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

public Document 



No. 12 



Oil;? Olommnnuipaltli of iia£itfart|Utif ttd 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1979 




PUBLICATION OF THIS DOCUMENT APPROVED BY JOHN MANTON. ACTING STATE PURCHASING AGENT. 
>0O-8-8O-l56726 Estimated Cost Per Copy $2.70 



MR 
34oMS 



To r/ie Honorable Senate and House ofRepresen tatives 

I have the honor to transmit herewith the report of the Department of the 
Attorney General for the year ending June 30, 1979. 

Respectfully submitted, 

FRANCIS X. BELLOTTI 
Attorney General 



P.D.12 



DEPARTMENT OF THE ATTORNEY GENERAL 



A ttornev General 
FRANCIS X. BELLOTTI 

First Assistant A ttornev General 
Thomas R. Kiley 

Assistant A ttorneys General 



Jose Allen 
James Aloisi 
Nicholas Arenella 
Charles Barry "o 
Michael Barry" 
Annette Benedetto ^ 
W. Channing Beucler 
Robert Bohn 
John Bonistalli ^ 
Margot Botsford 
John Bowman '^ 
Jonathan Brant 
Roberta Brown '' 
Laurie Burt 
James Caruso 
William Carroll ^ 
Francis Chase ^ 
Paul Cirel ' 
Robert Cohan 
Garrick Cole 
Charles Corkin II 
Leah Crothers 
Mary Dacey ^ 
Stephen Delinsky 
Ernest DeSimone 
Maureen Dewan 
Paul Donaher 
Michael C. Donahue 
Elizabeth Donovan ' 
Robert Dewees ' 
Irene Emerson''* 
Joan Entmacher 
Michael Farrington 
Stephen Fauteux '^ 
Peter Flynn '^ 
Harriet Fordham i3 
Susan Frey 
Gloria Fry 
Carol Fubini 
Robert Gaines '" 
Charles Gamer "^ 
Frank Gaynor 
Brian Gilligan '^ 
Dwight Golann 
Paula Gold 
Paul Good 
Joseph P. Gordon 
Alexander Gray, Jr. 
Robert V. Greco 
Steven Greenfogel 



Robert Griffith '^ 
Richard Gross 
Catherine Hantzis 
Thomas Hoffman ' 
David Hopwood 
Andra Hotchkiss ^* 
William Howell 
Edward Hughes 
John Hurley 
Linda Irvin '^ 
Daniel Jaffe 
Ellen Janos 
Paul Johnson 
Anne Josephson 
Thomas Keaney 
Carolyn A. Kelliher 
Sally Kelly 
James R. Kirk 
Kevin Kirrane 
Alan Kovacs 
Elizabeth Laing ^^ 
Kenneth Lenz 
Steven M. Leonard 
William F. Linnehan 
Robert Lombard ^''•^° 
William Luzier ^^ 
Alan Mandl 
Bernard Manning 
Michael McCormack 
Andrew McElaney ^' 
Eugene McAuIiff ^' 
Denzil McKenzie 
Edward McLaughlin 
James McManus 
Leo McNamara 
William McVey 
James Meehan 
John Mendlesohn ""' 
Michael Meyer 
Thomas Miller 
William Mitchell 
Anton T. Moehrke 
John R. Montgomery 
Paul T. Muello 
Robert Mydans '° 
Henry O'Connell, Jr. 
Terence O'Malley 
Kathleen Parker 
Malcom Pittmanlll ^^ 
Steven Platten 



P.D.12 



Alan Posner Piroska Soos" 

Robert Potters Elizabeth Spencer^" 

Edward J. Quinlan Donna Sorgi 

Richard Rafferty Helen Stewart 

Mary J. Reedy Donald Stern^^ 

Frederick Riley'^ Kevin Suffern 

Louis Rizoli Gail Sullivan 

Robert Rodophele • Kevin Sullivan^^ 

Barry Rosen" John Toomey ^ 

S. Stephen Rosenfeld Terence M. Troyer 

James F. Ross Carl Valvo 

Barbara J. Rouse^" Edward Vena 

Steven Rusconi John J. Ward 

Anthony P. Sager Betty Waxman 

Stephen Schultz Catherine White 

Terry Seligman Estelle Wing 

Paul W. Shaw Timothy J. W. Wise^^ 

Alan SherP - Christopher Worthington 

David M. Siegal" Francis Wright 

Mitchell Sikora Andrew Zaikis^' 

Susan K. Sloane^^ Donald P. Zerendow 

E. Michael Sloman Stephen Ziedman 
Barbara A. Smith 



Assistant Attorneys General Assigned to Department of 

Public Works 
Elizabeth Bowen Robert Mulligan ^^ 

Edward Clancy, Jr. Dean Nicastro 

Allan Gottlieb Howard Palmer 

James J. Haroulos Joseph A. Pellegrino 

Leslie Hedgebeth T. David Raftery 

F. Timothy Hegarty, Jr. John W. Spencer 

Michael Marks 

\ 



Assistant Attorneys General Assigned to Division of 
Employment Security 
Joseph S. Ayoub" Frank J. Scharaffa^ 

George J. Mahanna 



Chief Clerk 
Edward J. White 

Assistant Chief Clerk 

Avis Reardon38 



P.D.12 



Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 
Appo 



nted January 1, 1979 
nted January 1, 1979 
nted September 15, 1976 
nted December 27, 1978 
nted March 29, 1979 
nted March 21, 1979 
nted September 18, 1978 
nted January 1, 1979 
nted June 19, 1979 
nted September 6, 1978 
nted September 18, 1978 
nted May 7, 1979 
nted December 4, 1978 
nted December 27, 1978 
nted January 1, 1979 
nted November 13, 1978 
nted January 24, 1979 
nted September 11, 1978 
nted July 10, 1978 
nted September 5, 1978 
nted October 2, 1978 
nted January 1, 1979 
nted Janaury 1, 1979 
nted August 28, 1978 
nted January 24, 1979 
nted December 8, 1978 
nted May 21, 1979 
nted November 1, 1978 
nted May 21, 1979 
nted December 4, 1978 
nted October 10, 1978 
nted January 8, 1979 



Appointed September 18, 1978 
Appointed January 1, 1979 
Appointed August 1, 1978 
Appointed January 24, 1979 
Appointed May 8, 1979 
Appointed January 1, 1979 
Terminated February 23, 1979 
Terminated May 25, 1979 
Terminated July 18, 1979 
Terminated March 3 1 , 1 979 
Terminated April 13, 1979 
Terminated February 23, 1979 
Terminated July 4, 1978 
Terminated December 29, 1978 
Terminated June 8, 1979 
Terminated December 1, 1978 
Terminated January 26, 1979 
Terminated March 16, 1979 
Terminated November 14, 1978 
Terminated May 1 1 , 1979 
Terminated August 23, 1978 
Terminated September 30, 1978 
Terminated December 29, 1978 
Terminated November 13, 1978 
Terminated July 27, 1978 
Terminated September 29, 1978 
Terminated November 15, 1977 
Terminated August 30, 1978 
Terminated August 3 1 , 1978 
Terminated December 3 1 , 1978 
Terminated April 21, 1979 



P.D.12 



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12 P.D.12 



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 
the fifth that I have filed as Attorney General of the Commonwealth. It 
covers the period from July 1, 1978 to June 30, 1979 and therefore includes 
not only the last six months of the term for which I was elected in November 
of 1974, but also the beginning of my second term. 

In the inaugural address which marked the commencement of my second 
term, I attempted to link the accomplishments of the previous four years 
with the goals of the years ahead. In that address, I reiterated the one cam- 
paign promise I made to the people of Massachusetts throughout the 1978 
election period. I vowed to recommit myself and the resources of this office 
to the pursuit of legal excellence in an attempt to serve the general public in- 
terest. While the phrase public interest has become somewhat hackneyed, 
serving the public interest is the essence of all the legal work performed by 
this Department. I have attempted to serve that interest during both of my 
terms by bringing cases which have the greatest possible effect on the way 
the people of Massachusetts live. 

I believe the activities of this Department chronicled in the ensuing pages 
graphically illustrate the success of these efforts during the past fiscal year. 
Whether one speaks of the traditional defense work performed by the 
Civil Bureau, or the white collar prosecutorial work of the Criminal Bureau, 
we have remained faithful to our underlying obligation to handle each and 
every case in conformity with the public interest. 

It is perhaps easiest to identify this aspect of our cases in the work of the 
Public Protection Bureau. That Bureau is composed of seven divisions, 
each of which seeks to vindicate rights inhering in the general public rather 
than the state as a sovereign entity. Last year the lawyers assigned to the 
bureau emphatically demonstrated that such a unit, which is the first of its 
kind in any state Attorney General's office, can effectively bring major 
public interest litigation. 

