dismissed 


Bristol 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Middlesex 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 



Assurance of Discontinuance 



Suffolk 



50 



P.D. 12 



B. ANTI-TRUST 

Defendant 
Yankee Milk 

C AUTOMOBILES 

Back Bay Motors, Inc. 
Victor Belotti. Inc. 
Bonded Motors of Stoughton. 
d b a Bonded Dodge 
Edward J. Borlen d/b/a 
City Auto Sales 
Shirley Bragel d/b/a 
Avenue Auto Wholesalers 
Bob Brest Buick. Inc. 
Brockton Dodge. Inc. 
Carol Cars. Inc. 
Colonial Motor Sales. Inc. 
and Bruce Milton 
William Desautels 
David Eck. d/b/a Eck's 
Auto Sales 
Elro Enterprises. Inc. 
d/b/a Brockton Auto Whole- 
salers and Ronald Barreira 
Falmouth Datsun 
Falmouth Dodge. Inc. 
Walter A. Fife 
and Barbara A. Fife 
Fitchburg Ford Fiat 
Foreign Auto Import. Inc. 
Freedom Motors. Inc. 
In re: Dante E. Gregorie. 
Bankrupt 

Jay L. Horowitz and 
Maria Nunes d/b/a 
Gentlemen's Wear House 
Don Lamolino and Michael B. 
Iscaldi d/b/a Don's Gettv 
Service Station 
Thomas L. McManus and 
128 Sales. Inc. 
Main St. Auto Sales 
and Sen ice 

M.A.R. Auto Wholesalers 
Morris Motors. Inc. 
Francis A. O'Connor d/b/a 
Car Finders 

Thomas O'Connor d/b/a 
O'Connor Bros. 
Perry Pontiac, Inc. 
Jim Pierce Ford World 
Plaza Oldsmobile 
Lawrence A. Robichaud, d/b/a 
Robichaud Auto Sales and 
Service 

Schaffer Motor Car Co.. Inc. 
Muzi Motors. Inc. 



Status/ Disposition 


County/ Court 


Decision 


S.J.C. 


In Litigation 


Suffolk 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Norfolk 


In Litigation 


Hampshire 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Hampden 


In Litigation 


Hampden 


In Litigation 


Bristol 



In Litigation 



In Litigation 

Assurance of Discontinuance 

In Litigation 

In Litigation 

Assurance of Discontinuance 
Consent Judgment 
Assurance of Discontinuance 

In Litigation 



Norfolk 



In Litigation 


Plymouth 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Middlesex 


Assurance of Discontinuance 


Suffolk 


In Litigation 


Middlesex 


Consent Judgment 


Hampden 



U.S.D.C. 

Suffolk 

Hampden 

Middlesex 

Suffolk 

Berkshire 

Suffolk 

Hampden 



In Litigation 


Middlesex 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Worcester 


In Litigation 


Norfolk 


In Litigation 


Norfolk 



P.D. 12 



51 



Seacrest Cadillac/Pontiac, 

Inc. 

Smyly Buick, Inc. 

Stop & Go Transmissions 

of Lawrence, Inc. 

Taunton Sales, Inc. 

Topor Motor Sales 

Two Guys Antique Parts Co. 

Chicopee Antique Auto 

Supply, Frank H. Parks 

Toyota of Falmouth 

Kenneth T. Wasil, 

Michael Wasil 

West Springfield 

Chrysler- Plymouth et al 

BANKING & CREDIT 

Defendant 

Allied Bond & Collection 

Agency 

Rene Beaulieu, Individually 

and as President of Enterprise 

Cooperative Bank 

The Codman Company 

First National Bank of New 

Bedford 

Ford Motor Credit Co. 

In the Matter of General 

Motors Acceptance 

Corporation 

In re: Vincent Hale 

Margy E. Katzeff, Business 

Achievement Corp., and 

Julian H. Katzeff, Ind. and 

as Trustee 

Allen C. Keene (Int'l. 

Health Spa) 

New England Merchants Bank 

Northampton National Bank 

Frank Ramos 

World of Homes, Inc. 

Van Ru Credit Corp. 

CONTRACTS 

Defendant 
Welton Cuffee 
Edward Gray, d/b/a Picture 
Your World 
International Magazine 
Service of Boston, Inc. 
Kiddy Photographers, Inc. 
Suburban Lawn Services 



BILLING PRA CTICES/ HEALTH 

Defendant 

Alan G. Edwards, Jr., M.D. 

Interchurch Team 

Ministries, Inc. et al In Litigation 



Assurance of Discontinuance Essex 

Assurance of Discontinuance Suffolk 

Stipulation & Order Essex 

Consent Judgment Bristol 

In Litigation Hampden 



Final Judgment Hampden 

Assurance of Discontinuance Suffolk 



In Litigation 


Suffolk 


In Litigation 


Hampden 


Status/ Disposition 


County/ Court 


In Litigation 


U.S. DC. 


Consent Judgment 
Consent Judgment 


Suffolk 
Suffolk 


Assurance of Discontinuance 
Consent Judgment 


Suffolk 
Suffolk 


Assurance of Discontinuance 
In Litigation 


Suffolk 
U.S.D.C. 


In Litigation 


Middlesex 


In Litigation 

Consent Judgment 

In Litigation 

In Litigation 

Assurance of Discontinuance 

In Litigation 


Suffolk 

Suffolk 

Hampshire 

Bristol 

Essex 

Suffolk 


Status / Disposition 
In Litigation 


County/Court 
Hampden 


In Litigation 


Essex 


Assurance of Discontinuance 
Assurance of Discontinuance 
Assurance of Discontinuance 


Suffolk 
Suffolk 
Suffolk 


4LTH 

Status/ Disposition 
Assurance of Discontinuance 


County/Court 
Suffolk 



Plymouth 



52 



P.D. 12 



G. HEARING AIDS 



H. 



Defendants 


Status/ Disposition 


County/ Court 


Dee & Mahoney Inc., d/b/a 






Beltone Hearing Aid Service 


Final Judgment 


Hampden 


E & S Enterprises d/b/a 






Beltone Hearing Aid Service 


In Litigation 


Hampden 


HOME IMPRO VEMENTS/ APPLIANCE REPAIRS 




Defendants 


Status/ Disposition 


County/ Court 


Ralph Anderson and 
Anderson Construction Co. 






Consent Judgment 


Suffolk 


Frederick G. Andrews and 






Andrews Painting Co., Inc. 


In Litigation 


Norfolk 


John W. Jones, 






Jerry M. Jones and 






Battle Green Construction 


In Litigation 


Middlesex 


Paul Johnson d/b/a 






Factory Heating Service 


Partial Judgment 


Middlesex 


Kingsley Bristol d/b/a 






King Appliance Service 


In Litigation 


Suffolk 


William Siano, Jr. 


In Litigation 


Hampden 


William Sutter d/b/a 






Sutter's Home Improvements 


In Litigation 


Hampden 


Supreme Remodeling, Inc. 


In Litigation 


Norfolk 


INSURANCE 

Defendant 


Status/ Disposition 


County/Court 


Aetna Casualty and 






Surety Co. 


In Litigation 


Suffolk 


Brookfield Insurance Agency 






Inc., et al 


Consent Judgment 


Norfolk 


E.J. Bruce Ins. Agency, Inc. 






and Elmer J. Bruce, Jr. 






Individually and as President 






of E.J. Bruce Insurance 






Agency Inc. and Commercial 






Union Insurance Co., Trustee 


In Litigation 


Suffolk 


Sula Dodd, et al v. 






Commercial Union Ins. Co. 


Decision 


S.J.C. 


Motor Club of America 


In Litigation 


Worcester 


John C. Roche 


In Litigation 


Suffolk 



TKO Insurance Agency of 
Holyoke, Inc., et al 

J. LICENSING 

Defendant 

Eastern Atlantic Tractor- 
Trailer Training School 
Colonial Travel Service 
Counselors, Inc., Pedro P. 
Patino, President and 
Ingar C. Patino, Treasurer 
New England Tractor Trailer 
Training of Connecticut, 
Inc. 

South Eastern Academy, Inc. 
d/b/a New England Academy, 
Paul J. Rich 



In Litigation 

Status/ Disposition 
In Litigation 

In Litigation 
In Litigation 
In Litigation 



Hampden 

County/ Court 
Hampden 

Middlesex 
Hampden 
Plymouth 



P.D. 12 



53 



K. MOBILE HOMES 

Defendant 

Daniel Vassett, et al 

(Suburban Mobile Home Park) 

L. PRICING/FOOD 

Defendant 

Bi-Lo Food Warehouse, Inc. 

Brands Mart, Inc. 

Purity Supreme, Inc. 

Raymond Cournoyer d/b/a 

Ray's IGA Store & Walter P. 

O'Malley 

Waltham Camera, Inc. 

a/k/a Waltham Camera and 

Stereo 

Waldbaum Inc., d/b/a 

Food Marts 

M. REAL ESTATE/ HOUSING 

Defendant 
Acres & Acres 
William E. Aubin, William 
E. Aubin, Inc. and Northeast 
Land Limited Partnership 
Alfred L. Gladstone, Indiv- 
idually and as Trustee of 
Ridgewood Realty Trust and 
Michael F. Iodice, Sr. 
Robert J. Gregory d/b/a 
Hub Realty 

William Hartwick, Indivi- 
dually and as he is partner 
in Homes by Design 
Stephen Sesser, d/b/a 
Wonder Construction Co. 
Southbrook Real Estate 
Sales, Inc. 

Louraine E. Souther and 
Furmer H. Souther, d/b/a 
Brookside Acres Dev. Co. 
and Crest Realty 
William Walo and Richard 
Levine, d/b/a Homes by 
Design 

Alan Zuker, d/b/a Alan 
Realty 

N. SALES PRACTICES 

Defendant 
Lloyd Carr & Co. 
Timothy J. Rich et al 
Bonny Rigg Camping Club 
Julius Wilensky d/b/a 
Orleans Coal & Oil Co. 
Allied Construction 
Training Corporation 
Apartment Showcase 
Atlantic Richfield Co. 



Status/ Disposition 
In Litigation 

Status/ Disposition 

In Litigation 

Assurance of Discontinuance 

In Litigation 

Consent Judgment 



In Litigation 

In Litigation 
Consent Judgment 

Judgment 
Consent Judgment 
Consent Judgment 

In Litigation 

In Litigation 
Consent Judgment 



Status/ Disposition 
In Litigation 
Partial Judgment 
Assurance of Discontinuance 

In Litigation 

Assurance of Discontinuance 
Consent Judgment 
In Litigation 



County/ Court 
Bristol 

County/Court 
Hampden 
Suffolk 
Suffolk 

Suffolk 



Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Hampden 


Status/ Disposition 
In Litigation 


County/Court 
Essex 



Hampshire 

Middlesex 
Suffolk 

Suffolk 
Suffolk 
Plymouth 

Norfolk 

Middlesex 
Norfolk 



County/Court 
Suffolk 
Middlesex 
Suffolk 

Middlesex 

Suffolk 

Middlesex 

Suffolk 



54 



P.D. 12 



Bulk Meat Co., d/b/a 
Holyoke Packing Co., Inc. 
et al 

Robert E. Chalue 
Marquise China Company 
and Marquise Acceptance, 
Inc. 

Fafco Division V.S.I., Inc. 
a/k/a Valve Service 
International, Inc. 
Aaron Glickman, 
Individually and as d/b/a 
Aaron's Advertising Agency 
and A.C. Titus and Co., Inc. 
d/b/a Titus of Salem 
Ranaan Katz, Individually 
and as Trustee of Victory 
Realty Trust 

John W. Kilgo Associates, Inc. 
d/b/a Evelyn Wood Reading 
Dynamics Institute 
Michael J. Konior d/b/a 



In Litigation Hampden 

In Litigation Hampden 

Order Hampden 

Consent Judgment Middlesex 



In Litigation Suffolk 

In Litigation Suffolk 

Assurance of Discontinuance Suffolk 



Executive Dating Systems 


Judgment 


Suffolk 


Frank G. Rafferty 


Consent Judgment 


Norfolk 


Alan Rich 


In Litigation 


Hampden 


Richard Ryll. Individually 






and as Manager of Automotive 






Products Company, Inc. and 






Automotive Products Co., Inc. 


In Litigation 


Berkshire 


In the matter of Selective 






Singles 


In Litigation 


Norfolk 


Shaker Workshops 


Assurance of Discontinuance 


Suffolk 



Charles R. Stott. a/k/a 
George R. Scott; and George 
Michael Ward, d/b/a Town & 
Country Roofing, Waltham 
Roofing Service, Beacon Hill 



Roofing & Skylight Service 


In Litigation 


Middlesex 


Supreme Furniture Co., Inc. 
d/b/a Summerfield's 






Consent Judgment 


Suffolk 


Universal Marketing Corp. 


In Litigation 


Norfolk 


Medeiros Williams 






Chevrolet, Inc. 


Assurance of Discontinuance 


Suffolk 


Young Enterprises, Inc. 


In Litigation 


Suffolk 


Alex Zellin, d/b/a 






A-Z Appliance Co. 


Assurance of Discontinuance 


Suffolk 


O. SWIMMING POOLS 






Defendant 


Status/ Disposition 


County/ Court 


Pioneer Pools of Boston 






Inc. 


In Litigation 


Norfolk 



NURSING HOMES 

Defendant 

Louis Almeida, Individually 
and as Trustee of Forest 
Manor Nursing Home Trust, 
Highland Nursing Home Trust 
and as he is owner of Middle- 
sex Manor Nursing Home and 
Green Pastures Nursing Home 



Status/ Disposition 



Consent Judgment 



County/ Court 



Bristol 



P.D. 12 



55 



Berkshire Nursing Home, 


Inc. 


Consent Judgment 


Suffolk 


Kimwell Nursing Home 




Consent Judgment 


Norfolk 


QT Services, d/b/a 
Harvard Manor Nursing 


Home 


In Litigation 


Suffolk 


Twin Pines Corp. d/b/a 
Western Manor Nursing 
and Retirement Home 




Consent Judgment 


Middlesex 


Q. WARRANTIES 








Defendants 
Associated Pool 
Distributors, Inc. 




Status/ Disposition 
In Litigation 


County/ Court 
Norfolk 



IX. SPECIFIC INS URA NCE A CTI VITIES 

1. 1978 auto insurance case tried and briefed; a 24-day hearing involving radical and new 
rate design and rate level techniques applied to auto insurance rates. 

2. Blue Cross/Blue Shield 1977 Medex rate case, tried, briefed and won. 

3. Blue Cross/Blue Shield non-group coverage rate case, 1977, tried, briefed and won. 

4. Blue Cross/Blue Shied physician fee profile increase withdrawn. 

5. Fair Plan homeowner's insurance case, tried, briefed and won. 

6. Hearings under c. 175E, §5 to determine whether competition was working in the 1977 auto 
insurance market, tried, briefed and won. Hearings under C.175E, §5 to determine whether 
competition could operate effectively in the auto insurance market in 1979; tried, briefed 
and won. 

7. Hearings on plan of operation and rules of operation of the Massachusetts Motor Vehicle 
Reinsurance Facility for last portion of 1977; separate hearings on 1978 plan of operation 
and rules of operation. 

8. Brookfield Insurance Agency: 93A action commenced for violation of Attorney General 
Regulation on sale and financing of automobile insurance policies. Settled by consent 
judgment which provides for restitution to consumers. 

9. Mainstreet Insurance Agency: 93A action commenced for violation of Attorney General 
Regulation on sale and financing of automobile insurance policies. 

10. E.J. Bruce Insurance Agency: 93A action commenced for violation of Attorney General 
Regulation on sale and financing of automobile insurance policies. 



ENVIRONMENTAL PROTECTION DIVISION 
I. INTRODUCTION 

The Environmental Protection Division is established by statute, G.L. c. 
12, §1 ID, which also authorizes the Attorney General to take all necessary 
affirmative action to prevent or remedy damage to the environment. 

At the close of the fiscal year the Division was staffed by a Chief, seven 
Assistant Attorneys General, six secretaries and a Wetlands Scientist. The 
Secretary of Environmental Affairs and the Departments within his 
jurisdiction generate the bulk of the enforcement cases and defenses 
handled by the Division. In addition, following the mandate of G.L. c. 12, 
§1 IE), the Division initiates cases on behalf of the Attorney General in 
many areas of environmental concern. 

Massachusetts has a relatively 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. The Division is also the legal 
representative of the Energy Facilities Siting Council, which regulates the 
siting and construction of electrical generating facilities, oil pipelines and 
facilities associated with oil refining and production, and the Coastal Zone 
Management Office of the Executive Office of Environmental Affairs. 



56 P.D. 12 

During the past year, the Division was the recipient of federal grant 
funds. In recognition of the central role performed in Massachusetts by the 
Attorney General in the enforcement of federal and state and water 
pollution standards, the U.S. Environmental Protection Agency granted the 
Division $175,000 in FY'78. These monies have been used primarily for 
additional staffing. 

In addition to conventional legal responsibilities, attorneys for this 
Division sit as hearing officers in adjudicatory hearings held pursuant to 
the procedures of the Department of Environmental Quality Engineering. 

II. DESCRIPTION OF CA TEGORIES 

A. AIR 

Air pollution cases are usually referred from the Department of 
Environmental Quality Engineering, Division of Air and Hazardous 
Materials, for violations of the state Air Pollution Regulations. The 
most frequent violations of these Regulations at the present time 
seem to be municipal incinerators. The statutory authority is M.G.L. 
c. Ill, §42. 

B. WATER 

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

C. WETLANDS 

Wetlands cases are generally referred from the Department of 
Environmental Quality Management, Wetlands Section; the Depart- 
ment of Environmental Quality Engineering, Wetlands Division, or 
by citizen complaints. These cases fall into two categories: (1) cases 
involving the permit program for altering of wetlands under M.G.L. 
c.131, §40 and (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 M.G.L. c.131, §40A. 

D. SOLID WASTE 

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

E. BILLBOARD 

Billboard cases are referred from the Outdoor Advertising Board. 
These cases are governed by M.G.L. c.93, §§29-33, which regulate 
and restrict outdoor advertising and authorize a permit program. A 



P.D. 12 57 



majority are defenses to petitions for judicial review from decisions of 
the Outdoor Advertising Board. 

F. NON-CATEGORICAL 

A number of matters are handled by this Division each year which do 
not fall into the categories above. These are often those matters 
initiated or pursued by the Attorney General in areas of broad 
environmental policy, including, for example, nuclear power plant 
siting and construction, amicus curiae briefs to the Massachusetts 
Supreme Judicial Court and the United States Supreme Court, 
National Environmental Policy Act and Massachusetts Environmen- 
tal Policy Act cases, administrative interventions and energy policy. 

III. DISPOSITION OF CASES 

A. During FY'78, this Division opened the following numbers of cases 
in each of the listed categories: 

AIR 18 

WATER 73 

WETLANDS 38 

SOLID WASTE 35 

BILLBOARDS 31 

NON-CATEGORICAL 10 

Total number of cases opened during FY'78: 205 

B. During FY'78, this Division closed the following number of cases in 
each of the listed categories: 

AIR 18 

WATER 5 

WETLANDS 16 

SOLID WASTE 5 

BILLBOARDS 39 

NON-CATEGORICAL 3 

Total number of cases closed during FY'78: 86 

IV. NOTEWORTHY CASES 

This section includes a description of some cases of special significance 
to the Commonwealth either because they were the first of a particular 
type, because they had important precedential value or because they made 
a distinct contribution to the environment. 

DEPARTMENT OF ENVIRONMENTAL QUALITY ENGINEER- 
ING v. UNION PETROLEUM CORPORATION (1977) 

The Division filed a complaint based on the defendant's violation of 
the state air pollution statute and regulations. After negotiations, an 
Agreement for Judgment was executed that provided for the payment of 
a $12,000 civil penalty. This was the first such penalty collected for air 
pollution. 



58 P.D. 12 



DEPARTMENT OF ENVIRONMENTAL QUALITY ENGINEER- 
ING v. HOLLISTON SAND AND GRAVEL (1977) 

The Division sought the closure of the defendant's operations on the 
grounds that, in addition to violating the air pollution regulations, they 
constituted a public nuisance. Just before hearing on the Division's 
motion for preliminary injunction, the defendant agreed to install the 
necessary pollution abatement equipment and pay a penalty of $15,000 
for the creation of a public nuisance. This was the first Massachusetts 
case in which a public nuisance theory was pleaded for the purpose of 
receiving civil damages. 

DIVISION OF WATER POLLUTION CONTROL v. TOWN OF 
DIGHTON(1977) 

This was the first case in which a Court assessed a civil penalty 
($35,000) against a municipality under the Massachusetts Clean Waters 
Act. 

UNITED STATES OF AMERICA v. CITY OF LYNN AND COM- 
MONWEALTH OF MASSACHUSETTS (1977) 

The Environmental Protection Agency brought an action against the 
City of Lynn for failure to comply with the Federal Water Pollution 
Control Act, 42 U.S.C. §§1251 et seq. The Commonwealth of Massachu- 
setts was joined as a necessary party under the federal statute. Rather 
than defend the city, which had violated a state-federal water discharge 
permit, the Commonwealth brought a cross-claim against it under the 
Massachusetts Clean Waters Act. The Commonwealth prevailed on its 
motion for a partial summary judgment and the city agreed to a judg- 
ment which provided a schedule for the completion of construction of its 
wastewater treatment facility and payment of a $10,000 civil penalty for 
its past violations of the Massachusetts Clean Waters Act and its dis- 
charge permit. The federal government's claim is still pending. 

CONNECTICUT RIVER FISHWAYS CASE (1977) 

This Division represented the fishery agencies of all the states in the 
Connecticut River Basin (Massachusetts, Connecticut, New Hampshire 
and Vermont) in hearings before the Federal Power Commission seeking 
to require the Western Massachusetts Electric Company to install fish 
passage facilities at its dam at Turners Falls, Massachusetts. After evi- 
dence was presented, an agreement was reached which will require the 
company to complete two sets of facilities by 1980. 

Thereafter, the Division, on behalf of the same four states, entered 
into negotiations with New England Power Company, the licensee of the 
next three dams on the Connecticut (all of them on the New Hampshire- 
Vermont border). An agreement was reached establishing a schedule for 
the construction of fishways. 

These two agreements will allow Atlantic salmon and American shad 
to reach their historic spawning grounds on the Connecticut and its tribu- 
taries. 



P.D. 12 59 



MASSACHUSETTS v. ANDRUS, et al. (1978) 

This action was brought in Federal District Court to enjoin the Secre- 
tary of Interior from leasing oil and gas development rights in the 
Georges Bank area off the Massachusetts coast. The complaint alleged 
that the defendant was violating the Outer Continental Shelf Lands Act 
and the National Environmental Policy Act. 

On January 28, 1978, the court issued a preliminary injunction block- 
ing the opening of bids for the leases scheduled to take place on Febru- 
ary 1. On January 30 the First Circuit refused to stay the order pending 
its appeal. On March 7 the appeal was argued to the First Circuit and is 
awaiting decision. 

AMERICAN PETROLEUM INSTITUTE, et al. v. KNECHT, et al. 

(1978) 

This suit, brought by an oil industry association in Federal District 
Court for the District of Columbia, sought to enjoin the Coastal Zone 
Management Program. The Plaintiffs moved for a preliminary injunc- 
tion on April 28, 1978. At the same time we intervened on behalf of the 
Commonwealth. The injunction was denied. The matter was heard on 
cross motions for summary judgment and the court entered judgment for 
the Commonwealth on September 6, 1978. 

PUBLIC CHARITIES DIVISION 

I. REGISTRATION AND MONITORING OF CHARITABLE ORGAN- 
IZA TIONS. 

A. Annual Reports. The Division currently has registered with it 11,941 
charitable organizations, each of which is required to file annually with the 
Division either a Form PC or a copy of its annual probate account and to 
pay a filing fee of $15.00. For the fiscal year ending on June 30,1978, the 
Division had collected $85,410 in filing fees. 

B. Annual Report Form. On May 15, 1978, the Division held a public 
hearing with regard to the Form PC. The Division intends to make some 
changes in the Form PC based upon some of these recommendations. 

The Division has also been working with other states and with the 
Internal Revenue Service in an attempt to develop a national uniform 
reporting form for charitable organizations. This would enable charitable 
organizations to complete a single form which could be filed with every 
state, and perhaps with the IRS, instead of having to complete a myriad of 
different forms at great administrative cost to the charities. 

C. Advisory Committee on Public Charities. During fiscal year 1978, the 
Attorney General appointed an Advisory Committee on Public Charities. 
This Committee has been an excellent resource for the Division and has 
helped to draft both new legislation in the charities area and a new report 
form. The Committee members have also acted as liaisons with the 
charitable and professional fund-raising community and have helped 
generate widespread acceptance of the new report form and the proposed 
statutory changes. 



60 P.D. 12 



D. New Filing System. The Division adopted a new numerical system of 
open-shelved, color-coded files which has been approved and will be 
installed this Fall. Because the system is housed on open shelves, retrieval 
and re-shelving of files should be much easier and faster. 

E. Computerization. We have entered into a computer the names and 
account numbers of all registered charities so that we will have available a 
computer listing which will be up-dated regularly. The computer list will be 
on microfiche and we have obtained three microfiche readers. This will 
enable us to answer inquiries from citizens and to locate charity files more 
quickly than before. 

We have also prepared computer information sheets containing 
important biographical data from the charity files for each registered 
charity. 

F. Dissolution of Delinquent and Defunct Charities. Under G.L. c.180, 
§ 1 IB, the Attorney General has the authority to dissolve charitable 
corporations if they have failed to file their annual reports for two 
successive years or if they have become inactive. In fiscal year 1978, the 
Division filed the first of a series of dissolution petitions in the 
Massachusetts Supreme Judicial Court to dissolve some thirty-two 
delinquent and defunct charities. Bellotti v. Allston- Brighton Citizens 
Council, Inc. 

G. Suits to Enforce Charities Laws. In fiscal year 1978, the Division also 
filed a number of suits to enforce various provisions of the law of charities. 
Some of these suits are: 

Bellotti v. Byrd, Suffolk Probate Court. A suit to remove Richard E. 
Byrd, Jr. as trustee of the Admiral Richard E. Byrd Foundation, a 
charitable foundation created by Mr. Byrd's mother in memory of his 
father, Admiral Richard E. Byrd. The suit alleges that Byrd, Jr. has allowed 
the assets of the foundation to deteriorate and has not conducted any 
charitable activities with the Foundation's assets. After two days of trial, 
this case was settled by an agreement between the parties to remove the 
other trustee, to allow Richard to remain as a trustee, and to appoint three 
"neutral" trustees to run the Foundation. 

Perkins v. Rich, Plymouth Superior Court. This suit was brought by the 
members of a Unitarian Church in East Bridgewater to determine what had 
happened to the Church assets since 1962 when Paul John Rich, III had 
become the minister of the Church. The Attorney General was named as a 
defendant because a substantial amount of charitable trust assets 
(approximately $250,000) were unaccounted for. The Division participated 
in a lengthy Master's hearing on this matter. In addition, the Division has 
filed a counterclaim against an intervening bank which has a mortgage on 
the Church property claiming that the Bank accepted restricted trust funds 
as collateral for a general loan to the Church when it knew or should have 
known that the funds could not be used for that purpose. We are seeking to 
force the bank to return the money to the Church on the ground that it is a 
constructive trustee of the funds. 

Bellotti v. Star Island Corporation and Bellotti v. Christian Broadcasting 
Network, Suffolk Superior Court. These two companion cases were brought 
to determine whether the defendants, both of which claim to be 



P.D. 12 61 

incorporated and operated for "religious purposes", are exempt from the 
registration requirements of G.L. c.12, §8F. Both suits involve serious First 
Amendment issues. 

Bellotti v. Cuervels, Suffolk Superior Court. This case is still in the 
discovery stage. It is a suit brought against the former officers and directors 
of the Boston Council of Girl Scouts attempting to hold them personally 
liable for the deterioration of the council's assets, dissipation of the 
council's general funds which should have been used for Girl Scout 
activities and misuse of restricted trust funds. 

Bellotti v. Sylvester, Suffolk Superior Court. This action was brought to 
remove and surcharge the trustee of a charitable trust for taking excessive 
fees and for imprudent investment of trust funds. A preliminary injunction 
was obtained removing the trustee and appointing a temporary trustee. The 
case is now in discovery. 

Bellotti v. Swedish Mission Fund, Suffolk Probate Court. The Division 
filed an application to investigate this organization which was allowed by 
the probate court. 

II. MONITORING CHARITABLE SOLICIT A TIONS. 

A. Solicitation Certificates. The number of solicitation certificates issued 
by the Division jumped from 601 in fiscal year 1977 to 1,089 in fiscal year 
1978. Total filing fees increased from $5,750.00 to $10,598.40. The reason 
for the increase is that our new Form PC combines the annual report form 
with the application for a solicitation certificate. Thus many charities 
became aware for the first time that they were required to obtain such a 
certificate. 

B. Registration of Professional Fund- Raisers. There are currently 51 
professional fund-raisers and solicitors registered with the Division. Each 
charity is required to list on its annual report the name of its professional 
fund-raiser. We have instituted a procedure for cross-checking the Forms 
PC with the registrations of professional fund-raisers to ensure that all 
fund-raisers are registered. 

C. Suits to Enforce Solicitation Laws. In fiscal year 1978 the Division 
filed a number of suits to enforce the solicitation laws. Examples are: 

Bellotti v. Congress of Racial Equality. Suffolk Superior Court. This case 
ended in a consent judgment in which C.O.R.E. agreed to be permanently 
enjoined from using harassing solicitation techniques in Massachusetts. 

Bellotti v. Salvation Rehabilitation Center, Suffolk Superior Court. A 
preliminary injunction was obtained in this case against an organization 
which claimed it was soliciting funds to hold a Christmas party for needy 
children. In fact, no such party was ever held and the organization appears 
never to have conducted any charitable activities. 

Bellotti v. World Changers, Suffolk Superior Court. A preliminary 
injunction was also obtained in this case enjoining defendant from 
conducting any charitable solicitations in Massachusetts. The organization's 
solicitation materials are misleading in that they state that all funds 
collected will be used for needy children when, in fact, a large percentage of 
the funds are used for other pruposes. 

Bellotti v. Leavitt, Suffolk Superior Court. This action resulted in an 



62 P.D. 12 



injunction against Mr. Leavitt soliciting in Massachusetts. Leavitt claimed 
he was soliciting on behalf of a charitable organization, Italian American 
War Veterans, but the charity claimed it had not received any of the 
proceeds from his solicitations. 

III. PROBATE MATTERS. 

A. Wills Reviewed. In fiscal year 1978 the Division reviewed and set up 
files on 1,039 new wills in estates which either created charitable interests or 
in which there were no heirs. A para-legal has been able to review the wills 
satisfactorily thus relieving the attorneys of that burden. 

B. Accounts Reviewed. The Division received for review in fiscal year 
1978 2,391 trustee accounts, 65 accounts of administrators, 48 conservator's 
accounts and 580 executor's accounts. 

C. Litigation Matters. The Division was involved in 235 litigation 
matters which included petitions for cy pres, petitions for instructions, will 
contests, etc. Examples of some of those matters are: 

Chase, Trustee v. Pevear, Essex Probate Court. This case was commenced 
some time ago and involves various claims by the life beneficiaries and the 
Attorney General against the trustee of a trust fund with charitable 
remainder interests. We are seeking to remove and surcharge the trustee for 
self-dealing, imprudent investments, failure to pay taxes on time, etc. The 
case was tried before a Master who found in favor of the trustee. The 
Probate Court, however, has since found in favor of the income 
beneficiaries and the Attorney General. 

Samuels v. Attorney General, Supreme Judicial Court. This matter was 
decided in the Division's favor in January, 1978. The question was whether 
funds of the Massachusetts Pythian Relief Fund could properly be used for 
the purchase of land and construction of a regional hall for the use of the 
Grand Lodge, Knights of Pythias. The Attorney General argued and the 
court found that the Relief Fund was a restricted fund which must be used 
for aid to needy members of the Lodge and could not be used for the 
general purposes of the Lodge. 

Congregational Church of Chicopee Falls v. Attorney General, Supreme 
Judicial Court. This case has been briefed and is waiting to be argued. The 
Court has been asked to decide whether the Superior Court has jurisdiction 
to dissolve a Church corporation or whether the Supreme Judicial Court 
has exclusive jurisdiction in such matters. The case also presents the 
question of the scope of the court's discretion in determining how the assets 
of a dissolving charitable corporation are to be distributed. 

D. Common Trust Fund Accounts. The Division has begun to monitor 
the accounts of the large common trust funds which must file with us 
annually. In a number of instances we have filed appearances and objected 
to the allowance of the accounts because they were not a fair presentation 
of the fund's actual financial position as of the date of the account. The 
Division recently met with representatives of some of the banks and Judge 
Mary Fitzpatrick and agreed to a new format for presentation of these 
accounts. 



P.D. 12 63 



IV. PUBLIC ADMINISTRATION ESTATES AND ESTATES WITH 
NO HEIRS 

In fiscal year 1978, the Division opened files on 154 new public 
administration estates. Total escheats from public administration estates 
and no heirs estates were $269,093.66 from 94 estates. 

V. SPRINGFIELD OFFICE 

The Springfield office the Department of the Attorney General continues 
to be responsible for matters of concern to the Attorney General in the four 
Western Counties: Hampden, Hampshire, Franklin and Berkshire. 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, Employment Security Division, Collections, 
Public Charities, Victim of Violent Crime cases and election law violations. 
Only Consumer Protection matters originate in the Springfield office. 

The office also supplies personnel to the Board of Appeal on Motor 
Vehicles Liability Policies and Bonds for monthly sittings which consider 
approximately 20 cases per sitting. 

It is difficult to determine with accuracy the number of matters handled 
for the Administrative Division because many of the actions taken by this 
office on these cases involve the filing of a particular pleading, hearing on 
motions and the gathering of information without actually handling the 
entire case. The same is true of Eminent Domain and contract cases. 
During 1977-78 a total of 28 new cases were received in their entirety from 
the above mentioned divisions. 

The Consumer Protection section of the Springfield office was again 
quite active. In 1977-78 some 64 investigations were conducted resulting in 
10 Assurances of Discontinuance, 9 Consent Judgments, 6 Preliminary 
Injunctions and 1 contempt action. The above actions covered a wide range 
of industries including automobiles, photography, door-to-door sales, mail 
order solicitations, and advertising. 

The section in conjunction with the Massachusetts Public Interest 
Research Groups and the Consumer Action Center of Springfield 
conducted an indepth survey of unit pricing in the Western Massachusetts 
area. The action resulted in several complaints being filed and consent 
judgments being obtained. 

A systematic monitoring system for consent judgments, advertising and 
motor vehicle regulations was established. 

In addition to the formal investigations, some 161 individual complaints 
were received from areas not represented by a local consumer center. Of 
these complaints 138 were resolved. 

The Springfield office in 1977-78 conducted public hearings on the 
proposed retail advertising regulations, fulfilled speaking engagements for 
numerous groups, and helped to establish a new Consumer Center at 
Holyoke Community College. 

The staff consists of one Administrative Assistant, two Assistant 
Attorneys General, two investigators, and two secretaries. 



64 P.D. 12 

Number 1 July 18, 1977 

Jonathan E. Fielding, M.D. 

Commissioner 

Department of Public Health 

600 Washington Street 

Boston, MA 021 11 

Dear Commissioner Fielding: 

You have requested my opinion on the responsibility of the Department 
of Public Health (D.P.H.) concerning the proposal of the City of Lawrence 
to convert the Bessie M. Burke Memorial Hospital (the Burke Hospital) 
into a long-term care nursing home facility for the elderly. Your question is 
whether St. 1973, c. 923 (c.923) and St. 1971, c. 596 (c.596) relieve the city 
from the obligation to comply with the statutory determination of need 
process set forth in G.L. c. Ill, §§25B-25G. 

In my judgment neither c. 923 nor c. 596 exempts the Burke Hospital's 
conversion from the procedures established by G.L. c. Ill, §§25B-25G. The 
city and D.P.H. therefore are required to follow the provisions of §§25C 
and 25D with respect to a determination of need by D.P.H. for a nursing 
home on the site of the Burke Hospital before the city proceeds to convert 
the hospital into that type of long-term facility. 

The relationship of c. 923 ' and c. 596 2 — both special laws relating 
specifically and directly to the Burke Hospital — to G.L. c. Ill, §§25B-25G, 
is not entirely a new question. In Commissioner of Public Health v. The 
Bessie M. Burke Memorial Hospital, 366 Mass. 734 (1975), (cited hereafter 
as Commissioner v. Burke Hospital) the Supreme Judicial Court considered 
and upheld the constitutionality of the two special laws in light of the 
generally applicable determination of need procedure set forth in G.L. c. 
Ill, §§25B-25G, and its predecessor statute. The court's opinion describes 
in detail the factual circumstances of the special laws' enactments. Id. at 
735-38. It is helpful to summarize these facts in order to provide 
background to your present opinion request. 

In 1971, the Legislature passed St. 1971, c. 1080, entitled "An Act to 
prevent unnecessary expansion of health care facilities during the period 
ending [May 31, 1972]." The Act required, as a condition of commencing 
construction of a new health care facility or renovating an existing facility, 
where an expenditure of $100,000 or more was involved, that D.P.H. make 
a "determination" that a "need" existed for the new or renovated facility. 



'Chapter 923 provides in pertinent part: 

Notwithstanding the provisions of chapter seven hundred and seventy-six of the acts of nineteen hundred and seventy-two 
[enacting G.L. c. Ill, §§25B-25G), or any other contrary provision of law, the commissioner of public health is hereby 
authorized and directed to issue a certificate of need and a temporary hospital license to the city of Lawrence for the 
continued operation of the Bessie M. Burke Memorial Hospital. This certificate of need shall not be withheld pending the 
issuance of a certificate of safety nor shall a certificate of safety be withheld because a certificate of need has not been issued. 
Said city of Lawrence is hereby authorized and directed to expend such sums of money as were authorized by chapter five 
hundred and ninety-six of the acts of nineteen hundred and seventy-one to remodel, reconstruct, enlarge, make extraordinary 
repairs to, re-equip and refurnish said Bessie M. Burke Memorial Hospital 

'Chapter 596 provides in pertinent part: 

SECTION I. For the purpose of remodeling, reconstructing, enlarging, making extraordinary repairs to, re-equipping and 
refurnishing the Bessie M Burke Memorial Hospital, the city of Lawrence may borrow, within a period of two years from the 
passage of this act, such sums as may be necessary, not exceeding, in the aggregate, one and one half million dollars, and may 
issue bonds or notes therefor, which shall bear on their face the words, Lawrence Hospital Remodeling Loan, Act of 1971. . 



P.D. 12 65 

The statute also required that a determination of need be made before a 
facility could substantially change the services it offered. 3 In 1972, the 
Legislature enacted G.L. c. Ill, §§25B-25G, which made the determination 
of need process of c. 1080 a permanent statutory requirement for 
construction, alteration and changes in services of health care facilities. St. 
1972, c. 776, §3. See Commissioner v. Burke Hospital, supra at 736-37, 738- 
39. 

On August 5, 1971, the Legislature passed c. 596, authorizing the city of 
Lawrence to borrow up to $1,500,000 to finance improvements in the Bessie 
Burke Hospital (See n. 2 supra). Although the city subsequently approved 
the funding and contracted to have the hospital renovations in question 
performed, city officials suspended work under the construction contract 
when they learned that the alterations were subject to the then-new 
determination of need statute, St. 1971, c. 1080. Commissioner v. Burke 
Hospital, supra at 736. Thereafter, on December 29, 1971, the Burke 
Hospital applied for a determination of need in accordance with c. 1080. 
The Public Health Council denied the application on April 11, 1972. Id. 

The Burke Hospital did not seek judicial review of this denial. It turned 
instead to the Legislature, which on October 17, 1973, enacted c. 923 as an 
emergency law (See n. 1 supra). Commissioner v. Burke Hospital, supra at 
737. 4 On June 25, 1975, the Commissioner and the Public Health Council, 
pursuant to the judgment entered in that case, issued a "certificate of need" 5 
and a "hospital license" 6 to the Burke Hospital. 

Moving in time beyond the previous litigation, you have informed me 
that in 1976— for reasons unrelated to the earlier case and not relevant to 
this opinion — the Burke Hospital was decertified from continued 
participation in the federal Medicare program 7 as well as the state- 
administered Medicaid program. 8 As a result, in September, 1976, the 
hospital was closed, following the dismissal of an action in federal court to 
enjoin the closing. 9 You have further explained that on January 18, 1977, 
the voters of Lawrence "passed a binding initiative referendum mandating 
that the Lawrence City Council expend the money provided by Chapter 596 
of the Acts of 1971 to remodel and repair the institution so that it could be 



'"Health care facility" was defined in c. 1080 to include both hospitals and nursing homes supported in whole or in part by 
public funds. A "determination of need" has been defined by D.P.H. as "the formaldecision of the Department . . . relative to 
the need of the project proposed in an application". Massachusetts Determination of Need Regulations (DON Regs), Part 5 
(12). appearing in Mass Reg. Special Issue No. 32 at 20 (1976); the "Department" is defined as the Commissioner of Public 
Health and the Public Health Council. Id. Part 5(10). 