In an effort to protect the Massachusetts fishing and tourist industries 
and to preserve one of the world's primary sources of fish protein, we 
sought to enjoin the federal government from leasing certain tracts of sea 
bed in and around Georges Bank for oil and gas exploration and develop- 
ment. The purpose of this lawsuit was not to permanently prevent the 
national quest to locate and tap precious fossil fuels, but to postpone the 
lease sale until adequate regulations are in place to safeguard our environ- 
ment and the livelihood of thousands of Massachusetts citizens. Lawyers 
assigned to the Environmental Protection Division obtained an injunction 
halting the proposed lease sale and have since been working with state and 
federal officials to promulgate the regulations necessary to balance our 
ecological and energy concerns. 

The other divisions of the Bureau were equally successful in their pursuit 
of the public interest. The Consumer Protection Division, for instance, 
negotiated a million dollar settlement with General Motors to resolve a 
national dispute over the placement of Chevrolet engines in higher priced 
automobiles. Attorneys from that division also drafted amendments to the 
federal bankruptcy acts which were signed into law by the President during 



P.D.12 13 



the reporting period and which provide much greater protection to con- 
sumers. On a more local level, we amicably resolved a dispute with the 
Boston Red Sox baseball team over the advertising of ticket prices. Under 
the terms of the settlement some 10,000 free tickets were provided to 
underprivileged children. 

Many of the other highlights of the Public Protection Bureau's year have 
a decidedly financial flavor. The Antitrust division, which I believe handles 
cases which are the logical extension of our consumer efforts, obtained 
almost a half million dollars for the Commonwealth and its political subdivi- 
sions in fiscal 1979. Attorneys assigned to the Utilities Division intervening 
in rate cases before the Department of Public Utilities, shaved more than 
one hundred million dollars from the requests of the various Massachusetts 
public utilities. The Insurance Division similarly prevented massive increases 
in automobile insurance rates and brought cases against various insurance 
agencies resulting in direct restitution of a quarter of a million dollars to 
Massachusetts citizens. Another major effort by the Civil Rights Division 
resulted in the payment of some four hundred thousand dollars to women 
whose maternity benefits had been wrongfully withheld. 

In the Civil Bureau, we also recovered substantial sums of money for the 
Commonwealth. The Torts, Claims and Collections Division, for instance, 
recovered nearly six hundred thousand dollars for the State. Of more long 
lasting significance may be the initiation of lawsuits against designers of 
certain educational facilities for faulty architectural work. Indeed, as fiscal 
year 1979 wound down, I had begun my Service on the Special Commis- 
sion Concerning State and County Buildings, which promises to suggest the 
need for increased scrutiny of public works in the years ahead. 

Not all of our public interest civil cases were affirmative in nature. Many 
of the cases we defend have important public interest overtones. This is 
particularly true when we defend duly enacted state statues affecting 
fundamental social policies. Perhaps the two most noteworthy cases handl- 
ed by the Department last year were our successful appearance before the 
Supreme Court of the United States in defense of the Commonwealth's 
veterans preference law and our so-called implied consent statute. In those 
statutes the legislature had respectively identified significant societal in- 
terests in easing the transition from military to civilian life and in keeping 
drunk drivers off our highways. The methods chosen to serve those ends, 
extending a civil service hiring preference to veterans and requiring motor 
vehicle operators to take a chemical breathalyzer test or face a temporary 
loss of license, were challenged and those challenges reached the highest 
court of the land last year. In both instances this Department prevailed, 
thus preserving the legislative policy implicit in the two statues. 

An even better example of serving the public interest in defending civil 
actions arises from the way Government Bureau lawyers handled a series of 
cases involving the mentally retarded. At the very outset of my first term I 
made a determination that conditions at several state institutions were 
below minimal constitutional standards. I therefore informed the Governor 
that I would "defend" the state only if we could meet our obligations to our 
least fortunate citizens. In the last year of that term, we entered into final 
decrees affecting the Fernald and Monson state schools and interim decrees 



14 P.D.12 



affecting Wrentham and Dever facilities. 

One does not often think of criminal prosecutions as public interest cases, 
but they clearly do fall within that category. Criminal laws condemn certain 
conduct that society finds unacceptable and by prosecuting individuals who 
violate those laws, we promote the interests of the general public. In this 
Department we have been able to take that concept one step further by 
targeting particicular types of crimes which we believe can be deterred by ef- 
fective enforcement efforts. Until the twelve month period covered by this 
report, there had never been a systematic pursuit of those who failed to file 
state personal income tax returns. As a result, many Massachusetts citizens 
were paying their federal taxes but not paying their fair share of the state's 
taxes. During the past year we prosecuted thirty-nine individuals and cor- 
porations on a series of indictments alleging the failure to pay half a million 
dollars in taxes. Virtually all of these prosecutions resulted in convictions 
and the recovery of previously unpaid taxes. More important, an at- 
mosphere of deterrence was created so that more people voluntarily filed 
their state returns and assumed their share of the Commonwealth's fiscal 
burden. 

All but one of the arson for profit cases mentioned in last year's Annual 
Report ended in conviction. This systematic prosecution of arson for profit 
cases was demonstrably successful in reducing the incidence of suspicious 
fires in the Commonwealth. 

Not only did this Department bring criminal prosecutions, but the 
Organized Crime Control Council of which I am chairman, filed with the 
General Court a Report on Proposed Organized Crime Legislation aimed at 
facilitating successful prosecution of future crimes against the public by 
organized crime. The legislative packet and report is the first legislative 
packet in the history of the Commonwealth ever to propose comprehensive 
revisions to those laws affecting organized crime. If enacted into law, the 
recommended legislative changes can continue to protect the public long 
after I have left office. 

There were many more accompHshments during the past years than I 
could hope to set forth in these few paragraphs. I offer the foregoing 
highlights only to demonstrate that the everyday activities of this Depart- 
ment truly involve the public interest. The full scope of our activities is set 
forth in the pages which follow, 

MONEY RECOVERED AND SAVED FOR THE 
COMMONWEALTH AND ITS CITIZENS 

I. MONEY RECOVERED FOR THE COMMONWEALTH 
TREASURY: 

1. Civil Penalties in Environmental 

Protection Cases $ 370,00 

2. Collections from Industrial Accident 

Second Injury Fund 114,73' 

3. Rent Collected 124,20 

4. Public Charities: 

1) Filing fees 111,42 

2) Escheats 192,41( 

5. Releases and Executions in Tort Cases 208,80' 



P.D.12 15 



6. Collection Cases 388,084 

7. Restitution in Tax Fraud cases 294,109 

8. Overpayments Collected in Medicaid 

Fraud cases 1,374,920 

9. Recoveries in Employee Fraud 

Unemployment Compensation Cases 199,542 

TOTAL: $ 3,378,242 



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

1. Restitution to Consumers in Automobile and 

Health Insurance Cases $ 250,000 

2. Rights Secured by Way of Assignment 

in Automobile and Health Insurance Cases 100,000 

3. Savings to Consumers From Handling 

of Complaints 21,202 

4. Refunds to Consumers From Handling 

of Complaints 168,178 

5. Judgments in Consumer Protection Court Cases 1,651,486 

6. Savings in Rate Cases 100,000,000 

7. Recovery of Retroactive Maternity 

Benefits Wrongfully Withheld 400,000 

8. Antitrust Recoveries 462,800 

9. Additional Fuel Assistance Funds to 

Massachusetts Citizens Gained Through 

Litigation 15,000,000 

TOTAL: $118,053,666 

I. CIVIL BUREAU 

CONTRACT DIVISION 

The responsibility of the Contracts Division generally involves three 
areas: 1) Litigation involving matters in a contractual setting; 2) Advice and 
counsel to state agencies concerning contractual matters; 3) Contract 
review. 

I. LITIGATION The Contracts divison represents the Commonwealth, 
its officers, and agencies in every state of litigation involving contract 
disputes. 

Until July 1978, General Laws Chapter 258 had been the controlling 
statute concerning contract actions against the state. However, on July 20, 
1978, the Massachusetts Legislature, in an apparent oversight, deleted the 
provision of Chapter 258 applicable to contracts. The Acts of 1979, Section 
1 appears to have restored to the superior court the power to enforce claims 
against the Commonwealth not arising in tort. However, further corrective 
legislation appears to have been warranted, but had not been enacted prior 
to the end of the fiscal year. 



16 P.D.12 



As of June 30, 1979, there were approximately two hundred and sixty- 
five cases in the Division. One hundred and forty-one cases were closed dur- 
ing the fiscal year. 

A major portion of the pending cases concern state highway, building or 
public work construction claims. Most of those cases involve contract or 
specification interpretation and entail extensive preparation and investiga- 
tion. Discovery, principally depositions and interrogatories, are mandated 
in all cases. Consultation with engineers and architects is routine in every in- 
stance. 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 investiga- 
tion, 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 necessitaing separate or third-party actions involving 
consultant engineers. 

The general economic picture has generated litigation in contesting the 
award of contracts, particularly, in the data processing area, resulting in 
allegations of failure to meet public bidding requirements. 

The Contracts division has continued to intensively oppose the issuance 
of preliminary, or temporary, injunctive relief against the Commonweahh, 
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. 

In the past year the Divison has brought a number of direct actions 
against designers and contractors for breaches of their contracts and war- 
ranty obligations. One such action alleges that a designer of a seven-million 
dollar steam line at the University of Massachusetts, Amherst, furnished in- 
adequate plans and specifications. Another notable action has also been 
brought against four general contractors and the designer of seven buildings 
at Cape Cod Community College. 

II. ADVICE AND COUNSEL TO STATE AGENCIES 

On a daily basis, the Division receives requests for legal assistance from 
state agencies and officials. Their problems involve formation of contracts, 
performance of contracts, bidding procedures, bid protests, contract inter- 
pretation, and numerous other miscellaneous matters. 

AH materials, supplies and equipment purchased by the state (except 
military and legislative) must be advertised, bid, and awarded by the Pur- 
chasing Agent. We receive, each week, new requests for assistance in pur- 
chasing matters. Members of the Division counsel the Purchasing Agent 
and his staff, interpret regulations, and attend informal protest hearings. 

We also have an equivalent relationship with the Department of Public 
Works, Metropolitan District Commission, Secretary of Transporta- 
tion, Regional Community Colleges, Data Processing Bureau, Mental 
Health, Youth Services, Water Resources, State Lottery Commission, etc. 

III. CONTRACT REVIEW 

We review all state contracts, leases and bonds submitted to us by state 



P.D.12 17 

agencies. During the fiscal year, we approved, as to form, a total of 2,092 
such contracts. In 275 cases, we rejected the documents and approved them 
only 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, 1978 311 

August 225 

September 237 

October 187 

November 158 

December 174 

January, 1979 182 

February 165 

March 205 

April 160 

May 166 

June 197 

2,367 

Contracts are assigned to the attorneys in rotation. The average contract 
is approved withing 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 Com- 
monwealth 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. 

The Division also provides 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 pro- 
blem either writes or calls this division for consultation and advice. This 
division also appears before Legislative Committees to give advice on 
legislation of importance to this office as well as other state agencies. We 
were instrumental in convincing the Legislature of the necessity of passing 
Senate 741 filed by the Attorney General which provided protection for 
state land damage appraisals until after completion of trial. This Bill passed 
as Chapter 230 of the Acts of 1979 with an emergency preamble on June 1, 
1979. 

Chapter 79 of the General Laws prescribes the procedure in eminent do - 
main proceedings. Under Chapter 79, when property is taken, the taking 



18 P.D.12 



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 of 
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 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 pass 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 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 to make subsidiary find 
ings a fact when the case is heard. If either party is aggrieved by the fin- 
ding they may reserve their right to jury trial by so fihng, within ten day of 
the finding. 

It has been the practice of our division to try the great majority of our 
cases in accourd with Section 22 before a justice in a jury-waived session. 
We have found, in most instances, it is not necessary to retry the case 
because the findings usually contain a clear statement of the subsidiary facts 
to support the decision of the Single Justice which in most cases results in 
final disposition of the case. 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 acquired by the eminent do- 
main, the occupants remaining become tenants of the Commonwealth and 
obligated to pay rent under a lease agreement or for use and occupancy. The 
problem of rent collection is handled by a Special Assistant Attorney 
General who is assigned to the Department of Public Works at 100 Nashua 
Street on a full time basis. He is under the direct supervision of the Right of 
Way Division with review supervision from the Eminent Domain Division. 
His primary function is to represent the Department of Public Works in all 
matters related to state owned property being leased or rented to the general 
public. This includes negotiating settlements, closing out uncollectables, 
suits to enforce the payment of rent, as well as eviction matters. In those 
cases wherein rent is owed to the Commonwealth and there is a land damage 
case pending, the Eminent Domain Division trial attorney assigned handles 
both matters at time of trial. 

In addition, this division has the responsibilty of protecting the Com- 
monwealth's interest in all petitions for registration of land filed in the 
Land Court. In each case, a determination must be made as to whether or 
not the Commonwealth, or any of its agencies or departments, has an in- 
terest which may be affected by the petition. If such a determination is 
made, no decree issues without our office being given a full and complete 
opportunity to be heard. Some of these issues are tried out to a judicial con- 



P.D.12 19 



elusion while others are, for the most part, amicably agreed upon and the 
rights of the Commonwealth are protected by stipulation. In addition, the 
Land Court determines water rights. This is becoming a new problem area 
in that many rivers and streams have been cleaned and improved as a result 
of federally funded projects, bringing into question the Commonwealth's 
rights and responsibilities. Also, the tidal areas of the Commonwealth are 
creating additional litigation, particularly where the Colonial Ordinances 
are concerned. Litigation is developing whereby the public is asserting 
adverse possession and prescriptive rights in the flats of the tidelands and 
access to beaches. 

One of the most recent cases of this type is presently pending before the 
Land Court after a four day trial. {Daley v. Town of Swampscott, et al). 
The litigation involves Whales Beach in Swampscott and the public's use of 
said beach. Such action is necessary to protect the public interest in public 
access to beaches in general and the necessity for the preservation of those 
areas involved in which the public does have the use of tidelands. The other 
areas involved are the waterfront maritime areas which are being converted 
into condominiums, changing the uses provided for in the early 18th cen- 
tury statutes. The most recent example being the Boston Waterfront 
Development Corporation, otherwise know as the Lewis Wharf case and 
the construction given to the statues enacted in the early 1830's. 

Further, all rental agreements, pro tanto releases, general releases, deeds 
of grants and conveyance, and documents relating to land under the control 
of any of the states' departments or agencies find their way to the Eminent 
Domain Division to be reviewed and approved as to form. 

This past fiscal year, we met with officials from the U.S. Department of 
Transportation Federal Highway Administration, wherein an inspection 
was conducted for the purpose of evaluating the settlements and awards 
function as administered by the Massachusetts Department of Public 
Works and the Eminent Domain Division of the office of the Attorney 
General. This review or inspection was made to ascertain whether or not the 
program is effective and in compliance with applicable department of 
Public Works and Federal Highway Administration procedures and regula- 
tions. 

The review concerned cases settled as pro bare pactos, jury-waived and 
jury verdicts in federally aided interstate, primary, urban and secondary 
projects. This inspection concerned layout orders dated between 1968 and 
1975. Final disposition and payment on these cases occurred between 1975 
and 1979. 

Case files of 29 parcels on 20 federally aided projects acquired during a 
seven year time period were evaluated. These cases were selected randomly 
from such cities as Boston, Danvers, Peabody, New Bedford, Georgetown, 
Fairhaven, Fall River, Holyoke, Worcester, Pittsfield, Chicopee, Revere, 
West Boylston, Southampton and Leominster. 

In addition, personal interviews were conducted by the Fideral Highway 
Administration with the Administrative Trial Clerk and more extensively 



20 P.D.12 



with the Division Chief. The Division files were reviewed concerning case 
analyses, settlement recommendations, memoranda, and trial reports which 
should reflect the justification for out-of-court settlements, pro bare, as 
well as jury-waived and jury awards. The inspection and review concluded 
that the Attorney General's documentation was complete and that the trial 
attorneys of this division were in complete compliance with Federal 
Highway Administration regulations and procedures. The Eminent Domain 
Division was acknowledged by the U.S. Department of Transportation for 
the excellent cooperation provided during the course of their inspection. 

The Division consists of a Chief, nine full time trial attorneys, two special 
attorney generals, three investigators, one agency liaison legal engineer, one 
administrative assistant, one administrative trial clerk and three legal 
secretaries. We also have the service of one assistant attorney general in 
Western Massachusetts, as well as the services on occasion of one special 
assistant attorney general. 

During the fiscal year July 1, 1978 through June 30, 1979, the following 
statistics are indicative of the activity of this extremely busy division. 
New Land Court Cases 219 

Land Court Cases Closed 238 

Land Court Cases Pending 232 

New Land Damage Complaints Received 151 

Land Damage Cases Disposed of 

in Superior Court 76 

Land Damage Cases Disposed of 

by Settlement 96 

Land Damage Cases Pending 644 



Total Cases Pending 876 

Cases argued before the Supreme 

Judicial Court 4 

Cases argued before the Appeals Court 4 

Rent Cases closed by Special Assistant i 

Attorney General \ 226 

Rent owed to Commonwealth - collected by 

Special Assistant Attorney General $124,201.00 

During fiscal year 1978-1979, this very busy division noted an increase in 
new complaints received over the prior year. The Department of Public 
Works has advised us that under the present administration they expect this 
trend to continue. The Department of Environmental Management is ex- 
pected to go forward on the Lowell Heritage State Park Project which is 
considered to be their biggest undertaking ever, expecting to cost in the 
vicinity of 60 million dollars. The Metropolitan District Commission, as 
well as other state agencies, also advise us that they also anticipate a very 
busy fiscal year 1979-1980. 