4 It was to challenge c.923 (inter alia) under arts. 10 and 30 of the Declaration of Rights of the Massachusetts Constitution and 
the Fourteenth Amendment to the United States Constitution that your predecessor commenced the action at issue in the 
cited opinion. As mentioned, the court upheld the statute's constitutionality. Commissioner v. Burke Hospital, supra at 744. 

■ This certificate, mentioned in c 923, appears to signify the written "determination of need" issued by D.P.H. in response to 
an application. See DON Regs. Part 54.8. appearing in Mass Reg. Special Issue No. 32 at 60-61 (1976). 

'■SeeG.L. c. Ill, §51. 

'S«?42U.S.C. §m5etseq. 

»See42 U.S.C. §1396 el seq.; G.L. c. 1 18E. 

''The Friends of the Bessie M. Burke Memorial Hospital v. The Trustees of the Bessie M Burke Memorial Hospital. C.A. 76- 
1452-S (D. Mass. June 21, 1976), affd, No. 76-1316 (1st. Cir. Oct. 8,1976). 



66 P.D. 12 

used as a Long-term Nursing Care Facility." 10 It is in light of the January 
18, 1977, vote and of inquiries from both officials and citizens of Lawrence 
that you ask whether c. 923 and c. 596 exempt the establishment of a long- 
term nursing care facility on the site of the Burke Hospital from the 
determination of need process set forth in G.L. c. Ill, §25C. 

The court's decision in Commissioner v. Burke Hospital, supra has laid to 
rest any argument that the Legislature is without constitutional authority to 
enact special legislation exempting a hospital or presumably a nursing 
home from complying with the determination of need process." The sole 
issue raised by your request is whether c. 923 and c. 596 12 themselves show 
a legislative intent to exempt the Burke Hospital in 1977 from the 
determination of need process otherwise applicable to its conversion to a 
long-term nursing care facility and thus require you to issue both a 
certificate or determination of need and a nursing home license to the 
hospital. Chapter 923 is a special act, a type of law defined as: 

Legislation addressed to a particular situation, that does not 
establish a rule of future conduct with any substantial degree of 
generality, and may provide ad hoc benefits of some kind for an 
individual or a number of them. Commissioner v. Burke 
Hospital, supra, 366 Mass. at 740. 

There have been many Massachusetts cases which address the 
constitutionality of particular special acts. Compare, e.g., Gray\. Salem, 271 
Mass. 495 (1930) (legislative granting of a pension to particular employee 
held constitutional) with Holden v. Paddock, 347 Mass. 230 (1964) 
(legislative extension of statute of limitations in particular case held 
unconstitutional). There appear to be no Massachusetts decisions or 
relevant cases elsewhere, however, which establish general principles for 
construing the scope of special legislation. Nevertheless, the case law 
governing the construction of statutes which confer privileges or franchises 
on particular individuals or entities is instructive. See, e.g., Prudential Ins. 
Co. of America v. Boston, Mass. Adv. Sh. (1976) 182, 189; Tilton v. 
Haverhill, 311 Mass. 572, 579 (1942); Boston Elev. Ry. Co. v. 
Commonwealth, 310 Mass. 528, 565 (1942). 

These cases all establish that a grant of a privilege by public authority to 
a private individual is to be strictly construed against the grantee and in 



"The January 18, 1977. vote was an "lnititative" under Section 64 of the Lawrence City Charter enacted by Mass. St. 191 1, c. 
621 rather than a referendum The January 18. 1977, ballot contained two questions: (1) "Shall the measure adopting an 
order calling for bids, awarding contracts, and taking such further action as is necessary for the expenditure of monies 
already borrowed for remodeling. . the Bessie M. Burke . . be passed"; (2) "Shall the measure adopting an order 
determining it shall be the policy of the City Council to continue the operation of Bessie M. Burke Hospital for long term 
care of the citizens of Lawrence, and directing the Trustees . . to reopen said hospital forthwith for said purpose and take 
such other action as shall be necessary for licensing with State Authorities for said purpose . [be passed]." 

'The court emphasized that in the case before it there was no allegation of specific injury to another individual or entity or a 
competitor hospital arising out of the legislatively-mandated determination of need for the Burke Hospital. 366 Mass. at 744- 
45. The court did not indicate the extent to which such facts might, if proved, render c 923 constitutionally invalid. However, 
you have not mentioned any specific injury that might arise from the Burke Hospital's conversion to a nursing home facility. 
I assume, for purposes of this opinion, that a legislative directive as to the conversion would be constitutional. 

; Allhough your opinion request cites both c. 923 and c. 596, c. 923 is the real statute at issue Only c. 923 gives life to the 
borrowing authority in c. 596 beyond the original two-year limitation Moreoever, it is c 923 which, if applicable here, 
contains the specific direction to you with respect to the Burke Hospital's conversion. Accordingly, the following discussion 
will concern only c. 923. 



P.D. 12 67 



favor of the public. 13 In substance, c. 923 confers a special grant on the 
Burke Hospital by exempting it from the general regulatory scheme 
applicable to all other hospitals. Accordingly, in my opinion c. 923 should 
similarly be construed in strict terms, and should not be read to extend 
benefits in excess of those expressly provided. 

Chapter 923 specifically "authorized and directed" the Commissioner of 
Public Health "to issue a certificate of need and a temporary hospital 
license to the city of Lawrence for the continued operation of the Bessie M. 
Burke Memorial Hospital" (see n. 1, supra). The statute makes no mention 
of a determination of need for a long-term care nursing home facility nor 
does it mention a nursing home license. 14 Conversely, the general statutes, 
G.L. c. Ill, §25B-25G, mandate a determination of need as a prerequisite 
to substantial renovations or construction of all health care facilities, 
including both hospitals and nursing homes. Further, the statutory 
determination of need procedure was enacted as an emergency law for the 
express legislative purpose of "providing forthwith for the appropriate 
allocation of certain resources for provision of health care services in the 
Commonwealth." St. 1972, c. 776, emergency preamble; see G.L. c. Ill, 
§25C, second paragraph. 

There is unquestionably a significant difference between the need for 
additional hospital beds in a particular area and the need for additional 
nursing home facilities. The Legislature presumably made a judgment in 
1973 as to the appropriateness of exempting the proposed 1973 renovations 
at the Burke Hospital from the determination of need process, but since that 
time the hospital has closed for wholly independent reasons. Its possible 
reopening as a nursing home facility is a contingency which I do not 
assume the Legislature contemplated when enacting c. 923 four years 
earlier. 

In light of the significant changes in circumstances which have occurred 
subsequent to the enactment of c. 923, as well as the existence of separate 
statutory licensure provisions for hospitals and nursing homes, I conclude 
that c. 923 does not exempt the conversion of the Burke Hospital from the 
determinationn of need process prescribed by G.L. c. Ill, §§25B-25G. 
Accordingly, it is my opinion that, absent further legislation, D.P.H. must 
first make a determination that the need exists for a nursing home facility 
on the site of the Burke Hospital prior to the issuance of an affirmative 
determination of need under G.L. c. Ill, §25C. 15 Very truly yours, 

FRANCIS X. BELLOTTI 
Attorney General 

IJ ln the Prudential case, for example, the plaintiff insurance company undertook a redevelopment project pursuant to a statute 
which entitled the company to a six percent return on its investment on the project as well as other advantages. See G.L. c. 
121A, §1 el seq.; Prudential, supra, Mass. Adv. Sh. (1976) at 183-184. Boston later adopted a rent control statute and applied 
its provisions to all rental units including those m the Prudential Center complex. The company claimed that G.L. c. 121 A 
insulated it from operation of the rent control act, but the court held the rent control statute applied Id. at 193. In so holding, 
the court stated that it was "dealing with a public grant, which is to be 'construed strictly against the grantee. Nothing will be 
included in the grant except what is granted expressly or by clear implication.' " Id at 189 quoting from Attorney General v. 
Jamaica Pond Aqueduct Corp., 133 Mass. 361, 365-366 (1822). See tilton v. Haverhill, supra, 311 Mass. at 574/579; Boston 
Elev. Ry. Co. v. Commonwealth, supra; G.L 564-565 

H Nursing homes and hospitals are licensed under entirely different statutes Compare G.L. c. Ill, §71 (nursing and 
convalescent homes, town infirmaries, rest and charitable homes for the aged) with c. Ill, §51 (hospitals, institutions for 
unwed mothers, clinics). Moreover, under a 1973 amendment to G.L c 111, §25C — St. 1973, c. 1 168, §§20, 21 — applications 
for determination of need with respect to long-term care facilities licensed under c 111, §71, must be provided the 
Department of Elder Affairs for review and comment. 

"It also follows that D.P.H. must consider and follow the procedures set forth in G.L. c. 1 1 1, §71, with respect to the possible 
issuance of a nursing home license for the Burke Hospital 



68 P.D. 12 

Number 2 July 26, 1977 

Gregory R. Anrig 

Commissioner 

Department of Education 

182 Tremont Street 

Boston, Massachusetts 

Dear Commissioner Anrig: 

You have requested my opinion regarding the definition of the word 
"teacher" in G.L. c. 71, §38. Section 38 provides in pertinent part: 

It [the school committee] shall elect and contract with the 
teachers of the public schools .... 

. . . No election, contract or promotion of a teacher shall be 

made by a school committee unless such person shall have been 

nominated for such election, contract or promotion by the 

superintendent of schools. 1 

You ask whether the term "teacher" is to be interpreted narrowly to 

include only persons occupying classroom teaching positions, or broadly, to 

include "all professional personnel employed by a school committee such as 

principals, assistant principals, supervisors and directors of curriculum, 

coordinators, department heads, guidance counselors, school psychologists, 

school librarians, media specialists and others who serve in a professional 

capacity." You state that the Department of Education has adopted the 

broad interpretation. It appears, however, that certain school committees 

have refused to accept this construction, contending that "teacher" means 

only those performing a traditional classroom teaching function. {See n. 1 

supra). 

For the reasons discussed below, I conclude that "teacher" in §38 should 
be interpreted to mean professional personnel employed by school 
committees, including those employees whose positions are part of, or 
closely related to, traditional classroom teaching functions. However, I 
believe that the term should not be read to include certain other 
professional employees 2 whose responsibilities are less akin to those of the 
classroom teacher, and whose hiring is specifically governed by other 
statutes. 

The word "teacher" is not defined in G.L. c. 71, §38, nor has it received a 
judicial construction to date. The task of defining the term is made more 
difficult than in many cases because in various sections of c. 71 "teacher" 
has been given different meanings. 3 Ordinarily a word used in different 



'The superintendent's responsibility over nomination of "'teachers" is the result of a 1974 amendment to St. 1974, c. 342. §38. 
You have informed me that a number of disputes between school committees and their superintendents have developed over 
the specific positions which are subject to the nomination power of the superintendents under the amended §38 For example, 
in one town, a school committee appointed two teachers and a guidance counselor without the superintendent's nomination 
and over his objection Your office has been called upon to issue opinions to school systems on the requirements of the 
statute. You have requested this opinion in order to clarify the statute's meaning so that you may properly advise school 
committees on their responsibilities under §38, and obtain compliance from them with the statute's provisions. 

2 I would include in this category school superintendents, attendance supervisors, school physicians and nurses, athletic 
directors, coaches, and school adjustment counselors 

'Some sections, such as §38G, use the term "teacher" in the specific sense of regular classroom instructors. See also §41 A. In 
other sections, the word "teacher" has a broader meaning. Thus, in construing §42, governing dismissals of teachers and 
superintendents, the Supreme Judicial Court has read the word "teacher" to include "principal". McCartin v. School 
Committee of Lowell, 322 Mass. 624, 628 (1948). See also Kaplan v. School Committee of Melrose, 363 Mass. 332. 336-338 
(1973) (director of elementary art is "teacher" for purposes of §43, governing salary reductions of teachers and 
superintendents). 



P.D. 12 69 

parts of a statutory scheme is given the same meaning throughout. E.g., 
Arnold v. Commissioner of Corporations & Taxation, 327 Mass. 694, 700 
(1951); cf Commonwealth v. Baker, Mass. Adv. Sh. (1975) 1875, 1889. 
Obviously the rule is inapplicable here, and I have been forced to utilize 
other tools of statutory construction in order to answer your question. 

In considering the meaning of "teacher" in c. 71, §38, 1 follow the general 
rule that a statute is to be interpreted to effectuate the legislative purpose it 
embodies; and that where a number of statutes relate to the same subject 
matter, they should be construed together, in order to form a "harmonious 
whole, consistent with the legislative purpose." Board of Education v. 
Assessor of Worcester, Mass. Adv. Sh. (1975) 2626, 2629-2630, and cases 
cited. 

The question you have posed concerns fundamentally the allocation of 
authority between school committees and superintendents. General Laws, 
c. 71, §37, invests the school committee with "general charge of all the 
public schools." Included among the committee's duties is the power set 
forth in §38, to "elect and contract with teachers of the public schools." 
Section 59 of G.L. c. 71 provides that the superintendent shall be: 

the executive officer of the [school] committee, and under its 

general direction, shall have the care and supervision of the 

public schools . . . and shall recommend to the committee, 

teachers, textbooks and courses of study. 

The purpose of §59 was to insure that the school committee, which "cannot 

. . . know much about the qualifications of teachers ... or the supervision of 

instruction", obtained the "expert knowledge" of the superintendent, who 

"should know more than any of the school committee regarding 

educational practice." 1910-1911 Annual Report of the Board of Education 

at 270-27 1. 4 See Crudden v. Superintendent of Schools of Boston, 319 Mass. 

686,688(1946). 

A broad definition of "teacher" in §38 is consistent with the advisory 
mandate given the superintendent in §59. It also advances the section's 
purpose of separating the functions of school committees and superinten- 
dents according to their respective areas of compentence or expertise. See 
1910-191 1 Annual Report, supra at 270; Mass.H.R. 164 at pp. 25-26 (191 1). 
A superintendent's expertise with respect to personnel who provide 
instruction is not naturally limited to judgments about classroom teachers; 
it is reasonable to assume that the superintendent would also be better 
informed than the school committee about the qualifications of principals, 
guidance counselors, and many other professional staff within the schools. 
Requiring the superintendent's recommendation for a broad class of 
professional school personnel under §38 leaves intact the school 
committee's ultimate control over contracts with all school department 
employees, but makes maximum use of the educational training and 
background of the superintendent in the hiring process. See Crudden v. 
Superintendent of Schools of Boston, supra at 688. 

Furthermore, a broad construction of "teacher" in §38 is required in 
order to read that section in harmony with G.L. c. 71, §38G, the related 

'The present version of §59 was enacted in 1 9 1 1 , St. 1 9 1 1 , c. 444, at the recommendation of the Department of Education, see 
Mass.H.R. 164 and 1760(191 1); the Department's quoted annual report explained the purpose of the statute. 



70 P.D. 12 



statute governing certification of most public school professional staff. See 
Board of Education v. Assessor of Worcester, supra at 2629. Section 38G 
expressly contemplates that school committees will employ the types of 
professional staff whose certification it prescribes, for the statute provides in 
part that: 

No person shall be eligible for employment by the school 

committee as a teacher, principal, supervisor, director, guidance 

counselor and director, school psychologist, school librarian, 

audio-visual media specialist, unified media specialist, school 

business administrator, superintendent of schools or assistant 

superintendent of schools unless he has been granted by the 

board a certificate with respect to the type of position for which 

he seeks employment .... 

With respect to many of the professionals listed, however, no statutory 

provision specifically authorizes a school committee to hire them. 5 If 

"teacher" in §38 were interpreted to mean only a person performing 

traditional classroom teaching duties, a school committee would be without 

power to contract with the other types of staff whose employment is not 

only intended, but indeed necessary if the committee is to meet its 

educational responsibilities under G.L. c. 71, as well as c. 71 A (bilingual 

education) and c. 7 IB (special education). 

Finally, a broad interpretation of the term "teacher" in §38 is consistent 
with the cases construing other sections of c. 71. As mentioned, the Supreme 
Judicial Court has interpreted the term "teacher" in the dismissal statute, 
G.L. c. 71, §§42 and 43 to include principals and certain other positions. 6 If 
"teacher" includes a principal within its definitional scope when it appears 
in those sections, it is only reasonable to assume that the term is also broad 
enough to cover other types of professional personnel who are likely to be 
performing more direct teaching functions than the principal himself, such 
as media specialists, librarians, guidance counselors, etc. 

I now turn to the question, raised indirectly by your letter, whether all 
professional staff with which a school committee contracts are included in 
the term "teacher" as used in G.L. c. 71, §38, so as to require nomination by 
the superintendent before the committee may hire them. Cf Bonar v. 
Boston, Mass. Adv. Sh. (1976) 240, 245 (special statute applicable to Boston 
provides no "person" shall be elected or appointed by school committee 
unless nominated by superintendent). It is my opinion that they are not all 
included. 

Examination of G.L. c. 71 and related statutes shows that the Legislature 
has enacted a number of provisions expressly authorizing school 
committees to employ or appoint specific categories of professional school 
personnel. The categories of personnel whose hiring or appointment is 
covered by specific statutes include the following: school superintendents 



'For example, supervisor, director, guidance counselor and director, school psychologist, audio-visual media specialist, unified 
media specialist, school business administrator, assistant superintendent. 

''See McCanin v. School Committee of Lowell, supra at 628; Boody v. School Committee of Barnstable, 276 Mass. 134. 138 
( 193 1 ), both construing §42. As to §43, see Downey v. School Committee of Lowell. 305 Mass. 329. 32 1 (1940); Kaplan v. School 
Committee of Melrose, supra at 336-338, (director of elementary art). 



P.D. 12 71 



(G.L. c.71, §59); school physicians and nurses (c. 71, §53); athletic directors 
(c. 71, §47); coaches (c. 71, §47 A); school adjustment counselors (c. 71, 
§46G); and school attendance supervisors (G.L. c. 76, §19). 7 It is a general 
rule of statutory interpretation that a specific statute on a particular subject 
takes precedence over a subsequently enacted and more general provisions. 
E.g., Boston Teachers Union, Local 66, Amer. Federation of Teachers (AFL- 
CIO) v. School Committee of Boston, Mass. Adv. Sh. (1976) 1515, 1542- 
1543; cf also Pereira v. New England LNG, Inc., 364 Mass. 109, 118-119 
(1973). Moreover, as a practical matter, these members of a school's 
professional staff do not appear to perform functions that are very closely 
related to traditional classroom teaching. (Note, for example, that none of 
the listed staff positions are included in the class of professionals who must 
be certified under G.L. c. 71, §38G.) Accordingly, it is my opinion that 
these categories of professional personnel should not be included within the 
term "teacher" as it appears in G.L. c. 7 1, §38. 

There remain two classes of professional employees who are not so easily 
categorized — school principals and school librarians. Both are required to 
obtain certification under G.L. c.71, §38G. In addition, however, the hiring 
or appointment of both principals and librarians is specifically treated in 
sections of c. 71 apart from §38. See G.L. c. 71, §59B (principals); 8 and 
§38H (librarians). 9 Despite the separate treatment accorded these positions 
in c. 71, I nevertheless conclude that each of them falls within the term 
"teacher" for purposes of §38. I0 

Turning first to the position of principal, the case law cited above 
demonstrates that principals have traditionally been considered as superior 
teachers, and not a separate class of professionals with substantively 
different duties. Boodyv. School Committee of Barnstable, supra at 138. In 
amending G.L. c. 71, §38 in 1974 to give the superintendent authority to 
nominate "teachers" for election, contract, or promotion, it is assumed that 
the Legislature was aware of these prior decisions. See, e.g., Board of 
Assessors of Melrose v. Driscoll, Mass. Adv. Sh. (1976) 1497, 1503, and cases 
cited. In view of this background, I interpret the new G.L. c. 71, §59B, as a 
directive that there be a specified number of principals, rather than a 



'Chapter 71 also contains separate provisions which pertain to the hiring of school principals, librarians, and directors of 
occupational guidance For reasons discussed below, I consider the relationship between these statutes and c. 71, §38, to be 
different than the statutes listed immediately above in the text. 

'Section 59B provides in pertinent part: 

"The school committee of a city or town and the school committee of a regional school district shall employ a principal for 
each public school and fix his compensation A principal employed under this section shall be the administrator of said school 
subject to the supervision and direction of the superintendent and subject to the regulations and policies of the school 
committee, and shall be assigned such duties as are determined by the superintendent ofschools .... He may recommend to 
the superintendent or his designee appointments, assignments, promotions and dismissals of professional personnel within his 
school. The provisions of this section shall not prevent one person from serving as the principal of two or more elementary 
schools or the use of a teaching principal in such schools." 

'Section 38 provides: 

"Every school librarian and school library supervisor or coordinator appointed by the school committee shall acquire tenure 

in the school system of the city or town in which he is employed subject to the provisions of section forty-one, relating to 

tenure for teachers, and of sections forty-two and forty-three A, relating to dismissal, suspension and discharge and of appeals 

therefrom." 

'"Another position which bears some similarity in treatment to those of principal and librarian is the director of occupational 
guidance General Laws, c. 71, §38A, specifically provides for the appointment " 
However, under c 71, §38C, every such director is "deemed to be a regularly appc 
the provisions of this chapter relating to teachers" Therefore, c. 71, §38, applies t< 
their appointment is subject to the nominating powers of the school superintendent. 



72 P.D. 12 

mandate that the school committee alone — without nomination by the 
superintendent — hire or appoint every principal within the system." 

With respect to the position of school librarian, the section concerning 
librarians, G.L. c. 71, §38H, is in reality a tenure statute. It does nothing 
more than expressly provide for the application of tenure rights defined in 
G.L. c. 7 1, §§41, 42, 43 A, to school librarians. Although §38H does speak of 
"every school librarian . . . appointed by the school committee . ..." I do 
not consider that language to preclude a construction of "teacher" in §38 to 
include school librarians and library supervisors or coordinators. 12 
Therefore, as with principals, I am of the opinion that a school committee 
may appoint or hire a school librarian only from among the nominations of 
its superintendent. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 3 July 28, 1977 

Jerald L. Stevens 
Secretary 

Executive Office of 
Human Services 
State House 
Boston, Massachusetts 02133 

Dear Secretary Stevens: 

On May 24, 1976, I issued an opinion to Gregory R. Anrig, 
Commissioner of Education, in response to two questions he raised 
concerning the "grandfather clauses" of Chapter 766 of the Acts of 1972. 1 
1975/76 Op. Atty. Gen. No. 71 (hereafter "1976 Opinion"). 2 You now seek 



"If "teacher" in §38 is read to exclude a principal, then the superintendent would be in the position of having power to 
nominate "teachers" within the school system for promotion to the position of principal, but no power to nominate in the first 
instance individuals from outside that system. Such an anomalous result is to be avoided, if possible, in interpreting this 
statute. See, e.g., McCarthyv. Woburn Housing Authority, 341 Mass. 539, 542 (1960). 

I2 I am guided in my conclusion by the close functional relationship between librarian and traditional classroom teachers, 
which is spelled out in the materials you sent me to accompany your opinion request. See also, e.g., LaMarch v. School 
Committee of Chicopee, 272 Mass. 15 (1930) (adopting functional analysis to determine whether an individual was in fact a 
"teacher" for purposes of G.L. c. 71, §42). 

'The ''grandfather clauses" appear as §§16-18 of Chapter 766. They provide as follows: 

"SECTION 16. A child who is in a special education program as of the effective date of this act shall be presumed to be 
appropriately assigned to said program until an evaluation pursuant to the provisions of section three of chapter seventy-one 
B of the General Laws, inserted by section eleven of this act, indicates that another program would benefit said child more. 

SECTION 17. No child with special needs in a special education program on the effective date of this act shall be removed 
from said program he is in without the written consent of the parents, guardians, or persons with custody of said child. 

SECTION 18. A school committee shall not be responsible for more than the average per pupil cost for pupils of 
comparable age within the respective city, town or school district as its share of the cost of continuing placement for those 
children with special needs enrolled in an institution with his (sic) tuition paid by the commonwealth as of the effective date 
of this act." 

! The specific questions raised by Commissioner Anrig were the following: 

1. Does the phrase "with his tuition paid by the commonwealth" in St. 1972, c. 766. §18, make this grandfather 
clause applicable to children placed in special education programs as of September 1 , 1974 by any agency of the 
commonwealth? 

2. Does St. 1972, c. 766, §18 impose responsibility on a state agency for a child's continuing special education 
placement as long as the child was a client of the agency, and had his special education program approved by 
that agency prior to September 1, 1974, even if the special education program which the agency contracted to pay 
did not actually begin until September 3, 1974? 

I answered both questions in the affirmative. 



P.D. 12 73 

a clarification of the statement in that opinion that "§18 of Chapter 766 
imposes responsibility on a state agency for a child's continuing special 
education placement in an institution" if the agency was financially 
responsible for that child's program on the effective date of the Act 
(September 1, 1974). 

You inform me that this statement has caused confusion among state 
agencies because (1) in some cases it is not clear which state agency had 
responsibility for a particular child on September 1, 1974; and (2) the 
agencies within the Executive Office of Human Services 3 have not been 
appropriated any funds to pay these types of special education costs. To 
clarify the situation, you have asked me to answer the following two 
questions: 

1. Does c. 766 require that the state agency which was paying 
the tuition of a child with special needs enrolled in an 
institution on September 1, 1974 (the effective date of the 
Act) be the agency of the Commonwealth which must be 
responsible on behalf of the Commonwealth, for that share of 
the child's subsequent special education expenses exceeding 
the local school committee's average per pupil expenditure 
for regular education? 

and, if the answer to this question is "no," 

2. Does c. 766 permit the executive branch, acting ultimately 
through the Governor, to use its own discretion in deciding 
which state agency or agencies shall bear the liability for 
paying the Commonwealth's share of special education costs, 
so long as that liability is borne by some state agency? 

In response to your first question, I conclude that Chapter 766 does not 
require that the agency which was responsible for a "grandfathered" 
student's special education program as of September 1, 1974, continue to 
pay the Commonwealth's share of that program after that date, so long as 
some agency of the Commonwealth makes the necessary payments in a 
timely manner. With respect to the second question, it is my opinion that 
Chapter 766 permits the executive branch to designate a particular agency 
(or agencies) to be responsible for paying the Commonwealth's share of the 
grandfathered students' special education costs. That designation, however, 
must be made in conjunction with the budget process. I set forth my reasons 
below. 

By its express terms, §18 of Chapter 766 speaks only to the financial 
responsibility of local school committees and the Commonwealth for 
grandfathered students; references to particular agencies of the Com- 
monwealth are omitted. The section on its face, therefore, leaves open for 
further executive or administrative definition the specific method by which 
the Commonwealth is to pay its share of those students' educational costs. 
A reading of §18 in the context of Chapter 766 as a whole and its 
accompanying regulations supports this facial interpretation. 



'Those agencies include: the Office for Children, Departments of Public Health and Mental Health. Division of Youth 
Services and Massachusetts Rehabilitation Commission I assume that these are the agencies within your office that may be 
responsible for "grandfathered" students 



74 P.D. 12 



Chapter 766 establishes a comprehensive special education scheme 
which in programmatic terms specifically draws in and depends on local 
school committees, the Department of Education, and the Departments of 
Mental Health, Public Health, Youth Services and Public Welfare. See, e.g., 
G.L. c. 7 IB, §§2, 3, 4, 6, 7, 9, 10, 1 1, 12. In its financial aspects, however, the 
statute primarily refers to local school committees on the one hand and the 
Commonwealth on the other. See G.L. c. 71B, §§5, 10, 12, 13; cf. c. 7 IB, §11 
(Department of Education to reimburse cities and towns for certain 
recreation and transporation expenses). 

As I noted in my previous opinion on the grandfather clauses, general 
rules of statutory construction direct that insofar as possible, a word or term 
used in several different provisions or sections of a statute be given a 
consistent meaning throughout; and further, each word be assigned its 
ordinary meaning and proper effect. See 1976 Opinion at 4-5, and cases 
cited. When §18 is considered in light of the more programmatic sections 
cited above, in which explicit reference is made to particular state agencies, 
it is plain that the term "commonwealth" has not been used 
interchangeably with a particular agency or agencies. Rather the term refers 
to the Commonwealth acting through any of its officers or agencies. See 
1976 Opinion at 5. 

I conclude, therefore, that the state agency responsible for the tuition of a 
grandfathered student on the effective date of Chapter 766 is not required 
to continue to pay the Commonwealth's ongoing share of the students' 
education expense, as long as another agency assumes the financial 
burden. 4 

Your second question concerns the power of the executive branch, acting 
ultimately through the Governor, to make a particular state agency 
responsible for paying the Commonwealth's share of "grandfathered" 
students' special education expenses under Chapter 766, §18. 

As I concluded above, in using the term "commonwealth" in §18, the 
Legislature left open the method by which the Commonwealth should meet 
its financial responsibility for grandfathered students. In the absence of 
definition it is my opinion that the Governor has the discretionary authority 
to decide which agency shall make the required payments. He must, 
however, exercise this discretion in accordance with the Commonwealth's 
budget process. 

The Governor as the "supreme executive magistrate of the Com- 
monwealth", Massachusetts Constitution, Part 2, c. 2, §1, has broad 



'Two points should be noted regarding this conclusion. First the Department of Education has suggested that the grandfather 
clauses of Chapter 766 were intended to preserve the status quo for grandfathered students; and that a reading of §18 to 
permit a shift in financial responsibility from one state agency to another would violate the intent. A review of the legislative 
history of Chapter 766. however, did not reveal any indication of the purpose of the grandfather clauses. As a matter of 
common sense, one may surmise that they were intended to prevent immediate disruption in the grandfathered students' 
education programs which might have occurred had all Commonwealth financial responsibility automatically terminated on 
the effective date of Chapter 766. But a common sense judgment, without more, does not justify the conclusion that the 
Legislature also (I) considered similar hardship and disruption would occur if the Commonwealth's share of financial 
responsibility shifted from one state agency's budget to another's; and (2) intended the grandfather clauses to prevent such a 
result. Accordingly, I cannot adopt Department of Education's suggested reading of the statute. 

Second, I note that under G.L. c. 15, §IM (inserted in the General Laws by Chapter 766, §2), the Division of Special 
Education within the Department of Education is given broad authority 

(2) to regulate all aspects of, and assist with the development of all special education programs supported in whole 

or in part by the commonwealth .... 
Without attempting to define the parameters of this provision, 1 conclude that it is not directed toward the allocation of 
financial responsibility among state agencies over which neither the Division of Special Education nor the Department of 
Education has any control. 



P.D. 12 75 



supervisory power over the executive branch. His authority is emphasized 
by the statutory organization of the executive branch (including state 
departments and agencies) into eight executive offices: each office is headed 
by an executive secretary whom the Governor appoints to serve at his 
pleasure; and each secretary functions directly as the Governor's "executive 
officer" in supervising the agencies included within the particular executive 
office. G.L. c. 6A, §§2-4. In sum, both constitutional and statutory 
provisions expressly place the Governor at the head of the executive 
branch. From this position, he clearly is the appropriate official to designate 
the manner in which the Commonwealth's share of special education 
expenses for grandfathered students should be paid. 5 

Nevertheless, the Governor must use this discretionary authority in 
conjunction with the budgetary process, and particularly with the 
Legislature. The Legislature has the sole power of appropriation, which it 
exercises by designating specific sums of money for particular departments 
and agencies and, in its discretion, particular activities. See, e.g., Opinion of 
the Justices, 302 Mass. 605 (1939); see also G.L. c. 29, §§12, 19. The 
Governor may recommend to the Legislature that a particular agency 
should be responsible for paying the Commonwealth's share of all 
grandfathered students' special education costs although the students may 
actually be served by state agencies other than the one designated. He may 
also request an appropriation for that agency to meet the expense. See, e.g., 
G.L. c. 29, §§6, 6A. Absent such an appropriation, the Governor is without 
power unilaterally to require that one agency assume the special education 
expenses of other departments or agencies. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 4 August 1, 1977 

Mr. Samuel A. Vitali 

Executive Secretary 

Executive Council 

State House 

Boston, Massachusetts 02133 

Dear Mr. Vitali: 

You have requested my opinion on a series of questions dealing with the 
power of the Governor and Council to consider appeals from the decisions 
of the Commissioner of Veterans Services. 1 That authority is conferred by 
G.L. c.l 15, §2, which provides in pertinent part: 



5 The constitutional and statutory provisions governing the Commonwealth's budget process are consistent with this 
conclusion. No money is paid by the Commonwealth except by the Governor's warrant. Massachusetts Constitution, Part 2, c. 
2, §1, art. 11; G.L. c. 29, §18. Moreover, the Governor is ultimately responsible for preparation of a budget and its 
presentation to the Legislature. Massachusetts Constitution, Amendments, art. 63, §2; G.L. c. 29, §6. The responsibility 
includes discretionary power to make recommendations about expenditures that are independent of and different from those 
of the agency and department heads. G.L. c. 29, §6. 

'You have asked these questions in the context of the following facts. A veteran in Northampton applied for veterans' benefits 
from the local agent pursuant to G.L. c. 1 15, §4. The veteran was denied benefits and pursuant to G.L. c. 115, §2, the veteran 
appealed to the Commissioner who sustained the decision of the local veterans' agent The veteran further appealed to the 
Governor's Council which voted to sustain the appeal. The local agent refused to comply with the decision of the Council 



76 P.D. 12 

... A final appeal from such decisions or determination mav be 
taken bv such claimant, veterans' agent or resident, within ten 
days after his receipt of notice of the same, to the governor and 
council .... 

Specifically, vou have asked: 

1. In light of St. 1964. c.740. §§4. 5. what is the effect of a 
decision bv the Governor and Council to sustain such an 
appeal? 

2. Do the Governor and Council act as one unified body or 
must both the Governor and the majority of the Council each 
concur on a decision concerning a veteran's appeal 

3. Can a majority of the Council alone order the local veterans* 
agent to complv with the Council's decision and to pay the 
outstanding bills? 

4. Where the Governor disagrees with the Council on their 
decision to sustain a veterans" appeal, can the Council alone, 
upon a majority vote, order the Commissioner of Veterans' 
Sen ices to request the Treasurer of the Commonwealth to 
pav the bills? Can the Council compel compliance with such 
an order? 

5. Does the Council's power to punish for contempt or 
disrespect (Mass. Const. Pt. 2. C.l. Sec. 3. Art. 10. 11) help in 
the solution of these enforcement problems, or is it merely for 
punishment of contempt which disrupts their proceedings, 
i.e.. contempt in their presence? 

In answer to your first question. St. 1964. c.740. §§4 and 5 do not alter 
the authoritv of the Governor and Council to consider appeals from 
decisions of the Commissioner of Veterans' Services. Chapter 740 was 
designed solelv to repeal Executive Council powers as to matters requiring 
advice and consent of the Council. Section 4 of c.740 provides in part: 

... so much of each provision of the general laws and of any 
special law as requires the advice and consent of the council with 
respect to any action or omission to act by the governor or by 
anv officer ... in the executive department ... is hereby 
repealed, (emphasis supplied) 

As was stated in 1965/66 Op. Any. Gen. at 192, considering the same 
question, the power of the Governor and Council to hear appeals from the 
decision of the Commissioner of Veterans' Services is a quasi-judicial 
power and does not involve advice and consent of the Council. 2 Section 5 of 
St. 1964. c.740 3 simply has no bearing on the power of the Council to hear 
such appeals. 

In answer to your second and third questions, it is my opinion that the 



-See also. Selectmen of Sterling \ Governor. Mass App Ct Adv Sh | I9"4) 937. 940. off d. Mass Adv Sh. (1975)2707. noting 
without deciding, the question whether St 1964. c 40 terminated the Councils role in granting veterans' benefits 

'Section 5 provides: 

Notwithstanding anything contained in this act to the contrary, the governor shall at all times, in his sole discretion, 
be free to seek the advice and consent of the council upon anv matter. 



P.D. 12 77 



Governor and Council act together as one body with respect to veterans' 
benefits appeals under G.L. c. 115. §2. and a majority of that board decides 
whether to sustain or overturn a decision of the Commissioner of Veterans' 
Services. In Opinion of the Justices, 190 Mass. 616. 618 (1906). the court 
stated: 

The Constitution recognizes two kinds of executive business 
which may come before the council: one. that which is to be 
done by the Governor and Council acting together as an 
executive board, and the other, business to be done by the 
Governor, acting under the responsibility of his office as 
supreme executive magistrate, by and with the advice and 
consent of the Council. . . . 

It is clear that the role of the Governor and Council with respect to 
veterans' benefits falls within the first category of "executive business*' 
described in that case. Accordingly, both act together as a single "executive 
board", and the Governor, as a member of that board, may cast one vote. 
See Sparhawk v. Sparhawk, 1 16 Mass. 315. 317. (1874). 4 See also. Opinion of 
the Justices, 211 Mass. 632. 635 (1912) (construction of phrase "Governor 
and Council" in Sparhawk, supra, noted with approval, but not followed in 
special situation presented). 

Turning to your fourth question, a majority of this "executive board", 
with the Governor as a member, may order the local veterans' agent to 
comply with its decision to pay the outstanding bills. If a party is aggrieved 
thereby, he may petition for a writ of certiorari to review the decision. 5 
However, the executive board may not order the Commissioner of 
Veterans' Services to request the Treasurer of the Commonwealth to pay 
the bills. The method of paying veterans' benefits is for the city or town to 
pay the veteran the amount due to him: the state then reimburses that 
particular city or town for fity percent of the benefit. G.L. c. 1 15. §5. While 
the last paragraph of G.L. c. 1 15. §2 6 allows the Commissioner in his 
discretion to authorize the Treasurer to pay directly veterans* benefits in 
certain instances, this authority is not also vested in the Governor and 
Council. 

In answer to your fifth question, it is my opinion that the Council may 
not exercise its authority to punish for contempt those persons who do not 
comply with its decision regarding the payment of veterans" benefits. The 
constitutional provisions vesting power in the Governor and Council to 
punish for contempt. Massachusetts Constitution. Part 2. c.l. §3 arts. 10 and 



There, in considering an act in the Massachusetts Province Charier which provided for all matters of marriage and divorce to 
be "heard and determined bv the Governor and Council", the court stated: 

The Governor and Council having been thus constituted a Supreme Court of Probate, and a court for the decision 
of cases of marriage and divorce, their proceedings as such, though not according to the course of common Is - - at 
judicial, and *ere determined bv a vote of a majority of those present, eren if the Governor *as in the minority. 
(emphasis supplied) 

'See Selectmen of Sterling v. Governor, supra. 

'The last paragraph reads: 

[The Commissioner of Veterans' Services] may. by written notice, order a dry or town to pay veterans" benefits to an 
applicant on an application approv ed bv the commissioner. If a city or town refuses or does not make such payment 
within fourteen davs from receipt of such notice he shall notify the state treasurer of such refusal or failure and 
thereafter such benefits shall be paid to the applicant by the commonwealth- If the commonwealth shall be called 
upon to pav any such benefits on behalf of any such dry or town, the total of any such benefits paid in any such 
calendar vear shall be assessed upon such dty or town, or deducted from funds that may be due such dty or town 
from the commonwealth- 



78 P.D. 12 



11, relate only to contemptuous or disrespectful behavior in their presence. 
See Opinion of the Justices, 331 Mass. 764, 767 (1954). The power may not 
be expanded to reach acts of noncompliance occurring outside of formal 
Council meetings or deliberations. 

Very truly yours, 

Francis X. Bellotti 

Attorney General 

Number 5 September 27, 1977 

Hon. James A. Kelly, Jr. 

Chairman 

Senate Committee on Ways and Means 

Boston, Massachusetts 02133 



Dear Senator Kelly: 

On behalf of the Senate Committee on Ways and Means you have 
requested my opinion as to the constitutionality of Senate Bill No. 388 
(1977) (S. 388), ' regarding the operations of the Board of Registration and 
Discipline in Medicine (the Board). Specifically, you have asked: 

1) Does legislation, such as Senate No. 388, Section 5 A, 
granting board members immunity from civil or criminal 
liability for actions or non-actions performed in the course of 
their duties, and making absolutely privileged all communi- 
cations or statements of said board members made in the 
course of said duties, fall within constitutional limits? 

2) Does legislation, such as Senate No. 388, Section 5B, 
authorizing a board to grant immunity from civil or criminal 
liability to persons, professional societies, or other entities 
assisting said board in performing its duties, fall within 
constitutional limits? 

For the reasons set forth below, it is my opinion that each of the 
referenced sections is within constitutional limits as rationally designed to 
further the permissible governmental purpose of protecting the public 



'Senate BUI No. 388 reads as follows: 

"Be 11 enacted by the Senate and House of Representatives in General Court assembled and by the authority of the same, as 
follows: 

Chapter 1 12 of the General Laws is hereby amended by adding after Section 5 thereof the following sections: — 

Section SA. Board members shall be absolutely immune from civil or criminal liability with respect to any action or non- 
action in the ordinary course of their duties, and all communications or statements by board members made in the ordinary 
course of said duties shall be absolutely privileged. 