P.D.12 21 

INDUSTRIAL ACCIDENTS DIVISION 

The Industrial Accidents Division serves as legal counsel to the Com- 
monwealth in all workmen's compensation cases involving state employees. 
Pursuant to G.L.C. 152, section 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 12, 071 First Reports of Injury filed during the last fiscal year 
for state employees with the Division of Industrial Accidents, an increase of 
329 over the previous fiscal year. Of the lost time disability cases, this Divi- 
sion reviewed and approved 1,807 new claims for compensation, and 143 
claims for resumption of compensation. In addition to the foregoing, the 
Division worked on and disposed of 135 claims by lump sum agreements 
and 16 by payments without prejudice. 

This Division appeared for the Commonwealth on 1,160 formal 
assignments before the Industrial Accident Board and before the Courts on 
appellate matters. In addition to evaluating new cases, this Division con- 
tinualloy reviews the accepted cases; that is, those cases which require week- 
ly 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' in- 
dustrial accident claims, including accepted cases. Board and Court deci- 
sions and lump sum settlements, for the period July 1 , 1978 to June 30, 1979 
were as follows. 

General Appropriation(Appropriated to the 

Division of Industrial Accidents) 

Incapacity Compensation $4,517,508.71 

Medical Payments 2,098,579.47 

TOTAL DISBURSEMENTS 6,616,088.18 

Metropolitan District Commission 

(Appropriated to M.D.C.) 

Incapacity Compensation $486,392.59 

Medical Payments 19,360.07 

TOTAL DISBURSEMENTS $505,752.66 



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, sections 37 
and 37A. During the past fiscal year this division appeared on 67 occasions 
to defend this fund against claims for reimbursement by private insurers. As 
of June 30, 1979, the fiscal status fund was: 

Unencumbered Balance $ 72,541.76 

Invested in Securities 724,000.00 

TOTAL 3 796,541.76 

Payments Made to Fund "I 114,736.75 

Payments Made Out of Fund 272,087.80 



22 P.D.12 



Pursuant to Section 1 1 A (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 involves 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 22 
claims. 

This Division also represents the Industrial Accident Rehabilitation 
Board. When an insurer refuses to pay for rehabilitative training for an in- 
jured 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 division were called upon 
numerous times to assist workers in private industry who contacted this 
division regarding problems they were having with their compensation 
claims against private industry and their insurers. Every effort was made to 
assist these employees in resolving their difficulties or in referring them to 
persons or agencies wherein the solution to their particular problems lay. 

TORTS DIVISION 

The Torts Division presently has seven lawyers in addition the the Chief. 
There are three investigators presently assigned to the division. 

Since the passage of the new Torts Claims Act and the subsequent deci- 
sions in the Vaughn and Kerlinsky cases, we have been successful in having 
judgement entered for the Commonwealth, in many of our older pending 
cases. During fiscal 1979 we opened 157 Tort cases and closed 319. As of 
June 30, 1979, we had 495 Tort cases open and active. The number of Tort 
cases may well increase when the new Tort Claims Act gets working, as 
presently all Tort claims are going to the agencies in the first instance. The 
amount contained in Releases & Executions received during fiscal 1979 
amounted to $208,807.10. 

Incoming Violent Crime Compensation Cases recently appear to be on 
the rise. This may be because of the fact that more people are becoming 
aware of the existance of M.G.L. C. 258A. During fiscal 1979 we have 
opened 412 Violent Crime Cases and we have closed 427 cases. As of June 
30, 1979, we had 688 Violent Crime Cases open and active. Under the new 
Rule 150 which we were instrumental in having promulgated many of our 
cases have been disposed of by aggreement. We are continuing to resist 
those cases which we feel do not come within the provisions of the Act and 
those which we consider to be unwarranted and unfounded. We have been 
quite successful in having the courts follow the recommendation of this of- 
fice in such cases. During fiscal 1979, the Office of the Treasurer has paid 
out $465,697.64 in awards. 

The total collections received during the fiscal year amounted to 
$388,084.51 as per attached report. Collections on Treasury Probate are 
beinning to level off now as the number of bank books on file begin to 
lessen. 



P.D.12 



23 



Departments 

Mental Health 
Public Health 
Public Works 
M.D.C. 

M.D.C. (property rec'd in 
lieu of payment) 
Education 
State Colleges 
Administration & Finance 
Commission of the Blind 
Corrections 

Environmental Management 
Human Services 
Lottery Commission 
Marine & Fisheries 
Military Division 
Public Safety 
Retirement Board 
Secretary of State 
Treasury Department 
Treasury Depa'tment 
(Probate Collections) 



Amount 


No. of Claims 


Collected 


Processed 


SI 38,425. 11 


74 


74,214.40 


164 


30,170.91 


196 


2,981.55 


17 


5,193.53 


1 


17,761.08 


401 


15,575.79 


445 


9,063.43 


9 


2,047.40 


2 


270.00 


5 


9,500.00 


1 


135.00 


10 


182.70 


1 


840.00 


8 


225.00 


4 


4,9995.82 


19 


180.19 


1 


25.00 


1 


200.00 


1 


76,097.60 


— 


$388,084.51 


1360 



TOTAL 
NOTE: 



215 No. of claims completed 

1021 No. of claims being paid on account 

279 No. of claims opened 

1316 No. of claims referred 

1856 No. of claims disposed of as being uncollectible. 



II. CRIMINAL BUREAU 

In fiscal year 1978-1979, consistent with the Attorney General's role as 
chief law enforcement officer of the Commonwealth, the Criminal Bureau 
continued its efforts to prosecute crime particularly in the areas of 
economic crime and public corruption. To carry out this task, the Bureau is 
organized into the following components: Trial Section, Organized Crime 
Unit, Medicaid Fraud Control Unit, Appellate Section, Violent Crime Unit, 
and Employment Security Division. Some of the accomplishments and 
responsibilities of those components will be highlighted below: 

Trial Section: In last year's report, it was noted that a comprehensive at- 
tack on arson and arson related crimes had been launched. Culmination of 
that effort was the return of well over 100 indictments, in principally two 
counties, Suffolk and Essex. Fiscal year 1978-1979 saw the final disposition 
of a substantial majority of those cases - with all but one case ending in con- 
viction after trials or upon pleas of guilty. However, while that series of 
cases may be in its waning stages, the commitment of the Attorney general 
in this area has remained steadfast. Other investigations have begun and ad- 



24 P.D.12 



ditional indictments obtained. Moreover, it is anticipated that the award of 
a federal grant will ensure that the problem will continue to be attacked in a 
systematic fashion. Under that grant, the efforts of police, firefighters, in- 
vestigators and prosecutors will be coordinated, and the community itself 
will be involved. 

In March of 1979, it was revealed that the Criminal Bureau, along with 
the Massachusetts State Police, the F.B.I., the district attorneys of Norfolk 
and Worcester Counties, and the New England Organized Crime Strike 
Force was involved in a long-term undercover project aimed at members of 
organized crime throughout New England who benefited financially from 
truck hijacking and the fencing of stolen good. "Operation Lobster", as it 
was termed, led to the indictment of 46 individuals on various state and 
federal charges. It resulted in the recovery of over 3 million dollars in mer- 
chandise, such as coffee, razor blades, cigaretts, liquor and electrical ap- 
pliances. In several of the cases prosecuted by the Attorney General's Of- 
fice, there have already been convictions with the imposition of sentences to 
state prison. 

The investigation and prosecution of corruption within the Vocational 
Education Program of the Department of Education continued. Most 
notable of the prosecutions was the trial and conviction of a state senator 
for conspiracy to bribe and steal. The defendant was sentenced to 2 years in 
the house of correction and fined $5,000. 

The prosecution of state tax violators continued. In the 12 month period, 
93 indictments containing 716 counts were returned against 39 individuals 
and corporations, involving a half million dollars in unpaid taxes. This ef- 
fort expanded into the area of sales, meals and excise taxes, in addition to 
personal income and wage withholding violations. At the end of the fiscal 
year, the successful prosecution of these cases had resulted in fines and 
restitution amounting to over $300,000. To ensure a permanent commit- 
ment also in this area, the Criminal Bureau has received a federal grant to 
fund a special unit to prosecute tax cases. 

In the Spring of 1979, a series of cases were disposed of involving schemes 
to defraud the Somerville and Watertown Housing Authorities. In the most 
notable of these an architect hired by the Somerville Housing Authority pl- 
ed guiky to charges of larceny and soliciting a bribe. In addition to being 
committed to jail, the defendant was ordered to pay $77,000 in restitution. 