Section 5B The board, upon majority vote of its members, may grant absolute immunity from civil or criminal liability to 
any person(s), professional society, or any other entitv who or which, at board request, assists the board in discharging its 
duties and functions. Pursuant to its general rulemaking powers under section five of this chapter, the board shall promulgate 
regulations defining the circumstances and conditions under which absolute immunity shall be granted by the board under 
this section. 

Section 5C. All complaints or other writings filed with the board, and all testimony given before the board with respect to 
any charge of misconduct by a registrant shall be conditionally privileged, and any person or entity making said filings or 
giving such testimony shall, with respect thereto, be immune from civilor criminal liability, provided said person or entity 
acts without malice and on the basis of a reasonable belief in the truth of the matters contained in the complaint or any other 
writings filed, or in the testimony given." 



P.D. 12 79 



health. I will treat your questions separately and in the order you have 
presented them. 

1. Evaluation of the constitutionality of a statutory extension of 
immunity and privilege to the members of the Board requires an 
examination of the common law. In my view, §5A effectively grants 
immunity from civil liability alone, 2 and I consider first common law civil 
immunity in relation to the Board's adjudicative function of disciplining 
physicians. In performing this duty the Board operates in a quasi-judicial 
capacity. As such, it would probably be entitled to absolute immunity from 
civil liability which the common law accords members of the judiciary. 3 See 
Jaffarian v. Murphy, 280 Mass. 402, 405-402 (1932) (Mayors performance 
of licensing duties within limits of statutory jurisdiction is a quasi-judicial 
function accorded absolute immunity). Cf. Gildea v. Ellershaw, 363 Mass. 
800, 820, 823 (1973) (disclaiming judicial/non-judicial distinction in 
allowing qualified immunity for all public oficers). In effect, therefore, the 
statute may simply operate to codify the protection from civil liability that 
would exist under the common law for Board members when performing 
their quasi-judicial disciplinary duties. 

In carrying out the non-judicial functions of investigation and rule- 
making, however, the members of the Board enjoy at common law only a 
qualified civil immunity for acts and decisions within the scope of their 
duties, see Gildea v. Ellershaw, supra, as well as a conditional privilege from 
liability for defamatory statements made in the performance of those 
duties, see Vigoda v. Barton, 348 Mass. 478 (1965). 4 The conditional or 
qualified nature of the common law immunity and privilege means that it 
may be lost by a showing of bad faith, malice or corruption. The granting of 
absolute immunity and an absolute privilege in §5A thus extends beyond 
that granted by the common law. 

The constitutionality of this extension, and indeed of the civil immunity 
provisions in §5 A taken as a whole, is a function of whether the legislation 
bears a reasonable relation to a permissible governmental objective. Pinnick 
v. Clearv, 360 Mass. 1, 14. (1971) (constitutionality of no-fault automobile 
insurance statute); Howes Bros. Co. v. Unemployment Compensation 
Commission, 296 Mass. 275. 284 (1936) (constitutionality of unemployment 
compensation law). Regulation of the practice of medicine is a valid 
exercise of the Commonwealth's police power designed to protect the public 
health. Lawrence v. Board of Registration of Medicine, 239 Mass. 424 (1921). 
Presumably §5A is intended to shield the Board members from potential 
liability for their actions and statements in order to encourage the 
aggressive enforcement of the laws governing the practice of medicine. G.L. 
c. 112, §§2-12. The public interest in ensuring and improving the quality of 



: Section 5A also purports to afford Board members absolute immunity from criminal liability for actions or non-action within 
the ordinary course of their duties. However, when a Board member performs a criminal act. he is acting in excess of his 
authority and not within the ordinary course of his Board duties. Accordingly, he would not be immune from criminal 
liability "under §5A. Cf. Ex Parte Young. 209 U.S. 123. 159-160 (1908) (state officer enforcing unconstitutional statute is 
stripped of official character and personally subject to suit). In sum. the criminal immunity provision of §5 A does not change 
the current law in any manner, and is not further discussed in this opinion. 

'On the privilege of absolute immunity from civil liability afforded judges, see Allard \ . Estes. 292 Mass. 187 (1935). 

4 To date, the Court has found it unnecessary to extend to public officers other than judges an absolute immunity, see Gildea. 
supra at 820-821, or an absolute privilege, see I'igoda, supra at 484. suggesting a deference to legislative initiative in this 
complex area. Cf. Whitney v. City of Worcester. Mass Adv. Sh. (1977) 17 137 1715 (comprehensive legislative action preferable 
to judicial abrogation of governmental ion immunity); Morash & Sons. Inc v. Commonwealth. 363 Mass. 612. 623 ( 1973). 



80 P.D. 12 



health care and the competence of medical practitioners is a permissible 
legislative objective, see Lawrence, supra, which might rationally be 
advanced by allowing the Board to act without fear of personal 
consequences. 

There are, however, countervailing interests affected by the extension of 
absolute immunity and privilege to Board members. Such an extension 
obviously eliminates the right or interest of persons who may be adversely 
affected by the negligent, bad faith or malicious performance of Board 
functions to obtain redress under the civil law. 5 However, it is clear that the 
Legislature has authority, in the pursuit of a permissible objective, to cause 
"the modification, abolition and creation of causes of action so long as 
fundamental rights are not thereby affected." Opinion of the Justices, 309 
Mass. 571, 599 (1941) (compulsory workmen's compensation law sustained 
as constitutional). Since "no person has a vested interest in any rule of law 
entitling him to insist that it shall remain unchanged for his benefit," New 
York Central R.R. v. White, 243 U.S. 188, 198 (1917), a common law cause 
of action which has not accrued is not such a fundamental right. See 
Pinnick v. Cleary, supra, at 10-12, 15; 6 Silver v. Silver, 280 U.S. 117, 122 
(1922) ("guest statute" depriving gratuitous passenger in an automobile of 
the right to sue for mere negligence is constitutional). 

As indicated in Lawrence v. Board of Registration, supra, at 428, the right 
of a physician to engage in the practice of medicine "must yield to the 
paramount right of the government to protect the public health by any 
rational means" (emphasis supplied). The interests of a registrant aggrieved 
by the proposed statute are, in my judgment, outweighed by the public 
interest in ensuring the highest character and quality in the medical 
profession. With respect to other citizens who may be adversely affected by 
the abolition of civil remedies, 7 the extension of absolute immunity for the 
purpose of protecting the quality of health for the benefit of the general 
public cannot be characterized as irrational. See Ascherman v. San 
Francisco Medical Society, 39 Cal. App. 3rd 623, 663 (1974) (statutory 
qualified immunity for physician peer review committee). The statute 
reflects a legislative policy judgment that the operations of the Board in all 
its various capacities are of such significance to the public welfare that its 
members, like judges, should be unimpeded and "not influenced by 
apprehension of personal consequences." A Hard v. Estes, supra at 190. 8 

2. The analysis of the constitutionality of proposed G.L. c. 112, §5B 
follows the same path as the preceding discussion. Legislative recognition 
that the Board should operate freely and with broad authority would also 
justify extending absolute immunity from civil liability to those persons and 



*As I have indicated, the allowance of immunity from criminal liability recorded by §5A is merely a reaffirmation of the fact 
that the duties of the Board are not criminal in nature. In the performance of these duties, the members do not impinge upon 
societal interests, but rather significantly advance them. 

"The Pinnick case also disposes of any argument that §5A's grant of absolute immunity violates art. 1 1 of the Massachusetts 
Declaration of Rights. 360 Mass. at 1 1 - 1 2, 3 1 . 

"An individual defamed by a member of the Board or simply dissatisfied with a particular Board act or omission is an 
example 

"Although the absolute immunity will preclude tort liabilitv. an individual adversely affected by the actions of the Board in an 
adjudicatory discipline proceeding is nonetheless entitled to judicial review of the Board's decision, G.L. c. 30A, §14,and, of 
course, can complain of abusive treatment to appropriate state officials. The proposed legislation thus does not eliminate 
entirely existing remedies to redress misfeasance or, more simply, bad decisions. See Pinnick v. Cleary. supra at 15. 



P.D. 12 



entities assisting the Board in the performance of its statutory mandate. 
Such immunity from liability presumably would serve to encourage 
participation by private parties in the various licensing and disciplinary 
processes which ensure the continued competence of the medical 
professions. If the public interest in maintaining high quality health care is 
furthered by the Board's aggressive pursuit of its statutory duties, absolute 
immunity for those who assist the Board in achieving that objective cannot 
be deemed irrational or arbitrary. Cf. Mezullo v. Maletz, 331 Mass. 283 
(1954) (examining physician in mental commitment case entitled to 
absolute privilege, given judge's need for assistance of medical experts). 

The constitutionality of authorizing the Board to grant immunity from 
criminal liability to those who provide assistance is somewhat more 
troubling. While presumably intended to encourage voluntary participa- 
tion, such authority might well enable the Board to compel testimony from 
an individual who seeks to invoke the protection of the privilege against 
self-incrimination. 9 Although the Legislature has delegated the power to 
grant criminal immunity to various administrative agencies, 10 the 
authorizing statutes generally contain terms defining explicitly the scope of 
the immunity extended." In order for a grant of immunity to be sufficient 
to compel testimony, it must be co-extensive with the scope of the privilege 
conferred by the Fifth Amendment. See Kastigar v. United States, 406 U.S. 
441 (1972). Section 5B is inexplicit on the scope of immunity intended. For 
this delegation of authority to be within constitutional limits, it must be 
presumed that the statute contemplates prohibition of the use and 
derivative use of testimony compelled and that regulations promulgated by 
the Board will so provide. See Baird v. Bellotti, Mass. Adv. Sh. (1977) 96, 
100, 122, 123 (statute should be construed, if fairly possible, in a manner 
which avoids constitutional problems). 

Assuming that the statute will contain the proper scope of immunity, 
there remains the general question of delegating legislative power. It is well 
established that the Legislature may constitutionally delegate to a board 
authority to grant immunity to those who render assistance, provided that 
standards to govern exercise of that authority are supplied. The standards 
may be supplied by regulations, since the Legislature may lawfully 
"delegate to a board or an individual officer the working out of the details 
of a policy adopted by the legislature." Commonwealth v. Racine, Mass. 
Adv. Sh. (1977) 1101, 1106. Accord, Commonwealth v. Diaz, 326 Mass. 525, 
527 (1950); see also Burnham v. Board of Appeals of Gloucester, 333 Mass. 
114, 118 (1955). Although the proposed statute does not prescribe explicit 
standards for the extension or denial of immunity, the legislative scheme of 



'At present, G.L. c. 112, §62 establishes the power of the Board to conduct hearings to the same extent as that conferred upon 
city councils by G.L. c. 233, §§8-10. statutes which require application to the Superior Court in order to compel testimony. 

">See, e.g., G.L. c. 94A. §18(c) (Milk Control Commission); c. 150D, §7(3) (Labor Relations Commission); c. 151B, §3(7) 
(Massachusetts Commission Against Discrimination). 

"See, e.g., G.L. c. 151B, §3(7), which provides that: 

No person shall be excused from attending and testifying or from producing books, records, correspondence, documents 
or other evidence in obedience to the subpoena of the commission, on the ground that the testimony or evidence required 
by him may tend to incriminate him or subject him to penalty or forfeiture; but no individual shall be prosecuted or 
subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is 
compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, except that such 
individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying. 



82 P.D. 12 



promoting quality health care embodied in G.L. c. 112, §§2-12, and the 
implied policy of encouraging participation of private parties in that 
process, would seem to provide sufficient guidance for the formulation of 
appropriate standards and safeguards in the administration of the delegated 
power. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 638 
(1970) (Zoning Enabling Act and town by-law together provide adequate 
standards for decision of Board of Appeals on application for special 
permits). Moreover, §5B expressly provides that the Board is to promulgate 
regulations setting forth the rules which will govern its grants of immunity. 
These regulations will be subject to judicial review. G.L. c. 30A, §7. They 
represent a legitimate vehicle for articulating the necessary standards to 
guide the Board's exercise of delegated authority. See generally Davis, 
Administrative Law of the Seventies, §§2.00, 2.00-6 (1976). 

In accordance with the provisions of G.L. c. 12, §9, I, therefore, answer 
both your questions in the affirmative and advise you that in my opinion 
the proposed sections are both constitutional. 

Very truly yours 

FRANCIS X. BELLOTTI 

Attorney General 

Number 6 October 3, 1977 

John R. Buckley 

Secretary 

Office of Administration and Finance 

State House 

Boston, Massachusetts 

Amelia Miclette 

Chairperson 

Civil Service Commission 

One Ashburton Place 

Boston, Massachusetts 

Dear Secretary Buckley and Chairperson Miclette: 

For the past several months, my staff and I have been considering your 
request for an opinion on the validity of a proposed rule which we have 
characterized as the "3 plus 3" rule. Specifically, you asked me ( 1 ) whether 
the Civil Service Commission possesses the authority under G.L. c.31, §3 to 
promulgate the proposed rule, and (2) whether the proposed rule would 
withstand a legal challenge by individuals who are adversely affected by 
the operation of the rule. Intensive research and drafting have been done on 
both issues. Nonetheless, I have come to the conclusion that for the reasons 
set forth below, I must respectfully decline to answer each of the two 
questions you have propounded. 

Under G.L. c.31, §3,the Civil Service Commision may only promulgate 
rules which are "consistent with [other provisions of] law." A question has 
arisen as to the consistency of the proposal with the preference afforded 
veterans by G.L. c.31, §23. As you know, the United States District Court 
decision invalidating the "old" version of G.L. c. 31, §23 is currently on 
appeal to the Supreme Court of the United States. Commonwealth v. 



P.D. 12 83 



Feeney, (U.S. No. 76-265). The recent decision of the Supreme Judicial 
Court, Feeney v. Commonwealth, Mass. Adv. Sh. (1977) 1959, has upheld 
the propriety of this appeal and thus Supreme Court action on the case can 
be reasonably expected within a short time. Furthermore, the "new" 
version of G.L. c.31, §23, which was inserted by St. 1976, c.200, is expressly 
conditioned on the outcome of this appeal. Both the effect of the proposed 
rule and its validity may well depend on the anticipated Supreme Court 
decision and the particular veterans' preference provision which survives it. 
Thus, any advice which I might give would be tentative at best and 
dependent on factors over which I have little or no control. Like the 
Supreme Judicial Court, I must decline to render an opinion under such 
circumstances. See, Answer of the Justices to the House of Representatives, 
Mass. Adv. Sh. (1977) 1845, 1849. 

Similar reasoning compels me to defer answering your second question. 
That question essentially asks whether the rule constitutes an impermissible 
instance of "reverse discrimination", and it cannot be answered without 
speculating on the outcome of Regents, University of California v. Bakke, 
(U.S., No. 76-81 1), scheduled for oral argument in October. 

I recognize, of course, that during the pendency of this opinion request 
the Commission has deferred promulgating the proposed affirmative action 
rule. I regret any delay that may have occurred. At the same time, I note 
that my opinion is not a condition precedent to the promulgation of a valid 
rule. Thus, even though I must now decline to answer the questions you 
have posed, the Civil Service Commission is still free to issue the rule as it 
chooses. 

This declination should not be interpreted in any way as a tacit 
conclusion that the proposed rule is or is not valid. To the contrary, I wish 
to assure you that, if the proposed rule is promulgated and it is challenged 
in court by those adversely affected, I will provide representation for those 
named as defendants. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 7 October 1 1 , 1 977 

John P. Larkin 

Executive Secretary 

Alcoholic Beverages Control Commission 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Larkin: 

You have requested my opinion as to the authority of the Alcoholic 
Beverages Control Commission (Commission) to regulate liquor traffic on 
state military reservations and federal military reservations over which the 
federal government has exclusive jurisdiction. 1 Your question arises in 

'It is unnecessary for this opinion to treat the question of state regulation of the sale of liquor into joint facilities because you 
have specifically withdrawn your request as to that issue and thus, the references in this opinion to federal military facilities 
include only those facilities over which the United States has exclusive jurisdiction. 



P.D. 12 



relation to complain:- ... alers 

il e £m £ m_: ..--.:- > : i : ; t _ _7 : e\rv r.ers md filers r. : . 7 . : 77. Jeruiicates ; :' 
_~ ; ~ 7 .m .e _r.ce: G L : 1- v m x r _:e m_>..7.7 7.-;.: sales 7f -Icchc-hc 
-; mme- mm :::;:■. mm'.im. :esem _::7ts mm..: me .."■-;:>;_/: For 
me reasons discussed :: ; - .'. :s 77 • rr.2% 

. 77 ... :e • em _. .. m. 7 7. federal, military 

". -; . . . - •:: :: ::: C err. men -:_.:: mm hence me Comn ss 
m :e£_l_'.e lm_:: maffic cr stale 77. mm- facilities is cteai The 
Commonwealth may regulate ibal traffic other _-._e: its general 7 
power to pron _ .7 _ e all manner of reasonable b pi mote the health 

mm - el: are ;: ~ ms m mens 7: imce: ::s ~ re srsemflc px er \ e me 

sale :: ~£ Imam : . - . -firmed : me 7 -en: -First 

Arrendrren: 7m e 7 ers me _-_ffesT.ec :■ the z sale 

alccrml:: :e erases ... .m.m: :t s.a.e rmlr.ar : .. . .. me militia is 

::sel: ar aaer: :f me s:_:e £7. emvmer L :.53 ;- 

-ere however, the United States 77-emmem assumes jurisdiction 
7-e: :m::7 in Massachus er.s :;: military purposes, the Commission has 
- :e£_l_".7T. iufccTT : • e — .. err.mr Exclus: e _msdic: 

fe-den —•'• :_.- : .:.• :> nested - me Constiramcn m dengress. U.S. 

Cons: \rtl,§8,< " md the Supreme Court hi endyheldm 

me arsen:e :: me. .7. f:77:e>^m_ __m77.7m.77 7; :';m .: state 
-em. .mm. irrlies :_. sum federad'. mrme'ded :emmrN 777 e 777. Pacific 
Coast Dairy, Inc. v. Deft, of Agriculture . ': U 5 21 M3 

•"•■77 me ■ e:.' ■- ."•' \mendmen: : err ers _:.: m-firms me ?r _7 
a_m:r.r- m7re smms '. 7 :e£_._".e me m.e : f m.: 7 m uquor within their 

respective jurisdictions- it has no impact on sale- _ e ::.: their e:: 
reach. Hotstetter v. Idle*ild Bon Voyage Liquor C 7 U S 324 

':..- : ?:.-■ .' ':'- LIS 5".! I ^5 _• 1. Federal 

am :7..- -. ■ :"-•- _ sm.e - rcrders me 7:: :e£_lamr mm .t m 

m me r.u:e exercises - .- .em. 77 m m [ ::.m_ 7.:: mm .7. 

/—:":;:.- . -- '.''.7:77.7 .77: -.1 L"~S m- .-"1 - t.: me s:a:es have 7: 

T.±m.r- :: regulate me >me :f m: ...._.. 7 7 - :r :: : - _m mu:ar% 

r elude ma: me Immri.5:m ~t« :egula:e me flew ?f akohohx 
1 state militarv re ser vati ons, bat is thont urihorjfj to reg 
akohem be _rages :o militarv mm m ...e United 

Verj tmrj vours. 
FRANCIS .V BELL'OTTI 

. -. : : 



P.D. 12 



Number! October 1 1. 1977 

Robert L. Okin. M.D. 

Commissioner of Menial Health 

190 Portland Street 

Boston. Massachusetts 021 14 

Dear Dr. Okin: 

You have asked my opinion on the following question: 

Upon designation of the Plymouth Unit of the Taunton State 
Hospital as a "facility" of the Department of Mental Heahh. 
will the Plymouth .Area Director become me - -ornting 
authority for subordinate personnel of the unit? 
In my view your question poses three separate inquiries which must be 
answered: 

1. Mav the Commissioner of Mental Health me Tommis- 
sionen designate an area unit 1 located within a state hospital 
as a ""facilitv" of the Department of Mental Health pursuan: 
toG.L. c. 19 ::--." 

2. If he may. upon designation of an area unit as a facility, is the 
area director the head of that unit? 

3. If the area director becomes the head of me ie .- -led 
facility, is he the appointing authority for the _r 
subordinate personner 

For the reasons discussed below. I conclude :ha: me ?mmissioner 
mav designate a state hospital unit a "facility" imdex 1 _ . - \ -- 1 
the area director does not become head of the facility" by operation of law. 
but may be appointed to that position by the Commissioner acting pursuant 
to the requirements of G.L . - - - Sand 23 : and 3 .: ' ::.t --.t- 
director is so appointed, he beccm es me ippomtimi inthoaty" for 
subordinate personnel in the unit, as that terr lefmedt _ . :. 

The system for the deliver] :: mental health services in the 
C : m monwealth is governed by G.L. c .- . ; t'-.z ±e -:-__:_:e r e: 
and responsibilities of the Departmer I 'ental Health (the Departmer 
and G.L. c. 123. relating to the treatment and :;- ~ .:~::.: :: — e.v.allv ill 
and mentally retarded persons. In 1966. the Legisfatnre repealed me 
G.L. c.19 and replaced it with a statute r scheme - - :e centralized the 
organization _ _ : de fiver] :: services pre _ concentrated in 
hospitaLs and state schc .. ; . and provide: - Domprehen e . nmunin"- 
based facilities to supp.;- care and treatmenL St. 1ft- . ";:' b 197 me 
Legislature Enacted further legislation St .-" . - : :r --. rgamzed 

G.L. c. 123 and granted additional specif:: powers tc the romnussicne: : 

As presently constituted, the Commonwealth's mental health services 
s fstem divides the state in:: :e:.; _ dt ..--. ,~ . -: : ; : -■ 

areas, see G.L. c 19, §17, each served t t cfljzea area board seeGX ; - 



::,:..-::-- -': - 



86 P.D. 12 



§21, and an area director, see G.L. c. 19, §18. The area director works with 
the area board and is responsible for the planning and delivery of mental 
health and mental retardation services within his area. G.L. c.19, §18. 
Additionally, when the Commissioner has designated a "comprehensive 
center" within the area, he may appoint the area director to head the center. 
G.L. c.19, §§18 and 23(c). 

Although not defined in G.L. c.19 or the Department's implementing 
regulations, it is my understanding that a "comprehensive center" is a 
community health center which offers a full range of mental health services, 
including in-patient services, to the citizens of a particular area. A shortage 
of resources has made it impossible to establish comprehensive centers in 
many of the Department's area. The Department has created the area units 
in the state hospitals to provide necessary in-patient services for areas that 
have no comprehensive centers. See 11 C.M.R. Part 8 at 160-161, §10.2 
(1974). 

1. The Commissioner's authority to designate state "facilities" is found 
in G.L. c.19, §14A, which provides in pertinent part: 

The state facilities under the control of the department shall be 
Worcester state hospital . . . [and other named state hospitals 
and state schools] and such other mental health or retardation 
facilities as the commissioner from time to time shall designate 
in the regulations of the department, including any facilities or 
portions thereof, which the department may, subject to 
appropriation, construct or develop for use as homes or facilities 
for aging persons who are not mentally ill. 

"Facility" is not defined in §14A, nor anywhere in G.L. c.19. However, 
the Department's regulations implementing the quoted "designation" 
provision of §14A define the term as follows: 

[AJhospital, state school, clinic, ward, comprehensive center, 
or any other public or private entity which provides in-patient or 
out-patient services, emergency services or partial hospitaliza- 
tion services for day care and night care relating to the 
observations, diagnosis or care and treatment of mentally ill or 
mentally retarded persons, and which may consist of an 
aggregation of coordinated programs and services geographi- 
cally dispersed. 1 1 C.M.R. Part 8 at 138 (1974). 

The broad scope of this definition clearly includes within it a unit of a state 
hospital, and permits designation of an area unit as a facility. 

Other sections of the Department's regulations which follow the quoted 
definition govern the actual designation of facilities. These sections 
demonstrate that the Department has often treated a unit of a state hospital 
as a "facility" within the meaning of G.L. c.19, §14A. See 1 1 C.M.R. Part 8 
at 160-161, §10.2 (1974). 

As a general rule of statutory construction, the views of the agency 
charged with administering a statute are entitled to weight. 3 This is 
particularly true where the Legislature has granted broad power to the 

'See, e.g., Consolidated Cigar Corp. v. Department of Public Health, Mass. Adv. Sh. ( 1977) 1419, 1427; Board of Education v. 
Assessors of Worcester. Mass. Adv Sh. (1975) 2626, 2632-2633; Clean v. CardulloS lnc 347 Mass 337. 343-344 (1964). 



P.D. 12 87 



agency to work out the details of a statute. 4 In this regard, the Department's 
powers under G.L. c.19 are sweeping, see c.19, §1, and it has been granted 
broad rulemaking powers to implement those responsibilities. G.L. c.19, 
§26. Similarly, the Commissioner has been given wide authority to 
supervise and control the Department and act on its behalf. G.L. c.19, §1. 
In light of these extensive powers, the Department's definition of facility 
should be give deference. 

The Department's view that an area unit may be designated a facility 
also finds support in other provisions of G.L. c.19. As mentioned above, 
§14 A specifically allows the designation of a portion of an existing facility 
as a "state facility under the control of the Department." Further, §§18 and 
23 implicitly acknowledge the propriety of such a designation. 5 

I therefore conclude that the Commissioner does have authority to 
designate a unit in a state hospital as a "facility". 

2. Upon the designation of an area unit in a state hospital as a state 
facility, the area director would not become head of the facility by 
operation of law. I find nothing in G.L. c.19, §18, governing the powers and 
duties of the area director, to support an automatic designation. Nor is such 
a result prescribed by or suggested in the Department's regulations. 

When an area unit is so designated, I conclude that the Commissioner 
has the authority under G.L. c.19, §14C 6 to appoint a head of such facility 
and may appoint the area director to that position, provided that the 
appointment is in compliance with the requirements of G.L. c.19, §§14C, 18 
and 23(c). 

3. The final question to be answered is the one you have asked directly: 
whether an area director appointed as head of an area unit in a state 
hospital is the appointing authority for the unit's subordinate personnel. 
Based on my reading of G.L. c.19 in the context of G.L. c. 123 and the 
Department's regulations I conclude that the area director would become 
the appointing authority. 

After providing for the appointment of superintendents, directors and 
heads of state hospitals and other facilities of the Department, G.L. c.19, 
§14C, states that "[t]he superintendent with the approval of the 
commissioner shall appoint and may remove assistant physicians and 
necessary officers and other persons . . . ." As with the term "facility", the 
word "superintendent" is not defined in §14C or anywhere in G.L. c.19. It 
is necessary, therefore, to look to other sources for a definition of the term. 

The Department's regulations implementing G.L. c.19 define the term 
"superintendent" as the head or "appointee" of a state facility under the 
control of the Department which has been designated pursuant to G.L. c.19, 
§14A. 11 C.M.R. Part 8 at 161, §10.3 (1974). General Laws c.123, §1, 

'Cf., e.g.. Commonwealth v. Racine, Mass. Adv. Sh. (1977) 1 101, 1 106-1 107. 

'Section 23(c), addressed to the duties of area boards in choosing an area director, defines the Board's responsibilities when 
the area director will also head a facility which is "integrated with a university medical center or medical school or with a 
hospital " (emphasis supplied) Again, the designation of a "facility" already contained within a larger medical complex is 
recognized Section 18 contains a similar acknowledgment It enumerates the professional qualifications required of an area 
director serving as ". . executive head of a facility as provided for in paragraph (c) of section 23 if such center or facility is 
equivalent to a state institution included within section I4A ..." 

b See also G.L c.19, §18, 1ffl3, 4; §23(c), which recognize that an area director may be appointed superintendent or head of a 
state institution or portion of a state institution. 



P.D. 12 



defines superintendent to mean "the superintendent or other head of a 
public or private facility." 

The Department's definition of "superintendent", representing the 
interpretation of the statute by the agency charged with its operation, is 
entitled to weight." In addition, as a general rule of statutory construction, 
words used in several statutes concerning the same subject are presumed to 
have the same meaning. E.g.. Insurance Rating Board v. Commissioner of 
Insurance. 356 Mass. 184. 188-189 (1970): see Commonwealth v. Baker, 
Mass. Adv. Sh. (1975) 1875, 1889; Davis v. School Committee of Somerville. 
307 Mass. 354. 361 (1940). The rule seems particularly applicable where, as 
here, the definition of "superintendent" in G.L. c.123 and G.L. c.19. §14C. 
were added to the General Laws by the same act. See Devlin v. 
Commissioner of Correction. 364 Mass. 435. 440. n.6 (1973). Following this 
principle. I interpret "superintendent" in the appointing authority provision 
of G.L. c.19. §14C. quoted above to encompass both the superintendents of 
state hospitals and the heads of other residential facilities within the control 
of the Department. Thus, it includes the head of a designated area unit 
within a state hospital. 8 

Accordinglv. pursuant to that provision of §14C. an area director who is 
appointed a "superintendent" of a designated area unit within a state 
hospital, would have authority to appoint and remove assistant physicians 
and other necessary subordinate personnel. 

Very truly yours 
FRANCIS X.BELLOTTI 

Attorney General 

Number 9 October 14. 1977 

John G. Martin 

Chairman 

Division of Industrial Accidents 

100 Cambridge Street 

Boston. Massachusetts 02202 

Dear Mr. Martin: 

You have asked whether the Division of Industrial Accidents 1 
("Division") must give access to persons other than an injured employee to 
information in the files compiled or maintained by the Division concerning 
injured emplovees. Your specifc questions may be summarized as follows: 

'See cases cited in notes 3 and 4. supra. 

■Moreover, the goal in construing the statute is to reach an interpretation which accords with the legislative intent, 
considered in connection with the course of [the statute's] enactment, the mischief to be remedied and (he mam object to be 
accomplished, to the end that the purpose of its framers mav be effectuated.' " Board of Education v. Assessor of Worcester, 
Mass. Adv. Sh. 1 I9~5i 2626. 2629. quoting Industrial Fin Corp v State Tax Commission, Mass. Adv. Sh. ( 1975) 967. 972-973. 
.As discussed above, a major aim of the mental health services system established by G.L. c.19 is to provide decentralized, 
comprehensive and community-based mental health services on both an outpatient and in-patient basis. The creation of 
comprehensive centers, see G.L. c.19. §18. was intended to meet this goal. General Laws c.19. §18, expressly provides that an 
area director may be appointed head of a comprehensive center and shall, "subject to departmental regulations, supervise all 
emplovees within such center ." It seems in keeping with the legislative purpose of G.L. c.19 that when an area director is 
appointed head of an area unit in a state hospital, a unit created because of a lack of funding has prevented establishment of 
comprehensive centers, he should also be responsible for the unit's personnel. The construction of "superintendent" which I 
have adopted advances this purpose 

G L c 23. §§\4etseq. 



P.D. 12 89 



(1) Are the Division's files concerning individual, injured 
employees "public records" within the meaning of G.L. c. 4, 
§7, c 1.26? 

(2) If so, is the employee's entire file, including medical reports, 
available without restriction to anvone requesting access 
under G.L. c. 66. §10? 

(3) If there are restrictions on public access to these files, what is 
the nature of these restrictions, both as to the files' contents 
and as to categories of persons seeking access? 

(4) If the files are not public records, are there any 
circumstances under which access to an individual 
employee's file must be granted pursuant to G.L. c. 66A. §2 
(c)? 

For the reasons discussed below, I conclude that (1) some of the contents 
of the Division's individual employee files are matters of public record: (2) 
certain portions of those files are exempt from the disclosure provisions of 
G.L. c. 66. §10 (a): (3) the exempted portions of the files include hospital 
and medical records and information as to which a legitimate privacv 
interest exists; and (4) some access to the exempted portion of the files is 
authorized by G.L. c. 152. §20. G.L. c. 23. §16. and G.L. c. 66A. §2 (i). 

You have informed me that the information in the Division's files on 
individual injured employees comes from several different sources. Under 
G.L. c. 152. §19. even - employer subject to the workmen's compensation 
law, G.L. c. 152. must file a written report with the Division concerning all 
injuries sustained by his employees in the course of their emplovment. 
Section 19 further requires that the report contain (a) the name, nature and 
situation (location) of the employer's business, (b) the name. age. sex. and 
occupation of the employee, (c) the date and hour of the accident, (d) the 
nature and cause of the injur}', and (e) any other information required bv 
the Division. 

If an employee becomes eligible for compensation, additional 
information must be submitted and placed in his file, including (a) the 
employee's name and address, (b) spouse's name and address, (c) place and 
date of marriage, (d) place and date of birth of children, and (e) amount of 
weekly compensation being received. In nearly all of these cases, medical 
reports of attending and examining physicians, (including in some cases 
psychiatric reports), and copies of hospital records are also added to the file. 
See G.L. c. 152. §20. In addition, the file may contain transcripts of anv 
testimony by doctors in depositions or hearings before the Industrial 
Accident' Board. See G.L. c. 152. §8. Finally, under G.L. c. 152. §30D. even 
insurer or self- insurer paying workmen's compensation to an injured 
employee for six months or more is to file the employee's name and address 
with the Industrial Accident Rehabilitation Board. 

The answers to your questions require the reconciliation of several 
statutes relating to information kept by government agencies: (1) the Public 
Records Law (PRL). G.L. c. 66. §10. and its definitional counterpart. G.L. 
c. 4. §7. cl. 26. which together mandate access to most government records: 
(2) the Fair Information Practices Act (FIPA). G.L. c. 66A. which 
safeguards the confidentiality of government-held information concerning 



P.D. 12 



particular individna Is -".: 3 die specific statutes dealing with access tc 

c a held by the Division or the Industrial Accident Rehabilitation 

5:a:a 5:-:GL : 152. §§19,2 L . c .16, §23. Given their c st 

relation [ wifl discuss the foui sed tog e :her. 

The definiti::. : - . .. -. in G.L. c 4, §7, d 21 

les -. iocamentaiy materials " data . . . made or received by anv 

agenc] . department board - 

comz " unless such lata falls within one of nine exemptions ~e: 

- - in the statute Thus, unless one es, all 

documents in the empl: se files held - :he Division ire public records and 

::>en :c anv member f the public requesting ac : G.L. c. 66. §10. 

if the public recofd exempti - c - ; ~ d 1 - may apph to 

parts of the C - ■ ' . 1" a ana : E\emr'.::n i . . _. 

from the definition of "public record aocumen> specifically or by 

necessarv imr anpted ft dosuie by statute." Within the 

men . rapes -.ion law. the:; e dsts _:h an exemption. General 

. 152 POD explicitly pi dibits the public disc me names 

md ■ddiessea : peiscns receiving . ~r>ensation for six months. Thus, this 

mfbni Dontained in Division files .annot be disc 

to the public under the PRL. There appear to be no other statutory 

:- - pnatarin a gimilaHj '-:... . . ~.7".::n 

The quest -.-.::.-.- an statute fc necess an implication" protects 

rmatinw in the Z employee files from disclosure requires 

examinai: m -IP A and its relation to the PRL. The information 

Dontained in die emj . eari> personal data" within the 

mear. - . : FIPA see G.L. e. 66A : definition of "personal data"), and 

- e files men: : . i tute a pen : nal data system" under the statute. 

izl' " personal dai^ F IP A directs that an agency 

which m^ in - ~ i a personal data s tern shall. 

not allow an. :.r.e: agenc) :r individual not employed by the 
holding agencv to ha - - e acce pel nal data unless such access 

is authorized bv statute or regulation, or is approved by the 
hokhng agency and by the iata subjecl -hose personal da to 
ght .... G.L. c. 6ti -. : 1 . emphasis supply : 

En ■ : ri : - : ninion. I ruled that this section of FIPA does not operate to 

-arv imc .- ~ all personal data from disclosure a - 

:_- ... -.. -. .'-'■ " It V.:;- V-" N: 32 a: i. r. : I adhere :: -.his 

reading : atute and icfei - to that opinion. Accordingly. I 

conclude that with the exception of information furnished the Industrial 

- lend Rehabi itation Board pur:_i-: tc G 1 . 152 :1 D. exemption 

i ioe . anpt ai -formation contained in the Division's employee 

r from disc area - : _blic record- 

The broader exemption which relates to the Division's files is G.L. c 4 
. " . 1 . 

personnel and medical files or informationi also any other 
materials or data relating to a specifically named individual the 
: ihosure of which ma ~ .ate an invasion of personal 



P.D. 12 91 



Under this exemption, all the medical reports and hospital records kept in 
Division employee files are clearly protected from disclosure. : Transcripts 
of doctors' testimony would also be protected. However, application of the 
exemption to other information in the files requires a balancing of the 
employee's privacy interest in non-disclosure against the public's interest in 
being informed m light of the particular circumstances at hand. In the prior 
opinion cited above. 19"6 "" Op. Any. Gen N: 32 at 9-1 1. I discussed the 
legal principles relevant to this determination, and I again refer vou to that 
opinion for guidance. See also 19"6 ~~ Op. Atty. Gen. No. 22 at 4-5 

Given the need to weigh the competing interests of individual privacv 
and public information in the context of a particular case. I am unable to 
make an abstract determination whether certain items of information 
contained in an individual employee's file are exempt from disclosure or 
not. Cf. 1976 77 Op. Atty. Gen. N: 32 al 15. The Division itself must 
evaluate the information contained m specific files or records in ace (dance 
with the legal principles treated m the earlier opmion to determine whether 
and to what extent exemption (c) applies. Any decision bv the Dr- 
denying access to such records is subject to review bv the Super. is; - 
Public Records and the courts. G.L. c. 66. §10 (bi. 

To assist your deliberations I offer the following general Guidelines. 
First, it is my opinion that disclosure of personal information concernina an 
employee's name and home address and his family situation is information 
in which the employee has a legitimate privacy interest. See Rural Housing 
Alliance, Inc. v. United States Deparimem of Agriculture. 498 F-2d 173 D.C. 
Cir. 1974): see also 1976 77 Op. Atty. Gen. Nc 32 at 11. and cases cited. 
Second, information concerning an employer's busmess name, location and 
the type of business conducted does not appear to pose anv danger of 
invasion of privacy to the employee or the employer. Third, whenever 
possible, personal identifying information contained in a file should be 
deleted so that the privacy of a particular individual will not be invitee 
throuah disclosure of the document. See Department of the Air For. t 
Rose.^225 U.S. 352 (1976> 

You have also asked who may obtam access to the information in 
Division files. All public record information, as defined above, must be 
made available under G.L. c. 66. §10ia>. to anv person who requests it. 
Where personal data is not a public record. FIPA controls and no access 
may be granted without the individual's and the Di\isicr. - . sent, unless 
authorized by statute or regulation. G.L. C.66A ;1 c 

In summary, much of the information in the Division's files on injured 
employees, including medical and hospital reports and familv data is n ; 
subject to disclosure as public record information because it is exp:. 
held on a confidential basis. G.L. c. 152, §30D, or because it is exempt 
under the privacy exemption of the PRL. G.L c - §7, cl 1- c). Those 



! im .:ed access to this lnfonnaooo bv parties to Bo 

. : p 

■ '. - .'.... 

open r- Baud member. To the extent that 

authorizes public access :o the lnfonnabon withi 
err.?.: -^ :'__ ...:v :.- - :". — ±; . - - -.r.e T. "•_-.:: 



92 P.D. 12 



portions of the file not so exempt should be made available to the public as 
long as this can be done without also disclosing the protected information. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 10 October 20, 1977 

John J. McGlynn 

Supervisor of Public Records 

McCormack State Office Building 

One Ashburton Place, Room 1709 

Boston, Massachusetts 02108 

Dear Mr. McGlynn: 

You have asked for an opinion concerning the validity of a regulation 
you have issued limiting the fees which custodians of public records may 
charge for furnishing copies of such records to the public. 1 Specifically, you 
wish to know whether ( 1 ) you have the authority to establish a general fee 
schedule and (2) whether the fee schedule set forth in your promulgated 
regulation is reasonable. 2 

I fmd that you do have the authority to set limits on the fees which 
custodians of public records charge for furnishing copies to members of the 
public. With regard to your second question, however, I must decline to 
state whether or not the specific fee schedule you have established is 
reasonable. At the same time I note that there is a strong presumption of 
reasonableness which attaches to duly promulgated regulations. My reasons 
for these responses are set forth below. 

1. The definition of a "public record" in the General Laws is very broad. 
G.L. c. 4, §7 cl. 26. The definition clearly applies to records kept by cities 
and towns and other political subdivisions of the Commonwealth, as well as 
the records of agencies and other entities of state government. 3 Bougas v. 
Chief of Police of Lexington, Mass. Adv. Sh. (1976) 2236. 

Prior to 1973, the public records law provided that inspection and 
furnishing of copies of town public records could be regulated by ordinance 
or by-law, and the fees for furnishing such copies were specifically 
prescribed by statute. G.L. c. 66, §10 (as amended by St. 1948, c. 550, §5); 
G.L. c. 262, § 34 (65) (as amended by St. 1948, c. 550, §1). Chapter 1050 of 



'The regulation reads as follows: 

"Except where fees for copies of public records are prescribed bv law. and except as may be provided in any schedule of 
fees from time to time approved by the Supervisor, a governmental agency shall charge no more than ten cents per page for 
copies of public records which may be located and copied by standardoffice procedures except that where the actual cost for 
reproduction is greater than ten cents per page, the agency shall charge no more than twenty cents per page for said copies, 
where a request requires services to be performed in addition to standard office procedures, an additional fee may be 
charged that reasonably reflects the costs of the additional services. For purposes of this section.the reproduction of records 
not susceptible to photocopying (e.g oversize documents, punch cards, magnetic tapes) and services performed bv an 
employee upon a request to furnish access or produce copies where the employee expends more than twenty minutes to fulfill 
the request shall not be included in "Standard Office Procedures".' Secretary of the Commonwealth. Division of Public 
Records. Freedom of Information Regulations. Reg. 2.5, reprinted in 40 Mass Reg. at 61 (Jan. 20. 1977)." 

: Your letter indicates that vour particular concern is with your power to regulate fees charged by clerks of the various cities 
and towns I have focused mv opinion to address this concern. See Secretary of the Commonwealth v. City Clerk of Lowell. 
Mass. Adv. Sh. (1977) 1674. 1679. 

3 The only type of governmental agency which may be exempt from coverage by the public records law is one created by a 
statute which allows the agency to exempt itself from coverage. See 1976/77 Op. Attv. Gen. No. 12 (University of 
Massachusetts enabling statute allows Trustees to exempt themselves from coverage of Open Meeting Law| 



P.D. 12 93 



the Acts of 1973 changed the statutory scheme. It repealed the statutory fee 
schedule for copies of town and city public records appearing in G.L. c. 
262, §34 (65). and amended G.L. c. 66, §10, to provide that every custodian 
of public records was to furnish requested copies "on payment of a 
reasonable fee", and, if required, on payment of "the actual expense" of 
any necessary search for a particular document. G.L. c. 66. § 10(a) (as 
amended by St. 1973, c. 1050, §3). 

In 1976, the public records law was again amended. St. 1976. c. 438. §§1. 
2. A sentence was added to G.L. c. 66. §1. directing the Supervisor of Public 
Records 4 to adopt regulations under G.L. c. 30A "to implement the 
provisions of [c. 66]. " 5 The freedom of information regulations, including 
the fee schedule at issue, were promulgated pursuant to this statutory grant 
of authority. See n. 1 . supra. The fee schedule is intended specifically to 
implement the "reasonable fee" provision in G.L. c. 66. §10 (a). 

Although nothing in c. 66 explicitly provides that the Supervisor of 
Public Records shall determine reasonable fee levels for public record 
copies, the statutory background outlined above plainly embraces fee 
schedules as within the scope of your authority. As Supervisor you have 
broad authority to effectuate the purposes of c. 66. and the setting of a fee 
schedule is "reasonably related to the purposes of the enabling legislation." 
Thorpe v. Housing Authority of Durham, 393 U.S. 268, 280-281 (1969). The 
Supreme Judicial Court recently upheld similar regulations of the 
Department of Public Health which elaborated upon the meaning of the 
word "reasonable" in a statute. Consolidated Cigar Corp. v. Department of 
Public Health, Mass. Adv. Sh. (1977) 1419. 1433. See Colella v. State Racing 
Comm'n, 362 Mass. 152, 155 (1971); see also Commonwealth v. Racine, 
Mass. Adv. Sh. (1977) 1101. 1106-1107; Clearx v. Cardullo's Inc., 347 Mass. 
337,344(1964). 

2. You have asked whether the specific fee schedule prescribed in Reg. 
2.5 6 is reasonable. The question of reasonableness is matter of judgment 
which lies within your administrative discretion in the first instance. Cf 

Lybarger v. Cardwell, F. Supp. (D. Mass. 1977) 5 M.L.W. 778. 

Without further information concerning the actual costs of reproducing 
documents. I cannot determine whether or not your judgment was correct." 

Nevertheless, the fee schedule, as a duly enacted regulation, is presumed 
to be valid. Consolidated Cigar Corp. v. Department of Public Health, supra 
at 1433; Druzik v. Board of Health of Haverhill, 324 Mass. 129. 138-139 
(1949). All custodians of public records should therefore comply with the 
schedule in its current form. 

Very trulv yours. 

FRANCIS X. BELLOTTI 

Attorney General 

The Supervisor's position and duties are defined bv G.L. c. 9. §4. 

'Section 10(b) was further amended to create an administrative appeal for a person seelong public records in addition to the 
existing judicial remedy: the section now authorizes the bringing of an appeal to the Supervisor of Public Records when a 
custodian refuses to furnish a copy of a particular record, and grants the Supervisor the power to request that the Attorne\ 
General or appropriate district attorney enforce compliance with the Supervisor's orders. 

'See n. 1. supra. 

"I note that the distinction drawn in the regulation between the copying fee itself and a fee for additional services is also 
reflected in the governing statute. G.L. c. 66. §10 (a). 



94 P.D. 12 



Number 11 November 14, 1977 

Paul J. Moriarty 

State Building Code Commission 

John W. McCormack State Office Building 

One Ashburton Place 

Boston, MA 02108 

Dear Mr. Moriarty: 

You have asked my opinion on behalf of the State Building Code 
Commission (Commission) concerning the following questions: 

1) Do the provisions of G.L. c. 143, §3R,' apply to buildings 
and structures erected prior to the effective date of that law? 

2) May the Commission clarify by regulation, in terms 
consistent with the answer given to the first question, whether 
or not G.L. c. 143, §3R, applies to buildings erected prior to 
the effective date of the legislation? 2 

For the reasons set forth below, it is my opinion that G.L. c. 143, §3R, 
(the "Lock Law") applies to all buildings erected before and existing at the 
time the statute or any amendments to it went into effect, 3 as well as to 
buildings constructed thereafter. In response to your second question, the 
Commission is authorized, pursuant to its general rulemaking powers 
contained in G.L. c. 23B, §17, to issue rules and regulations which 
incorporate and explain the provisions of G.L. c. 143, §3R, provided such 
rules and regulations are consistent with the language of the statute. 

By its terms, G.L. c. 143, §3R, applies to "every apartment house having 
more than three apartments. . . ." The articulated limitations on the law's 
coverage relate solely to the type of building and the number of apartments 
within a building; there is no reference to any limitation based on the date 
of construction. 

The Supreme Judicial Court has interpreted similar statutes and 
ordinances according to their plain meaning, and has declined to read in an 
exclusion for existing buildings where the statute or ordinance did not 



'General Laws c. 143, §3R, provides: 

"At least one of the doors of the main common entryway into every apartment house having more than three apartments 
shall be so designed or equipped as to close and lock automatically with a lock, including a lock with an electrically operated 
striker mechanism, a self-closing door and associated equipment, and such lock, door or equipment shall be of a type 
approved by the state building code commission. Every door of the main common entryway ana every exterior door into 
every such apartment house, other than the door of such main common entryway which is equipped as provided in the 
preceding sentence, shall be equipped with a lock of a type approved by said state building code commission; provided. 
however, that the said commission may, in writing, waive any of the requirements of this section in appropriate cases in 
which, in its opinion, other security measures are in force which adequately protect the residents of such apartment house. 
Whoever, being in control of such premises, willfully and knowingly violates the provisions of this section shall be punished 
by a find of not more than five hundred dollars. 

This section shall not apply to lodging houses, as defined in section twenty-two of chapter one hundred and forty, 
dormitories of charitable, educational or philanthropic institutions or projects of housing authorities, as defined in chapter 
one hundred and twenty-one." 

2 You have informed me that many existing apartment houses having more than three apartments currently do not satisfy the 
requirements of G.L. c. 143, §3R. The questions you have asked me arise because the State Building Code Appeals Board, 
established pursuant to G.L c. 23B, §23, has recently heard several appeals requesting waivers from the provisions of G.L. c. 
143, §3R, under the proviso concerning waivers which appears in the first paragraph of the section. 

'As originally enacted, §3R required only that "one of the doors of the main common entryway into every apartment house 
having more than three apartments" be designed to close and lock automatically St. 1965, c.464, §1. In 1967 the section was 
amended to include the current second sentence of the section's first paragraph, requiring that every door of the main 
common entryway and exterior door of included apartment houses be equipped with a lock St. 1967, c. 735, §1. In 1969, §3R 
was again amended to add the requirements concerning locks with electrically operated striker mechanisms, self-closing 
doors, and associated equipment which are now set forth in the first sentence of the first paragraph St. 1969, c. 303. §1. 



P.D. 12 95 



expressly contain one. See Paquette v. Fall River, 338 Mass. 368, 375 (1959); 
Commonwealth v. Roberts, 155 Mass. 281, 282-283 (1892); Cf. Com- 
monwealth v. Racine, Mass. Adv. Sh. (1977) 1101, 1102-1103 (lead paint). If 
the Legislature, in enacting G.L. c. 143, §3R, had intended to restrict its 
applicability to buildings constructed after the effective date of the statute, 
it clearly could have included language to accomplish that result. See, e.g. 
St. 1973, c. 395, enacting G.L. c. 148, §26A; St. 1974 c. 214, enacting G.L. c. 
148, §26B; St. 1975, c.676, amending G.L. c. 148, §§26A and 26B; see also 
St. 1974, c. 528. 4 In the absence of an explicit limitation, the requirements of 
G.L. c. 149, §3R, must be read to apply to buildings erected prior to the 
effective date of the statute or its amendments, as well as to the buildings 
erected thereafter. 5 

Your second question asks whether you may set forth the conclusion on 
the law's coverage, stated above, in the form of a regulation. General Laws, 
c. 23 B, § 17(a), establishes the Commission's general authority to make rules 
and regulations relating, inter alia, to building construction, alteration and 
repair requirements. The Commission may use this rulemaking authority to 
promulgate regulations which incorporate and explain the specific statutory 
requirements set forth in G.L. c. 143, §3R. Any such regulation, however, 
must be consistent with the statute's terms in order to be valid. See, e.g., 
Bureau of Old Age Assistance v. Commissioner of Public Welfare, 326 Mass. 
121, 124 (1950). They may not, for example, attempt to limit the application 
of §3R to buildings erected after the date of the statute. 6 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



■These statutes expressly provided that the structural requirements which thev prescribed were to apply to buildings begun or 
substantially altered after a certain date. See St. 1973. c 395, §3; St. 1974. c. 214, §2; St. 1975. c. 676, §3; St. 1974, c. 528. §3. By 
contrast, the legislative history of G.L. c 143, §3R. reveals that neither the 1965 statute originally enacting the section nor the 
1967 and 1969 amendments (see n.3, supra) contained any provision that limited the section's requirements to buildings 
erected or altered after a particular date. 

'Statutes such as §3R which require alterations to existing structures in order to comply with later-enacted safety measures 
have been held to be prospective in operation, in the sense that they apply to "violations which continue after [the statute's] 
passage or which then come into existence." Commonwealth v. Roberts, supra at 283 Cf. Hoffman v Hov.medica, Mass. Adv 
Sh. (1977) 1488, 1492. Such statutes have been consistently upheld as constitutional exercises of the police power See eg 
Queenside Hill Realty Co.. Inc. v. Saxl. 328 U.S. 80, 83 ( 1946); Pacauelle v. Fall River, supra at 375-376. 

The Commission, in accordance with the waiver provision of §3R, may waive any of the section's requirements for a 
building governed by the statute, if it determines that other security measures adequately protect the building's residents. 

'You have expressed a concern that if the Commission adopts regulations as part of the State Building Code pursuant to G.L. 
c. 23B. §17(a), stating that G.L. c. 143, §3R, applies to existing buildings, those regulations would contravene the provisions of 
G.L. c. 143, §92. That section provides that new provisions of the Building Code or other regulations shall not affect building 
permits lawfully issued before the effective date of any such provisions, or buildings lawfully begun before that date. There is 
no inconsistency between G.L. c. 143, §3R, and c. 143, §92. The requirements of §3R are statutory; they do not exist as 
separate Code requirements. The limitations imposed by §92 apply only to Code provisions which have no express statutory 
basis. 



96 P.D. 12 

Number 12 November 28, 1977 

Carol S. Greenwald 

Commissioner of Banks 

Office of the Commissioner of Banks 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Commissioner Greenwald: 

You have requested my opinion on the interpretation of the licensing 
provisions of G.L. c. 93, §24. In particular, you ask whether a Pennsylvania 
corporation seeking to conduct the business of a collection agency in the 
Commonwealth is required to obtain a license from you pursuant to §24. 
On the basis of the facts recited in your request, it is my opinion that the 
licensing requirement in §24 does not apply to the corporation in question. 1 

You state that the Pennsylvania corporation operates in the ordinary 
course of business as a collection agency for public utility corporations in 
Pennsylvania, and that it currently seeks to do the same kind of collection 
business for utility companies serving Massachusetts residents. The 
corporation would have no contact with Massachusetts debtors except 
through letters sent from outside the Commonwealth. The letters would 
encourage debtors to make payments directly to the utility company and 
the corporation would itself transmit to its clients all payments it happened 
to receive. 

The need for the corporation to obtain a collection agency license in 
these circumstances requires a two step analysis of G.L. c. 93, §24. The first 
question is whether the corporation comes within the scope of the section's 
general licensing requirement. If so, it is necessary to determine whether the 
corporation falls among the exceptions specified in the statute. 

The licensing requirement of §24 is broad in scope. Its plain intent is to 
reach virtually every type of collection activity unless that activity is 
performed by a person or business made specifically exempt. Thus, the 
Pennsylvania corporation must be deemed to fall within the general bounds 
of §24. It remains to determine whether the corporation qualifies for a §24 
exception. 

One exception set forth in §24 is for 

an agent or independent contractor employed for the purpose of 
collecting charges or bills owed by a . . . customer to a 
corporation subject to the supervision of the department of 
public utilities ... in so far as said person collects charges or 
bills only for such supervised corporations .... 

'Section 24 provides: 

"No person not being an attorney at law authorized to practice in the commonwealth, a bank as defined in chapter one 
hundred and sixty-seven, a national banking association having its main office in the commonwealth, or a person whose 
usual business is not that of a collection agency, who acts as agent for such bank or national banking association for the 
purpose of collecting any accounts, bills or other indebtedness which arise from such person's usual business, or an agent or 
independent contractor employed for the purpose of collecting charges or bills owed by a tenant to a landlord or owed by a 
customer to a corporation subject to the supervision of the department of public utilities or the division of insurance in so far as 
said person collects charges or bills only for such landlord or supervised corporations, shall directly or indirectly conduct a 
collection agency, or engage in the commonwealth in the business of collecting or receiving payment for others of any 
account, bill or other indebtedness, or engage in the commonwealth in soliciting the right to collect or receive payment for 
another of any account, bill or other indebtedness, or advertise for or solicit in print the right to collect or receive payment for 
another of any account, bill or other indebtedness, without first obtaining from the commissioner of banks a license to carry 
on said business, nor unless such person or the person for whom he or it may be acting as agent has on file with the state 
treasurer a good and sufficient bond. The commissioner may from time to time establish such regulations pertaining to the 
conduct of the business as he may deem necessary " 
[Emphasis supplied] 



P.D. 12 97 

The apparent premise for this exception is that the Department of Public 
Utilities possesses sufficient authority to supervise and regulate utility bill 
collections in the public interest. Cf. Cambridge Electric Light Co. v. 
Department of Public Utilities, 363 Mass. 474 (1973). On the basis of the 
facts given me, I have assumed that the Pennsylvania corporation in 
question would operate in Massachusetts as an "agent" collecting only for 
"corporation[s] subject to the supervision of the Department of Public 
Utilities." 2 Therefore, it need not be licensed by the Commissioner of Banks 
in order to conduct its collection business in Massachusetts. 3 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 13 November 29, 1977 

John R. Buckley, Secretary 

Executive Office of Administration and Finance 

State House 

Boston, Massachusetts 02133 

Dear Secretary Buckley: 

You have asked on behalf of the Teachers' Retirement Board 1 how 
:ertain severance payments made to retiring teachers should be treated in 
:alculating those teachers' retirement allowances. Specifically, you state 
that several school committees provide severance payments for unused sick 
leave to retiring teachers pursuant to contractural agreements. 2 You ask 
whether these payments constitute "regular compensation" under G.L. c. 
32, §1, for purposes of computing the retired teachers' retirement allow- 
ances. I conclude that the severance payments qualify as "regular 
:ompensation" as defined by G.L. c. 32, §1, 3 and must be included in the 
retirement allowance computation. My reasons are discussed below. 

Under G.L. c. 32, §5(2), the retirement allowance for any retirement 
system member classified in Groups 1, 2 or 4 4 is 

If the corporation intends to collect bills from Massachusetts residents on behalf of utilities that are not regulated by the 
Department of Public Utilities or on behalf of other entities, it would no longer come within the scope of the quoted §24 
exception, and a collection agency license would be necessary. 

This opinion, as is true of G.L. c. 93, §24, considers only the activities of the Pennsylvania corporation conducted in the 
Commonwealth Massachusetts has no jurisdiction to regulate the corporation's activities outside of this state. 



'General Laws c 7, §4G. places the Board within the Executive Office of Administration and Finance. 

2 As an example of such a contractual agreement you cite a collective bargaining agreement between the Lee School 
Committee and Lee public school teachers which provides: 

A severance pay for cumulative sick leave will be paid to a teacher or his estate, who has served twelve (12) years 
in the Lee School System, upon retirement or termination. Formal notice of retirement or termination shall be given 
at least thirty (30) days prior to the start or closing of the school year The severance pay will be paid in the last two 
(2) paychecks; the rate will be determined by the number of accumulative sick leave days, up to a maximum of 16 
days x 1/180 of that teacher's annual salary. 

'General Laws, c. 32 §1, defines regular compensation during any period after December 31, 1945. to mean: 

[T]he salary, wages or other compensation in whatever form, lawfully determined for the individual service of the 
employee by the employing authority, not including bonus or overtime .... 

In the case of a teacher employed in a public day school who is a member of the teachers' retirement system, salary 
payable under the terms of an annual contract for addditional services in such a school and also compensation for 
services rendered by said teacher in connection with a school lunch program or for services in connection with a 
school lunch program or for services in connection with a program of instruction of physical education and athletic 
contests as authorized by section forty-seven of chapter seventy-one shall be regarded as regular compensation 
rather than as bonus or overtime and shall be included in the salary on which deductions are to be paid to the 
annuity savings fund of the teachers' retirement system. 

'Teachers are classified in Group 1 for the purpose of computing the amount of their retirement allowance See G L c 32 
§2<g>- 



98 P.D. 12 

. . . based on the annual rate of regular compensation received bv 
such member during any period of three consecutive vears of 
creditable service for which such rate of compensation was the 
highest, or on the average annual rate of regular compensation 
received by such member during the period or periods, whether 
consecutive or not. constituting his last three years of creditable 
service preceding retirement . . . (emphasis supplied). 

Thus, the greater the amount of regular compensation which a member 
earns during his final three years of creditable service, the greater will be 
his retirement allowance. 

The Supreme Judicial Court has upheld the validity of a collective 
bargaining agreement provision which grants a retiring teacher a salary 
increase in the final vear of service to reflect unused sick or personal leave. 
Fitchburg Teachers Association v. School Committee of Fitchburg, 360 Mass. 
105. 106-107 (1971). The court characterized such a provision as 

. . . part of the over-all package of service and benefits worked 
out bv the parties pursuant to collective bargaining and 
embodied in the contract . . . [and] a valid exercise by the 
[school] committee of its power to set wages. 360 Mass. at 107. 

See also Averell v. Xewbunport, 241 Mass. 333. 335 (1922): cf. Quinlan v. 
Cambridge, 320 Mass. 124. 128 (1946). The severance payments considered 
here are identical in substance to the "salary adjustment" in the Fitchburg 
Teachers Association case. Accordingly, under the reasoning of that case it 
is clear that the payments represent valid compensation or salary 
arrangements agreed to by and binding on the affected school committees 
and teachers. 

The question that remains is whether the severance payments, although 
constituting compensation, nevertheless fall outside the definition of 
"regular compensation" because they are "bonuses" as that term is used in 
G.L. c. 32. §1. 5 In Attorney General \. Woburn, 317 Mass. 465 (1945). the 
court considered the legality of a lump sum "bonus" granted by a school 
committee to its teachers during a single year. The court held that the 
pavment was a valid and binding contractual obligation providing 
compensation for services rendered. In Fitchburg Teachers Association, 
supra, the Court referred to the Woburn case, stating that the retiring 
Fitchburg teachers" salary adjustment resembled the "bonus*' provision 
sustained in Woburn. Fitchburg Teachers Association, supra, 360 Mass. at 
107. In both these cases, however, the question before the court was 
whether the payments at issue represented gratuities or gifts from the 
respective school committees rather than compensation for services actually 
performed. The court did not consider the distinction between the terms 
"bonus" and "salary" or "compensation" as they appear in G.L. c. 32. §1. 
Given the different concerns at issue. I do not believe that the court's 



*I do not consider whether the severance payments might be classified as "overtime"' as that word appears in G.L. c. 32. §1. 
Overtime is generallv defined as pavment for work which is not customary or normal. See Smith v Lowell. 334 Mass. 5 16. 519 
( 1956): see alio Prosecutors. Detectives and Investigators Assn v Hudson County Board of Chosen Freeholders, 1 30 N J Super. 
I \2d 897. 902 | W74) There is no indication that the work done bv the teachers entitling them to the severance 
payments was not normal or customary, or that the work was done outside of normal and customary working hours. 



P.D. 12 99 



discussion of the word "bonus" in these two cases answers the question you 
have asked. 

Turning to general principles of statutory construction, it is axiomatic 
that a statute should be interpreted in accordance with the legislative intent 
"ascertained from all its 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 . . . ." Massachusetts Commission Against 
Discrimination v. Liberty Mutual Ins. Co. Mass. Adv. Sh. (1976) 2403. 2407. 
The general purposes of the retirement statutes are "beneficent". Selectmen 
of Brookline v. Allen, 325 Mass. 482. 486 (1950). and as the court indicated 
in that case, the compensation provisions of such statutes should be broadlv 
construed. The provision for severance payments at issue here represents an 
integral term of a comprehensive collective bargaining package governing 
teachers' salaries. Given the contractual nature of these payments. I 
conclude that for purposes of G.L. c. 32. §1. the payments must be deemed 
part of the retiring teachers' "salary, wages or other compensation in 
whatever form", and not a "bonus." 6 

This reading of the statute is strengthened by reference to the provision 
of G.L. c. 32. §1, which states that, for a public school teacher, "salarv 
payable under the terms of an annual contract for additional services in 
such a school . . . shall be regarded as regular compensation rather than as 
bonus or overtime. ..." A teacher who receives a severance payment as a 
result of not taking all the sick days available in a sense has given 
additional service to the school system. Since the pavments are provided for 
"under the terms of an annual contract" they seem to fall within the scope 
of the quoted statutory language and should be treated as "regular 
compensation" for purposes of calculating the teacher's retirement 
allowance." 

Verv trulv vours. 

FRANCIS X' BELLOTTI 

Attorney General 



Attorney General v. Woburn. supra, and Selectmen of Brookline v. Allen, supra, provide implicit support for this conclusion. 
Both cases suggest that an important element of a "bonus" is its temporary or non-continuing character See Wobm 
Mass at 468; Allen. 325 Mass. at 485-486. There is no suggestion in the materials vou sent me that provisions for sc 
payments in certain collective bargaining agreements arehkely to be limited to a' single Nears agreement Rather it seems 
more reasonable to assume that future agreements will contain similar provisions. 

I should emphasize that my conclusion regarding the treatment of severance pavments for purposes of computing a teacher's 
retirement allowance is limited to those payments arising under the terms of a collective bargaining contract. I do not reach 
the question of whether se\erance payments made to retiring teachers under a different or less formal arrangement would 
also qualify as "regular compensation" as the term is used in G.L. c. 32. §1. 



100 P.D. 12 

Number 14. December 12, 1977 

Amelia Miclette 

Chairperson 

Civil Service Commission 

One Ashburton Place 

Boston, Massachusetts 02108 

Dear Ms. Miclette: 

You have asked whether execution of the collective bargaining 
agreement (Agreement) between the Commonwealth and state employees 1 
on November 23, 1976, 2 has nullified the responsibility of the Civil Service 
Commission (Commission) to decide employee class reallocation appeals 3 
pending before it on the date the Agreement was signed. 

Before the effective date of the Agreement, employee requests for class 
reallocations were handled by the Division of Personnel Administration 
and the Commission under G.L. c. 30, §§45 and 49. You have informed me 
that thirteen class reallocation appeals were still pending before the 
Commission on the date the Agreement was executed. Some of these 
appeals had been acknowledged but not yet scheduled for hearing; others 
had been heard and were awaiting decision by the Commission. Sometime 
after November 23, 1976, three of these appeals were voluntarily 
withdrawn, but the remaining ten are being pressed. 

The question that arises is whether the Commission continues to have 
authority to decide these ten pending appeals in view of the terms of Article 
17 A of the Agreement. Article 17 A provides in §1 that all requests for class 
reallocations are to be governed by the Agreement's grievance procedure, 
culminating, if necessary, in arbitration. Section 2 of Article 17A goes on to 
state: 

The Employer and the Union agree that the procedure 
provided in Section 1 shall be the sole procedure for class 
reallocations for all classes covered by this Agreement, and no 
other class reallocations shall be granted during the term of this 
Agreement. 

For the reasons set forth below, I advise you that in my opinion Article 



'The state employees' collective bargaining representative (the "Union") is composed of an alliance of the American 
Federation of State. County and Municipal Employees Union (AFSCME). AFL-CI0, and its affiliate councils, and the 
Services Employees International Union (SEIU). and its affiliate locals. 

; The Agreement in its original form was in effect from November 23, 1976, through June 30, 1977. Since that time the 
Commonwealth and various groups of its employees have entered into new collective bargaining contracts, all of which 
contain the same relevant provisions as the Agreement. For the sake of convenience I therefore refer throughout this opinion 
to the original Agreement. 

'Class reallocations are predicated upon the classification system and the pay plan governing most state employees and 
outlined in G.L. c. 30, §§45-50. Under the system, positions with similar duties ana responsibilities are grouped into "classes". 
G L c 30, §45 ( 1 ) (b). Offices and positions in the same class are allocated to the same job group; placement in job groups 
determines salary in accordance with the salary schedule set forth in G.L. c. 30. §46. G.L. c. 30, §45(3) Pursuant to G.L c 30. 
§45, the Personnel Administrator is responsible for classifying positions and allocating and reallocating classes to the 
appropriate job groups in the salary schedule. 

As in effect on November 23, 1976, G.L. c. 30, §45, also permitted emplovees of the Commonwealth to object to any 
provision of the classification scheme affecting their positions by appeal to the Personnel Administrator. If the Personnel 
Administrator sustained an appeal, he was required to report his recommendation to the budget director and the House and 
Senate Committees on Ways and Means in accordance with G.L. c. 30. §45(4) If the Personnel Administrator denied the 
appeal, a further appeal was allowed to the Civil Service Commission pursuant to G.L. c. 30, §49. A decision by the 
Commission favorable to the employee required the Commission to report its recommendation to the budget director arid the 
House and Senate Committees on Ways and Means. G.L. c. 30. §49. 



P.D. 12 101 



17 A appears to supersede the Commission's jurisdiction and authority over 
all class reallocation appeals, and precludes the Commission from deciding 
those appeals pending before it on November 23, 1976. 4 

The statute governing collective bargaining by state employees, G.L. c. 
150E, provides that in the case of a conflict between the terms of a 
collective bargaining agreement and the specific statutory provisions of 
G.L. c. 30 relating to class reallocation appeals, the term of the agreement 
shall prevail. G.L. c. 150E, §7. 5 Such a conflict seems to exist between the 
provisions of G.L. c. 30, §§45 and 49, and Article 17A of the Agreement: 
Article 17 A provides that the Agreement's grievance procedure (set forth in 
Article 23a) represents the only procedure for resolving class reallocation 
questions during the term of the Agreement; G.L. c. 30, §§45 and 49, 
establish a separate and different administrative channel through which 
reallocation appeals may be brought. Thus pursuant to G.L. c. 150E, §7, the 
statutory appeal process clearly appears to be superseded by Article 17 A. 
See also St. 1977, c. 628, amending G.L. c.30, §49. 6 

Turning to the ten class reallocation appeals pending before the 
Commission, the terms of the statutory appeal process, when read together 
with Article 17 A, §2 of the Agreement, indicate that the Commission 
should not decide these appeals. Under G.L. c. 30, §§45(4) and 49, the 
Commission's ultimate ability to grant relief to appealing employees is 
limited to making recommendations for future action on class reallocations 
by the budget director and the House and Senate Committees on Ways and 
Means. However, any such recommendations in the pending cases would be 
futile because under the express terms of Article 17 A, §2, no class 
reallocations other than those granted through the Agreement's grievance 
procedure can be granted during the term of the Agreement. 

Moreover, the shift from the statutory appeal process of G.L. c. 30, §§45 
and 49, to the Agreement's grievance procedure is a procedural rather than 
a substantive change. The basic standard governing class reallocations 
remains the same: similar or comparable positions are still to be located 
within the same salary range. Compare G.L. c. 30, §45 (1) (b) and (3), with 



'I note at the outset a caveat to my opinion. Under G.L. c. 150E, §8. a public employee collective bargaining agreement may 
contain "'a grievance procedure culminating in final and binding arbitration to be invoked in the event of any dispute 
concerning the interpretation or application of such written agreement." The Agreement at issue here contains such a 
grievance procedure. See Article 23a. §§l el seq. Therefore, interpretation of its provisions is ordinarily reserved to an 
arbitrator, and the Attorney General would not render an opinion on the meaning of the Agreement's terms. Cf. 1968/69 Op. 
Atty. Gen. No. 30, reprinted in P.D. No. 12 at 100, 102 (1969) However, under the express terms of the Agreement, only an 
employee or the Union may initiate the grievance procedure. See Article 23a. As mentioned above, the Union has not 
invoked the grievance procedure with respect to the pending class reallocation appeals, but has instead asked you to decide 
those appeals It thus appears that an arbitrator cannot resolve the interpretive questions necessarily raised by your opinion 
request, while I cannot perform an arbitrator's function and authoritatively construe the Agreement, as your lawyer 1 am 
responsible for advising you on questions relating to your official duties. To that end 1 give here my opinion on the 
appropriate manner of handling the class reallocation appeals pending before the Commission. 

Section 7 reads in pertinent part: 

If a collective bargaining agreement reached by the employer and the exclusive representative contains a conflict 

between matters which are within the scope of negotiations pursuant to section six of this chapter and .... 

(c) section 24A, paragraphs 14) and 15) of section forty-five, paragraphs (1) (4) and (10) of section forty-six, section 

forty-nine, as it applies to allocation appeals, and section fifty-three of chapter thirty .... 

the terms of the collective bargaining agreement shall prevail [Emphasis supplied] 
The subject matter of Article 17A, class realloation appeals, is a matter "within the scope of negotiations" under G.L. c. 
50E, §6. Section 6 permits negotiation "with respect to wages, hours, standards of productivity and performance, and any 
ither terms and conditions of employment. . . ." As explained above, the classification of an employee's position determines 
lis salary or wage level. 

hapter 628, enacted as an emergency law on October 21, 1977, made the legislative mandate in G.L. c. 150E, §7. even more 
xplicit. It added a paragraph to G.L. c. 30, §49, which provides specifically that the section shall not apply to class 
^allocation appeals of employees who are part of a public employee collective bargaining unit. 



102 P.D. 12 



Ankle 17A, §1 ibi." Implementation of Article 17A only alters the manner 
in which reallocation appeals are decided and thus affects remedies rather 
than substantive rights. 

It is a general rule of statutory construction that statutes affecting 
remedies are commonly treated as operating retroactively, and construed to 
applv to pendina actions or causes of action. See. e.g.. Palmer v. Selectmen 
of Sfarblehead. Mass. Adv. Sh. (1975) 2837. 2841-2842: Hem- Werner Corp. 
v. Jackson Industries. Inc.. 364 Mass. 523. 525 1 1974); Smith v. Freedman, 
268 Mass. 38. 40 (1929): E.B. Horn Co. v. Assessors of Boston. 321 Mass. 
579, 584 (1947). Under the principles set forth in these cases. I conclude that 
Article 1 7A should be retroactively applied s to cases pending at the time the 
Agreement was executed." Thus, in mv opinion the Commission has no 
jurisdiction to decide class reallocation appeals pending before it on 
November 23. 1976. 

Yerv trulv vours. 

FRANCIS X. BELLOTTI 

Attorney General 

Number 15 December 12. 1977 

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

Dear Commissioner Hall: 

You have requested an opinion about the relationship between G.L. c 
269. §10 (a) 1 (-gun control law"), and G.L. c. 127, §90A. : ("§90A") th< 



"Article I7A, _he Agreement provides that Union requests for class reallocation ma) be submitted _ 

- 

Should any requests for reaUoca: .'.ed to arbitration the question before the arbitrator shall be whether 

or not the' requested reallocation is jur. ific table relationship between the positions 

coie - :- • eailocarion and other posit.: -.en compared with compar.- 

■-.■--.-. .- : _r- .; 

- _ - . : " insofar as G.L c. 150E. §". and c. 30. 

- ----- r " 

:ti^:GL c 30, ^i- set, therefore n . - . - a g es retraac e ef fed to c. 1 50E. §7. 

:- 

"I reach this result in view of the fact that neither G.L c 150E, §7. nor c. 30. §49. as recently amended treats the question of 
p""liiig appeals. Compare Si_ 1974. c 806, the statute which created the Executive Office of Environmental Affairs and 
reorganized existing agencies concerned with environmental matters. One section of the statute spec 
c umuma tion of all petitions and hearings pending before certain agencies on the statute's effev 74 . ■ v>. §32. 

- -unent part 
Whoever, except as provided by law. carries on his person, or carries on his person or under his control in a vehicle, 
a firearm, loaded or nnloarird, as defined in section one hundred and twentv -one of chapter one hundred and fortv 
without . . . (having complied with certain su - e requirements] shall be punished by imprisonment in 

the state prison for not less than two and one-half nor more than five jm - km less than one year nor more 

than two and one-half years in a jail or boose of correction. The sentence imposed upon such person shall not be 
reduced to less than one year, nor suspended, nor shall any person convicted under this subsection iai be eligible for 
probation, paroie. or furlough or receive any deduction from his sentence for good conduct until he shall turn 
'.i .-:-■ ■ -- - -:'.:-'.:-: Z~---.-.- --rr.-eC 

=Generi Law - '-':---■ ran; 

The commissioner may extend the limits of the place of confinement of a com - 

correctional facility by authorizing such committed offender under prescribed conditions to be -ch 

correctional facility but within the commonwealth for a specified period of time, not to exceed fourteen day s during 

- | twelve month period nor more thar ~ may be granted for - 

the following pur po ses: (a) to attend the funeral to obtain 

f*sir»\ psychiatri c psychological or other sen are not available at the facility 

and cannot'be obtained - piacema mdex . [G.L. c. :Z" -.-. "A and 118]; (d) to 

iimMii i prospective erne. ..table residence for use upon release on parole or discharge: i ft for 

■-her reason consistent with the reintegration of a committed offender into the commi-r 

- n away from a correctional facility pursuant to this section may be accompanied by an employee of the 
department, in the discretion of the commissioner, or an officer of a countv correctional (acuity, m the discretion of 



P.D. 12 103 

statute authorizing certain temporary prison releases for incarcerated 
prisoners. Specifically, you ask: 

1. Does the term "furlough" as used in G.L. c. 269. §10 (a) 
include all temporary releases under G.L. c. 127. §90A? 

2. If the answer to Question 1 is negative, what furloughs does 
Section 10 (a) contemplate and what furloughs can this 
department authorize without violating the provisions of 
G.L.c. 269. §10 (a)? 

The practical object of these questions is to determine if. and when, 
temporary prison releases authorized under §90A may be provided to 
persons convicted of a gun control offense, in light of the language in the 
gun control law rendering them ineligible for furloughs. For the reasons 
discussed below. I answer your questions as follows: ( 1 ) The term 
"furlough" as used in the gun control law does not preclude all temporary- 
releases under §90A. (2) Temporary releases under escort to attend a 
relative's funeral (§90A(a)). visit a critically ill relative (§90A(b)). or obtain 
otherwise unavailable medical or related sen ices (§90A(c)). are not 
precluded by the gun control law: however, temporarv unescorted releases 
and releases to contact prospective employers (§90A(dn. or secure living 
arrangements upon release (§90A(e)). are precluded. I cannot give an 
opinion on the more abstract section authorizing temporarv release "for 
any other reason consistent with the reintegration of a committed offender 
into the community" (§90A(f))- 

The term "furlough" is not defmed in the gun control law. and its 
meaning in that statute has not been judicially construed. 3 

You state that the Department of Correction has in the past interpreted 
the furlough prohibition of that statute restrictively to mean that a person 
convicted under the gun control law cannot obtain a release of anv kind 
under §90A until he has served at least one year of the sentence. Your past 
interpretation rests on the grounds that (1) the Department regulations in 
effect at the time that the gun control law was amended in 1974 specificallv 
defined "'furlough" to include all temporary releases listed in §90A. 
including emergency releases under escort; and (2) the Legislature is 
presumed to be aware of pertinent regulations, and. therefore, to have 
categorically prohibited temporary releases for gun control offenders. You 
state that the harsh results of such a strict reading are out of step with 
modern criminal justice theory and practice: you have requested this 
opinion to determine whether your interpretation, with its harsh results, is 
mandated by the law. 

Upon analysis. I conclude that the Department's construction of the 
word ""furlough" in the gun control law is not compelled. The Legislature's 
1974 amendment to that law offers inadequate reason for requiring the 



it does not appear thai anv cases ha\e vet construed "furlough"' in the corrections or prison comex: 

Ca—m'rriaMT of Correction, 364 Mass. 435, 43t -- -. eases in §90A and §90A(f) in particL . 

"furloughs" but term never defined I. The word "furlough" has traditionally been considered a military term and has been 

: ed in the military context to mean a leave of absence from military du: 
Repair Corp. 328 U S 2 J 5. 287 1 1946); Bro*n « C/wfeW States, 99 F. Sopp. 685, 687 
been used and interpreted m the context of employment as a leave of absence or a iav -off See : 

Ins. Co.. 156 Pa Super.. 39 A 2d 721, 725-73 .-e definitions of the term, however £ do! ar^ea: re.evar.t to the 

Mian of how "furlough" should be defined m a criminal statute. On the contra- urioush" to be a term 

of art the meaning of which is a function of the particular context in which it is used I must cc- See G L 



104 P.D. 12 



Department's interpretation. While there is a presumption of legislative 
awareness of administrative regulations, see, e.g., Commonwealth v. Racine, 
Mass. Adv. Sh. (1977) 1101, 1106-1107, the presumption is a limited one, 
which, like any tool of statutory construction, operates only as a guide in 
interpreting an ambiguous statute. It does not mandate a construction of a 
statute identical to regulations in every instance. There must be a proximate 
relationship between the regulation and the subsequent legislative action. 
In this case, the Department's furlough regulations were adopted to 
implement a statue, §90A, which uses different language than the gun 
control law 4 and has a different purpose. The value of the regulations as a 
guide to legislative intent is therefore weakened. 5 See C.P. Sands, 
Sutherland Statutory Construction, §51.01 (4th Ed. 1972). Moreover, the 
legislative histories of the two statutes in issue suggest that, in enacting the 
gun control law, the Legislature did not intend categorically to sweep aside 
all temporary releases authorized by §90A. 

The six categories of temporary release authorized by §90A were 
approved in 1972. St. 1972, c. 777. However, earlier versions of §90A show 
that releases for some of these purposes have a long and uninterrupted 
history under Massachusetts law. As first enacted in 1923 (see St. 1923, c. 
52), G.L. c. 127, §90A allowed inmates in the custody of correctional 
officers to attend the funerals of their spouses and of any next of kin. 
Chapter 394 of the Acts of 1951 permitted an inmate, again in the custody 
of a correctional officer, to visit certain sick relatives whose deaths were 
expected to be imminent. In addition, while not originally mentioned in 
§90A, the escorted release of an inmate to obtain necessary medical or 
related care has traditionally been permitted. See G.L. c. 127, §§117-118. 
The major changes wrought in 1972 were the authorization of unescorted 
releases, and the creation of new release categories relating directly to the 
prisoner's reintegration into the community. See §90A (d) - (f). For the first 
time as well, releases were permitted for up to 14 days per year and 7 days 
at any one time. As explained below, I believe that the word "furlough" 
applies only to the types of releases first established by the 1972 legislation. 