The above listing is, of course, by no means meant to be exhaustive, but 
only indicative of the trial work handled by the Criminal Bureau. 

Organized Crime Unit: In addition to its participation in the arson in- 
vestigations and prosecutions, the Organized Crime Unit continued to be in- 
volved in such diverse area 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 supplies are photographic aid and advice and expert 
testimony in such novel areas as voice print identification. 

The Medicaid Fraud Control Unit was certified in August 15, 1978. Prior 
to that time. Attorney General Bellotti had established a Nursing Home 
Task Force which was actively investigating and prosecuting medicaid fraud 



P.D.12 25 



perpetrated by nursing home providers. With certification, the Task Force 
became the Medicaid Fraud Control Unit and began its efforts to meet its 
enlarged responsibilities, as mandated by Public Law 95-142, including (1) 
the investigation and prosecution of provider Medicaid fraud and the 
physical abuse of patients, (2) the creation and continued establishment of 
an effective and visible deterrent force, (3) the drafting and proposing of 
both legislation and regulations to ensure deterrence to continue provider 
fraud and to create a more effecient and equitable medicaid system, and (4) 
the identification for recovery and return to the taxpayers of overpayments 
made to providers. 

Upon certification, it became necessary for the Unit to find office space 
for its enlarged and growing' staff outside of the Attorney General's primary 
location in Boston. During the same time, the Unit initiated hiring pro- 
cedures, interviewing investigators, auditors and support staff applicants 
for employment. On September 12, 1978, the Unit moved to its present 
location at 18 Oliver Street, Boston. 

On November 14, 1978, the Chief Justice of the Massachusetts Superior 
Court convened a special grand jury sitting in Suffolk County to investigate 
allegations of Medicaid fraud and other serious matters presented to it by 
the Unit. The grand jury was convened to sit for a six month period and was 
discharged on May 14, 1979, at which time a second special grand jury was 
sworn. 

The overall conviction rate on all cases brought by the Unit and its 
predecessor, the Nursing Home Task Force, since November of 1976 has 
been 100%. Not one defendant has been acquitted, indeed most have plead 
guilty. The high percentage of pleas is to some significant extent contributed 
to the Unit's recognition of the absolute need of total preparation for trial. 

In the course of these investigations, $3,399,453.60 in overpayments have 
been identified by the Unit and $1,374,920.90 collected. The $3,399,453.60 
is an actual overpayment identification figure. It is not a projection nor an 
extrapolation of what future savings may be involved as a result of suspen- 
ding, putting on probation, or stopping current practices of known cheats 
or abusers from the program. 

Appellate Section: The caseload of the Appellate division continued to in- 
crease this fiscal year. 172 new cases were opened, an increase of 24. 128 
were closed. Since at the beginning of the fiscal year 155 were pending, the 
attorneys in this Section were actively involved in 199 cases. 

The bulk of these cases involves civil litigation arising from underlying 
criminal convictions rather than direct appeals. Of the 91 cases filed in the 
various state courts, 64 sought relief in the Superior Court either by state 
habeas corpus, declaratory judgment, mandamus or constitutional civil 
rights damage actions. Twenty suits in the form of writs of error or pro- 
ceedings pursuant to G.L. c.2il, §3 were brought in the Single Justice Ses- 
sion of the Supreme Judicial Court. Seven appeals were argues before the 
Full Benches of the Supreme Judicial Court and Appeals Court. 

On the federal side, 61 cases were filed in the Federal District Court: 43 
petitions for writ of habeas corpus, 17 civil rights actions, and 1 petition for 
removal. Nine cases were argued in the Court of Appeals for the First Cir- 
cuit. 



26 P.D.12 



Attorneys for the Section successfully opposed 9 petitions for writ of cer- 
tiorari in the Supreme Court of the United States. The one case argued in 
the Supreme Court, Commonwealth \. White, resulted in the summary af- 
firmance by an equally divided court. Thus, the decision of the Supreme 
Judicial Court from which we sought review stands. One petition for writ of 
certiorari was filed at the request of the Suffolk County District Attorney 
{Commonwealth v. Meehan) and is pending. 

The "protective custody cases" {Commonwealth v.Blaney) continued to 
require a substantial allocation of resources. 

The Appellate Section also processes demands for the rendition of 
fugitives from justice. Demands from both law enforcement officials of the 
Commonweahh and Governors of other states are examined and an opinion 
rendered as to the legal adequacy of each demand. Approximately 190 ren- 
dition demands were processed during fiscal 1978-1979: 112 foreign re- 
quests and 78 requests from Massachusetts authorities. In addition, an at- 
torney must appear in court whenever a rendition warrant is challenged. 

The Appellate Section also administers the Commonwealth's Criminal 
Usury Law, G.L. c. 271, §49. 

Violent Crime Unit: 1978 was the final year of the L.E.A. A. funding for 
the Violent Crime Unit. During the last year of its operation, the Unit 
assisted the Boston Police Department's Community Disorders Unit and 
worked with that Unit and the District Attorney's Office on numerous in- 
cidents, including serious matters in Dorchester and in East Boston. As a 
result of an East Boston fire bombing, three men were indicted and pro- 
secuted by the Attorney General's Office on charges of arson and burglary. 
One individual was sentenced to a term of 7 to 12 years at M.C.I. Walpole. 
The second individual was sentenced to not less than 5 nor more than 10 
years at Walpole. One individual currently awaits trial. 

The Unit met with and reviewed plans of the Community Relations Ser- 
vices of the United States Department of Justice respecting law enforcement 
activities and community participation in areas of racial violence. They fur- 
ther assisted attorneys for the city of Boston in evaluating law enforcement 
response to serious incidents occurring in the City's housing projects. 

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. During the 
fiscal year ending June 30, 1979, the direction of the Employment Security 
Division in the Department of the Attorney General has been redefined in 
accord with Attorney General Bellotti's philosophy that the resources of 
this Division should be used to its maximum potiential for a statewide im- 
pact in providing an effective remedy to enforce a social program designed 
to serve the people of the Commonwealth. 

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 ac- 
count with this Division, the matter is referred to the Attorney General for 
criminal prosecution under the provisions set forth by the Law. The Assis- 
tant Attorneys General make every effort to fully inform the employers of 



P.D.12 27 



their rights and obUgations 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 ac- 
tion - a savings to the Commonwealth and its taxpayers. 

During the fiscal year ending June 30, 1979, 1110 employer tax cases 
were handled by this Division. 827 cases were on hand July 1, 1978. 283 ad- 
ditional cases were received during the fiscal year, and 89 were closed leav- 
ing the balance of 1021 employer tax cases on June 30, 1979. Criminal com- 
plaints were brought in the Boston Municipal Court, charging 265 in- 
dividuals with non-payment of taxes totalling $1,795,981.54, owed on 188 
delinquent tax accounts. $1,625,302.04 in overdue taxes was collected dur- 
ing fiscal year ending June 30, 1979. Monies collected were deposited to 
the Unemployment Compensation Fund. 

Whenever individuals are found to be collecting unemployemnt 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 on- 
ly 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, §30 or G.L. c. 151 A, §47, to reclaim monies stolen from the Division of 
Employment Security. 

During the fiscal year ending June 30, 1979, 1047 fraudualent claims mat- 
ters were handled by this Division. 930 cases were on hand July 1, 1978. 
117 additional cases were received during the fiscal year, and 144 cases 
were closed leaving a balance of 903 cases on hand June 30, 1979. Criminal 
compalints were brought in the courts holding jurisdiction over the of- 
fenses, charging 61 individuals with larceny of $104,695.00 in unemploy- 
ment benefits fraudulently collected from the Division of Employment 
Security. 

The amount of $199,542.32 was collected during the fiscal year ending 
June 10, 1979, and returned to the Division of Employment Security for 
deposit to the Unemployment Compensation Fund. 

In addition, 37 cases were argued in the Supreme Judicial Court. The 
Court upheld the Division's position in 26 cases; found against this Division 
in one case; dismissed one case; and remanded 8 cases to the Board of 
Review for further review and action. 

The Division is also active in the investigation and prosecution of CETA 
fraud and intent fraud. 

III. GOVERNMENT BUREAU 

The Government Bureau has four main functions: 

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

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

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

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

A report on those functions as well as several additional responsibilities 



28 P.D.12 



DEFENSE OF STA TE AGENCIES 

The Government Bureau represented the Commonwealth and its officials 
and agencies in defensive litigation in state and federal courts, and, in ex- 
ceptional cases, before certain state and federal adminstrative agencies. 
These proceedings typically involve adminstrative law and constitutional 
issues in diverse areas of public law. 

During fiscal 1978-1979, the Bureau received 665 new cases and closed 
out a total of 427 already open cases. By subject matter and client, these 
new cases fell into the following categories (with miscellaneous cases om- 
mitted): 

Type of Lawsuit No. 