The prohibition against furlough eligibility was added to the gun control 
law by a 1974 amendment. St. 1974, c. 649. The context of this 
amendment's passage suggests the source of the Legislature's concern. At 
about the same time c. 649 was enacted, the Legislature passed a resolve 
creating a special commission, composed primarily of senators and 
representatives, to study the effects of the "prisoner furlough program" on 
the citizens of the Commonwealth. 1974 Mass. Resolves, c. 52. 

On October 29, 1975 the special commission submitted its interim report. 
The majority described the furlough program as one of several established 
by the 1972 amending legislation (St. 1972, c. 777) which was intended to 
reduce criminal recidivism by working towards the reintegration of the 
criminal into the community. Mass. S. Doc. No. 2131 at 8 (1975). The 



'General Laws. c. 127. §90A. does not mention the term "furlough"; it speaks only of a "temporary release." 

^Compare Commonwealth v. Racine, supra at 1 107. That case involved the interpretation of a statute. G.L. c. Ill, §198. which 
made specific reference to an existing body of administrative regulations Similarly, in Board of Assessors of Melrose v. 
Driscolf, Mass. Adv. Sh. ( 1976) 1497, 1503, the Legislature was presumed to be aware of "the regulations of the agency to 
which it referred" (emphasis added) when the statute in question explicitly adopted the definition used by a designated 
agency. 



P.D. 12 105 

majority also characterized the furlough program as one which permitted 
prisoners "to walk the streets, devoid of restraints. "M 6 

The commission also expressed awareness, however, that before the 
furlough program began, prisoners had been permitted to leave the prisons 
in certain circumstances. The commission's majority stated, "[pjrior to the 
establishment of the furlough program, inmates were allowed to attend the 
funeral of a relative or to visit a critically ill relative." Id. at 33. 
Furthermore, the amendments to §90A proposed by the majority, designed 
to limit the availability of furloughs, retained a provision that would have 
allowed any offender to apply immediately for an escorted, emergency 
furlough for one of the reasons set forth in §90A (a), (b) and (c). Id. at 33, 
54. 7 

The special commission's report presents the only clear record of the 
legislative perception of the furlough program, 8 and it suggests that the 
Legislature intended the term "furlough" in the gun control law to refer to 
unescorted, rehabilitative releases, and not releases under escort for the 
emergency purposes set forth in §90A (a) through (c). 9 

Finally, it should be noted that an interpretation of the term "furlough" 
which continues to permit emergency, escorted releases for the purposes set 
forth in G.L. c. 127, §90A(a), (b) and (c), is compatible with the legislative 
purpose of the gun control law. The aim of that statute is "to deter through 
a nondiscretionary penalty" by removing "many of the opportunities for 
the exercise of discretion and leniency." Commonwealth v. Jackson, Mass. 
Adv. Sh. (1976) 735, 744, 745; see Commonwealth v. Hayes, Mass. Adv. Sh. 
(1977) 928, 934. Given this purpose, it seems clear that the furlough 
prohibition was enacted to preclude unescorted releases of persons 
convicted under the gun control law for non-emergency reasons. 

However, a temporary release in the custody of a correctional officer 
under the exigent circumstances listed in G.L. c. 127, §90A (a) through (c), 
presents a dramatically different situation. The events which would make a 
prisoner eligible for any of these releases are beyond his control; such a 



6 While disagreeing with the majority's proposals to restrict the furlough program, the minority of the commission shared the 
majority's view of the program's origins and salient features. See Mass. S. Doc. No 2131. supra at 43-44, 46. 

1 See also Mass. H. Doc. No. 1696 (1975), entitled, "An Act Eliminating the Prison Furlough Program." This bill proposed to 
amend §90A by eliminating authorization for all the listed categories of temporary release except emergency releases, under 
escort, to attend a relative's funeral or to visit a critically ill relative. 

8 Although the special commission's report, written after the approval of St. 1974, c. 649. is not part of the "history" of that 
statute, it is "entitled to some consideration as a secondarily authoritative expression of expert opinion", CD. Sands, 
Sutherland Statutory Construction, supra at §48.06. This is particularly true since it represents an interpretation of the word 
"furlough" made by a group of legislators under the explicit statutory mandate of the same Legislature which approved St. 
1974, c. 649. See Devlin v. Commissioner of Correction, supra at 440, n. 7. 

'The conclusion gains support from a look at other jurisdictions' definitions of the term "furlough" in the prison or corrections 
context. In 1965, Congress enacted legislation to authorize furlough and work release programs for federal prisoners. 18 
U.S.C. §4082(c) (1) and (2). Pub. L. 89-176, 79 Stat. 674, amending 18 U.S.C. §4082(c) (1). In 1973, §4082(c) (1) was further 
amended to expand the types of furloughs that could be authorized! See Pub. L. 93-209, 87 Stat. 907. The legislative history of 
these acts clearly shows that Congress understood the term "furlough" to indicate a temporary, unescorted leave of absence 
from a prison, the purpose of which was to encourage rehabilitation bv permitting the prisoner new freedoms and 
responsibilities. See S. Rep. No. 613, 89th Cong., 1st Sess. (1965), reprinted in [1965] U.S. Code Cong. & Ad. News 3076. 3079; 
S. Rep. No. 93-418. 93rd Cong.. 1st Sess. (1973), reprinted in [1973] U.S. Code Cong. & Ad. News 3018. 3018-3022. Indeed, in 
regulations implementing 18 U.S.C. §4082(c) (1), trie Federal Bureau of Prisons has specifically defined "furlough" to mean 
any authorized absence from a prison except under escort. See Federal Prison System, Policy Statement No. 7300. 1 2D, §46. 

Furlough programs established by other states have also used the term to mean temporary releases (a) without an escort 
and (b) for rehabilitative purposes such as contacting employers and family visiting. See. e.g.. New York Correction Law. 
§§8514. 853 (McKinney Supp. 1976). New York has a statutory "leave of absence" program, separate from its furlough 
program, to accomodate prisoners who need emergency medical treatment or to visit dying relatives. Id. §§851.6, 853.3. See 

fenerally Project: Temporary Release in New York Correctional Facilities, 38 Alb. L. Rev. 691. 702, 712-713 (1974). See also 
a. Stat. Ann. tit. 61, §1051 et seq. (West Supp 1977); Comment: An Evaluation of the Home Furlough Program in 
Pennsylvania Correctional Institutions. 47 Temp. L. Q. 288 (1974). 



10c 



P.D. 12 



. . . cannot realistically be viewed as providing an 

-lunitv for the exen discretion and leniency" in violation of the 

gun control law's mandate. Cf. Commonwealth v. Hayes, noma, Mass Adv. 

Sh. (1971 -~. -}'•--:- There the court held that a construction of the gun 

::rmitting offender . . be -entenced to M.C.I Concord, rather 

. -. la MCI Walpole, did not contravene the law's purpose to 

prohibit leniencv and discretionary punishment, although offenders at 

Cona d be eligible for parole earlier than thc>e i: Walpole. If the 

Legislature had mtended to prever. g - offenders from being 

elidb.e Ebt each of the temporary releases listed in §90A. it could have said 

sc Set Simmon* es.:k v. Hayes, supra at ^33. 10 

In summary. I conclude that the word "furlough cd in the gun 

control law- mav fairlv be read to proscribe all unescorted temporary 

releases granted for the pu set forth in 

:- \ i and c However, a prisoner's escorted, temporary release to (a) 
attend a funeral, ibi visit a dying relative. ;: c obtain medical care, as 
respec scribed in Gi. c. 127 gS i Lhrough c is not a "furlough" 

Gi > 269, §1( a . and you may exercise the discretion 
conferred an il ;- \ to permit esconed temporary releases for such 
r _"? 

wer whether all escorted releases under § - A f must be 

?ited under the gun c .aw. The wording of clause (f) is very 

broad.] be odj ssi b iliry that it might include within its scope an 

emergency situation in which an escorted release would not constitute a 

"furlough" under the principles set forth above. Without specific facts. 

am not in a pos render an opinion on the question. 



Number 16 

Wallace C Stills. Oeri 

H ; _ - : - 

State House 

E -;husetts 12133 



Yerv trulv vours. 

FRANCIS X' BELLOTTI 

wney General 

December::. 19"" 



Dei- Is: 

a have transmitted an order of the House : Representatives. 
,-ated as He-: Nc 6790, which asks my opinion on the following 
_ oestion: 

Is the expenditure of large sums of money by the Secretary of 

- e - Affairs for radio and new spaper ads promoting 

. - n of industry within the Commonwealth in contraven- 



P.D. 12 Kj- 



tion to the statutory language of item 9091-0400 [.] Chapter 

363Aofthe Acts of l"977?f] 
Pursuant to the responsibilities conferred by G.L. c. 12. §9, I respectfullv 
submit the following opinion. 

House No. 6790 is phrased in broad and general terms. I have been 
informed, however, that it is intended specificallv to address language in 
the current item 9091-0400 which differs from that used m item 9091-0400 
as it appeared in St. 1976. c. 283. the fiscal year 19" 7 " appropriation act. In c. 
283. 9091-0400 appropriated $750,000 'to the Division of Economic 
Development "[f]or the promotion of industry within the commonwealth . . 
.**: St. 1977. c. 363A. item 9091-0400 appropriates the same amount to the 
same agency . but "[f]or the promotion of industry into the commonwealth . 
. ."' (See n. 1 supra). The question posed is whether, in light of the change 
from "within*' to "into", the use of FY 1978 funds for advertisements 
placed in Massachusetts newspapers and radio stations, as opposed to their 
out-of-state counterparts, contravenes the language of c 3 - 3 \ - For the 
reasons discussed below. I conclude that such expenditures are not 
prohibited by or inconsistent with that law. 

The underlying principles governing the expenditure of funds bv 
government are familiar and simply stated. Under the Massach, 
Constitution, the power of appropriation is lodged exclusivelv in the 
Legislature: the Legislature may. by exercising this power, delimit the t\ pes 
of expenditures which agencies in the executive branch of government mav 
make. See Massachusetts Constitution. Amendments, ar. S3 : 3, and Part 
2. c. 1. §3. art. 7. The power of appropriation may not. however, intrude 
upon the power of expenditure which the Constitution vests in the 
Governor and through him, in executive and administrative agencies. 
Massachusetts Constitution. Pan 2. c. 2. §1. an. II. As the Supreme Judicial 
Court has noted. "... however minutely appropriations are itemized some 
scope is left for the exercise of judgment and discretion bv executive or 
administrative officers or boards in the expenditure of monev . . . ." Opinion 
of the Justices. 302 Mass - 5 615 . -:•"). See also Opinion of the Justices. 
Mass. Adv. Sh. (1976)22 224-225; Opinion of the Jv Sh 

(1975)2745,2755. 

In applying these basic principles to the present context, the pertinent 
statutes to consider are those relating to the Department of Commerce and 
Development (Department) and. in particular, the Division of Economic 
Development (Division). The Division is by statute one of four divisions 
within the Department. G.L. c 23A, §§3. 4. The Legislature has vested 
broad authority and responsibility in the Department for purpose- : 

■Chapter 3*M of the Acts of i 9~ ;s the appropriation act far fisc^ .-.sn 9091 -(MOO appropriates S~5Gu»D «o the 

Division of Economic Development for 

. . the promotion of industry ^m tW- r«»i»i.— i^- pnT-Ttini tfctl wn -nlrrirT nr i i | « m i i irf"i wa*iji i ill J \m 
chargeable to this ilea i emphasis supplied i 

-House No 6' 90 refers to the cxpeaditnrc of mads bv the Secretary of Manpo wer Affairs. I note, htm. that di 
Economic Development the asencv to which hem' 9091-0400 sneaScaflv appropriates the funds hi -| - "- - 
- ---- — -:- ' - . -r-i-.t .-;". t-; :?-;- - " ." r :.— ---.-- -; E •-._ -.;"".;■" -- - - 

Gl c : :: . oA.§8; xc aho c 6A. §17. h is thus clear thai the Secretary of Manpower Afmhs has 

i -■-•-:■ •;-:-:. . . - -i - -- 

to suggest that he has done so. 

I understand the House of Representatives' q w e stiu n to focus on the ( ~ '|»"^s far which the -"- Will OwJ 

f>e-: ::::;: ■_■■: :; L-.f ri7.;..i- ^-.: ;:".-.i. •.:;.-.-;; ■: riie ■..-.: ;-.^-.; -..-s ».:;;-; -; - - - - 

safely the question whether the Division of F*-nan.i »i . Development mav pm ue ilt spend the ■iiii anpropi 




108 P.D. 12 

•"[p]romoting. developing and expanding the economy, the commerce, the 
industry . . . of the commonwealth . . ." and of "[preparing and perfecting 
functional plans for the economic development of the commonwealth . . . ." 
G.L. c.23A.§§2(a). 2(b).- 5 

These statutes evince a legislative intent to improve the economy of the 
Commonwealth by expanding and attracting business and industry and 
creating employment for its citizens. More important, the statutes also show 
that the Legislature has chosen to delegate the implementation of this goal 
to agencies within the executive branch, as is its prerogative. See Opinion of 
the Justices. Mass. Adv. Sh. (1975) 2521. 2530-31 (1975): see also 
Commonwealth v. Racine, Mass. Adv. Sh. (1977) 1 101. 1 106-1 107. 

It is my understanding that the Department and other agencies within 
the executive branch have formulated a comprehensive economic 
development plan for Massachusetts which has two major facets: (1) the 
attraction of new business or industry to the state, and (2) the retention and 
expansion of existing business and industry. The judgment has been made 
that, in both categories, a critical early step in the successful 
implementation of the plan is to enlist Massachusetts businessmen in the 
Commonwealth's efforts to promote Massachusetts in other states and 
countries. See G.L. c. 23A. §2(b). The Division has allocated a portion of 
the funds appropriated in item 9091-0400 to advertising within 
Massachusetts to accomplish this first priority. I have been informed that at 
the same time funds in item 9091-0400 are also being spent for out-of-state 
advertising as well as for other purposes. 

Against this constitutional and statutory framework and on the basis of 
the information supplied me. I cannot find any violation of the FY 1978 
appropriation act. It appears that the expenditures of item 9091-0400 
monies currently being made reasonably advance the promotion of industry 
into the Commonwealth. The Department and the Division are vested by 
their enabling statute with wide authority to oversee the area of state 
economic development and planning, see. e.g., G.L. c. 23 A. §2. In these 
circumstances. I will not strictly construe item 9091-0400 in St. 1977. c. 
363A — or the introduction of the word "'into" — as a limit on the otherwise 
broad discretionary powers of those agencies, absent a far more explicit 
indication of legislative purpose. If the General Court had intended to 
prohibit the Division or the Department from spending any of the funds 
appropriated under item 9091-0400 on advertisements within the 
Commonwealth, it could have expresslv so stated. See Commonwealth v. 
Haves. Mass. Adv. Sh. ( 1977) 928, 933. 4 

Very truly vours. 

FRANCIS X' BELLOTTI 

Attorney General 



3 See also GX. C- 6A. §PA. which establishes a technical assistance strike force in the executive office of manpower affairs to 
offer advice and assistance to businesses within the Commonwealth. 

'House No 6"90 asks whether the expenditure of "large" sums of monev for the advertisements at issue contravenes the 
language of item 9091-0400. The House order does not further specify the amounts it considers to be "large" It i> 
theoretically possible that the expenditure of item 9091-0400 funds on Massachusetts newspaper and radio advertisements 
could represent such a great percentage of the total amount appropriated as to constitute arbitrary and unreasonable action or 
an abuse of discretion on the part of the Division; such expenditures would be subject to legal challenge See. eg . Hesi 
Broadway Task Force. Inc. v. Commissioner of the Department of Community Affairs. 363 Mass 745. '50-751 (1973). However, 
none of the information supplied to me suggests that the Division has in fact acted unreasonablv in its spending of item 9091- 
0400 funds. 



P.D. 12 109 

Number 17 January 12. 1978 

Jerald Stevens 

Secretary of Human Services 

Executive Office of Human Services 

State House 

Boston. MA 02108 

Dear Secretary Stevens: 

You have requested my response to two questions concerning the 
relationship between the Rate Setting Commission (Commission) and the 
Division of Hearings Officers (DHO). Both questions are rooted in G.L. c. 
6A. §36 (hereafter §36). the statute governing the DHO's administrative 
review of rates set by the Commission to pay or reimburse certain providers 
of health care. Your letter of request described at length the problems 
arising from ambiguities in §36.' The two questions which you seek to have 
answered are as follows: 

1. May the DHO entertain or rule on any constitutional 
questions? 

2. Is the DHO's standard of review confmed to an examination 
of whether the Commission misapplied its regulations or 
whether the Commission misinterpreted its regulations where 
two or more interpretations are possible? 

I shall first summarize my response to these questions. Section 36 
allocates to the DHO the responsibility for holding hearings to review rates 
set for a provider by the Commission: the DHO must determine whether 
the rates are "adequate, fair and reaonable for such provider, based among 
other things, on the costs of such provider." §36. r 1. In answer to vour first 
question, it is my judgment that this review includes authoritv to consider a 
claim that the rate set by the Commission is unconstitutional as applied to 
the provider in question. However, the DHO's resolution of such a claim is 
not binding on the Commission. Nor does the DHO have authoritv to 
consider a claim that either the regulations of the Commission or any Act of 
the Legislature are unconstitutional on their face. 

In answer to your second question. I conclude that the DHO mav 
determine, in reviewing a particular provider's rate, whether the 
Commission correctly applied the Commission's own regulations: it mav 
offer what it views as the proper reading of an ambiguous regulation: and it 
may consider whether the Commission's regulations, as properlv applied to 
the particular provider, fail to provide an "adequate, fair and reasonable" 
rate. Section 36 does not empower the DHO. however, to reverse the 
Commission's interpretation of its own regulations when that interpretation 
is clearly established. Accordingly, the Commission would be entitled 
under §36 to reject and remand a rate recommendation of the DHO. if the 
recommended rate were premised on a reading of the regulations in conflict 
with the Commission's interpretation. My analysis follows. 

I begin with a brief description of the pertinent functions of the 
Commission and the DHO. to place your two questions in proper context. 

'In addition the Commission and the DHO. both of which play a prominent role in rate review, have submitted memoranda 
on the subject 



110 P.D. 12 

The Commission operates pursuant to G.L. c. 6A. §§32 et seq. 1 It has "sole 
responsibility for establishing fair, reasonable and adequate rates to be paid 
providers of health care services by governmental units . . ." 3 The setting of 
rates occurs in two phases. In the first, the Commission determines the 
standards applicable to broad classes of health care providers. This step is 
legislative in substance and entails essentially the creation of general 
ratesetting formulas for a number of provider classifications. 4 In the second 
phase, the general formula is applied to the operating costs and related 
information of a provider in order to determine the provider's individual 
rate. This rate is usually expressed as a per diem amount, to be paid for 
each day the provider gives medical care to an eligible recipient. 

The Commission promulgates the ratesetting formulas comprising the 
first phase as general regulations under G.L. c. 30A, §2. Since the 
Legislature has explicitly authorized their promulgation, see G.L. c. 6A, 
§32, these regulations carry the force of statute, so long as they are 
consistent with the substantive standards set forth in §32. See Palm Manor 
Nursing Home, Inc. v. Rate Setting Commission, 359 Mass. 652. 655-656 
(1971). Furthermore, it has been established that a provider or other party 
affected by the regulations and seeking to challenge their facial validity 
should do so through an action for declaratory relief brought in state court, 
pursuant to G.L. c. 30A, §7 and c. 231 A, §§1 et seq.- or, in certain 
circumstances, through a federal action. 6 

The specific application of the general regulatory formulas to individual 
providers, the second ratesetting phase, is far more mechanical in nature. 
See, e.g., Palm Manor Nursing Home, Inc. v. Rate Setting Commission, 
supra, 359 Mass. at 656-657. Whereas the three members of the Commission 
of necessity play a personal role in developing a regulatory formula. I 
understand that the initial calculation of each provider's per diem rate is 
done almost entirely by Commission staff. See G.L. c. 6 A. §33. 

The Commission's history shows that health care providers dissatisfied 
with their reimbursement rates usually focus their challenges on the 
calculation of the individual rates rather than on the validity of the overall 
regulations or statute. While less global in scope, these challenges may 
nonetheless raise complex questions requiring extensive consideration. 
Moreover, the providers covered by the regulations — principally nursing 
homes and hospitals — number in the hundreds. The resources necessary to 
review individual rate challenges are therefore substantial. 

Prior to the enactment of St. 1973, c. 1229, effective July 1, 1974, the 

: The Commission was original!) established by St. 1968. c. 492. §3. codified as G.L. c. 7, §§30K-30P. See Caboi \ursing Home 
Inc \ Rale Selling Commission, 359 Mass. 686. 687 (1971). Subsequent recodification and reorganization have changed its 
structure somewhat but its essential functions have remained intact. See St. 1973. c. 1229, §2. 

'The Commission's other responsibilities include establishing rates to be charged by stale institutions for general health care, 
social, rehabilitative and educational services, and rates to be paid for similar services provided under G.L. c. 152. the 
workers' compensation act G L. c 6A. §32. It is also responsible for approving hospital service corporation contracts 
pursuant to G.L. c. 176A. §5. Further, the Commission must now review and approve hospital charges applicable to the 
general public. G.L. c. 6A. §§37 - 46. added by St 1976. c. 409. §4. 

4 A classic example of such a formula is found in the Commission's regulation designated as 114.1 CMR 3.00 prescribing 
methods for reimbursing hospitals which participate in the federal-slate Medicaid program. 42 U.S.C. §§1396 et seq See 
Massachusetts General Hospital v. Rale Setting Commission. Mass. Adv. Sh. ( 1977) 50. 

-See. e.g.. Murphy Sursing Home. Inc. v. Rate Setting Commission, 364 Mass. 453. 456. 457 (1973); Massachusetts General 
Hospital v . Rate Selling Commission, 359 Mass. 157. 164-165. 166(1971). 

"See. e.g.. Massachusetts General Hospital v. Weiner, No. 75-265 1-G (D. Mass. February 10. 1977). appeal pending. No. 77-1191 
(IstCir. 1977). 



P.D. 12 111 



Commission and its own hearing officers conducted all administrative 
reviews of individual provider rates under G.L. c. 7. §300. See, e.g., 
Massachusetts General Hospital v. Rate setting Commission, supra, 359 Mass. 
at 166, n.5. Chapter 1229 revamped the statutory framework under which 
the Commission had operated. Among other steps, it reorganized the 
Commission to provide for three full-time commissioners rather than a 
larger part-time agency, and created the DHO. specifically assigning to it 
responsibility for hearing Commission rate appeals." Indeed, the legislative 
history of c. 1229 shows that the DHO was established in large part to assist 
the Commission in reviewing the substantial flow of individual rate 
challenges which are brought each year. 8 

The relation between the Commission and the DHO is wholly prescribed 
and governed by §36. 9 Unfortunately, however. §36 leaves in doubt the 
specific details of that relation. The section was amended substantial^ 
during its legislative passage, and legislative history does not furnish 
guidance as to its meaning. In certain parts §36 refers to the Commission as 
the administrative body with fmal authority over rates, to which DHO 
decisions must come for fmal adoption, and against which court challenges, 
under G.L. c. 30A. §14. would be brought, as is the case with anv similar 
agency empowered to make individual adjudicative determinations. 10 Other 
passages, however, suggest that the DHO. not the commission, possesses 
fmal authority in the rate review process, with power to compel the 
Commission to adopt a particular rate, and therefore presumablv to act as 
the agency defendant in a suit brought by a provider challenging that rate. 11 
If this latter reading were adopted, the DHO would be operating as an 
administrative appellate tribunal, a status with a partial parallel in other 
areas. 12 

"The DHO's enabling statute is G.L c. 7. §4H. enacted bv St. 1973. c. 1229. §3. Chapter 1229. §2 enacted G L c 6A. §§31-36. 
which actually reorganized the Commission and. in §36. established the DHO's reviewing functions at issue I 
discussed below, under G.L. c 7, §4H. the DHO possesses more generalized authority to hear administrative appeals of other 
agencies. See p. 10. n.14 infra. 

8 Mass. H. R. 7250 ( 1973) which resulted in St. 1973. c. 1229. stated in its preamble that reorganization of the Commission (and 
the consequent assignment of rate hearings to the DHO) was necessary "in order to reduce the annual backlog of rates and 
appeals ..." 

Since the DHO's creation in 1974. at least 2994 individual appeals from the Commission's rates have been filed or refiled 
with the agency Currently, approximately 1500 such appeals are pending before the DHO. 

'Section 36 provides in summary as follows: (1) the DHO (in practice, a hearings officer of the DHO) is to hold an 
adjudicative hearing on an aggrieved person's appeal from a Commission rate determination; (2) on appeal, the rate 
determined is to be "adequate, fair and reasonable for (the] provider, based, among other things, on the costs of such 
provider": ( 3 ) the hearings officer is to render a decision containing a rate recommendation as well as a statement of reasons 
on all factual and legal issues raised and forward that decision to the Commission: (4) if the hearings officer has 
recommended a different rate than the one originally set. the Commission is either to establish a new rate or. if it finds the 
officer's statement of reasons inadequate, to remand the appeal to the DHO: i5) a provider mav appeal from the 
Commission's final rale determination, or the DHO's decision, to the Superior Court. 

'"For example. §36. r 3 states that if the decision of the DHO results m a recommendation for a rate different from that 
certified, the Commission shall based upon statement of reasons establish a new rate, but if the Commission determines that 
the statement of reasons is inadequate to determine a fair, reasonable and adequate rate, it mav remand the appeal to the 
hearing officer for "further investigation." The statute here thus speaks in terms which place the Commission in a controlling 
posture, giving it a right to reject the hearings officer's recommendation. Moreover. §36\ r 3 also refers to "anv pan aggrieved 
by a decision of the Commission" as having a right to file a petition for review in Superior Court (emphasis added), 
buttressing the view that the Commission, not the DHO. makes the final decision in the administrative process. 
"The language favoring a heightened role for the DHO is found exclusivelv in the penultimate paragraph of §36. It states that 
the petition to the Superior Court shall set forth the grounds upon which the "decision of the division should be sc 
(emphasis added). It then states that the Court may "affirm, modify or set aside the decision of the division in whole or in 
pan. remand the decision to the division for further proceedings, or enter such other order as justice mav require" (emphasis 
added) 

,: For example, under G.L. c. 111. §§25B-25G. the determination of need law. the Department of Public Health and Public 
Health Council are responsible for determining whether health care facilities should receive authorization to make substantial 
capital expenditures for facility construction or alteration, but the Health Facilities Appeals Board, created b\ G.L. c. 6. §166. 
possesses the power under §25E to reverse the Council's determination and remand the matter for reconsideration. Under 
G L c 90. §28. the Board of Appeal on Motor Vehicle Liabilitv Policies and Bonds, created b\ G L c 2t §8A .> given 
auihontv to affirm, modify, or annul rulings or decisions of the Registrar of Motor Vehicles However, both G.L. c. 1 1 : ";:. C E 
and c 90. §28 are far more explicit in their grant of appellate reviewing powers to the two boards in question than §36 is with 
respect to the DHO. 



112 P.D. 12 



Two overriding factors compel me to reject the latter interpretation of 
§36. First, placing the DHO in an appeallate posture, with the Commission 
playing a subordinate rather than a controlling role, would work a unique 
and unprecedented reversal in the parts normally played by hearing officers 
and agencies. 13 Hearings officers generally, and the DHO itself in all its 
other activities, 14 act as an adjudicative surrogate for the substantive 
agency. By holding hearings, developing a record, and preparing a 
recommended decision with tentative findings of fact and rulings of law, 
hearings officers lift a heavy burden from agencies which are ill-equipped 
to hold trials. I cannot conclude that the Legislature intended so radical a 
modification of this role without an explicit statement of intent or a less 
ambiguous statutory framework than §36 provides. Compare G.L. c. 90, 
§28; c. Ill, §25E. See Boston & Albany Railroad v. Boston, 275 Mass. 133, 
138 (1931); cf. Massachusetts Commission Against Discrimination v. Liberty 
Mutual Ins. Co., Mass. Adv. Sh. (1976) 2403, 2407-2408. 

The second factor compelling rejection arises out of the disparity in 
functions and statutory qualifications of the Commission and DHO. The 
Commission is charged with performing a highly technical task, and in 
recognition of this, the Legislature carefully specified the requisite 
qualifications for its three commissioners: the Chairman must have 
administrative experience and an advanced degree in business administra- 
tion, public administration or law; one Commission member is to be a 
certified public accountant; the other must be experienced in medical 
economics. G.L. c. 6A, §32. 

In contrast, the qualifications of DHO hearings officers are far more 
general in character, reflecting the fact that their primary function lies in 
administering hearings for many different agencies. They must be members 
of the bar of the Commonwealth and have trial experience, but they need 
not possess any specialized knowledge in rate making. See G.L. c. 7, §4H. 
Given the difference in qualification, I find it unlikely that the Legislature 
intended to give a hearings officer the final word in the ratesetting 
process. 15 

In summary, viewing §36 in light of the Commission's and the DHO's 
respective enabling statutes taken as a whole, I find that the relationship 
between the Commission and the DHO, although described in unique 
terms procedurally in §36, must be deemed to conform to the general 
pattern governing hearings officers and agencies. See Boston v. 



"See. eg, K. Davis, Administrative Law Treatise, §10.06, at 34 (1958 Ed), which states: 

The status of the examiner [hearing officer] should and does depend upon his functions. His two main functions 
are to preside and to prepare the intermediate (initial or recommended) decision Both functions are definitely 
subordinate. . . . The examiner's role as a deciding officer is overshadowed by the power of the agency. 
See also id. §10.03, at 17-18 ("[i]n nearly all states the judge-made law is in accord with the provision of the federal APA that 
the agency has 'all the powers which it would have in making the initial decision' "); Ramspeck v. Federal Trial Examiners 
Conference. 345 U.S. 128, 130-131 (1953). 

For Massachusetts illustrations of the traditional agency-hearing officer relationship, see. e.g., G.L. c. 7, §30 O (as in effect 
prior to July 1, 1974) (Commission to designate hearing officer or one of its members to hear a provider's appeal and 
recommend a decision); G.L. c. 31, §43(b) (Civil Service Commission to designate disinterested persons to conduct hearings 
and report findings for Commission to act upon). G.L. c. Ill, §25E (Health Facilities Appeals Board may designate hearing 
officer to hear appeals from Public Health Council determinations and submit a recommended decision). 

"Under its enabling statute. G.L. c. 7, §4H, the DHO is responsible for conducting hearings on appeals to the Civil Service 
Commission and is authorized to conduct such additional adjudicative hearings or appeals as other agencies may request. 

r A final difficulty in perceiving the DHO as an appellate tribunal inheres in the notion of giving a single hearings officer, as 
distinguished from a multi-member tribunal, the authority to reverse the determination of a substantive agency By contrast, 
both the Health Facilities Appeals Board and the Board of Motor Vehicle Appeals are multi-member bodies, far more 
analogous to an appellate court than is a single hearings officer. See p. 9, n.12, supra. 



P.D. 12 113 



Massachusetts Bay Transportation Authority, Mass. Adv. Sh. (1977) 2588, 
2593. Accordingly, the DHO hearings officers are responsible for 
conducting adjudicatory hearings and submitting a recommended rate 
determination to the Commission. However, the Commission is not 
required to adopt that recommendation. It may in its discretion exercise its 
powers under §36 to remand an appeal "for further investigation" if it 
determines the hearings officer's decision to be an "inadequate" basis on 
which to set a new rate. With this conclusion in place I now address your 
two specific questions. 

1. Authority to entertain or rule on constitutional questions. 

Administrative agencies generally do not possess authority to decide 
constitutional challenges to statutes or regulations governing their 
operations. See, e.g., School Committee of Springfield v. Board of Education, 
362 Mass. 417, 431 (1972) ("[i]t is fundamental to our system of government 
that courts and not administrative agencies must resolve conflict between 
statutes and constitutional provisions"). 16 However, it is also a principle 
that an agency may, in the course of its statutory responsibilities, exercise 
judgment in individual situations influenced by its determination of 
constitutional requirements, particularly when the constitutional issue 
raised depends on the specific fact. See, e.g., Board of Education v. School 
Committee of Springfield, Mass. Adv. Sh. (1976) 861. 898-899: Board of 
Selectmen of Framingham v. Civil Service Commission, 366 Mass. 547. 554- 
555 (1974). See also Davis, supra, §20.04 at 74. 

The principal constitutional challenge a provider might properlv raise in 
the context of an individual rate appeal to the DHO would center on 
confiscation, i.e. a claim that a particular rate was so low as to take or 
confiscate the provider's property in violation of constitutional due process 
guarantees. Cf, e.g., Wannacomet Water Co. v. Department of Public 
Utilities, 346 Mass. 453, 457, 471 (1963); New England Tel. & Tel. Co. v. 
Department of Public Utilities, 327 Mass. 81, 86 (1951); cf. also Murphy 
Nursing Home Inc. v. Rate Setting Commission, supra, at 461-462 (attack on 
general ratesetting regulation on confiscation grounds). 1 " A provider carries 
a heavy burden in proving confiscation, cf, e.g., Fitchburg Gas and Electric 
Light Co. v. Department of Public Utilities, Mass. Adv. Sh. (1977) 273, 277- 
278; New England Tel. & Tel. Co. v. Department of Public Utilities, 331 
Mass. 604, 617 (1954), but since a showing of confiscation, if made, would 
obviously bear on the standard of "adequate, fair and reasonable" rates 
mandated by §36. I fmd that this issue lies within the DHO's authonzed 
zone of inquiry. 18 

"The winds of change, however, are being felt in this area. See Southern Pacific Transporation Co. v. Public Utilities 
Commission. 18 Cal. 3d 308. 556 P. 2d 289 (1976); see generally. Note. The Authority of Administrative Agencies to Consider 
the Constitutionality of Statutes. 90 Harv. L. Rev. 1682 (1977)T 

|7 A provider might perhaps claim that a rate was so arbitrary and irrational as to reach unconstitutional dimensions, again in 
violation of the provider's right to substantive due process, although such an attack would seem more likelv to arise in the 
context of a challenge to a general ratesetting formula See. e.g.. \furph\ .\ursing Home v. Rate Setting Commission, supra. 364 
Mass. at 460-46 1 Similarly, it seems probable that a prov ider would raise an equal protection claim as part of a challenge to a 
general regulation governing an entire provider class rather than in an individual rate appeal See. e,g.. Davis v Wa - 
15324 (Suffolk Superior Court. October 28. 1976). 

"As in Board of Selectmen of Framingham v Civil Service Commission, supra. 364 Mass. at 554. a provider's assertion of 
unconstitutional confiscation is necessarily "rooted m facts . . . ." The DHO's function in conducting §36 adjudicative 
hearings is to find the facts in each case from the evidence presented It is therefore appropriate for the DHO hearings officers 
to consider confiscation questions raised in the course of such hearings. 



114 P.D. 12 



It bears repeating, however, that the judgment of a DHO hearings officer 
on any constitutional issues raised in a rate appeal is not binding on the 
Commission. While the Commission could adopt a recommended rate 
determination based on a hearings officer's finding of confiscation, 19 it is 
not required to do so. See pp. 12-13 supra. 20 

2. Standard of DHO review 

Your second question asks if the DHO must confine its scope of inquiry 
in a rate appeal to the questions whether the Commission (1) misapplied its 
regulations or (2) misinterpreted an ambiguous regulation in a particular 
case. My answer follows a course similar to the discussion of the first 
question. Just as the DHO lacks authority to overturn the statute under 
which it operates as inconsistent with the superior demands of state or 
federal constitutional provisions, it may not overturn the Commission's 
general ratesetting regulations as violative of either the statute or the 
Constitution; the regulations stand on the same footing as a statute. See 
Palm Manor Nursing Home, Inc. v. Rate Setting Commission, supra, 359 
Mass. at 655-656. As mentioned, challenges to the facial validity of 
regulations are allocated as an initial matter to the judiciary. Until the 
Legislature indicates plainly a desire to permit the DHO to question the 
ratesetting framework, its role must be limited to issues relating exclusively 
to the adequacy of the individual rate under review. 

There are three areas of inquiry open to the DHO in its role as a 
reviewing body of individual rates. 21 First, a DHO hearings officer may 
inquire in every case whether the Commission, through its staff, has 
properly applied the general rate formula to the particular facts at hand, for 
the Commission may not contradict its own regulations. Once given the 
force of law, they find the regulating agency as well as providers. See 
DaLomba's Case, 352 Mass. 598, 603-604 (1968); see also Finklestein v. 
Board of Registration in Optometry, Mass. Adv. Sh. (1976) 1548, 1551; cf 
Service v. Dulles, 354 U.S. 363, 372-373, 383 (1957); Nader v. Bork, 363 F. 
Supp. 104, 108 (D.D.C. 1973). 

Second, the hearings officer may determine whether the Commission 
through its staff has correctly interpreted and applied an ambiguous 
regulation not previously construed by the Commission. However, if the 
Commission's interpretation is authoritatively established on the record, he 
does not possess authority to contradict that reading unless it is plainly 
wrong. Courts have uniformly held that an agency's interpretation of its 
own regulations is controlling unless it is clearly erroneous or unreasonable. 
See, e.g., Udall v. Tollman, 380 U.S. 1, 16-17 (1965); Bowles v. Seminole 
Rock & Sand Co., 325 U.S. 410, 413-414 (1945); see generally Consolidated 
Cigar Corp. v. Department of Public Health, Mass. Adv. Sh. (1977) 1419, 



"This would be true even where the Commission's original rate was properly calculated in accordance with the applicable 
ratesetting regulation. The Commission is bound to follow its own regulations, but it may provide by regulation for 
administrative adjustment of individual rates in particular circumstances. At least for hospitals, the Commission nas adopted 
such an adjustment provision. See, e.g.. 1 14.1 CMR 3.00, §3.15, reprinted in Mass. Register Issue No. 89 (1978). 

;0 ln addition, if all the calculations leading to the rate were mandated by Commission regulations, with no room for 
adjustment, the confiscation claim would then perforce constitute an attack on the regulations themselves and be cognizable 
only in a judicial sitting. See Murphy Nursing Home. Inc v. Rale Selling Commission, supra, 364 Mass. at 461-462; 
Massachusetts General Hospital v. Rale Selling Commission, supra, 359 Mass. at 163-166 and n.5 See p. 5 and nn. 5, 6 supra. 

: 'Once again. I note that the DHO hearings officer's authority on review is uitimatelv subordinate to the Commission; the 
judgments he makes on the issues open to his consideration are subject to rejection by the Commission. 



P.D. 12 115 



1432-1437. What these cases deem a fitting self-restraint for courts with 
strong powers of review over such legal questions, can be no less 
appropriate for the DHO, which plays a subordinate role in the process of 
rate adjudication. See Consolidated Cigar Corp. v. Department of Public 
Health, supra at 1432, 1437. 

Finally, as with constitutional questions, the hearings officer may also 
consider whether on the facts of a particular case, a rate is so low as to 
violate the "adequate, fair and reasonable" standard of §36, even though 
the rate has been calculated properly under the governing rate formula. The 
purpose of such an inquiry would not be to render a legal judgement on the 
facial validity of the general regulation but to determine if its application to 
a particular provider resulted in a rate which failed, in the opinion of the 
hearings officer, to satisfy the statutory standard. Like the constitutional 
question of confiscation, this statutory issue is one "rooted in facts", and 
should be treated accordingly. See Board of Selectmen of Framingham v. 
Civil Service Commission, supra, 364 Mass. at 554. 

Very truly yours 
FRANCIS X. BELLOTTI 

Attorney General 

Number 18 January 20, 1978 

Evelyn F. Murphy 

Secretary 

Executive Office of Environmental Affairs 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Secretary Murphy: 

On November 21, 1977, you forwarded to me 16 questions concerning 
the Massachusetts Coastal Zone Management (CZM) program. You posed 
four of these questions on you own behalf as Secretary of Environmental 
Affairs. 1 You transmitted an additional 12 questions on behalf of the Joint 
Committee on Natural Resources of the Legislature. 2 

As background for your request you stated the following. In 1972 
Congress passed the Coastal Zone Management Act of 1972, Pub. L. 92- 
583, 86 Stat. 1280, 16 U.S.C. §§1451-1464. The Act authorized federal 
funding to states which were developing plans for the coordinated 
management of coastal areas. The Executive Office of Environmental 
Affairs (EOEA), pursuant to the Governor's designation, has received 
federal and matching state funds for the past three years to develop a CZM 



'Your questions may be paraphrased as follows: (1) does the statutory authority of EOEA, including its constituent agencies, 
empower appropriate EOEA agencies to implement a CZM plan for the Commonwealth, which includes such policies as 
those 27 set forth in the (draft) Massachusetts CZM Plan? (2) Do the Secretary's statutory responsibilities under GX. c. 21A, 
§§3 and 4 authorize the Office of the Secretary to develop and implement a CZM program jointly with EOEA agencies, when 
requested in a memorandum of understanding? (3) Is it within the authority of the Energv Facilities Siting Council to agree to 
recognize and to act consistently with EOEA regulations concerning CZM policies? (4) Does G.L. c. 21A, §2 (7) or any other 
provision of law authorize the Secretary to designate areas of critical environmental concern within the coastal zone as 
provided in the CZM plan? 