Automobile surcharge 220 

Civil Service 59 

Welfare 41 

Registry of Motor Vehicles 37 

Alcoholic Beverage Control Commission 35 

Education cases " 30 

Defense of cases brought against judges 29 

Taxation 27 

Rate Setting Commission 20 

Personnel Administration 19 

Insurance cases 17 

1983 (Civil Rights) cases 15 

Boards of Registration cases 14 

Housing 13 

Public Health 12 

Department of Public Utilities 11 

Retirement Board 8 

Public Safety 8 

Racing Commission 7 

Mental Health 7 

Banking Department 4 

Lottery Commission 2 

The relative time spent representing specific agencies cannot be measured 
by the number of cases. The representation of certain agencies involved a 
significant comittment to complex litigation, although the total number of 
law suits brought against those agencies might be quite small. For example, 
as in the previous three fiscal years, substantial Government Bureau 
resources were devoted to the implementation of consent decrees in the five 
cases seeking improvement in the conditions and treatment in state institu- 
tions for the mentally retarded. McEvoy v Mahoney, et al. (and related 
cases). Four Bureau lawyers had responsibility for these cases. During FY 
1978-1979 final decrees were reached with respect to the Fernald and Mon- 
son state schools cases and interim decrees were reached for Wrentham and 
Dever State Schools. These decrees set forth significant capital im- 
provements to buildings at all four institutions and addressed in detail the 
entire spectrum of services that will be made available to residents of those 
institutions. 

During FY 1978-1979 lawyers from the Goverment Bureau argued several 
cases before the United States Supreme Court. These included a class action 



P.D.12 29 



lawsuit, in which a motorist contended that the Massachusetts breathalyzer 
statute operated unconstitutionally in violation of due process of law. 
The motorist argued that the statute did not afford a driver, arrested upon 
suspicion of drunken driving, a prior hearing opportunity to contest the fact 
of his refusal of the breathalyzer, resulting in a 90 day suspension of the 
driver's license. The federal district court for Massachusetts struck down 
the breathalyzer statute. The Attorney General appealed that decision 
to the United States Supreme Court and won a reversal, arguing that the 
public interest in highway safety and the availability of a prompt post- 
suspension hearing satified due process. Mackey v.Montroym. 

In a second Supreme Court case, Califano v. Westcott, the Commissioner 
of Public Welfare litigated the issue of the proper remedy for the statutory 
gender bias in the federal-state AFDC-UF program without attempting to 
reconstruct the program. 

In the United States Court of Appeals for the First Circuit, Bureau at- 
torneys defended a state statute requiring mortgagees to pay interest on 
certain tax accounts (First Federal Saving & Loan Inc. v. Greenwald); suc- 
cessfully defended a statute requiring revocation of the driver's license for 
one year of any person convicted of operating a motor vehicle while intox- 
icated (Arnold v. Panora); and successfully defended a charge of 
discrimination brought against the Commissioner of Public Health by a 
former employee (Blizzard v. Frechette). 

Further, in Preterm v. King, the Court of Appeals adopted the Attorney 
General's argument that states are not required to reimbursehealth care 
providers for all "medically necessary" services delivered to Medicaid reci- 
pients. The Court went on to determine that a state statute denying 
Medicaid reimbursement for most "medically necessary" abortion services 
was nonetheless inconsistent with certain general provisions of Title XIX of 
the Social Security Act, the federal Medicaid statute. However, the Court's 
conclusion in this regard lacked immediate impact because of its further 
conclusion that the so-called federal "Hyde Amendment" permitted the 
Commonwealth to restrict Medicaid reimbursement. The Court, therefore, 
remanded the case to the District Court for further proceedings involving 
plaintiffs' challenge to the constitutionality of the "Hyde Amendment". 

Government Bureau attorneys also obtained review in the Supreme 
Court of the United States of a decision of the District of Massachusetts 
declaring unconstitutional G.L. c. 1 12, §12S, a statute requiring physicians 
to obtain parental consent before performing abortion surgery on minors. 
The Supreme Court, in Bellotti v. Baird, affirmed the District Court's judg- 
ment, but a majority of the Court was unable to agree on the basis for 
holding the statute unconstitutional. However, a plurality opinion written 
by Justice Powell suggested ways in which a state legislature might enact a 
constitutional statute in this difficult area. 

Government Bureau lawyers argued fifteen cases in the Massachusetts 
Supreme Judicial Court during fiscal 1979. These included a case in which a 
District Court judge challenged procedures by which the Committee on 
Judicial Conduct had proceeded on a complaint against that judge. Those 
procedures were successfully upheld in a decision which clarified the way in 
which complaints are brought against sitting judges. McKenney v. Commis- 
sion on Judicial Conduct. In a second case, various physicians challenged 



30 P.D.12 



the propriety of Blue Shield's methods of compensating physicians. Those 
methods, which had been approved by the Division of Insurance were suc- 
cessfully upheld. Nelson v. Blue Shield of Massachusetts, Inc. 

In the area of utilities decisions, Government Bureau lawyers successfully 
defended a Department of Public Utilities decision setting rates and charges 
for Massachusetts Electric Company, Massachusetts Electric co. v. Depart- 
ment of Public Utilities and a Department of Public Utilities decision which 
has disallowed modifications of the telephone company's tariff. 

Other cases argued by Government Bureau attorneys included the follow- 
ing: 1) A constitutional challenge to a statute requiring school committees 
to loan textbooks to pupils who are attending private sectarian and non- 
sectarian schools (Bloom v. Sullivan); 2) A case brought to determine 
whether the State Division of Hearing Officers has final authority at the 
agency level to determine questions of law and the rate of return to pro- 
viders of health care (Cliff House Nursing Home, Inc. v. Rate Setting Com- 
mission); 3) A challenge to a by-law in Brookline regulating the conversion 
of apartment buildings into condominiums (Grace v. Town of Brookline); 4) 
An enforcement effort on behalf of the State Revenue Commissioner seek- 
ing to achieve full and fair cash values on a state-wide basis, (Com- 
monwealth V. Town of Andover); 5) A tax case in which the Dow Chemical 
Corporation challenged the practice of the Commonwealth's Department 
of Revenue by which items derived by income of foreign subsidiaries were 
taxed; {Dow Chemical v. Commissioner of Revenue); 6) Another tax case 
upholding that a contractor is liable for sales and use taxes on materials pur- 
chased and used in the construction of turn-key housing. (Northgate Con- 
struction Co. V State Tax Commission) . 

In the state Appeals Court, Bureau lawyers successfully defended a 
significant hospital charge control regulation promulgated by the Rate Set- 
ting Commission (Affiliated Hospitals Center v. Rate Setting Commission ), 
and defended a number of state agency decisions, including those of the 
Civil Service Commission, Alcholic Beverages Control Commission, Rate 
Setting Commission and Department of Public Utilities. 

In addition to the cases discussed above, the Bureau also committed signifi- 
cant amounts of time to settlement of a federal court class action 
discrimination suit (Culbreath, et al v. Dukakis), which alleged that the 
state's Civil Service system discriminated in all its phases against racial 
minority applicants. Final settlement of this case committed the state 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 hir- 
ing goals and time tables. After the settlement was submitted to federal 
court, a number of state unions sought to intervene for the purpose of 
amending or cancelling the consent decree. Following briefing and argu- 
ment, the federal court found that the unions could not intervene and the 
court proceeded to bind the decree. 

AFFIRM A FIVE LITIGA TION 

The Attorney General established the Affirmative Litigation Division 
within the government Bureau in April, 1975. It was created to provide 
agencies of the Commonwealth with litigation services when performance 
of their statutory functions requires resort to the state and federal courts. 



P.D.12 31 



During its fourth full year of existence, the Affirmative Litigation Division 
continued to increase the scope and intensity of its activities, 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 in- 
to three broad, and often over-lapping, 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 comprise the bulk of this litigation category, 
and similar matters were the subject of litigation during FY 79. Litigation 
related to grant-in aid programs, most significantly the various public 
assistance programs operated by the Department of Public Welfare, ac- 
counted for a substantial portion of the Affirmative Litigation Division's ef- 
forts. These cases also tend to be the most significant ones undertaken by 
the Division when financial value is the common denominator. Finally, the 
Division continues to perform traditional Attorney General enforcement 
functions by commencing suit on behalf of state regulatory and licensing 
agencies. The following paragraphs contain brief descriptions of represen- 
tative 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 to in- 
terlocutory decision on the defendant's motion to dismiss in the New 
Hampshire Superior Court. While several of the Commonwealth's claims 
survived, the most substantial financial claims were dismissed. At the close 
of the reporting year, the Department of Revenue was evaluating the op- 
tions available to it at this juncture in litigation. 

The Attorney General commenced a significant quo warranto action 
against the Mayor of the City of Boston challenging the Mayor's announced 
determination to refuse to appoint permanent members to the board of the 
Boston Redevelopment Authority. Attorney General v. Mayor of the City 
of Boston, Civil Action No. 78-206 Civil, Supreme Judicial Court for Suf- 
folk County, challenged the right of the Mayor's so-called "hold over ap- 
pointees" to continue as members of the BRA's board of directors. The At- 
torney General agreed to dismiss this action when, after the matter was set 
for reservation and report to the full Court, the Mayor conceded and agreed 
to reappoint to full statutory terms the current members of the agency's 
board. 
Grant-in- A id-Litigation 

The Affirmative Litigation Division's most significant grant-in-aid litiga- 
tion commenced during an earlier reporting year. In re Massachusetts Social 
Security Services Claims, an administrative proceeding before the United 
States Department of Health, Education, and Welfare, was settled during 



32 P.D.12 

the fall of the reporting year. Final payments of the settlement amount, 
seventy-four million five hundred thousand dollars, were received during 
October, 1978. 

A controversy similar to that which occurred during the previous repor- 
ting year erupted in February, 1979, between the Department of Communi- 
ty Affairs and the United States Community Services Administration over 
CSA's regulations governing its "crisis intervention program." While the 
previous dispute had focused on the time limitations governing applications 
for assistance, this case. Commonwealth v. Olivarez, C.A. No. 79-414-G 
(D. Mass 1979), challenged certain regulatory provisions which drastically 
limited the availability of funds to needy families in the Commonwealth. 
The Attorney General commenced litigation to obtain modifications in the 
regulations and settled the case with CSA on terms having the practical ef- 
fect of making available an additional fiteen million dollars in federal fuel 
assistance funds to low-income Massachusetts citizens. 

The Attorney General commenced another significant piece of grant-in- 
aid litigation in the United States District Court for the District of Colum- 
bia during the last month of the reporting year. This case. Commonwealth 
V. Califano, was filed to prevent the United States Department of Health, 
Education, and Welfare from withholding from the Commonwealth's 
Department of Public Welfare approximately fifty million dollars in federal 
reimbursement due the Commonwealth under the Social Security Act for 
expenditures incurred in the course of operating its programs of medical 
and family assistance (Medicaid and AFDC). The Attorney General was 
able to secure HEW's agreement to continue providing reimbursement pen- 
ding resolution of the litigation in the District Court, and full reimburse- 
ment was ultimately provided as a result of Congressional action. 

The Affirmative Litigation Division also devoted substantial time to ex- 
amining grant-in-aid problems for thier potential amenability to solution 
through litigation. Generally, this effort consists of advising a major 
department of government concerning its rights and duties under federal 
and state law and an approved plan for program operation. The increasing 
complexity of federal grant-in-aid programs and the substantial reliance 
which the Commonwealth places upon federal reimbursement revenues in 
order to maintain the delivery of important social services has required the 
Affirmative Litigation Division to devote ever increasing attention to the 
complicated legal issues to which these federal-state relationships give rise. 
Regulatory Enforcement 

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

A case which the Attorney General commenced during the prior reporting 
year, Commonwealth v. Town of Andover, Mass. Ad. Sh. (1979) 1619, 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 
Revenue, was briefed and argued before the Supreme Judicial Court. 



P.D.12 33 



Another matter from the prior reporting year, Commonwealth \. Nor- 
wood Housing Authority, Civil Action No. 123722, Sup. Ct. Norfolk Cn- 
ty., an action which the Attorney General brought 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, con- 
tinued during the reporting year. 

The Attorney General commenced an action against the Town of 
Wellesley in June, 1979, on behalf of the Alcoholic Beverages Control 
Commission seeking a determination of the validity of certain special 
licenses which the Town's board of selectmen have issued to certain educa- 
tional and social organizations in the Town. Litigation was selected as a 
means of obtaining a final resolution of a controversy between the ABCC 
and the Town which has existed for several years. 

The Attorney General settled litigation commenced in the prior reporting 
year on behalf of the Department of Public Health to enforce the Com- 
monwealth's Determination of Need law against the Newton-Wellesley 
Hospital and the Waltham Hospital. In another DoN case involving the 
Wing Memorial Hospital, the Attorney General obtained a decision declar- 
ing the Hospital's operation of certain "satellite" clinics to be a violation of 
the statute and a permanent injunction against their further operation. The 
Hospital appealed from this judgment to the Appeals Court, and the judg- 
ment and injunction were stayed pending appeal. 

The Attorney General continued to work with the Department of Public 
Health to assure adherence to the Commonwealth's clinic licensure statute 
and regulations by a variety of non-hospital based health care providers, 
e.g., free-standing out-patient surgical centers, group practices, 
neighborhood health care clinics, and similar entities. The vast number of 
providers involved and the vagaries of the statutory scheme prompted the 
Attorney General to select an initial group of providers, those using names 
which the statute reserved for licensed clinics but not possessing a license, 
for first consideration. Since civil enforcement actions were precluded by 
the doctrine of "criminal equity," the Attorney General determined to 
commence criminal prosecutions against those providers who, after ade- 
quate notice, refused to apply for a clinic license or to change their names. 
At the close of the reporting year, most providers in this initial group had 
determined to comply with the law, and the legislature was considering 
amending the statute to exempt certain providers, particularly group prac- 
tices, from its provisions. 

The Attorney General commenced a significant regulatory enforcement 
action against the Affiliated Hospitals Center, Inc., to enforce the Com- 
monwealth's hospital cost control statutes. As part of its review of the Af- 
filiated Hospitals Center's cost control reports, the Commonwealth's Rate 
Setting Commission determined that Affiliated had included improper costs 
in its costs reports, and the Attorney General brought suit to recover the 
civil penalty which the statute imposes on hospitals which violate the Com- 
monwealth's cost control laws and regulations. At the close of the reporting 
year, discovery had commenced and Affiliated was seeking dismissal of the 
Commonwealth's complaint. 

Finally, a long-standing action which the Attorney General commenced 



34 P.D.12 

on behalf of the Department of PubHc Welfare and the Rate Setting Com- 
mission against a nursing home operator to recover an amount in excess of- 
five hundred thousand dollars in over-payments reached judgment in the 
Superior Court Department of the Trial Court in the Commonwealth's 
favor. The defendant nursing home operator has appealed this judgment, 
thus preventing enforcement of the judgment until resolution of the appeal. 

OPfMONS 

By G.L. c. 12, §3, the Attorney General is authorized to render legal ad- 
vice and opinions to state departments, agencies and officers on matters 
relating to their official duties. 

(1) Standards for Issuing Opinions 

Following in large part the established practice of previous Attorneys 
General, the Attorney General gives opinions only to state agencies, depart- 
ments and the officials who head those entities. The Attorney General does 
not render opinions to individual employees of a state agency. He does not 
answer legal questions posed by county or municipal officials or by private 
persons. 

The questions which the Attorney General considers in legal opinions 
must have an immediate, concrete relation to the official duties of the state 
agency or officers requesting the opinion. In other words, hypothetical or 
abstract questions or questions which ask generally about the meaning of a 
particular statute, with no factual underpinning, will not be answered. 

The Attorney General does not render opinions on questions raising legal 
issues which are or soon will be the subject of litigation or concern collective 
bargaining. He also refrains from making findings of fact, as well as 
answering questions relating to the wisdom of legislation or administrative 
or executive policies. Finally, he does not generally undertake the task of 
construing federal statutes or the constitutionality of proposed state or 
federal legislation. 

(2) Procedures in Requesting an Opinion 

In an effort to make the Attorney General's opinion-rendering function 
as effective, helpful and efficient as possible, the Department of the At- 
torney General has established a number of procedural guidelines to govern 
opinion requests. 

Opinion requests from state agencies (or heads of state agencies) which 
come under the jurisdiction of a cabinet or executive office must be first 
sent to the appropriate executive secretary for his or her consideration. If 
the secretary believes the question raised by a request is one which requires 
resolution by the Attorney General, the secretary requests the opinion on 
behalf of the agency or sends the agency's request with the secretary's ap- 
proval noted on it. 

There are two reasons for this rule. The first concerns efficency. Opinions 
of the Attorney General, because of their precedential effect, take quite a 
while to prepare. If a question can be satisfactorily resolved more quickly 
within the agency or executive office - by agency legal counsel or otherwise 
--everyone is better served. The second reason relates to the internal work- 
ings of the requesting agency and its executive office. It would be inap- 
propriate for the Attorney General to place himself in the midst of an ad- 
ministrative or even legal dispute between these two entities. 



P.D.12 35 



The rule, therfore, helps to ensure that the agency and its executive office 
speak with one voice insofar as opinions of the Attorney General are con- 
cerned. 