2 As Secretary, you are entitled to obtain legal advice from the Attorney General on questions relating to your immediate 
official duties. G.L. c. 12, §3. That section does not apply to the Joint Committee, whose legal relationship with the Attorney 
General is defined by G.L. c. 12. §9. Under the terms of §9, the Joint Committee would not be entitled to an opinion on the 
questions it has raised because none of the questions concerns legislation pending before it. 1 understand that you transmitted 
the Joint Committee's 12 questions along with your own as a matter of courtesy. 



P.D. 12 

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P.D. 12 

their -~ ." tall :":: a genera.! exarrur.azzzn zf leauila: - --.- - : r'rzm a 
sufficiently developed factual framework- In these f imimdanfw I find I 
must abstain from conside m • -ecus zzzns -::: " - - 

At the same line :~ z _ ue thai m - to render a 

formal opinic a should not cuiuliued as a conclusion that the ap p ropri ate 
EOEA agencies and afficei pre - lack the laiui:- _ - 
immemenz the r: ... reut: : ore erne; uz zhe i:-:: 1Z 
memorandum on zhe t issue: make; rzlam zha: :;..: . nz: ±e case "•'•■ - a: j 
more. I wart 1 assure you thai if EOEA r: :eed _ z ." t ■ - : : an 

_ r. _ . - _ _ u zh ■: rz : : .z;.:->; : cc.r ] ill r : : e 

repfesentatiorj for tl e taze iffioiali and azenoiei nameo _ ;: ; ; 
-"" '■ : : -•• 3-en Nc - 

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i ic_HnelH Z215 

I eai 3enera] '• ufaaiaii 

Y;_ z-.: ::.-: "" ' .. oueszicns concerzzzmz z fficers : : 

the Massachusetts National juaid die iuard j u dged :z a.z. e :- 

pursuanl :: 11 c 33 |lf The questions relate zc zhe office: e: uzlemenz 

_ze :: federal z_ - - - : _- -^ _-. 7 - : -. from zhez: naze dune 
.acaucr: :_ : : rarticiratzcn m mandator training rrograzz 

Because : the number :: zhe question 1 shall am t: them ■::_-_ ze 
the order proposed. 

1. Does G.L . 33 ^ 1 _■ intend that those office: zdered _.; 

active ;_ perz mz : dunes assigned - th: 

: zmmur. or o : B&cer ; : the I . zsicn zn a state zznz _s 
or a civilian emnloyee statasl 

Under the teems of GL : 33 : ! : . - ±e : zr.cerf arrvuuted are 

Dideied I acta e im ~ :r I understand :c zzze_zz full-tirn: du: 

. - .-: See 32 U.S. C : . .1 . -" 1 federal definition c: _. : 
dun Ir additicn the :.* officers ccmr>ensai:cn . .- dezernzzzned - 
:efe:er.:e be the pa) which ocmoara'rle :zzi:ers zn federal —.:'. :tar =«er ::e 
receive and their dutief are assz^ned - _ zznzmandmi ~ " za.- :f:z:e: 
. . ■• e: in order z: . ualir. :: z ^rr : znznz enz under i the officers must 
obtain "federal recognition" from zze federal National Lruard Bureau 
Chief, under regulations rrescr. bed : ~e Secrezar 



118 P.D. 12 

The prerequisites and terms pertaining to the officers' appointments 
under §18 are thus entirely military in character. Jobs held by civilian 
employees of the Commonwealth are not subject to any such conditions. In 
my judgment, §18 clearly contemplates that the officers appointed under its 
terms will perfom the duties assigned to them in a state military status. 

2. Is an officer ordered to state active duty under § 1 8 entitled to 
vacation and sick leave time without forfeiture of his state 
pay for the periods of such absences, and if so, what is the 
amount of leave time to which he is entitled? 

Neither §18 nor any other provision of G.L. c. 33, the statute governing 
the Commonwealth's military forces, provides for vacation and sick leave 
benefits for the officers ordered to duty under §18. 3 Cf. G.L. c. 33, §88 
(disability compensation). Nevertheless, under the Massachusetts Constitu- 
tion, the Governor as Commander-in-Chief of the Commonwealth's armed 
forces may "make regulations for their government" to the extent 
authorized by the Legislature. Massachusetts Constitution, Part 2, c. 2, §1, 
art.7. 4 The Legislature has authorized the Governor to "make and publish 
regulations for the government of the organized militia in accordance with 
law." G.L. c. 33, §5. I construe these constitutional and statutory 
rulemaking provisions as including the authority to regulate vacation and 
sick leave for officers appointed under §18. 5 Therefore, my answer to the 
first part of Question 2 is that an officer ordered to duty under §18 is 
entitled to vacation and sick leave with pay to the extent that regulations 
duly adopted or ratified by the Governor may permit. 

In view of this conclusion, I cannot now answer the second part of 
Question 2, viz., "the amount of leave time to which" an officer appointed 
under §18 is entitled. The amount of time is a matter properly left to the 
discretion of the Governor and those who are in charge of the Guard under 
the Governor's direction. Although it does not appear that the Governor 
has yet adopted regulations on vacation and leave time for § 1 8 officers, 6 I 



The term "pay" in §18 does not itself appear to incorporate these types of benefits. Section 18 defines the officers' "state pay" 
in terms of the "pay [of) an officer of the regular service of corresponding grades. . ." The federal statutes governing 
compensation for officers in the uniformed services of the United States provide for monthly "basic pay," see 37 U.S.C 
§§201, 203-205 (1970 and Supp. V), §1009 (as amended by Pub.L 94-361); a subsistence allowance, see 37 U.S.C. §402 
(Supp.V); and an allowance for quarters, see 37 U.S.C. §403 (Supp.V). See also 37 U.S.C.§101 (25) (Supp. V) (definition of 
"regular compensation"). I note, however, that officers in the United Slates Army do receive both leave or vacation time with 
active duty pay under separate statutory provisions. See 10 U.S.C. §§701, 704 (1970 and Supp. V). They also receive sick time 
with pay. See 37 U.S.C. §502 (1970). 

'Article 7 of Part 2, chapter 2, section 1 of the Massachusetts Constitution provides: 

The general court shall provide by law for the recruitment, equipment, organization, training and discipline of the 
military and naval forces. The governor shall be the commander-in-chief thereof, and shall have power to assemble 
the whole or any part of them for training, instruction or parade, and to employ them for the suppression of 
rebellion, the repelling of invasion, and the enforcement of the laws. He may. as authorized by the general court, 
prescribe from time to time the organization of the military and naval forces and make regulations for their 
government. 

'In other contexts, the power to promulgate regulations governing vacation and sick leave has been expressly granted. See, 
e.g., G.L. c. 7, §28 (personnel administrator to make rules for regulating "vacation leave, sick leave and other leave with pay. . 
. .") The Governor's powers as Commander-in-Chief, however, are necessarily broad in scope, and the Legislature has chosen 
to define his rulemaking authority over the militia in very general terms. In these circumstances, it would be inappropriate to 
view the scope of that authority in such a way as to preclude his making rules for vacation and sick leave for officers serving 
full-time under §18. Cf. Cambridge Electric Light Co. v. Department of Public Utilities. 363 Mass. 474. 494 (1973). 
Furthermore, other full-time employees of the Commonwealth are entitled to both vacation and sick leave with pay, see G.L. 
c. 7, §28; see also c. 149, §52A, as are federal military officers situated similarly to the §18 officers. Considerations of common 
sense and of equity strongly suggest that the statutes pertinent to the §18 officers be interpreted to permit vacation and sick 
leave time with pay if authorized by the Governor. 

'You have furnished me with a copy of Military Division Regulation No. 600-4. which concerns vacation and sick leave for 
§18 officers, among others. The regulation is issued under your name, and does not indicate that it was approved by the 
Governor I treat the Adjutant General's independent authority to issue regulations in response to your third question. See 
pp 6-7 infra. 



P.D. 12 119 

do not believe it appropriate for the Attorney General to give an opinion on 
such policy issues, See, e.g., 1977/78 Op. Atty. Gen. No. 10; 1976/77 Op. 
Atty. Gen. No. 25; 1961/62 Op. Atty. Gen. at 199. 

3. In the event an officer appointed under §18 is not entitled to 
vacation and sick leave time, does the Adjutant General, as 
the operational and administrative head of the Military 
Division, Executive Branch, have the inherent administrative 
authority at his discretion to authorize such leave without loss 
of state pay? 

The Adjutant General is the chief-of-staff to the Governor as 
Commander-in-Chief, and is also chief of the state military staff. The 
Adjutant General possesses broad supervisory and managerial authority as 
the "executive and administrative head of the military division of the 
executive branch of the government of the commonwealth." G.L. c. 33, 
§ 15(b). His powers, however, have specified limits. General Laws, c. 33, 
§ 15(b) also provides: 

Except in those cases where by law or regulation specific 
powers are conferred on the adjutant general as such, he shall 
have no authority independently of the commander-in-chief, 
from whom his orders shall be considered as emanating, and the 
acts of the adjutant general shall be regarded as in execution of 
commander-in-chief. 

This language indicates that the Adjutant General does not have 
inherent administrative authority, independent of the Governor, to 
authorize vacation or sick leave without loss of pay for §18 officers. 7 . The 
question remaining is whether the Governor may delegate his rulemaking 
powers to the Adjutant General, thereby enabling him to adopt regulations 
which provide for authorized vacation and sick leave. The answer is not 
free from doubt. The Supreme Judicial Court long ago held that "'[o]fficial 
duties involving the exercise of discretion and judgment for the public weal 
cannot be delegated [to a subordinate officer].'" Sodekson v. Lynch, 298 
Mass. 72, 74 (1939), quoting from Commonwealth v. Badger, 243 Mass. 137, 
142 (1922). This restrictive view of administrative authority, once shared by 
many courts, has been subject to much criticism, and has been considerably 
relaxed in other jurisdictions during the intervening years. See, e.g., Fleming 
v. Mohawk Wrecking & Lumber Co., 331 U.S. 1 1 1, 121-123 (1947); E.E.O.C. 
v. Raymond Metal Products Co. 530 F.2d 590, 594 (4th Cir. 1976); Warren v. 
Marion County, 222 Or. 307, 353 P.2d 257, 263-264 (1960); see generally K. 
Davis, Administrative Law Treatise, §9.06 (1958 and 1970 Supp.) The more 
flexible attitude, however, has not been extended to approve the 
subdelegation of substantive rulemaking powers absent an express 
legislative mandate. See, e.g., Relco, Inc. v. Consumer Products Safety 
Comm'n, 39 IF. Supp. 841, 845-846 (S.D. Tex. 1975); cf. Fleming v. Mohawk 
Wrecking & Lumber Co., supra, 331 U.S. at 121. But see Gaston v. United 
States, 34 A.2d 353 (Mun. Ct. App. D.C. 1943), affd 143 F.2d 10, cert, 
denied 322 U.S. 764 (1944) (National Guard uniform regulations). 

'The conclusion is supported by the fact that in certain instances, not pertinent to the question of pay. the Legislature has 
specifically granted rulemaking authority to the Adjutant General. See. e.g.. G.L. c. 33. §84 (travel expense regulations). 



120 P.D. 12 

In view of (1) the Massachusetts courts' failure to overrule their prior 
subdelegation decisions and (2) the general and continuing reluctance to 
find statutory authority for implied subdelegations of rulemaking powers, I 
conclude that the Governor may not vest you with independent authority to 
promulgate vacation and sick leave regulations for the §18 officers. Any 
regulations on the subject must come from the Governor himself as 
Commander-in-Chief acting pursuant to G.L. c. 33, §5. 8 

4. May an officer ordered to state active duty under § 1 8 receive 
both his state pay and federal military pay during his service 
with the active national guard on training under G.L. c. 33, 
§60^ 

Under G.L. c. 33, §60. all members of the active Guard must annually 
perform at least 15 days' training under service conditions. State pay is 
provided for this annual training. G.L. c. 33, §83(a) 9 . However, the state 
pay must be reduced by any federal pay received for military service 
performed during the same period of annual training. G.L. c. 33. §83(d). 10 . 
Therefore the officers serving under §18 may not receive both state and 
federal pay for annual training, but may receive from the Commonwealth 
only the excess, if any. of state pay over federal pay for the training 
period. 11 

5. May an officer ordered to state active duty under §18 receive 
both his state pay and federal military pay during his service 
with the active national guard on so-called inactive duty 
training under G.L. c. 33. §61 (which is usually conducted on 
weekends or evenings but may be performed at times during 
weekdays)? 

General Laws. c. 33. §61 requires every unit of the Guard to assemble for 
training at least 48 times each year. See 32 U.S.C. §502(a)(l) (Supp. V). 
There is state pay for performing this training duty. G.L. c. 33, §83(a), 12 and 
federal pay is also provided. 37 U.S.C. §204(a)(2). However, no statute 
prohibits Guard members, including the officers appointed under §18. from 
receiving both state and federal pay for duty required by §61. General 
Laws. c. 33. §83(d). which requires that state pay for duty performed under 
§§38, 40, 41, 42 and 60 of that chapter shall be reduced by any federal pay 
received for the same period, 13 does not refer to state pay received for 
training duty under §61. "It is a familiar principle of statutory 
interpretation that the express mention of one matter excludes by 

'You mav. of course, advise the Governor on Ihe proper content of such regulations. See G.L. c. 33. §15(b). 

"General Laws, c. 33, §83(a). provides: 

For dutv 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 commonwealth 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 vears' service, and such subsistence, travel or other allowance as the adjutant general may 
authorize. 
l0 Section 83(d) reads: 

For duty performed under the provisions of sections thirty-eight, forty, forty-one. forty-two and sixty, the pay and 
allowances authorized by this section shall be reduced by any amounts received from the United States government 
as pay or allowances for military serv ice performed during the same pav period. 
Federal pay is available for annual training periods. See 37 U.S.C §204<a)(2) ( 1970). 

1 I recognize that practical problems may arise in trying to administer the state and federal pav provisions. I do not address 
these problems in this opinion, but leave their resolution to the discretion of the appropriate military and executive officials. 

l See footnote 3. supra. 

,} See footnote 10. supra. 



P.D. 12 121 

implication all other similar matters not mentioned." County of Bristol v. 
Secretary of the Commonwealth, 324 Mass. 403, 406. 407 (1949). The 
Legislature, in enacting §83 (d), was presumably aware of existing federal 
laws providing pay for training assembly duty. Board of Assessors of 
Melrose v. Driscoll, Mass. Adv. Sh. (1976) 1497. 1503. Therefore, the 
officers serving under §18 are entitled to receive both state and federal pay 
for §6 1 training assembly duty. 

6. May an officer ordered to state active duty under §18 receive 
both his state pay and his federal military pay during his 
service with the active national guard on full-time training 
duty (FTTD) under G.L. c. 33, §38? 

The three officers serving under §18 may not receive both state and 
federal military pay for full-time training duty (FTTD). for the reasons 
stated in the opinion on this issue which I rendered to the Governor, dated 
February 1, 1977. 1976/77 Op. Atty. Gen. No. 19. 

7. In the event your answer to questions [2] and/or [3] are in the 
affirmative and your answer to question [6] is in the negative, 
may an officer order to state active duty under § 1 8 charge his 
FTTD training days under G.L. c. 33, §38 against entitled or 
authorized vacation or sick leave time and receive both state 
pay and federal military pay? 

My answers to your second and third questions indicate that the 
existence and amount of vacation and sick time available to the officers 
appointed under §18 are matters left to the Governor. Since the Governor 
has not yet promulgated regulations on vacation and sick leave, your 
seventh question is hypothetical and I cannot presently answer it. See 1964/ 
65 Op. Atty. Gen. at 112. I note, however, that sick leave with pay is 
available only in the event of an employee's actual illness, injury, or 
incapacity. See Quinlan v. Cambridge, 320 Mass. 124 (1946). 

8. Does the state active duty ordered under §18 contemplate a 
seven (7) day, twenty-four (24) hour per day availability to 
the Military Division of the Executive Branch, and if not. 
what period of time does it contemplate? 

"State active duty" is not defined in §18. As indicated above. I 
understand the term to mean full-time military duty, but "full-time" itself 
has not been defined. The materials which the three officers currently 
appointed under §18 have submitted to me state that they ordinarilv work 
regular hours, but are available for emergency duties on an 24-hour day. 7- 
day week basis, if their commanding officer should so order. I do not 
consider whether such a working schedule is appropriate or required. In my 
view, the determination of appropriate hours of duty for the §18 officers is a 
matter properly left to the officials who supervise the officers' functions, 
including the Governor as Commander-in-Chief, the Adjutant General and 
the officers' commanding officer. 

Verv trulv vours. 
FRANCIS X' BELLOTTI 

Attorney General 



122 P.D. 12 



Number 20 March 8, 1978 

Paul E. Hall 

Acting Regional Director 
Federal Disaster Assistance 
Administration, Region I 
150 Causeway Street, Room 710 
Boston, Massachusetts 021 14 

Re: Presidentially Declared "Major Disaster" 
FDAA-546-DR-Massachusetts; 
Damage to Water Pollution Control Facility, 
Hull, Massachusetts 

Dear Mr. Hall: 

On behalf of the Federal Disaster Assistance Administration, you have 
requested a state legal determination on two questions relating to the water 
pollution control facility located in the Town of Hull, Massachusetts 
(hereafter "facility"). These questions arise because of the significant 
damage sustained by the facility during the February snowstorm and 
flooding which brought about the above-referenced "major disaster." The 
two questions are the following: 

1. Who owned the water pollution control facility when 
damaged by this major disaster? 

2. Who bears legal responsibility and liability for the damage 
incurred? 

The facility is being constructed pursuant to a general contract between 
the Town of Hull and Vappi & Co., Inc., executed on February 17, 1976 
(hereafter "Contract"). Based on an examination of the Contract and for 
the reasons summarized below, it is my opinion that (1) the Town of Hull 
owned the facility at all relevant times; and (2) the general contractor, 
Vappi & Co., Inc., bears legal responsibility and liability for the damage 
incurred to the facility during the major disaster. 

1. Ownership: The Contract defines the Town of Hull throughout as the 
"Owner" of the Project. See, e.g., pp. A-3, E-l, 1-1, E-2 (signature page). 
While Hull has not finally accepted the facility, the contract treats 
acceptance of the work performed independent of any consideration of 
ownership, see, e.g., §§ 10(f), 5(c); it does not condition ownership on final 
acceptance of the work. Moreover, information provided by Hull indicates 
that approximately 95 percent of the work had been completed and paid for 
at the time the major disaster occurred. These circumstances together 
indicate that ownership of the facility resided in the Town of Hull at that 
time. 

2. Risk of Loss: The Contract expressly provides in §8(e) that: 

The Contractor shall take all responsibility for the work . . . shall 
bear all losses resulting to him on account of the amount or 
character of the work, or ... on account of the weather, elements 
or other cause. 
See also §8(m) ("The work shall be entirely at the Contractor's risk until the 



P.D. 12 123 



same is fully completed and accepted and he will be held liable to the 
amount of the Owner's interest in the same as shown by payments on 
account . . . ."); § 10(a) (rights and duties of payment). 

These provisions clearly indicate that until the facility is completed and 
accepted by the Town of Hull, Vappi & Co., Inc. bears the risk of loss and 
responsibility for the damages incurred by the facility. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 21 March 10, 1978 

Gregory R. Anrig 
Commissioner of Education 
3 1 St. James Avenue 
Boston, MA 021 16 



Dear Commissioner Anrig: 

You have requested my opinion about the application of statutory 
restrictions on employment and receipt of compensation to certain activities 
of Board of Education members. Specifically, you have asked whether an 
appointive Board member is prohibited from accepting a fellowship at the 
Institute of Politics, John Fitzgerald Kennedy School of Government, 
Harvard University, by G.L. c. 15, §1E, which states in relevant part that: 

No appointive member of said board shall be employed by or 
derive regular compensation from any educational institution, 
or school system, public or private, in the commonwealth, be 
employed by or derive regular compensation from the 
commonwealth, or serve as a member of a governing board of 
any public institution for higher education in the com- 
monwealth or as a member of any school committee. . . . 

For the reasons which follow, I conclude that the quoted provisions of G.L. 
c. 15, §1 E preclude acceptance of the fellowship in question. 

You have provided me with a description of the program for fellows at 
the Institute of Politics. Under this program, individual fellows typically 
receive a four-month appointment at the Institute. They receive a monthly 
stipend of $1,500, of which $300 is tax exempt under federal and 
Massachusetts law. 1 Fellows are entitled to Harvard University library and 
athletic privileges, membership in the Harvard Faculty Club, eligibility for 
health insurance, use of an office at the Institute, and secretarial assistance. 

The program for fellows is individually tailored, but all fellows are 
involved in three areas of activity: (1) supervision of a non-credit study 
group of undergraduate students on a general topic, such as political 
campaign management or congressional reform; (2) completion of a 
project, usually written, related to the political process; and (3) interaction 

'Section 1 17 of the Internal Revenue Code excludes scholarship and fellowship grants from the definition of gross income. 
Section 1 17(b) (2) (B) of the Code limits this exclusion in the case of non-degree candidates to a maximum of $300 per month 
up to 36 months. The Massachusetts income tax law adopts the federal definition of gross income in this respect. G.L. c. 62, 



124 P.D. 12 



with faculty and staff on social occasions, as well as occasional assistance in 
teaching, research or case development at the Kennedy School. 

The task at hand is to determine whether a fellow's relationship with 
Harvard University is such as to characterize him as being "employed by or 
deriving] regular compensation from" the University. These terms are not 
defined in G.L. c. 15. §1E. but guidance concerning their scope may be 
obtained from the history and purpose of the statute. See, e.g., First Data 
Corp. v. State Tax Common, Mass. Adv. Sh. (1976) 2731. 2735; Leonard v. 
School Committee of Attleborough, 349 Mass. 704. 406 (1965): see also Gallo 
v. Division of Water Pollution Control, Mass. Adv. Sh. (1978) 195. 201; 
Board of Education v. Assessor of Worcester, Mass. Adv. Sh. (1975) 2626, 
2629. 

General Laws. c. 15. §1E. establishing the Board of Education, was 
enacted by St. 1965. c. 572. The relevant provisions defining qualifications 
for appointive Board members were part of §1E from the beginning. 2 The 
provisions were based on the recommendations set forth in the Report of the 
Special Commission to Investigate and Study Educational Facilities in the 
Commonwealth of Massachusetts, Mass. H. Doc. No. 4300 (1965). known as 
the Willis-Harrington Report (hereafter "Report"). The Report recom- 
mended a major overhaul of the Commonwealth's public educational 
system, including the creation of a strong board of public school education 
to oversee the Department of Education and the provision of public 
education at the elementary and secondary school levels. Id. at 189-191. 
The Report clearly voiced its concern that the proposed board be an 
impartial body, composed of persons with no professional or formal 
connections to education: 

[T]he Board of Public School Education faces in two 
directions. Looking one way. it confronts the General Court and 
Governor, the ultimate authority for commiting the police 
power of the state to compulsory attendance and the taxing 
power of the state to school support. Looking the other way. it 
must represent all of the people. In this regard, it is especially 
important that the political aspect of the Board of Public School 
Education be impeccable. Its campaigns cannot afford to be in 
the least compromised by the slightest hint of bias, or partiality. 
It must represent the public interest of the whole Com- 
monwealth and speak for all citizens together. If it is to be able 
to do so. its membership must at the very least exclude 
schoolmen, whose profession stands to gain most in power from 
expanding education. The best composition can consist basically 
of the taxpayers who must find the money to finance expansion. 
Within that group, labor, management, industry, the private 
professions, finance, all stand at the frontiers of the 
Massachusetts economy and can argue most persuasively for its 
educational demands. Such statewide civilian leadership should 
be able to argue most persuasively and hardheadedly in support 

-See aho G.L. c. 15. §§1 A (Board of Higher Education). IH i Advisor. Council on Education). 20A (Board of Trustees of State 
Colleges). Bv virture of St. 1965. c. 572. these statutes similarly prohibit appointive members of the boards and the council 
established thereunder from being employed by or receiving regular compensation from public or private educational 
institutions. 



P.D. 12 125 



of the returns it sees in particular investments in education. This 
is one of its primary missions. Id. at 190. 3 

The legislative history of G.L. c. 15. §1E, thus suggests that a broad 
reading of the statute's restrictions on outside educational activities of 
Board members is appropriate. 4 Two previous opinions of the Attorney 
General interpreting these statutory provisions support this conclusion. 

The first opinion, 1965/66 Op. Atty. Gen. at 320, considered the relevant 
language in G.L. c. 15, §1E and the corollary provisions in G.L. c. 15, §1 A, 
the statute establishing the Board of Higher Education. The opinion 
stressed the "broad terms" chosen by the Legislature "to express the 
prohibition against service on certain boards by persons connected with 
education in various ways." Id. at 321. It then advised the Commissioner of 
Education that, while giving an occasional lecture or seminar for a school 
or other educational institution would not render a person an employee, 
more regular remunerative work for an institution would be considered 
employment for purposes of the statute; this would be true regardless of 
whether the work was full- or part-time or for all or part of the academic 
year. 

The second opinion, 1966-67 Op. Atty. Gen. at 231. followed suit. It 
examined the legislative history of G.L. c. 15, §1E and the applicable 
portions of the Report in particular. It concluded that the language of §1E 
at issue here would prohibit a Board member from teaching an 
undergraduate seminar at Harvard with or without compensation since he 
would be considered to be "employed by" the institution. 

The employment status of a fellow in the Institute of Politics* program 
presents a more difficult question than that addressed in the 1966/67 
opinion of the Attorney General just described. Some of the terms of the 
program distinguish fellowship status from that of a typical employee. On 
the other hand, the perquisites of faculty membership offered fellows and 
the teaching duties required of them suggest an employment relation 
between the fellow and the University. In view of the terms of your 
question, however, it is unnecessary to finally resolve whether a fellow is or 
is not "employed" by Harvard; if a fellow derives "regular compensation" 
from the University, his membership on the Board would thereby be 
prohibited by G.L. c. 15, §1E. 

In my view, a fellow does receive "regular compensation" as a 
participant in the Institute of Polities' program. Compensation is generally 
defined to mean payment conferred for services rendered or to be rendered. 
See, e.g., G.L. c. 268A, §l(a) (defining "compensation" under the 
Commonwealth's conflict of interest statute). The stipend received by the 
fellow is "regular" since it is received on a monthly basis co-extensive with 
the duration of the fellowship program. It is also substantial, totalling 
$6,000 for the four-month fellowship period. Finally, the terms of the 



'The need for an impartial, lav citizen-controlled citizen board whose members have no professional ties to educational 
institutions is echoed in the Report's recommendations for the Board of Higher Education. See Report at 171. 

'It should be noted that the language of §1E relating to emplovment and compensation by educational institutions, quoted at 
p. 1 supra, is actuallv broader than that recommended bv the Special Commission Draft legislation appended to the Report 
suggested the following provision: "No member of [the Board of Public School Education) shall be employed bv or derive 
regular compensation From anv public or private school system, institution or agency in Massachusetts. . ." This language 
indicates that the onlv restriction deemed necessary related to elementary or secondary schools, and not to colleges or 
universities As enacted. G.L. c. 15. §1 E proscribed ties to educational institutions at all levels. 



126 P.D. 12 



fellowship program indicate that the stipend constitutes, at least in part, 
compensation for the services rendered to the Institute or Harvard 
University by the fellow. 5 

I recognize that the primary statutory responsibility of the Board of 
Education is in the area of public elementary and secondary education. 
G.L. c. 15, §1G. Since Harvard University, the source of the compensation 
here, is a private institution of higher education, receipt of a fellowship by a 
Board member may not pose the type of conflict with Board membership 
suggested by the original proponents of §1E. See p. 4 and nn. 3 and 4 supra. 
Nevertheless, the language of §1E prohibits in unambiguous terms 
compensation from any educational institution in the Commonwealth. I am 
not free to disregard the clear terms of the statute to rationalize a particular 
result. Desmarais v. Standard Accident Ins. Co., 331 Mass. 199, 202 (1954), 
and cases cited. Any relief from the statute's prohibitions must come from 
the legislature. First Data Corp. v. State Tax Commission, supra, at 2736. 

In summary, given the plain language of §1E and the partially 
compensatory character of the stipend offered by the Institute of Politics, it 
is my opinion that the provisions of G.L. c. 15, §1E prohibit a fellow of the 
Institute from serving as an appointive member of the Board of Education. 

Very truly yours 

FRANCIS X. BELLOTTI 

Attorney General 

Number 22 April 3. 1978 

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

Dear Commissioner Kehoe: 

You have asked two questions relating to your duties under G.L. c. 136, 
§4(1), 1 a statute which gives the Commissioner of Public Safety authority to 
approve or disapprove certain types of entertainment held on Sunday. Both 
your questions concern flea markets: 

1. May you approve as "public diversion^]" applications for the 
Sunday operation or conduct of flea markets at which a 
general admission charge is made to the public? 



The fellowship stipend apparently is not considered as compensation for •■employment services" for federal income lax 
purposes. Otherwise, no tax exemption would be available. See I.R.C. Reg. §1.1 17-4(c) (1977). which provides that payments 
for such services do not qualify as a fellowship grant under I.R.C. §117. Nevertheless, the Internal Revenue Code only 
exempts S300 per month of a fellowship grant in a non-degree program. I.R.C. §1 17(b) (2) (B). This limitation suggests a 
Congressional judgment that payments exceeding the S300 maximum are sufficiently akin to compensation to be taxable. 
Moreover, the provisions of G.L. c. 15. §1E do not permit the drawing of lines similar to those in I.R.C. §1 17(b) (2) (B). I 
must instead determine whether a Board member's acceptance of the fellowship and of its accompanying stipend taken as a 
whole is precluded by §1E. 

'That section reads m pertinent part: 

The mayor of a city or the selectmen of a town, upon written application describing the proposed dancing, or 
game, sport, fair, exposition, play, entertainment or public diversion, except as provided in section one hundred and 
five of chapter one hundred and fonv-nine. may grant, upon such reasonable terms and conditions as they mav 
prescribe, a license to hold on Sunday' dancing. o"r any ... [of the other activities listed above] for which a charge in 
the form of payment or collection of money or other valuable consideration is made for the privilege of being present 
thereat or engaging therein . provided . . . that such application to conduct an athletic game or sport, shall be 
approved by the commissioner of public safety . . . . ( Emphasis supplied. ) 



P.D. 12 127 



2. Is it necessary for a person to obtain both a local license and 
your approval for the operation of a flea market on Sunday, 
if the general public is not required to pay admission, but the 
vendors at the flea market are charged a rental charge for the 
privilege of setting up booths and stands? 

For the reasons discussed below, I conclude that you may approve as a 
"public diversion" an application for a Sunday flea market at which a 
general admission charge is made to the public. Neither a license nor your 
approval is required, however, if there is no admission charge to the general 
public. 

You have informed me that for the last five years, various cities and 
towns have submitted applications for licenses to conduct flea markets on 
Sunday to the Department of Public Safety for approval. The Department 
has always considered flea markets to come within the category of "public 
diversion" within the meaning of G.L. c. 136, §4(1), and therefore subject to 
the Department's jurisdiction under that statute. However, the Department 
has taken the position that only those flea markets which impose a general 
admission charge on the attending public are subject to the license 
requirements of G.L. c. 136, §4(1). 2 

The term "public diversion" is not defined in G.L. c. 136, §4(1), and has 
not been judicially construed by Massachusetts courts. Cf, State v. Ryan, 80 
Conn. 582, 69 A. 536, 537 (1908) (interpreting "public diversion" in similar 
Connecticut statute). In these circumstances the consistent reading given the 
term by your Department, the agency charged with administering the 
statute, is entitled to weight. See, e.g., Ace Heating Service, Inc. v. State Tax 
Comm'n, Mass. Adv. Sh. (1976) 2490, 2492; see also First Federal Savings & 
Loan Ass'n v. State Tax Comm'n, Mass. Adv. Sh. (1977) 895, 902-903; cf. 
Opinion of the Justices, Mass. Adv. Sh. (1978) 347, 352-353. 

The contours of the phase "public diversion" in G.L. c. 136, §4(1) can be 
ascertained from the words which precede it in the statute, namely, 
"dancing or any other game, sport, fair, exposition, plan, [and] 
entertainment . ..." I have been informed by the official in your 
Department directly involved in reviewing flea market license applications 
that the flea markets at issue can generally be characterized as similar to a 
fair or exposition or a combination of the two. Given this description and 
the Department's consistent treatment of flea market license applications, 
the classification of a flea market as a "public diversion" represents a 
reasonable and valid construction of the statutory phrase. Cf. Consolidated 
Cigar Corp. v. Department of Public Health, Mass. Adv. Sh. (1977) 1419. 
1427, 1433; cf. also Foxborough v. Bay State Harness Horse Racing and 
Breeding Ass'n. Inc., Mass. App. Ct. Adv. Sh. (1977) 1031, 1039. 

Your second question is whether G.L. c. 136, §4(1) applies to Sunday flea 
markets where the public is granted free admission, but individual vendors 
or exhibitors are charged a fee as a condition of participation. The recent 
case of Foxborough v. Bay State Harness Horse Racing and Breeding 



2 l understand from your letter that the Department does not consider its approval to be necessary for flea markets ( 1 ) where 
neither a public admission charge nor vendor fee is imposed, or (2) where a general admission charge is not imposed but a 
vendor fee is. Flea markets falling in the first category are clearly not covered by G.L c. 136. §4(1). See the underlined 
portions of §4(1) quoted in n. 1 above. Flea markets in the second category are the subject of your second question: I address 
that question in the text below. 



128 P.D. 12 



Association, Inc., supra, is dispositive of this issue. In that case the Appeals 
Court held that the fee paid for the use of a booth at a flea market is not a 
charge made to those engaging in an activity listed in G.L. c. 136, §4(1). 
Mass. App. Ct. Adv. Sh. (1977) at 1038-1039. Thus, the provisions of the 
statute have no application to the flea markets you describe. Accordingly, 
neither a license nor your approval is required in such instances. 

Very truly yours 
FRANCIS X. BELLOTTI 

Attorney General 



Number 23 April 26, 1978 

Leroy Keith 

Chancellor 

Board of Higher Education 

31 St. James Avenue 

Boston, Massachusetts 021 16 

Dear Chancellor Keith: 

On behalf of the Board of Higher Education, you have requested my 
opinion on the following question: 

Does the 97th Article of Amendments to the Massachusetts 
Constitution, enacted on November 7, 1972. preclude the 
transfer to Southeastern Massachusetts University by the 
Department of Natural Resources of a certain tract of land, as 
directed by Chapter 648 of the Acts of 1969? 

The statute referred to in your request, St. 1969, c. 648, directed the 
Department of Natural Resources (now known as the Department of 
Environmental Management [DEM} 1 

... to transfer to the Southeastern Massachusetts Technological 
Institute 2 a certain tract of land not exceeding twenty acres in 
the town of Westport located in the area known as Gooseberry 
Neck, which tract shall be selected and designated by said . . . 
Institute and the department of natural resources, and which 
shall be used for the construction thereon of an oceanographic 
experimental station for scientific study and research. C. 648, §1. 

Your question arises because DEM has refused to transfer any land in 
Gooseberry Neck to the University. DEM takes the position 3 that since the 
transfer did not occur before 1972, 4 when art. 97 of the Amendments to the 



'See St. 1974, c. 806. §8. 

: The Institute's name was changed to Southeastern Massachusetts University in 1969. St. 1969, c. 391. §1, and c. 684, §1. 
'DEM. through its general counsel, has submitted a memorandum to me explaining its position regarding the transfer. 
^The reason for the delay has not been provided to me. 



P.D. 12 129 



Massachusetts Constitution 5 was passed, art. 97 now operates to prohibit 
that transfer; art. 97 requires a two-thirds vote of each branch of the 
Legislature for the taking of certain kinds of land. The agency also argues 
that the description in St. 1969, c. 648, of the land to be transferred is not 
sufficiently precise to satisfy the standards laid down by the Supreme 
Judicial Court under the doctrine of "prior public use" to govern shifts in 
uses of public lands. 

For the reasons discussed below, I conclude that (1) art. 97 of the 
Amendments does not bar the transfer of land authorized by St. 1969, c. 
648, and (2) c. 648 satisfies the requirements of the prior public use 
doctrine. Accordingly, in my opinion, the transfer which the statute 
contemplates may validly take place and should be made forthwith to carry- 
out the provisions of c. 648. 

Gooseberry Neck is a spit of land of approximately 75 acres extending 
into Buzzards Bay in Westport, Massachusetts. It is part of Horseneck 
Beach Reservation, a public park under the jurisdiction of DEM. From 
1957 to 1968, Gooseberry Neck (and all of Horseneck Beach) were owned 
and maintained by the Department of Public Works for public recreational 
purposes. In 1968, DEM acquired Horseneck Beach, including Gooseberry 
Neck, pursuant to St. 1968, c. 501, which transferred all beaches under the 
supervision of the Department of Waterways in the Department of Public 
Works to the Division of Forests and Parks in the Department of Natural 
Resources. Since 1968, Gooseberry Neck has been used for public 
recreation, such as fishing and bird watching, and for conservation 
purposes. 

Article 97 of the Amendments to the Constitution was the subject of a 
lengthy and well reasoned opinion of my predecessor which answered 
several questions raised by the House of Representatives concerning the 
proper interpretation of the amendment. 1972/73 Op. Atty. Gen. at 139. 
That opinion concluded that art. 97 applies, inter alia, to public lands 
acquired for park and recreational purposes, id. at 143; to such public lands 
acquired prior to the amendment's effective date, id. at 140; and "to 
transfers of legal or physical control between agencies of government, 
between political subdivisions, and between levels of government, or land, 
easements and interests therein originally taken or acquired for the 
purposes stated in Article 97." Id. at 144. 

Application of these conclusions to the present situation establishes that 
Gooseberry Neck is used for purposes within the scope of art. 97, and that 
the transfer directed by St. 1969. c. 648, is of the kind covered by that 
article. What remains to determine is whether the amendment's 
requirement of a two-thirds vote of the Legislature for disposition of public 
lands applies to a transfer which was authorized but not completed before 
the article's enactment. 



'Article 97 provides in pertinent part as follows: 

. . . The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the 
natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to 
the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural 
resources is hereby declared to be a public purpose. 

Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise 
disposed of except bv laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court. 



130 P.D.12 



138, § 23 does not authorize the pledge of a liquor license to secure the pay- 
ment of taxes owed to the Commonwealth by the licensee. It is thus un- 
necessary to consider whether independent considerations, such as a lack of 
authority of the Department of Revenue to hold a liquor license, would 
otherwise preclude such a pledge. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 21 November 24, 1978 

Frank T. Keefe 

Director of State Planning 

One Ashburton Place 

Boston, Massachusetts 02180 

Dear Mr. Keefe: 

You have requested my opinion as to whether a city or town may remove 
itself form a regional planning district established pursuant to G.L. c. 40B, 
§ 3, without specific authorization for the Legislature. As your letter in- 
dicates, this question was the subject of a previous opinion of the Attorney 
General, Rep. A.G., Pub. Doc. No. 12, at 305 (1966), and was answered in 
the negative. You ask whether the Home Rule Amendment, 1 with its broad 
delegation of power to municipalities, now requires that the question be 
answered differently. 2 

For the reasons outlined below, I follow and adopt the opinion of my 
predecessor as continuing to reflect the correct reading of the relevant 
statutes. In my view, a municipality which has joined a regional planning 
district pursuant to G.L. c. 40B, § 3, may not remove itself from the district 
at will and in the absence of legislative permission. 

It is useful to begin by considering the function and duties of regional 
planning districts and the relationship of your office to them. Regional 
planning districts are primarily established pursuant to G.L. c. 40B § 3 3 or 
special act of the Legislature. They are composed of groups of citites and 
towns which vote to form a planning district, G.L. c. 40B, §3. Each is 
governed by a regional planning commission consisting of one member of 
the planning board of each city and town in the district, id., §4. The respon- 
sibilities of these districts and commissions include: (1) to study and develop 
"a comprehensive plan of development" for the district; id., § 5; and (2) to 
review all proposals for federal grants pertaining to the district and all 
federal environmental impact statements for projects within it. See e.g., id., 
§ 4A. 4 . These functions are, you state, vital to the continuation of 



'The Home Rule Amendment was adopled in 1966 as an. 89 of the Amendmenis to the Massachusetts Constitution, amending 
art. 2 ot the Amendments. 
1 lie factural background ot youi question relates n> a dispute between the Town ol Granville and th Lower Pioneer Vallev 
Regional Planning District. This district was formed undei G.l . c. 40B, 5?. In March of 1970, Granville voted to become a 
member; on June 6, 1977 the town voted to withdraw its membership. At issue is whether Granville had the power to withdraw 
from the district on its own motion. 

'General I aws, c. 40B. iJS 9 and 10 provide tor the formation of the Southeastern Regional Planning and Economic Develop- 
ment District. As discussed below, the Southeastern Planning District is distinct in several respects from the regional planning 
districts established under c. 40B, 5 1. The description of planning districts in the text refers to the section ' districts. 
'The distiicts perform many of these federal review functions as federally designated regional review clearinghouses. 



P.D.12 131 

certain federal aid to the Commonwealth. The Office of State Planning 
serves as the Commonwealth's liaison with all regional planning agencies 
established under G.L. c. 40B. You have thus requested this opinion in your 
capacity as director of the supervisory state agency for the regional planning 
districts. 

General Laws, c. 40B, § 3 provides: 

Any group of cities, towns, or citites and towns may, by vote 
of their respective city councils or town meetings, vote to 
become members of and thus establish a planning district, 
which shall constitute a public body corporate. After a plann- 
ing district has been thus established, any other city or town 
within the district area as hereinafter defined may by vote of 
its city council or town meeting apply for admission. Upon 
the affirmative vote of two thirds of the representatives of the 
cities and towns comprising the district, said city or town shall 
became a member thereof. The area of jurisdiction of said 
district shall be an area defined or redefined as an effective 
regional planning region by the division of planning of the 
department of commerce and development. All rights, 
privileges and obligations applicable to the original members 
of the district shall be applicable to the new members. 
The statute thus speaks in detail about the ability of a city or town to join a 
regional planning district and the process it is to follow in joining, but does 
not address the issue of removal from a district. 

As indicated above, in 1966 the Attorney General issued an opinion con- 
cluding that in the absence of any provision in G.L. c. 40B, § 3 (or any other 
statute) for the withdrawal from or dissolution of a regional planning 
district, a city or town could only remove itself through legislative action. 
Rep. A.G., Pub. Doc. No. 12, at 305, 306 (1966). As a general matter, I 
adhere to my previously stated view that it is inappropriate to reconsider 
and reverse a prior opinion of the Attorney General unless there are com- 
pelling reasons for doing so. See 1975/76 Op. Atty. Gen. No. 77, Rep. 
A.G., Pub. Doc. No. 12, at 198, 199(1976). I can find no compelling reason 
to conclude that the subsequently enacted Home Rule Amendment requires 
modification of the prior opinion issued on the question you have raised. 
The grant of independent powers to municiplites in the Home Rule 
Amendment, though large, is not unrestricted. See Arlington v. Board of 
Conciliation and Arbitration, Mass. Adv. Sh. (1976) 2035, 2039-2040. The 
municipal authority conferred by § 6 of the Amendment has been given firm 
boundaries by the Supreme Judicial Court. On several occasions the court 
has determined that the prime limit on the power of municipalities under § 6 
"is that it not be exercised in a manner which frustrates the General Law of 
the Legislature." Collura v. Arlington, 367 Mass. 881, 885, n. 3 (1975). See 
Board of Appeals of Hanover v. Housing Appeals Committee in the Dept. 
\ofComm. Affairs, 363 Mass. 339, 360 (1973). 

It is apparent that the legislative intent underlying c. 40B could be 
frustrated if the Home Rule Amendment were construed to allow 
municipalities the right to withdraw from regional districts at will. The 



132 P.D. 12 

•"shall be used for the construction thereon of an oceanographic 
experimental station for scientific study and research." 

The third requirement is that there appear in the statute a statement 
"showing in some way legislative awareness of the existing public use."'" As 
noted above. Gooseberry Neck is used for public recreation and 
conservation. Given the limited uses for which DEM could own or hold 
land at the time c. 64S was enacted, see. e.g.. G.L. c. 21. §1: 1965/66 Op. 
Attv. Gen. at 335. 336. the Legislature's awareness that the land was owned 
bv DEM implies a general knowledge that the land was used for recreation 
and conservation purposes at that time. 9 In addition, c. 648. §§2 and 3. 
furnish specific evidence of legislative awareness of the existing recreational 
use I conclude therefore that c. 648 indicates sufficient "legislative 
awareness" of the existing uses to satisfy the prior public use doctrine. Cf. 
Boston v. Massachusetts Port Authy.. 356 Mass. 741, 742 (1970). 

Since the three requirements of the prior public use doctrine set forth in 
Robbins are met by c. 64S. the propsed transfer is not proscribed by that 
doctrine. In order to effectuate the intent of the statute, the transfer should 
take place expeditiously. 

Verv trulv vours 

FRANCIS X.'BELLOTTI 

Attorney General 



Number 24 May 2. 1978 

Charles J. Doherty. Director 

Office of Campaign and 

Political Finance 

8 Beacon Street 

Boston. Massachusetts 01108 

Dear Mr. Doherty: 

You have requested an opinion concerning the recordkeeping 
responsibilities of candidates and treasurers of political committees under 
the provisions of G.L. c. 55. the statute regulating political campaign 
expenditures and contributions. Specifically, you ask whether candidates 
and treasurers of political committees are required to keep records of the 
name, address, date and amount of each person who makes a political 



i that this requirement appeared for the first time in Robbins v. Department of Public Works, supra i 

------- —:.-: - • -.- ; City Council of Cambridge, 166 M- 

m Robbais did not ir. : . tzt to overrule or otherwise alter the holdings and conclur 

ablic ase" decisions. Ir. -.it ike third Robbins standi" : 

. ;~mandmg on. -.e statute thi ;:eness of the 

he Lea ttare had ramferred the owaei is beaches to DEM. 

eck Beach and Gooseberry Neck. St. 1968. c. 501. 

the public to take 5n fish from the water m rr mmHing the tract. Section 3 directs the Department to n 
ability and cost of constructing a protected harbor on Gooseber- . nnecting the various ponds 



P.D. 12 133 

contribution under S15. or S25 in the case of a "depository candidate."" 1 For 
the reasons discussed below, it is my opinion that candidates and treasurers 
of political committees need keep records of the amount and date of each 
contribution under S15. but not the name and address of each such 
contributor. 

The recordkeeping responsibilities of political treasurers are set forth in 
G.L. c. 55. §§2 and 5. : Section 2 provides in pertinent pan: 

Every candidate shall keep detailed accounts of all 
contributions received by him or by a person acting on his 
behalf, and of all expenditures made by him. or by a person 
acting on his behalf. . . . Such accounts shall include: 

( 1 ) the full name and residential address of each person who 
has made a contribution, in an amount or value of fifteen 
dollars or more, or twenty-five dollars or more, if the candidate 
is required to designate a depositor.' in accordance with the 
provisions of section nineteen, in a reporting period, and such 
information for each contribution of less than the sum of fifteen 
dollars, or twenty-five dollars, if the aggregate of all 
contributions are received from such contributor within said 
reporting period is the sum of fifteen dollars or more, or twenty- 
five dollars or more, as the case may be. and the amount or 
value and date of the contribution. . . . 

(3) the amount or value and date of each contribution made, 
in a reporting period . . . which is not otherwise included under 
clause (1). . . . 

These provisions should be read in relation to each other and to G.L. c. 
55 taken as a whole, in order to give a coherent and harmonious effect to 
the entire legislative scheme. See. e.g.. Boston v. Massachusetts Bar Trans. 
Authy.. Mass" Adv. Sh. (1977) 2588. 2593. 

When §2(1) and (3) are read together, they plainly require a candidate 
or treasurer to keep a record of the amount and date of even contribution 
made, but not of every contributor. As to the contributors, a candidate must 
record their names and addresses only when they give either (a) an 
individual contribution of S15 or more in a reporting period.-' or (b) more 
than one smaller contribution in a reporting period which in the aggregate 
equal or exced the S15 minimum figure. 4 

General Laws. c. 55. §10. is not inconsistent with this reading of the 



"Depositor, candidates" are candidates fat '.he political offices specified in G.L . ' : - -■ 
to designate a national bank or trust companv m Massachusetts as a depositors for campaign funds. 

In all the sections of G.L c 55 which pertain to vour question, the relevant dollar a- -.butions spec 

$15 for non-depository candiates and £25 

in this opinion will refer only to the provisions relating to non-deposiiory candidates. Such rcfcxt noes si c ->e understood 
however, to applv as » ell to the statutory provisions governing depositors cand.c_ 

^Section 2 specificalh concerns political candidates The provisions of §2 are made applicable to treasurers of political 
committees under G.L C 5~ §5, 

'Reporting periods are defined in G.L c 55. §18. 

The pertinent reporting requirements set forth in c S3 : ■ i rectfj track the recordk;. 55, §2 

Section IS 1 2) provides that candidates and political committees must fiie re ? its (fist aaf - e name and re> : 
of each person who has made a contribution of S15 or more, or smaller contribute- -er total $15 . 

Reports of the names and addresses of smaller contributions are not required. 



134 P.D. 12 

respective accounting and reporting requirements of c. 55, §§2 and 18. 
Section 10 reads in relevant part: 

No person shall. . . make a campaign contribution in any 
name except his own . . . nor unless he makes his name and 
residential address known to the person receiving such 
contribution is made .... No candidate or political committee 
or person acting under its authority or in its behalf shall 
knowingly receive a campaign contribution, or knowingly enter 
or cause the same to be entered in the accounts or records of 
such candidate or committee, unless the provisions of this 
section have been complied with. 

The import of this section, when read in conjunction with G.L. c. 55, §§2 
and 18, is solely that the contributor must give his name and residential 
address to the candidate or committee receiving his contribution. Section 10 
does not address the issue of what the candidate or committee is to do with 
these items of information; it is necessary to look at §§2 and 18 for an 
answer to that question. 

In sum, the language of G.L. c. 55, §2, considered alone and in relation 
to the statutory scheme of which it is a part, is clear and unambiguous. It 
requires political candidates and political committee treasurers to record 
the names and addresses only of individuals who give an aggregate of $15 
or more in a reporting period. This plain expression of legislative purpose 
must be given effect. Cf Hoffman v. Howmedica, Inc., Mass. Adv. Sh. 
(1977) 1488, 1493; Chouinard, petitioner, 358 Mass. 780, 782 (1971). 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 25 May 3, 1978 

Robert Q. Crane 
Treasurer and Receiver General 
State House, Room 227 
Boston, Massachusetts 02133 

Dear Mr. Crane: 

You have requested my opinion whether the state board of retirement, of 
which you are the chairman, should set off any federal disability 
compensation against the accidental disability retirement allowance to 
which a member of the Massachusetts National Guard is otherwise entitled 
pursuant to G.L. c. 32, §7. Specifically, you have asked the following 
question: 

[W]hether a member of the Massachusetts National Guard, 
who is to be retired by the State Board of Retirement for reasons 
of Accidental Disability under Section 7 of Chapter 32, is 
entitled to receive the 72%, plus the annuity, plus an allowance 
for minor children if any, as well as a compensation payment 



P.D. 12 135 

from the Federal Government of approximately 75% for the 
same disability, without [the board] being permitted to offset. 

For the reasons stated below, I conclude that the board should not set off 
any such federal compensation against the state disability retirement 
allowance. 

A full-time member of the Massachusetts National Guard whose salary 
is paid from United States funds allocated to the Massachusetts Guard, is 
eligible to be a member of the state employees' retirement system. G.L. c. 
32, §§1 (definition of "employee") and 3 (2) (a) (i). 1 A full-time Guardsman 
may also qualify for an accidental disability retirement allowance under the 
state system. See G.L. c. 32, §§3 (2) and 7 (1). 

General Laws, c. 32 §7 (b) (2) defines the annual amount of the 
accidental disability retirement allowance as the sum of the following 
yearly amounts: (1) the annuity specified in G.L. c. 32, §12 (2) (a) (i); (2) a 
pension equal to 72 percent of the employee's annual rate of "regular 
compensation" 2 on the date of the disabling incident; and (3) any additional 
pension for dependents. Your question asks how the disability retirement 
allowance provisions of §7 should be interpreted in the case of an eligible 
National Guardsman who also receives disability retirement benefits from 
the federal government on account of the same illness or injury. 3 

No section of G.L. c. 32 directly addresses this issue. Nevertheless, 
several provisions of the retirement statute, G.L. c. 32, as well as the statute 
governing the Massachusetts National Guard, G.L. c. 33, demonstrate a 
clear legislative awareness of the a fact of double compensation. The 
treatment of double compensation in these provisions provides the key to 
resolving your question. 

Thus, G.L. c. 32, §14 (2) (a) requires any disability benefits available to a 
disabled retiree under the workers' compensation law, G.L. c. 152, to be 
offset against disability pension otherwise payable to the individual 
pursuant to G.L. c. 32, §7; the disabled retiree may receive from the state 
system only the amount, if any, by which his retirement pension exceeds the 
workers' compensation benefits. Similarly, G.L. c. 32, §91 A in pertinent 
part directs each person receiving a disability retirement allowance to (1) 
file annually a sworn statement of his employment earnings and (2) refund 
any amounts by which his independent earnings and retirement benefits 
together in the past year exceeded the amount he would have earned if still 
a state employee, plus $1,000. In both of these instances, the principle of set 
off is operating. 

Turning to the National Guard statute, several sections specifically 
require set offs of federal compensation against compensation or 
allowances received by Guardsmen from the Commonwealth. General 



'These two sections respectively establish (1) that a full-time National Guardsman is an "employee" within the meaning of the 
retirement statute, and (2) that as an employee, a Guardsman may become a member of the state retirement system so long as 
he is not at the same time a member of the federal civil service retirement system. 

"•Regular Compensation" is defined in G.L. c. 32, §1 as the salary or wages determined bv the employee's employing 
authority, and specifically as including salary or wages paid from federal grants. 

'National Guardsmen are eligible for the same hospital benefits, pensions and other compensation as members of the United 
States Regular Army if they are disabled while performing or participating in federal National Guard training duty exercises 
or school programs. See 32 U.S.C §318 (1970); 10 U.S.C. §§1201-1205 (1970) A member of the Guard may also be'entitled to 
veteran's disability compensation under 38 U.S.C. §§331-336 (1970). 



136 P.D. 12 

Laws, c. 33, §88 provides for disability compensation to be paid a National 
Guardsman who suffers an injury in the line of duty which incapacitates 
him from pursuing his usual occupation. 4 A board within the 
Commonwealth's military division reviews an injured Guardsman's claim 
and determines the appropriate amount of compensation to be given. In 
performing these functions, 

[t]he board in consideration of the claim shall (1) except as 
otherwise provided in section eighty-eight [as to the death of a 
National Guardsman], take into account any compensation 
received by the claimant or his dependents from the United 
States. G.L. c. 33, §90. 

In G.L. c. 33, §90, then, the Legislature has clearly expressed its decision to 
set off any federal disability compensation against whatever disability 
compensation the Commonwealth would otherwise provide under G.L. c. 
33. 5 Similarly, in G.L. c. 33, §83 (d), the Legislature has required that state 
compensation to National Guardsmen for the period of their annual 
training must be reduced by any federal pay which they receive for the 
same military training service. 

The provisions of G.L. c. 32 and c. 33 described above show not only a 
plain legislative recognition of the issue of double compensation in the area 
of disability retirement allowances; they also demonstrate that when the 
Legislature has chosen to preclude a public employee from receiving such 
double benefits, it has taken the necessary steps to do so. In these 
circumstances, I believe that had the Legislature intended the state 
retirement board to set off any federal disability benefits which a member 
of the National Guard receives against his state disability retirement 
allowance, it would have expressly so provided. 6 See Negron v. Gordon, 
Mass. Adv. Sh. (1977) 1701, 1706; Commonwealth v. Hayes, Mass. Adv. Sh. 
(1977) 928, 933; see also County of Bristol v. Secretary of the Commonwealth, 
324 Mass. 403, 406-407 (1949); 1977/78 Op. Atty. Gen. No. 19 at 9. 7 

In sum, the provisions of G.L. c. 32 §7 in my view are clear. They do not 
require or permit the state Board of Retirement to set off any federal 
disability benefits which a Guardsman receives against the accidental 



'Section 88 also provides for payment of compensation to the dependents of a National Guardsman who dies in the line of 
duty. 

'Disability claims approved by the board under G L. c. 33, §90, are deemed *'. a charge against the commonwealth [to be] 
paid in the same manner as other military accounts." Id. 

The compensation provisions of G.L. c. 32, §7, and G.L. c. 33, §88, overlap, for both provide disability benefits to National 
Guardsmen The two sections differ, however, in that c. 32, §7 applies in the case of any retirement, whether temporary or 
permanent, while disability compensation under c. 33, §88, except in the case of death, is available only during the period in 
which the individual is prevented by the injury from pursuing his usual occupation. 

"Moreover, my reading of the statutes at issue here is bolstered by the fact that when the Legislature amended G.L. c. 32 to 
include full-time National Guardsmen within the state retirement system by St. 1950, c. 600, the Congress had recently 
enacted the provisions entitling National Guard members to federal disability retirement benefits: the substance of what is 
now 32 U.S.C. §31 was first enacted as the Act of June 20, 1049, c 225, §3, 63 Stat. 201; the substance of what is now 10 U.S. 
C §§1201-1205 was first enacted as the Act of October 12, 1949, c. 681, §402. 63 Stat. 802. The Legislature is presumed to 
have been aware of existing state as well as federal statutes when it enacted St 1950, c. 600. See, e.g.. Board of Assessors of 
Melrose v. Driscoll. Mass. Adv. Sh. (1976) 1497, 1503; see also Velasco v. Minler. 352 F. Supp 1 109, 11 16 (D. Mass., affd4$[ 
F. 2d 573 ( 1st Cir. 1973); CD. Sands, Sutherland Statutory Construction. §51.06 (4th Ed. 1974). 

'The provisions of G.L c. 32, §7 (2) are not inconsistent with this conclusion. That section provides that an individual cannot 
receive an annual retirement allowance under §7 greater than the annual rate of his regular compensation at the time he was 
injured. "Allowance' is specifically defined in G.L. c. 32, §1; it does not include federal retirement benefits Thus a 
Guardsman's receipt of federal payments does not affect the level of the disability "allowance" he receives from the 
Commonwealth 



P.D. 12 137 



disability retirement allowance provided for in §7, so long as the 
Guardsman is not a member of the federal civil service system. Arguments 
about the wisdom of this scheme as a matter of social policy cannot justify a 
different reading. See Druker v. State Tax Comm'n, Mass. Adv. Sh. (1978) 
80, 82-83. The Legislature is the appropriate forum to resolve such social 
policy issues. See Negron v. Gordon, supra, Mass. Adv. Sh. (1977) at 1711- 
1712. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 26 May 16, 1978 

Wallace C. Mills 

Clerk 

House of Representatives 

State House 

Boston, MA 02133 

Dear Mr. Mills: 

You have forwarded to me a copy of House Document 4635 (1978), 
which sets forth an order of the House of Representatives requesting my 
opinion on the following question: 

Does the State Fire Marshal have the authority pursuant to 
the Department of Public Safety, Board of Fire Prevention 
Regulations, FPR-3, Oil Burning Equipment-Fuel Oil and 
Other Inflammable Liquid Products (filed June 30, 1976 and 
published July 8, 1976), to approve multi-fuel boilers that are 
fired by wood and/or oil, where the fuel oil burner component 
of said boilers have already received such approval? 

Having reviewed the cited regulations, I answer the question in the 
affirmative: the state fire marshal is empowered to review and approve 
multi-fuel boilers in situations where the oil burner component is already 
approved. 1 

The Board's current regulations governing oil burning equipment, 
designated as FPR-3, 2 provide that "[a]ll fuel oil burners 3 and all 
equipment in connection therewith shall be installed and maintained in 
accordance with these rules and regulations." FPR-3, Rule 2. They go on to 
require that the state fire marshal approve every fuel oil burner before it is 
installed, maintained or used in any structure (Rule 4), and further, that 



'I note a! the outset that the Representatives' question may soon be moot. On December 14. 1977. the Board of Fire 
Prevention Regulations adopted emergency regulations amending FRR-3 specifically to require the state fire marshal's 
approval of all multi-fuel boilers installed and used in Massachusetts See 87 Mass. Reg. 71. 73 (1977). The Board held a 
public hearing on these new regulations on February 23. 1978. Upon the Board's compliance with the filing requirements of 
G.L. c. 30A, §§2 and 6. the new regulations will be in full force and effect. 

; These regulations are published in 12 Mass. Reg. 81 ( 1976). 

'"Fuel oil burner" is defined in FPR-3. Rule 1(0 as 

any device designed and constructed for the purpose of burning oil for heating or cooking in any range, stove, 
boiler, furnace or other heater. 



138 P.D. 12 



applications for such approval be accompanied by "complete assembly 
drawings and specifications . . . ." Id., Rule 5. The provision of direct 
relevance to the question here posed is Rule 6, which reads: 

A device or equipment not described in the original 
application for approval shall not be installed nor connected to 
any oil burner until approval has been obtained from the 
marshal. 

In my view, Rule 6 authorizes the state fire marshal to approve multi- 
fuel boilers where the fuel oil burner component has previously been 
approved. The information I have been furnished by the fire marshal's 
office concerning multi-fuel boilers indicates that they are single heating 
units with separate oil-burning and coal- or wood-burning compartments. 
Thus, a previously-approved oil burner can only become part of a multi- 
fuel boiler by connecting the burner to the boiler equipment. Rule 6 directly 
speaks to the issue of connecting "device[s]" or "equipment" to oil burners, 
and specifically requires the marshal's approval for the same. Thus, by its 
terms, the language of the regulation applies to the multi-fuel boilers 
described in the Representatives' question; that clear language must be 
given effect. Cf. Hoffman v. Howmedica, Inc., Mass. Adv. Sh. (1977) 1488, 
1493; Commonwealth v. Gove, 366 Mass. 351, 354 (1974). 

That the Board of Fire Prevention Regulations has taken steps {see n. 1 
supra) to amend its oil burner regulations in order to regulate multi-fuel 
boilers specifically does not in itself show the current regulations cannot be 
applied to such heating equipment. The Board legitimately could seek to 
clarify its existing regulations without being forced to adopt the position 
that absent clarification, the regulations fail to reach the multi-fuel boilers 
at issue here. Cf. Massachusetts Comm'n Against Discrimination v. Liberty 
Mut. Ins. Co. Mass. Adv. Sh. (1976) 2403, 2412 (agency seeking clarifying 
legislation). 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 27 May 18, 1978 

Charles J. Doherty, Director 
Office of Campaign and 

Political Finance 
8 Beacon Street 
Boston, MA 02 108 

Dear Mr. Doherty: 

As Director of the Office of Campaign and Political Finance, you have 
requested my opinion regarding the extent of your obligation to respond to 
requests for legal interpretations under G.L. c. 55, the statute governing 
disclosure and regulation of campaign expenditures and contributions. 
Specifically, you ask whether you are required to give an answer to a 
candidate, political committee or member of the public on a general 
question such as the following: 



P.D. 12 139 

Are the reports filed with your office by the XYZ Committee or 
by X Candidate in full compliance with the requirements of the 
law based upon the information presently in your possession? 

For the reasons set forth below, it is my opinion that you are not required to 
answer a question propounded in this form. 

The duties of the Director of Campaign and Political Finance, as they 
relate to the question you present, are contained in G.L. c. 55, §3. Pursuant 
to that section, the Director "[is] . . . free to advise and consult with . . . 
persons affected by the laws under [his] jurisdiction . . ."(14), and ". . . shall 
also . . . respond with reasonable promptness to requests for information, 
interpretations and advice presented by candidates, state committees, 
political committees, and members of the public." (^6) 

Treating the cited provisions separately, I conclude that those in §3, f4, 
impose no obligation on you to answer an inquiry whether reports filed 
with your office are in full compliance with the law. This portion of the 
statute serves to authorize your rendering advice to individuals affected by 
G.L. c. 55; it cannot reasonably be interpreted as requiring your response 
on the validity of financial disclosure reports in your possession. 1 

I am also of the opinion that the portions of G.L. c. 55, §3, ^[6, quoted 
above, do not envision your responding to the type of question you 
describe. The provisions of G.L. c. 55, §3 must be construed in light of the 
entire statutory scheme set forth in c. 55, so as to constitute a harmonious 
whole consistent with the legislative purpose. See, e.g., Boston v. 
Massachusetts Bay Transp. Authy., Mass. Adv. Sh. (1977) 2588, 2593; 
Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 
Mass. Adv. Sh. (1976) 2403, 2407. The conclusory type of question you cite 
could only be answered by determining the ultimate legality of financial 
disclosure reports filed with your office. Although c. 55 grants the Director 
"the power and authority to investigate the legality, validity, completeness 
and accuracy" of reports, G.L. c. 55, §3; §§28-29, it specifically delegates to 
the Attorney General and the District Attorneys the duty to make final 
legal determinations on these questions. G.L. c. 55, §§3 and 29. 2 An answer 
to the broad question whether reports are "in full compliance with the law" 
could interfere not only with the responsibilities of these officials, but also 
with your own investigative duties and powers described in §§3 and 29. 3 

In sum, in order to preserve the discrete functions and responsibilities of 
the officials responsible for enforcing G.L. c. 55, and to give full meaning to 
the statute as a whole, I conclude that the Director's duty to respond to 
questions pursuant to c. 55, §3, must be read in a limited way. The Director 
is responsible for answering factual and general questions about the 
campaign finance laws of the Commonwealth. However, the legal 



'It is a well-established principle of statutory construction that where the words of a statute are unambiguous, the language is 
to be given its plain and ordinary meaning See. e.g., Hoffman v Howmedica. Inc.. Mass. Adv. Sh. (1977) 1488, 1493. 

2 It is worth noting that G.L. c. 55 does not require the Director of the Office of Campaign and Political Finance to be a lawyer, 
although you yourself are a member of the Massachusetts Bar. 

'In a recent opinion, I concluded that the Director's primary function under G.L. c. 55 is to serve as a record keeper; his 
investigatory functions are limited 1976/77 Op Atty. Gen. No. 38. There may be violations of c. 55 or of other statutes that 
would or could not be uncovered in the Director's examination of filed reports I hesitate to adopt a construction of c. 55 
calling upon the Director to rule on issues that he may be without power to investigate fully. 



140 P.D. 12 

determination whether reports on file are in "full compliance with the law" 
is entrusted to the Attorney General and the appropriate District Attorney. 
A contrary interpretation would impair the ability of these law enforcement 
officers adequately to investigate and enforce violations of c. 55, and 
thereby interfere with the effective working of the statutory scheme. Such 
an interpretation should be avoided. See, e.g., School Comm. of Springfield 
v. Board of Educ, 362 Mass. 417, 438 (1972); Atlas Distrib. Co. v. Alcoholic 
Bev. Control Comm'n, 354 Mass. 408, 414, 415 (1968); Gosselin v. Gosselin, 1 
Mass. App. 146, 148(1973). 

In reaching this conclusion, I do not intend to unduly restrict you in your 
advisory functions. You are, of course, free to advise those candidates who 
ask general questions like that contained in your request as to the existence 
or nonexistence of violations which appear on the face of their reports or as 
to the timeliness or their reports. You may not, however, substitute your 
judgment for that of the appropriate prosecuting or judicial officers by 
declaring a candidate's filing to be in conformity with the law. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 28 June 2, 1978 

John R. Buckley, Secretary 
Executive Office for Administration 

and Finance 
State House 
Boston, Massachusetts 02133 

Dear Secretary Buckley: 

In a letter dated March 21, 1977, 1 addressed certain questions you raised 
relating to the interpretation of St. 1976, c. 434 (c. 434). 1976/77 Op. Atty. 
Gen. No. 25 (1976 Opinion). Chapter 434 charges you with establishing a 
"small business purchasing program" which will ensure that at least five 
percent of all goods and services purchased by the Commonwealth are 
purchased from "small businesses." 1 You now ask two additional questions 
which I summarize as follows: 

1) Does the program apply to purchases made by the legislative 
and judicial departments? 

2) May agency purchases of less than five hundred dollars be 
included in computing the aggregate of agency purchases 
included in the program to arrive at the minimum five 
percent figure required by c. 434? 

For the reasons which follow, I conclude that ( 1 ) the program does not 
apply to the legislative and judicial departments; and (2) agency purchases 
of less than $500 may be included in computing the five percent of all 



'A "small business" is defined in 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 affiliated group ..." 



P.D. 12 141 



purchases which are to be included in the program, provided, however, that 
such purchases are made through competitive bidding. 

With regard to your first question, c. 434, §3, provides that the small 
business purchasing program "shall apply to all purchasing agencies." 
Section 2(4) of c. 434 in turn defines a "purchasing agency" as "any agency, 
department, board, commission, office, or authority of the commonwealth 
empowered by law to purchase goods or services." Clearly the legislature 
and judiciary do not come within the terms "agency," "board," 
"commission," "office," or "authority." Thus, the question you pose is 
whether they should each be considered a "department" for purposes of the 
definition of "purchasing agency." In my judgment they should not. 

A number of decisions of the Supreme Judicial Court have considered 
the meaning of the word "department" as it appears in statutory or 
consitutional provisions listing several types of governmental entities (e.g., 
"board," "commission," "office," "authority"), in a manner and order very 
similar to c. 434, §2(4). See, e.g., Westinghouse Broadcasting Co., Inc. v. 
Sergeant-at-Arms of the General Court, Mass. Adv. Sh. (1978) 1213, 1219 
(construing "department" in G.L. c. 4, §7, cl. 26, the definition of "public 
records"); Massachusetts Probation Ass'n v. Commissioner of Administration, 
Mass. Adv. Sh. (1976) 1814, 1829-1830 (construing "department" in G.L. c. 
149, §78F, prior state employee collective bargaining statute); Yont v. 
Secretary of the Commonwealth, 275 Mass. 365, 367-368 (1931) (construing 
"department" in art. 48 of the Amendments to the Constitution, The 
Referendum, III, §2, definition of "excluded matters" from referendum 
petitions). See also art. 66 of the Amendments to the Constitution (dividing 
executive and administrative work of Commonwealth into 20 "depart- 
ments"). In each case the court concluded that "department" referred only 
to departments within the executive branch of government, and did not 
include either the legislative or judicial branches. 2 

Given the similarity between the language in c. 434, §2(4) and the 
statutes under review in the cited cases, I follow the court's decisions and 
conclude that "department" in c. 434, §2(4) does not encompass the 
legislative or judicial branch. 3 Accordingly, it is my view that both branches 
fall outside the definition of "purchasing agency" as used in c. 434, and are 
therefore not subject to the small business purchasing program. 

My conclusion finds support in the structure of the small business 
purchasing program itself, when considered in light of the methods by 
which legislative and judicial expenditures are made. As the Secretary of 
Administration and Finance you are responsible, together with the 
Commissioner of Commerce and Development, for the establishment and 
administration of the program created by c. 434. See c. 434, §§3-7. Both you 



2 In each case the court noted that the legislature and judiciary were referred to in the Constitution as two of the three 
"departments" of government, see art 30 of the Declaration of Rights, but expressly concluded that the term "department" 
had been used in a far more restrictive way in the statutory and constitutional provisions under review in the case before it 
than was true of art. 30. Westinghouse Broadcasting Co.. Inc.. supra Mass. Adv. Sh. (1978) at 1219; Massachusetts Probation 
Ass'n. supra at 1830; Yont. supra. 275 Mass. at 368. 

^Moreover, when the legislature has intended to include the legislative and judicial branches within the word "department" it 
has stated so specifically See G.L. c. 268A. §l(p) ("department" of state government includes legislative and judicial 
branches for purposes of conflict of interest statute). The legislature presumably would have made the same express 
designation in c. 434 if it intended to include those two branches within the definition of "purchasing agency " Cf. 
Commonwealth v. Hayes. Mass Adv. Sh. ( 1977) 928, 933. 



142 P.D. 12 



and the Commissioner are officers within the executive branch of the 
government, and your statutory duties extend only to agencies, 
departments, and other entities within the executive branch. See G.L. c. 7, 
§§4, 4A, 4B, 4C, 4G (setting forth powers and duties of the Secretary, and 
the divisions and agencies within the Executive Office of Administration 
and Finance); G.L. c. 23 A, §§1, 3, 4, 5 (describing powers and duties of the 
Commissioner and the divisions and bureaus under his supervision). 
Nothing in the statutes generally governing the functions of your and the 
Commissioner's offices authorizes either of you to supervise, regulate or 
review expenditures of the legislature or the courts. 

On the contrary, legislative expenditures are governed and approved 
exclusively by the legislature and its own officers. See G.L. c. 3, §§30-38. 4 
With respect to the judiciary, the great majority of court expenditures are 
currently paid by the counties (or cities) rather than the state. 5 To interpret 
the definition of "purchasing agency" in c. 434, §2(4) as including the 
legislative and judicial branches would bring certain purchases of these 
branches under the supervision of the Secretary and Commissioner even 
though neither officer has any authority over their purchases or 
expenditures generally. The legislature could not have intended such an 
anomalous result. Cf. Massachusetts Probation Ass'n v. Commissioner of 
Administration, supra, Mass. Adv. Sh. at 1827. 

Your second question asks if a purchasing agency's purchases of less 
than $500 may be included in determining whether the aggregate amount of 
purchases in the program amounts to five percent of all purchases of the 
Commonwealth. 6 The question appears to arise because state agencies are 
not required to use competitive bidding procedures for purchases under 
$500, see G.L. c. 7, §22(2). At the same time c. 434 applies only to purchases 
for which bids are received. See c. 434, §§4, 5, 7. 

Chapter 434, §3, f 1 states that the provisions of c. 434 are to, 

apply to all small business purchases which the Secretary 
institutes pursuant to this program, notwithstanding the 
provisions of [G.L. c. 7, §§22-23A, G.L. c. 39, §29 A], or any 
other law or regulation concerning the authority and the 
procedure for purchasing by the commonwealth. (Emphasis 
supplied.) 

General Laws, c. 7, §22 7 directs the Secretary of Administration and 
Finance to make rules governing "the manner and method of purchasing 



'The comptroller of the Commonwealth authorizes payment of bills for expenditures incurred by the legislature, see G.L. c. 7, 
§13; Westinghouse Broadcasting Co., Inc. v. SergeanlalArms of the General Court. Mass. Adv. Sh. (1978) 1213, 1215, n. 2, and 
the Comptroller's Division is within the Executive Office of Administration and Finance. G.L. c. 7, §4A. Nevertheless, the 
Secretary does not supervise the Comptroller's functions. See G.L. c. 7, §4. 

'See. e.g., G.L. c. 213, §8 and c. 35, §12 (Supreme Judicial Court and Superior Court); c. I85A, §19 (Boston Housing Court); c. 
I85B, §19 (Hampden County Housing Court); c. 218, §39 (books and supplies for District Courts). 

'Under c 434, §3, "the aggregate amount of the purchases included in (the small business purchasing program] shall equal or 
exceed five percent of the aggregate amount of all purchases made by the commonwealth ..." The Act defines "purchases" 
as "contracts by which a purchasing agency agrees to buy goods or services from a specified vendor at a specific price and 
according to specified conditions." Chapter 434, §2(3) The regulations you have promulgated to implement c. 434 track these 
statutory provisions. "Rules and Regulations for the Massachusetts Small Business Purchasing Program" §§22(b), 3(c), 57 
Mass Reg. I, 3,4(1977) 

'The other statutory provisions listed in c. 434, §3, quoted above, are not relevant to your question. 



P.D. 12 143 

and contracting for supplies, equipment, etc. "for the various state 
departments, offices and commissions . . . ." Pursuant to G.L. c. 7, §22(2), 
these rules are to provide, inter alia, for the purchase by agencies of supplies 
without advertisement or public bids, "where the amount involved will not 
exceed five hundred dollars . . . ." As the portion of c. 434, §3, ^]1 quoted 
above indicates, however, the small business purchasing program is to take 
precedence over G.L. c. 7, §22 and regulations promulgated under it. In 
light of this statutory mandate, it is clear that as Secretary you may exercise 
the broad powers vested in you by c. 434 over the purchases to be included 
in the program by designating goods or supplies costing less than $500 for 
inclusion. 8 However, any such purchases that are so designated must then 
be made through the competitive bidding procedures referred to in c. 434, 
§§4, 5 and 7; under the plain terms of the statute, these bidding procedures 
are not discretionary and may not be waived by the Secretary. 9 

The construction I adopt of c. 434 will best advance the clear legislative 
intent underlying c. 434. See Board of Education v. Assessor of Worcester, 
Mass. Adv. Sh. (1975) 2626, 2629. That purpose or intent, as set forth in c. 
434, §1, was to, 

aid, counsel, assist, and protect, insofar as possible, the interests 
of small business concerns in order to preserve free competitive 
enterprise and to ensure that a fair proportion of the total 
purchases for the Commonwealth be placed with small business 
enterprises. 

If the statute is construed to exclude purchases of $500 or less from the 
program, significant portions of an agency's total purchases may not be 
covered, since, as you indicate in your letter, many agencies probably spend 
a large percentage of their annual budget on individual purchases of under 
$500. On the other hand, a reading of c. 434 as permitting purchases of this 
amount to be included in the program without competitive bidding would 
contravene the clear language of c. 434, §§4, 5 and 7, and therefore should 
not be adopted. Cf. Hoffman v. Howmedica, Inc., Mass. Adv. Sh. (1977) 
1488, 1493. 

In concluding that purchases of $500 or less may be included in the small 
business purchasing program, I do not intend to suggest that they must be. 
As the 1976 Opinion and the discussion above make clear, as Secretary you 
possess a great deal of discretion in determining which purchases are to be 
included in the program. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



"Your authority to determine the purchases that will be subject to the program is described in G.L. c. 434, §3. H2: ". . . [t]he 
Secretary shall promulgate rules and regulations establishing guidelines for determining which purchases by such agencies 
shall be eligible for the program . . . ." Further, c. 434, §3. 1|4 vests additional authority in the Secretary ". . . to include 
specific purchases in the program . . . if such action is necessary in the Secretary's judgment to ensure that the five percent 
minimum is met or exceeded." Your letter requesting this opinion implies that unless at least some $500 or smaller purchases 
are included in the program, it may be difficult to meet the five percent figure. 

'In effect, therefore, the rules or regulations promulgated under G.L c. 7, §22 would not apply to purchases of $500 or less 
which are included in the small business purchasing program, insofar as the §22 rules authorized an agency's direct purchase 
from a vendor without competitive bidding In contrast to the bidding requirements set forth in c. 434, §4, the provisions of c. 
434, §3 appear specifically to contemplate the waiving of rules and regulations promulgated under G.L c. 7, §22 



144 P.D. 12 



Number 29 June 9, 1978 

Bruce S. Gullion 

Commissioner 

Department of Fisheries, Wildlife and 

Recreational Vehicles 
100 Cambridge Street 
Boston, MA 02202 

Dear Commissioner Gullion: 

You have requested my opinion concerning the rulemaking authority of 
the Department of Fisheries, Wildlife, and Recreational Vehicles 
(Department) under G.L. c. 21, §17 A. 1 Specifically you ask whether G.L. c. 
21, §17A, grants to the Department 2 the authority to create, by regulation, 
uniform fee schedules for public use of any "designated", municipally- 
owned, public access sites and facilities and related parking facilities, even 
in the absence of a formal land management agreement between the 
municipality and the Department. 

Your request arises in the context of the following facts. Over the years, a 
number of municipalities have agreed with the Department to allow the use 
of town land designated for public access or for construction of public 
access facilities. In such instances arising since 1973, the Department has 
entered into formal land management agreements with the municipal 
owners of the designated sites or facilities. The agreements provide that all 
users of the facilities or sites — residents of the municipality in question as 
well as non-residents — are to be treated equally, and that no fees are to be 
imposed on users without the Department's consent. For sites or facilities 
designated and constructed before 1973, however, no such formal 
agreements exist. Some of these municipal owners have imposed fee 
schedules discriminating in favor of residents or imposing fees on non- 
residents only. The Department's contemplated rulemaking would simply 
extend the requirement of equal treatment for all users to the pre- 1973 sites 
and facilities which are not governed by formal agreements. 

It is my opinion that the Department may govern the use of designated 
sites by exercising its rulemaking authority under G.L. c. 21, §17A, and it 
may, pursuant to that authority, create uniform fee schedules without 
regard to the existence of any land management agreements. I further 
conclude, however, that the Department's rulemaking authority does not 
extend to sites which have not been designated by the Board. Hence 
uniform fee schedules may not be set for non-designated, but related 
parking areas. 



'General Laws, c. 21, §17A, creates within the Department a Public Access Board (Board) whose function is to designate 
various locations of public access to inland and coastal waters within the Commonwealth, and locations of trails and paths for 
recreational uses. After designation by the Board, the Department is to acquire the designated land or water areas by 
purchase, gift, lease, or, with the Governor's consent, by eminent domain The Department may also use public lands without 
formal acquisition if it has the consent of the governmental agency in charge After acquiring the land or the consent to use 
the land, the Department may construct such public facilities, including parking areas and boat ramps, as the Board may 
designate The Department is required as well to maintain, operate and improve the facilities and associated land and water 
areas unless other public agencies agree to assume those responsibilities. 

Section 17A expressly authorizes the Department to adopt regulations governing the use of land and water areas designated 
under the section. 

2 Your request asks if the Commissioner may adopt the regulations. Inasmuch as the statute actually authorizes the 
Department to adopt regulations, I will consider the reference to be to the Department. 



P.D. 12 145 



In G.L. c. 21, §17 A, the Legislature has delegated to the Department 
power to "adopt . . . regulations governing the use of land and water areas 
under this section." Given this clear grant of rulemaking authority, the 
principal questions presented by your request are (1) whether a regulation 
requiring uniform fee schedules for use of designated public access sites is 
within the scope of the Department's rulemaking power, and if so, (2) 
whether it is constitutional. See Colella v. State Racing Commission, 360 
Mass. 152, 155(1971). 

The general rule in Massachusetts is that in carrying out statutory duties 
expressly conferred, an agency has implicit power to use all ordinary means 
for the full performance of those duties. See Attorney General v. Trustees of 
Boston Elevated Ry. Co., 319 Mass. 642, 655, 656 (1946); see also 
Massachusetts Comm'n Against Discrimination v. Liberty Mutual Insurance 
Co., Mass. Adv. Sh. (1976) 2403, 2405; Bureau of Old Age Assistance of 
Natick v. Commissioner of Public Welfare, 326 Mass. 121, 124 (1950); cf. 
1975/76 Op. Atty. Gen. No. 63. 

Section 17A imposes specific duties upon the Department and the Board 
to designate, acquire and improve public access and recreational sites for 
public use, and grants the power to govern the use of such sites by 
regulation. The Supreme Judicial Court has held that similar obligations 
and grants of power entitle agencies to exercise broad discretion in enacting 
rules and regulations in the pursuit of their statutory duties. E.g., Colella v. 
State Racing Commission, supra at 155; 3 cf 1977/78 Op. Atty. Gen. No. 10 
(Supervisor of Public Records may adopt fee schedule under general 
rulemaking authority); Supervisor of Public Records v. City Clerk of Revere, 
C.A. No. 25839 (Suffolk Superior Court, May 10, 1978) (upholding fee 
schedule). 

The purpose of §17A is to make access sites more available to the public. 
The section sets forth the procedures for designating, acquiring, improving 
and maintaining public access sites and vests in the Department authority 
to regulate their use. Since differences in user fees, based on place of 
residence, can tend to limit or restrict use of the facilities, fee schedules are 
a fit subject of regulation under §17 A, and are "reasonably related to the 
purposes of the enabling legislation." Thorpe v. Housing Authority of 
Durham, 393 U.S. 268, 280-281 (1969). 

Moreover, such fee regulations, under examination by a court, would be 
entitled to "all rational presumptions in favor of [their] validity" and must 
be sustained "unless [their] provisions cannot by any reasonable 
construction be interpreted in harmony with the legislative mandate." 
Consolidated Cigar Co. v. Department of Public Health, Mass. Adv. Sh. 
(1977) 1419, 1433. In my opinion, regulations governing fee schedules are 
related to the use of designated public access sites, are consistent with the 
legislative mandate, and thus are within the scope of the Department's 
rulemaking power. 



'In Colella, the plaintiff attacked a regulation of the State Racing Commission which sets fees paid to jockeys in the absence of 
independent agreements. The court ruled that the fee regulations were authorized by the legislative delegation of "full power 
to prescribe rules, regulations, and conditions under which all horse or dog races at horse or dog racing meetings shall be 
conducted in the Commonwealth." The court noted that the Legislature had established the overall plan by which the 
conduct of racing meetings would be governed, but left to the commission the authority to regulate the details of racing 
operations. Id. at 115. 



146 P.D. 12 



In assessing the constitutionality of the contemplated regulation. I apply 
the same standard as in evaluating the constitutionality of a statute: would 
the regulation, if enacted as a statute, constitute a valid exercise of the 
legislative police powers? In considering this question, all rational 
presumptions are to be made in the regulation's favor. See Consolidated 
Cigar Co. v. Department of Public Health, supra at 1428. 1433; Palm Manor 
Nursing Home v. Rate Setting Commission, 359 Mass. 651. 655-656 (1971); 
Colella v. State Racing Commission, supra at 155-156. While it is obviously 
not possible to pass on the constitutional validity of currently unwritten 
regulations, it can be fairly stated that a regulation simply requiring 
uniform fee schedules for the use of public access sites without regard for 
place of residence would not offend the Constitution. The regulation would 
be constitutionally vulnerable only if no rational basis in fact can 
reasonably be conceived to sustain it. Colella v. State Racing Commission, 
supra at 156; see also Coffee- Rich, Inc. v. Commissioner of Public Health. 
348 Mass. 414. 422 (1965); Druzik v. Board of Health of Haverhill, 324 Mass. 
129. 139 (1949). The Department may find that fee differentials imposed by 
municipalities in favor of their own residents restrict or impede the use of 
public access sites in a way not in the best interests of the citizens of the 
Commonwealth. Such a finding, if not manifestly unreasonable, would be 
sufficient to sustain the constitutional validity of the regulation. 4 

One additional issue is raised by your opinion request. You have stated 
that at least one town charges no fee for the use of the designated public 
access site, but charges a non-resident fee for the use of a non-designated 
but related parking area. As noted above. §17A confers rulemaking 
authority on the Department to regulate "the use of land and water areas 
under this section . . ." (emphasis added). Inasmuch as the only references to 
land and water areas in the section are to sites which are designated by the 
Board, regulations promulgated pursuant to §17A must be limited to the 
control of these sites. Thus in the situation you have described, the 
Department may not regulate the use of the town's non-designated parking 
area. 

It is open to the Department to designate the parking area and enter into 
a management agreement with the town's consent. G.L. c. 21. §17A. Absent 
consent, if the property is held solely for a public use, it may be taken by 
the Department without compensation. Cambridge v. Commissioner of 
Public Welfare, 357 Mass. 183, 186 (1970). If the municipality holds the 
property in a proprietary capacity, the property may be taken by eminent 
domain. G.L. c. 21, §17A; Cambridge v. Commissioner of Public Welfare, 
supra at 186-187. If any of these procedures is followed, the parking lot 
would be land used under §17A, and would therefore be subject to the 
Department's rulemaking authority. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



4 Of course, such regulations would be subject to the rulemaking requirements of the Administrative Procedure Act G.L. c. 
30A. §§2 and 3. Moreover. I do not express an opinion on any particular regulations the Department may wish to promulgate, 
for "... it is not the function of this office to draft and pass upon regulations in advance of actual rights involved 

thereunder" 1961/62 Op Atly. Gen. at 1 15. 1 16. See also 1977/78 Op Any Gen No. 10. 



P.D. 12 147 



Number 30 June 16, 1978 

Gary F. Egan 
Executive Director 
Massachusetts Criminal Justice 

Training Council 
One Ashburton Place 
Boston, MA 02108 

Dear Mr. Egan: 

The Secretary of Public Safety has forwarded to me your request for my 
opinion on a number of issues regarding the interpretation and application 
of recent statutory amendments affecting the duties and authority of the 
Massachusetts Criminal Justice Training Council (Council). The statute in 
question, G.L. c. 41, §96B (§96B), was amended by St. 1977, c. 932. ' Section 
96B. in conjunction G.L. c. 6, §118, 2 delineates the duties of the Council 
with respect to the approval of police training schools and the designation 
of courses of study for law enforcement officers. Given the length and 
number of your question, I have set forth the substance of each question 
separately below, and have answered them in the order presented. 

1. (a) May the Council reasonably assume that a police officer is 
not to be considered a "permanent" employee before 
completing the training requirements prescribed by §96B and 
G.L. c. 6, §118, since under §96B, |5, the officer is to be 
removed from his position if these training requirements are 
not met? (b) In addition, may the Council reasonably use the 
definition of an officer "appointed to a position on a 
permanent full-time basis" that has been established by the 
Division of Personnel Administration? 

The first part of your question refers to the language in §96B, |1, 
defining the persons subject to its terms: "[e]very person who receives an 
appointment to a position on a permanent full-time basis in which he will 



The paragraphs of amended §96B may be summarized as follows: 

Paragraph I: Every person appointed on a "permanent full-time basis" to a position in which he will exercise "police 
powers" in a municipal police department, the M DC. police. M.B.T.A police. Capitol police, division of law enforcement 
within the Executive Office of Environmental Affairs, and Registry of Motor Vehicles, shall, prior to exercising such police 
powers, complete courses prescribed by the council; while attending those courses, he shall be paid wages and reasonable 
expenses. 

Paragraph 2: Every regular police officer in the police departments listed above (with the exception of the Capitol police 
department), shall participate in such in-service training programs as the Council mav approve and determine. Participants 
shall be paid wages and expenses. 

Paragraph 3: Every person "appointed as a reserve, or intermittent police officer" in a citv or town shall complete courses 
prescnbecf by the Council before exercising any police powers. 

Paragraph 4: Every appointing authority shall submit to the Council the name and date of appointment of anv person who 
will exercise police powers within one month of appointment. The Council mav exempt a person from the provisions of §96B 
prior to his exercising police powers, upon petition of an appointing authorm 

Paragraph 5: An appointed police officer's failure to complv with §96B prior to his exercise of police powers, or to 
satisfactorily complete the prescribed course of study, shall result in his removal bv the appointing authoritv (absent an 
exemption under Paragraph 4). 

Paragraph 6: Every employee of the Department of Correction. Division of Youth Services. Parole Board or county 
correctional institution, whose duties require contact with inmates of institutions or parolees, is to complete a course of study 
prescribed by the Council The Council may exempt individuals enrolled in specific training programs from the requirement 
that training be completed prior to exercising anv police powers. 

Kleneral Laws. c. 6. §1 18 provides that the Council: 

. shall approve or disapprove municipal police training schools and shall make rules and regulations subject to 
the approval of the governor and council, for such schools, relating to courses of studv. attendance requirements, 
equipment and facilities and qualifications of instructors. No municipal police training school shall be approved 
unless it provides for training members of the rape prevention and prosecution unit established bv section ninetv- 
seven B of chapter forty-one. 



148 P.D. 12 

exercise police powers ..." (emphasis supplied). It is my view that the 
Council would be unwarranted in assuming that a police officer is not a 
"permanent" employee until the officer completes the Council's training 
requirements. 

A governing principle of statutory construction provides that: 

A statute is to be interpreted with reference to the pre-existing 
law. If reasonably practicable, it is to be explained in 
conjunction with other statutes to the end that there may be a 
harmonious and consistent body of law. Everett v. Revere, 334 
Mass. 585, 589(1962). 

Accord, Walsh v. Commissioners of Civil Service, 300 Mass. 244, 246 (1938). 
The word "permanent," as used in connection with "full-time" in §96B, 
refers to the character of a position of public employment. In my judgment, 
the term must be construed to comport with the explicit and well- 
established meaning under the existing civil service law, G.L. c. 31, §§1, 15. 3 
When this is done, it is clear that an officer's status as a "permanent" 
employee has no direct connection to the power of the appointing authority 
to remove an officer for failure to complete the Council's training 
requirements, as suggested by your question. 

My response to the first part of your question in effect answers the 
second part. I believe that the Council should utilize the Personnel 
Administrator's definition of "permanent employee" in administering the 
statutory training programs under its charge. 

2. Did the Legislature intend that the terms "reserve" and 
"intermittent", as used in §96B, \h, be applied generically, 
thereby including under this provision all persons regardless 
of specific title who work with or without compensation, who 
work regularly or irregularly as required, but less than a 
schedule consistent with full-time employment for the 
appointing agency? 

It is my opinion that the terms "reserve" and "intermittent" were not 
intended to be applied generically. Section 96B, ^3 is plain in its application 
only to the reserve and intermittent police officers of cities and towns; it. 
does not extend to the officers of other agencies who work less than full- 
time. 4 Further, while words of a statute must be construed according to the 
common and approved usage of the language, technical words that may 
have acquired a peculiar and appropriate meaning in law must be 
construed according to such meaning. G.L. c. 4, §6, cl. 3. See Corcoran v. 
S.S. Kresge Co., 313 Mass. 299, 303 (1943). The words "reserve" and 
"intermittent" have clear statutory definitions and meanings in the civil 



'The word "permanent" relates to the budgetary status of particular positions which are to be contrasted with "temporary" 
positions; the word further denotes the tvpe of appointment made, distinguishing between permanent and "provisional" 
appointments. The qualifying phrase "full-time" distinguishes the affected appointments from intermittent positions, which 
do not ensure regular employment, but would be subject to the requirements of the civil service system. See generally Sullivan 
v Commissioner of Labor and Industries, 35 1 Mass. 462. 464 ( 1 966). 

'Section %B. 113 reads in pertinent part: "Each person appointed as a reserve, or intermittent police officer, in a city or town, 
shall . . satisfactorily complete a course of study . . " (emphasis supplied) 



P.D. 12 149 

service system. Thus, the position of "reserve" police officer is authorized 
by G.L. c. 147, §§1 1-13C. As specified in G.L. c. 147, §13, a reserve officer 
is assigned to duty "whenever and for such length of time as [the] mayor, 
chief of police or marshall may deem necessary," and has all the powers 
and duties of members of the regular force when on duty. The intermittent 
position is defined in the civil service statute, G.L. c. 31, §1, as "an 
appointment from an eligible list to recurrent employment which may be 
regular or irregular as the needs of the service require." See also 1941 Op. 
Atty. Gen. at 90. As discussed in the answer to your first question, 
governing rules of construction mandate that these particular statutory 
definitions of "reserve" and "intermittent" be applied in the discharge of 
the Council's responsibilities under §96B, ^3. 

3. What is a substantive definition of "police powers" as 
specified in §96B, \\\ and 3? 

Your third question requests a substantive definition of the term "police 
powers," presumably to determine the class of individuals subject to the 
Council's training requirements. However, it would be inappropriate for me 
to supply a general definition of the term since the powers and duties of the 
various police officers specified in §96B are established by the common law 
and by the respective statutes under which they operate. See, e.g., G.L. c. 
41, §98 (municipal police); c. 92, §61 (Metropolitan District Commission 
police); c. 8, §12 (Capitol police); c. 21, §6B (division of law enforcement in 
the Office of Environmental Affairs); c. 90, §29 (Registry police). See also 
Caswell v. Somerville Retirement System, 306 Mass. 373, 376 (1940) (duties 
of municipal police); Hartley v. Granville, 216 Mass. 38, 39-49 (1913) (duties 
of constable); Buttrick v. Lowell, 1 Allen 172, 173-174 (1861). In these 
circumstances, I believe a single, generalized definition of "police powers" 
is not called for because it would not aid the Council in implementing 
§96B. 

4. If the Council can reasonably determine that an appointing 
authority is in violation of the provisions of §96B, f4, can the 
Council take any action beyond informing that specific 
appointing authority that it is in violation of the statute? 

Section 96B, |4 requires each appointing authority to submit, within one 
month of appointment, the name and date of appointment of any person 
who will exercise police powers. You now ask whether the Council can take 
any action against an appointing authority which fails to comply with this 
provision. Although the language of the reporting requirement is 
mandatory, there are no sanctions for noncompliance specified in §96B. 
Nor does the statute expressly or impliedly indicate that the Council has the 
power to impose a penalty in the event of a failure or refusal to comply. 
Compare Commonwealth v. Racine, Mass. Adv. Sh. (1977) 1101, 1105-1108. 
Therefore, the Council's response to the failure to submit the names of 
appointments is limited to the notification of noncompliance. 

5. (a) Does the reporting requirement specified in §96B, ^4 
apply to the agencies designated in ^6 of the same section; 
and (b) can the Council require said information on all 
persons employed on the effective date of the legislation? 



150 P.D. 12 



(a) The statutory requirement, set forth in §96B, ])4, that the appointing 
authorities submit the names of appointments to the Council, seems to 
apply only to individuals subject to the terms of §96B, lffll-3. See n.l supra. 
However, it is apparent that the Council must be informed of the persons 
covered by §96B, 1J6, in order to effectuate the purposes of the statute by 
providing the training which f 6 calls for. 

As a general rule, where a specific duty is imposed upon an 
administrative agency or board, it has authority to employ all ordinary 
means reasonably necessary for the full exercise of the power. See, e.g., 
Bureau of Old Age Assistance of Natick v. Commissioner of Public Welfare, 
326 Mass. 121, 125 (1950). Cf Commonwealth v. Cerveny, Mass. Adv. Sh. 
(1977) 1943, 1952. I do not read the absence of a specific reporting 
requirement applicable to employees within ^|6 as an intentional effort to 
restrict the Council's general rulemaking powers. A regulation requiring 
reports about the appointment of officers to the positions described in ^]6 
would appear to be necessary and reasonably related to the purposes of 
§96B generally and to 1J6 of §96B in particular. It therefore would be within 
the Council's power to adopt such a regulation pursuant to its rulemaking 
authority "relating to courses of study, attendance requirements, equipment 
and facilities and qualifications of instructors" conferred by G.L. c. 6, §1 18 
(emphasis supplied). See Consolidated Cigar Co. v. Department of Public 
Health, Mass. Adv. Sh. (1977) 1419, 1433; Cambridge Elec. Light Co. v. 
Department of Pub. Utils., 363 Mass. 474, 494 (1973). 5 

(b) The related question is whether the Council may require appointing 
authorities to report the names of persons who exercise police powers and 
are so employed on the effective date of the amendments to §96B. I believe 
this issue can similarly be resolved by regulation, even though §96B does 
not in terms specify that appointing authorities must supply the Council 
with a list of such persons. The scope and effectiveness of the in-service 
training authorized by §96B, 1J2 obviously requires a current list of 
individuals for whom that training is deemed appropriate. A regulation 
requiring the submission of the names of employees subject to the 
requirements of §96B would appear to be rationally related to the 
performance of the Council's duty to provide in-service training. 

6. Do the compensation requirements specified in §96B, ^jl 
and 2 apply to the employees of those agencies designated in 
§96B, W 
Although §96B, ff 1 and 2 both require the payment of regular wages 
and expenses to officers engaged in the Council's training programs, a 
similar provision does not appear in §96B, 1J6, which requires the training 
of employees in contact with institutionalized or paroled individuals. In 
these circumstances, the statute cannot be interpreted as providing for the 
payment of compensation to the ^j6 employees. It is an established rule that 
statutory omissions cannot be supplied by the courts or those charged with 
administering the law. Thatcher v. Secretary of the Commonwealth, 250 



P.D. 12 151 



Mass. 188, 190 (1924); see Boylston Water Dist. v. Tahanto Reg'l School 
Dist., 353 Mass. 81, 84 (1967). Despite its potential adverse impact on the 
Council's ability to perform the training duties described in §96B, \6, the 
omission cannot be corrected by the Council's rulemaking authority. The 
continued payment of wages and expenses to the employees mentioned in 
|6 is a matter relating to the internal operations of the employees' several 
appointing authorities, and is beyond the scope of the Council's 
responsibilities. There is nothing in the statute which suggests that the 
Council can dictate the employment practices of the agencies to such an 
extent. 

7. Since the agencies specified in §96B, ^|1 as being subject to 
the statute's training requirements are identically specified in 
paragraph 2, except that the Capitol Police were omitted, 
may the Council assume that this omission was inadvertent 
or a clerical error, particularly since the Capitol Police were 
included in both paragraphs 1 and 2 of G.L. c. 41, §96B prior 
to the amendments made by St. 1977, c. 932? 

This question in effect asks whether the omission of the Capitol Police 
from the statutory provision dealing with in-service training, §96B, \2, can 
be treated as a curable error. My answer to the previous question applies 
here. Again, the accepted rule is that courts or agencies cannot supply 
statutory omissions. Thatcher v. Secretary of the Commonwealth, supra, 250 
Mass. at 190. As stated in Cole v. Brookline Housing Authority, Mass. App. 
Ct. Adv. Sh. ( 1976) 1238: 

[I]f the omission was intentional, no court can supply it. If the 
omission was due to inadvertance, an attempt to supply it . . . 
would be tantamount to adding a meaning not intended by the 
Legislature. Id. at 1241. 

Therefore, regardless of the cause of the omission of the Capitol Police 
from §96B, ^J2, officers in that police force are not subject to the Council's 
in-service training program. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 31 June 23, 1978 

Leroy Keith, Chancellor 

Board of Higher Education 

Park Square Building 

31 St. James Avenue, 6th Floor 

Boston, Massachusetts 021 16 

Dear Chancellor Keith: 

The Board of Trustees of Southeastern Massachusetts University 
(S.M.U.) has requested, through the Board of High Education, my opinion 
about the use of certain university property by an organization not formally 



152 P.D. 12 

connected with S.M.U. The specific question raised is whether the Trustees 
may legally authorize a rental arrangement between the S.M.U. student 
newspaper and For The People, a private, non-profit organization, for use 
of the student newspaper's office space, printing equipment and facilities. 

On the basis of the information which I have been furnished, I conclude 
that the Board of Trustees has authority to permit the private organization 
in question to use the S.M.U. newspaper facilities and space, provided, 
however, that the fee paid under the rental arrangement covers the cost of 
making the facility available to For The People. 

The factual background to the Trustees' request is this. The student 
newspaper, entitled "The Torch", has certain printing equipment which 
was purchased with funds allocated from mandatory student fees. The 
Torch also uses office space in a building on the S.M.U. campus which is 
owned by the Commonwealth. For The People publishes a community- 
oriented newspaper which is also called "For The People," and which 
apparently seeks to cover issues of interest and concern to low-income 
residents and members of the New Bedford/Fall River community. Foi 
The People publishes its newspaper approximately once every six weeks, 
and uses some of The Torch's office space and printing equipment to pul 
the newspaper together. It pays The Torch a rental fee of $80 for each issue: 
these rental payments are in turn used in connection with publishing "The 
Torch" itself. It appears that For The People has been using "The Torch's' - 
facilities since 1971, although the financial arrangements related to that use 
were somewhat different in the past. Finally, there is general agreement 
that other organizations not formally connected with S.M.U. have 
traditionally been allowed to use university property for their own 
programs and activities. 1 

The facts just stated appear in your letter requesting this opinion and in a 
memorandum submitted on behalf of For The People. In considering For 
The People's use of S.M.U.'s space and newspaper facilities, I begin by 
examining the character of the university and the general scope of the 
Board of Trustees' powers in light of these facts. S.M.U. is a "state 
institution of higher learning" directed by the Legislature to "provide 
educational programs, research, extension and continuing education 
services in the technological and engineering and physical science fields 
through the master's degree level, with general education subjects as may 
be appropriate to such programs." G.L. c. 75B, §1. S.M.U. is governed by a 
Board of Trustees established under G.L. c. 15, §21A. The powers of the 
Board of Trustees are those conferred by the enabling act. See Attorney 
General v. Trustees of Boston Elevated Ry. Co., 319 Mass. 642, 655 (1946); cf. 
Commonwealth v. Cervey, Mass. Adv. Sh. (1977) 1943, 1952. 

General Laws, c. 75B, §§1-7, confer on the Board of Trustees an 
extensive degree of control over the university. 2 However, none of the 



'A memorandum submitted on behalf of For The People lists a number of such groups. Counsel for the university has 
acknowledged that several different organizations use S.M.U. property, while reserving his right to question specific details 
on the submitted list. I find no need to address such details in the context of this opinion. 

: The Trustees select and determine the conditions of employment for the president and professional staff of the university, 
§10. They establish qualifications and standards for admission, promotion and graduation, §1. They also have a variety of 
other specifically defined powers such as those relating to the maintenance of an accounting system, §7. the administration of 
special trusts, §8, the purchase of supplies and equipment. §9, and the issuance of annual and special reports. §11. 



P.D. 12 153 

specific provisions in G.L. c. 75B directly governs the situation presented in 
your request. 3 Reference must therefore be made to the general grant of 
authority contained in that chapter. In this regard, G.L. c. 75B, §1, provides 
in pertinent part: 

In addition to the authority, responsibility, powers and duties 
specifically conferred by this chapter, the board of trustees shall, 
subject only to such general authority in the board of higher 
education, have all authority, responsibility, rights, privileges, 
powers and duties customarily and traditionally exercised by 
governing boards of institutions of higher learning. 

The construction of this language governs whether approval of the rental 
arrangement with For The People is within the scope of the Trustees' 
authority. 

The language of §1 places reliance upon notions of custom and tradition. 
As stated above, there is general agreement that organizations not formally 
connected with the university traditionally have been allowed to use 
university property for different types of functions and purposes. 4 The 
question, then, is not whether private organizations may as a general matter 
use the school's property, but whether For The People's particular use of 
S.M.U. property is permissible. 

The pertinent issue was set forth in an opinion of the Attorney General 
which approved the use of the recreational facilities of Lowell Textile 
Institute, a state educational institution, by private groups. The trustees of 
the institution were said to "have the authority, in the exercise of their 
sound discretion and judgment ... to permit . . . [such] use . . . provided that 
such use is so limited and regulated by them as not to interfere with its 
employment for the school's purposes and for the needs of the pupils of said 
institution." 1940 Op. Atty. Gen. at 74, 75. 

The present opinion request does not indicate that For The People has 
interfered with the use of S.M.U. property by its students or is likely to do 
so in the future. 5 The question of interference, however, has more than a 
physical dimension. In any case where a private group uses facilities 
belonging to a public university, it is also necessary to determine whether 
the nature of the activitiy is such as to clash with the school's educational 
purposes. Thus, the nature of the activity may be so unrelated to the 
educational purpose that it constitutes an impermissible use even in the 
absence of actual physical interference. 



Compare G.L. c. 75B. §13, which specifically authorizes the Trustees to lease dwellings on the S.M.U. campus to former 
teachers or employees of the university for successive one-year terms, provided a reasonable rent is paid. A year's lease of a 
home is clearlv o( a very different character than intermittent and short-term use of printing equipment. That the dwelling 
lease should be dealt with specifically by statute arrangement involving university propertv requires express statutory 
permission Cf. Securities & Exchange Comm'n v. CM. Joiner Leasing Corp., 320 U.S. 344, 350-351 (1943); City of New York 
v. Davis. 7 F. 2d 566, 575 (2d Cir. 1925). 

It should be noted at the outset that I find no constitutional or statutory prohibition generally against any use of the 
university's properu by private interests. In particular, it is clear that the Anil- Aid Amendment, art. 18 of the Amendments to 
the Massachusetts Constitution, does not prohibit every such use, cf. 1975/76 Op. Atty. Gen. No. 72 at 183; 1974/75 Op. Atty. 
Gen No. 65 at 153; 7 Op. Atty. Gen at 616 ( 1925) With respect to statutory provisions, the recently enacted G.L. c. 7, §36. 
furnishes implicit authorization for use of property in circumstances like those at issue here. This statute is discussed below. 
See p 7 infra. 

Indeed, the fact that the student newspaper has voluntarily entered into the arrangement with For The People supports a 
:onlrary conclusion. Moreover. For Tne People's memorandum specifically states that it uses The Torch's equipment on 
weekends and other times when S.M.U. students are not themselves using it. 



154 P.D. 12 



The term educational purpose is broad indeed, transcending the granting 
of academic degrees. See Harbor Schools, Inc. v. Board of Appeals oj 
Haverhill, Mass. App. Ct. Adv. Sh. (1977) 1012, 1018, and cases cited: cf 
Cummin gt on School for the Arts, Inc. v. Board of Assessors of Cummin gt on, 
Mass. Adv. Sh. (1977) 2283, 2289-2290. As the existence of The Torch 
demonstrates, the preparation and distribution of a newspaper is certainly 
within the ambit of educational activities pursued at S.M.U. Moreover, it 
appears that the educational purposes of S.M.U. are linked directly with the 
area in which it is located. Thus, the Trustees must reside in specified cities, 
towns or communities surrounding S.M.U. in order to qualify for 
appointment. G.L. c. 15, §21 A. In addition, a recent report prepared by 
representatives of the various university "constituencies" (students, faculty, 
administrators and Trustees) on future goals for S.M.U. stresses the 
university's role as an educational resource for the Southeastern 
Massachusetts region. 6 As explained above, the newspaper published by 
For The People focuses on issues of interest and concern to the 
communities around S.M.U. Permitting For The People to rent space and 
printing equipment may be viewed as one means by which S.M.U. can 
serve those communities. 7 

In sum, it is my judgment that authorization for the use of the S.M.U. 
newspaper facilities by For The People does not contravene the educational 
purposes of the university. Accordingly, the Trustees may exercise their 
discretion to permit such a use. 

Two additional considerations deserve note in connection with For The 
People's use of university property. First, G.L. c. 7, §3B, provides in 
relevant part that: 

No. . . building, facility or equipment owned by the 
commonwealth [shall] be used by any person for private 
purposes or gain unless the commonwealth receives at least the 
cost of providing such building, facility or equipment. . . 

The secretary of administration shall . . . from time to time . . . 
determine the cost hereinbefore mentioned and shall inform 
each . . . institution of the commonwealth . . . having control of 
such property or equipment of the cost so determined. 

In order to lease The Torch's office space and newspaper printing 
equipment to For The People, it appears that the Trustees of S.M.U. will 
need to ensure compliance with the pertinent cost regulations promulgated 
by the Secretary of Administration and Finance. See 106 Mass. Reg. 1. 10 
(1978) (rental charges for space used in state buildings). 



The report is entitled "A Report to the President and the University Community." and is authored by the Mission of S M.U. 
Committee. It has been furnished to me by the university's counsel 

7 It deserves mention, however, that such permission need not be considered an endorsement of the contents of For The 
People's publication. Allowing the use of university space and equipment is only to be viewed as a mechanism for enabling a 
local group to express its own views. Cf. Bazaar v. Fortune. 476 F. 2d 570 (5th Cir), modified on rehearing, en banc. 489 F. 2d 
225 (5th Cir 1973). cert, denied, 416 U.S. 985 (1974). 



P.D. 12 155 



Finally, a question arises in allocating the university's space or facilities 
between permissible but competing uses. I have been informed that the 
issue of proper allocation standards is presently under consideration by the 
Board of Trustees of S.M.U. A fair, impartial policy requires that no 
individual or group be discriminated against in claim for use of university 
space or equipment because of the content of its message. Cf. Police Dept. of 
Chicago v. Mosely, 408 U.S. 92, 95 (1972); cf. also Southeastern Promotions, 
Ltd. v. Conrad, 420 U.S. 546, 555 (1975); Stacy v. Williams, 306 F. Supp. 
963 (N.D. Miss. 1969) (three-judge court); compare Advocates for the Arts, 
Inc. v. Thomson, 532 F. 2d 792, 795-797 (1st Cir. 1976). So long as a private 
use of university property neither interferes physically with the students' 
use nor contravenes the educational purposes of the school, neutrality 
should provide the key to the allocation process. 

Very truly yours, 

FRANC I ES X. BELLOTTI 

Attorney General 



156 P.D. 12 



INDEX OF OPINIONS 

TOPIC OPINION PAGE 

Advertising 

Expenditure of funds for advertising promoting expansion 

of industry in Commonwealth 16 106 

Affirmative Action 

Declines reply on validity of proposed rule 6 82 

Alcoholic Beverages 

Regulation of liquor traffic on state and federal military 

reservations 83 

Appealability of Decision 

Powers of Governor and Executive Council in appeals 

from decisions on veterans' benefits 4 75 

Appointments 

Designation of state hospital area unit as "facility"; powers 

and duties of area director 8 85 

Armed Forces 

1 ) Regulation of liquor traffic on state and federal military 

reservations 7 83 

2) Entitlement of National Guard officers to state and/or 

federal pay in certain situations 19 117 

Banks and Banking 

Collection agency license for Pennsylvania corporation 12 96 

Boards and Commissions 

1) Constitutionality of bill granting immunity and 
privilege to members of Board of Registration and 

Discipline in Medicine 5 78 

2) Statutory restrictions on outside educational activities 

of Board of Education members 21 123 

3) Authority of State Fire Marshal to review and approve 
multi-fuel boilers where oil burner component is already 

approved 26 137 

4) Relationship between Rate Setting Commission and 

Division of Hearing Officers 17 109 

Building Code 

Application of G.L. c. 143, § 3R ("lock law") to buildings 

erected prior to effective date 11 94 

Chapter 766 

Financial responsibility for special education of "grand- 
fathered" children 3 72 

Civil Service 

1) Declines reply on validity of proposed affirmative 
action rule 

2) Employee class reallocation appeals 14 100 

3) Authority of Massachusetts Criminal Justice Training 

Council with respect to police training programs 30 147 

Coastal Zone 

Declines reply concerning Coastal Zone Management 



program 



18 115 



P.D. 12 157 

TOPIC OPINION PAGE 

Constitutionality 

1) bill granting immunity and privilege to members of 

Board of Registration and Discipline in Medicine 5 78 

2) Relationship between Rate Setting Commission and 

Division of Hearing Officers 17 109 

3) Transfer of land to Southeastern Massachusetts Univer- 
sity 23 128 

Contracts 

Ownership of water pollution control facility and responsi- 
bility for damage in major disaster 20 122 

Disasters 

Ownership of water pollution control facility and responsi- 
bility for damage in major disaster 20 122 

Discrimination 

Declines reply on validity of proposed rule 6 82 

Educational Institutions 

Use of university property by outside organization 31 151 

Elections 

1 ) Recordkeeping requirements for small campaign contri- 
butions 24 132 

2) Obligations of Office of Campaign and Political 
Finance to respond to inquiry on validity of financial dis- 
closure reports 27 138 

Employees, Public 

1) Declines reply on validity of proposed affirmative 

action rule 6 82 

2) Employee class reallocation appeals 14 100 

3) Authority of Massachusetts Criminal Justice Training 

Council with respect to police training programs 30 147 

Fees 

1) Fee limits for copying public records 10 92 

2) Sunday licenses for flea markets 22 126 

3) Uniform fee schedules for municipal public access facil- 
ities 29 144 

Fire Prevention, Board of 

Authority of State Fire Marshal to review and approve 

multi-fuel boilers where oil burner component is already 

approved 26 137 

First Amendment 

Use of university property by outside organization 31 151 

^lea Markets 

Sunday licenses 22 126 

-reedom of Information 

Public access to files on injured employee 9 88 

3un Control: see Weapons 
hospitals 

Compliance with determination of need process 1 64 

^and Use 

Transfer of land to Southeastern Massachusetts University 23 128 



158 P.D. 12 

TOPIC OPINION PAGE 

Leaves of Absence 

Treatment of unused sick leave payments in computing 

teachers' retirement allowances 13 97 

Liability 

Ownership of water pollution control facility and responsi- 
bility for damage in major disaster 20 122 

Licenses 

1) Collection agency license for Pennsylvania corporation 12 96 

2) Sunday licenses for flea markets 22 126 

"Lock Law" 

Application of G.L. c. 143, § 3R to buildings erected prior 

to effective date 11 94 

Medicine, Board of Registration and Discipline in 

Constitutionality of bill granting immunity and privilege to 

members 5 78 

Mental Health 

Designation of state hospital area unit as "facility"; powers 

and duties of area director 8 85 

National Guard 

1) Entitlement of officers to state and/or federal pay in 
certain situations 19 

2) Set off of federal disability compensation against state 
disability retirement allowance 25 

Nursing and Convalescent Homes 

Compliance with determination of need process 1 

Open Records: see also Public Records 

Public access to files on injured employee 9 

Physically Handicapped 

Set off of federal disability compensation against state dis- 
ability retirement allowance 25 

Police 

Authority of Massachusetts Criminal Justice Training 
Council with respect to police training programs 30 

Political Contributions 

Recordkeeping requirements for small campaign contribu- 
tions 24 

Preemption 

Regulation of liquor traffic on state and federal military 
reservations 

Prisoners 

Interpretation of term "furlough" in gun control law 15 

Public Buildings 

Use of university property by outside organization 31 

Public Hearings 

Relationship between Rate Setting Commission and Divi- 
sion of Hearing Officers 17 

Public Lands 

1 ) Transfer of land to Southeastern Massachusetts Univer- 
sity 23 



P.D. 12 159 



TOPIC OPINION PAGE 

2) Uniform fee schedules for municipal public access facil- 
ities 29 144 

Public Records: see also Open Records 

1) Public access to files on injured employee 9 88 

2) Fee limits for copying public records 10 92 

Purchasing 

Application of small business purchasing program 28 140 

Rate Setting 

Relationship between Rate Setting Commission and Divi- 
sion of Hearing Officers 17 109 

Retirement 

1 ) Treatment of unused sick leave payments in computing 

teachers' retirement allowances 13 97 

2) Set off of federal disability compensation against state 

disability retirement allowance 25 134 

Rulemaking Power 

1) Application of G.L. c. 143, § 3R ("lock law") to build- 
ings erected prior to effective date 11 94 

2) Uniform fee schedules for municipal public access facil- 
ities 29 144 

Rules and Regulations 

1) Declines reply on validity of proposed affirmative ac- 
tion rule 6 82 

2) Application of G.L. c. 143, § 3R ("lock law") to build- 
ings erected prior to effective date 11 94 

3) Interpretation of term "furlough" in gun control law 15 102 

4) Relationship between Rate Setting Commission and 

Division of Hearing Officers 17 109 

5) Authority of State Fire Marshal to review and approve 
multi-fuel boilers where oil burner component is already 

approved 26 137 

6) Uniform fee schedules for municipal public access fa- 
cilities 29 144 

Safety Equipment 

Authority of State Fire Marshal to review and approve 
multi-fuel boilers where oil burner component is already 
approved 26 137 

Salaries 

1) Treatment of unused sick leave payments in comput- 
ing teachers' retirement allowances 13 97 

2) Entitlement of National Guard officers to state and/or 

federal pay in certain situations 19 117 

3) Statutory restrictions on outside educational activities 

of Board of Education members 21 123 

Sick Leave 

Treatment of unused sick leave payments in computing 

teachers' retirement allowances 13 97 

Small Business 

Application of small business purchasing program 28 140 



160 P.D. 12 



TOPIC OPINION PAGE 

Southeastern Massachusetts University 

1) Transfer of land 23 128 

2) Use of university property by outside organization 31 151 

Statutory Construction 

1) Definition of word "teacher" in G.L. c. 71, § 38 2 68 

2) Treatment of unused sick leave payments in comput- 
ing teachers' retirement allowances 13 97 

3) Interpretation of term "furlough" in gun control law 15 102 

4) Expenditure of funds for advertising promoting expan- 
sion of industry in Commonwealth 16 106 

5) Relationship between Rate Setting Commission and 

Division of Hearing Officers 17 109 

6) Declines reply concerning Coastal Zone Management 

program 18 115 

7) Statutory restrictions on outside educational activities 

of Board of Education members 21 123 

8) Transfer of land to Southeastern Massachusetts Uni- 
versity 23 128 

9) Obligation of Office of Campaign and Political 
Finance to respond to inquiry on validity of financial dis- 
closure reports 27 138 

10) Application of small business purchasing program 28 140 

1 1 ) Authority of Massachusetts Criminal Justice Training 

Council with respect to police training programs 30 147 

Teachers 

1) Definition of word "teacher" in G.L. c. 71, § 38 2 68 

2) Treatment of unused sick leave payments in comput- 
ing teachers' retirement allowances 13 97 

"3 + 3" Rule 

Declines reply on validity of proposed affirmative action 

rule 6 82 

Transfer of Land 

Transfer of land to Southeastern Massachusetts University 23 128 

Veterans 

1) Powers of Governor and Executive Council in appeals 

from decisions on veterans' benefits 4 75 

2) Declines reply on validity of proposed affirmative ac- 
tion rule 6 82 

Weapons 

Interpretation of term "furlough" in gun control law 15 102 

Workmen's Compensation 

Set off of federal disability compensation against state dis- 
ability retirement allowance 25 134 



P.D. 12 161 

INDEX OF REQUESTING AGENCIES 

AGENCY 

Adjutant General 

Administration and Finance, Executive 
Office of 

Alcoholic Beverages Control Commission . 

Banks, Commissioner of 

Building Code Commission: see State 
Building Code Commission 

Campaign and Political Finance, Office of 

Civil Service Commission 

Correction, Department of 

Criminal Justice Training Council: see 
Massachusetts Criminal Justice Training 
Council 

Education, Department of 

Environmental Affairs, Executive Office of 

Executive Council 

Federal Disaster Assistance Administra- 
tion, Region I 

Fisheries, Wildlife and Recreational Vehi- 
cles, Department of 

Higher Education, Board of 

House of Representatives 

Human Services, Executive Office of 

Industrial Accidents, Division of 

Massachusetts Criminal Justice Training 
Council 

Mental Health, Commissioner of 

Public Health, Department of 

Public Records, Supervisor of 

Public Safety, Commissioner of 

Retirement, State Board of: see Treasurer 
and Receiver General 

Senate Committee on Ways and Means . . . 

State Building Code Commission 

Treasurer and Receiver General 



OPINION 


PAGE 


19 


117 


6, 13,28 


82, 97, 140 


7 


83 


12 


96 


24,27 


132, 138 


6, 14 


82, 100 


15 


102 


2,21 


68, 123 


18 


115 


4 


75 


20 


122 


29 


144 


23,31 


128, 151 


16,26 


106, 137 


3, 17 


72, 109 


9 


88 


30 


147 


8 


85 


1 


64 


10 


92 


22 


126 


5 


78 


11 


94 


25 


134