If the agency or executive office requesting an opinion has a legal 
counsel, counsel prepares a written memorandum explaining the agency's 
position on the legal question presented and the basis for it. The memoran- 
dum is sent with the request. 

When an agency request raises questions of direct concern to agencies, 
governmental entities or organizations in addition to the requestor, this 
Department will solicit the views of such other agencies or organizations 
before the Attorney General renders an opinion. We seek to obtain as much 
information as possible, both legal and factual, relating to every opinion request, in an 
effort to make sure that we do not overlook significant and relevant con- 
siderations. 

The Attorney General strongly discourages the issuance of informal opi- 
nions. Informal opinions are often relied on as though they are formal opi- 
nions of the Attorney General. In a number of instances, this reliance has 
been seriously misplaced. As a result, the Attorney General is intent upon 
limiting the issuance of informal opinions to situations of absolute necessi- 
ty. 
(3) Opinions for 1978-79 

Approximately 163 requests for opinons of the Attorney General were 
received during FY 1979. Because many of these requests were from private 
individuals, municipal officials and other persons or organizations, who are 
not entitled to an opinion of the Attorney General, those requests were 
declined. 

During FY 1979,31 formal opinions of the Attorney General were issued. 
These opinions covered a variety of subjects, including controversial and 
timely public policy issues. 

Two opinions dealt with the confidentiality of public records. The Com- 
missioner of Probation asked about the scope of his obligation to disclose 
information contained in sealed criminal records to municipal police chiefs 
inquiring about the criminal records of applicants for gun licenses. At issue 
were the competing privacy considerations underlying the sealed records 
statute, G.L. c 276 §100A, and the requirements of the firearms license 
laws. The Attorney General concluded that the Commissioner of Proba- 
tion must inform an inquiring police chief (1) whether the applicant has a 
record of a felony conviction, or, if not, (2) whether the applicant has a 
record of a misdemeanor conviction for violation of the drug laws. In the 
view of the Attorney General, dissemination of this limited information 
concerning a sealed criminal offender record was consistent with the deci- 
sion of the Supreme Judical Court in Rzeznik v. Chief of Police of 
Southampton, Mass. Adv. Sh. (1978) 461, and would best accomodate the 
varied provisions of and interests served by the sealed record law, the 
criminal offender record (CORI) statutes, and the gun license law. 

The Acting Commissioner of Public Health asked whether the design of 
the proposed Management Information System developed within the 
Department's Division of Alcoholism complies with confidentiality re- 
quirements imposed by federal law. The Attorney General concluded that 



36 P.D.12 



the system, including the gathering and the restrictions of dissemination of 
patient identifying information, did comply with federal requirements and 
that the system, therefore, could be implemented. 

The Attorney General issued two opinions concerning the restrictions 
upon the expenditure of the public funds for abortions, contained within 
the fiscal year 1979 budget. 

The fiscal year 1979 budget act contained a proviso which prohibits funds 
appropriated in Item 4402-5000 for the Medicaid program to be used for 
abortions which are not necessary to prevent the death of the mother or in 
certain instances of rape. In light of this proviso, the Commissioner of 
Public Welfare asked three questions: (1) was he permitted to use Medicaid 
funds to pay claims of Medicaid providers for abortions performed before 
July 1 , 1978, the effective date of the FY 1979 budget, that were valid under 
the proviso; (2) could he use those funds to pay similar claims of Medicaid 
providers for then-valid abortions performed between June 1 and July 7, 
1978, the date on which the Legislature overrode the Governor's veto of the 
"anti-abortion" proviso in Item 4402-5000; and (3) did he have the 
authority to pay claims for abortions performed between July 7 and August 
1, 1978 that were valid under the Department's then existing regulations but 
not under the proviso. Reading Item 4402-5000 to operate prospectively, the 
Attorney General answered the first two questions "yes" and the third 
"no." 

Thereafter, the Group Insurance Commission asked four questions con- 
cerning its responsibility to implement provisions within the fiscal year 1979 
budget which prohibit the use of funds appropriated for public employees 
health insurance to pay for certain abortions. The Attorney General ruled 
that neither the terms of the Commission's existing group health insurance 
contracts nor the provisions of the collective bargaining agreement between 
the Commonwealth and the Allicane remove the Commission's obligation 
currently to implement the abortion proviso in the FY 1979 budget act. 

In addition to the Commissioner of Public Health's request discussed 
above, the Attorney General issued two other opinions relating to relation- 
ships between the state and federal governments. Responding to a request by 
the Secretary of Transportation and Construction, the Attorney General 
concluded that the MBTA and regional transit authorities are "instrumen- 
talities" of the Commonwealth, as that term is defined in the Federal Inter- 
governmental Cooperation Act of 1968, and, therefore, entitled to retain in- 
terest on federal transportation grant funds which they have recieved. The 
Attorney General concluded that the Director of the Division of Employ- 
ment Security was obligated to implement the provisions of St. 1978, c. 4 
(which had been enacted after the February, 1978, blizzard to provide 
unemployment benefits to those unable to work and were unpaid as a result 
of the storm), notwithstanding an interpretation of certain provisions of 
that statute by a regional official of the federal Department of Labor as be- 
ing inconsistent with a related federal unemployment tax statute. A final 
determination by the Department of Labor that the statute contravened the 
related federal statute would jeopardize federal financial participation in 
the Massachusetts unemployment compensation scheme. 

In response to a request by the Registrar of Motor Vehicles, the Attorney 



P.D.12 37 

General issued an opinion concerning the effect of the court reform act 
passed by the Legislature in 1978 upon the arrest provisions of G.L. c.90, 
§21. The Attorney General concluded that these arrest provisions were 
unaffected by the court reform legislation and, accordingly, officers 
authorized under §21 to make arrests may continue to arrest motor vehicle 
operators pursuant to the provisions of that section. 

Other significant opinions concerned the pledge of liquor licenses for tax 
liability to the Commonwealth; the authority of a city or town to withdraw 
unilaterally from a regional planning district; the entitlement of retired state 
employees to a retirement allowance while working for another unit of 
government after retirement; standard rules for adjudicatory procedures 
before state agencies; the investment of state employees' and teachers' 
retirement funds; and the authority of the State Auditor to conduct audits 
of the State Election Campaign Fund. 

BY-LAWS 

Town by-laws and home rule charters and amendments thereto are reviewed 

and approved by the Attorney General. During the fiscal year ending June 

30, 1979, this office reviewed over 1600 by-laws and 22 home rule charter 

actions. 

Almost all towns have brought their zoning by-laws into conformity with 
the new zoning act which became effective June 30, 1978. There are still a 
continuing number of zoning enactments pertaining to flood plains as 
towns adjust to the requirements of the Federal flood insurance program. 

The dominant themes for general by-laws reviewed during the year, other 
than governmental organizations, were to protect the ecology and to control 
public disturbances. 

IV. PUBLIC PROTECTION BUREAU 

As a result of this year's reorganization, the Public Protection Bureau 
now consists of seven divisions, an investigative unit, a complaint mediation 
section and a public information line. The seven divisions are Antitrust, 
Civil Rights, Consumer Protection, Environmental Protection, Insurance, 
Public Charities, and Utilities. The Bureau also administers the Local Con- 
sumer Aid Fund. 

One primary focus of the Bureau during the past fiscal year has been to 
provide a forum for multi-divisional efforts in those areas where the con- 
cerns of several divisions overlap. An example of this approach is the 
Bureau's work in the energy area. A number of the divisions have under- 
taken energy-related projects. Both the Utilities Division and the En- 
vironmental Division have been heavily involved in extensive proceedings 
before the Nuclear Regulatory Commission and Department of Public 
Utilities on the licensing of Pilgrim IL The Public Charities Division has 
been reviewing the filings of charitable organizations to determine which 
ones could lend assistance to needy individuals who experience difficulty 
paying for home heating oil. The Consumer Protection Division has in- 
vestigated and prosecuted a number of cases involving overcharging or 
fraudulent billing for fuel. The Bureau has coordinated many of these ef- 
forts as well as taking a number of actions on its own. For example the 
Bureau prepared a petition on behalf of the Attorneys General of nine 
states directed to the federal Department of Energy requesting that the 



38 P.D.12 



Department analyze the projected availability and price of home heating oil 
next winter. It also intervened in DOE proceedings which deal with the 
question of whether there is significant competition at the refiner level of 
the oil industry. 

The Bureau has also been active in litigating a number of cases where 
there is overlap between divisions, such as when discrimination is charged in 
a company's consumer credit policies or when a charitable nursing home is 
sued under the Consumer Protection Act. A decision of importance to all 
Divisions in the Bureau was Lowell Gas Co. et. al. v. Attorney General 
(Mass. Adv. Sh. (1979)) 49, where the Supreme Judicial Court ruled that 
under the statutes and common law of the Commonwealth, the Attorney 
General possesses broad powers to institute suits on behalf of the public in- 
terest. 

The Bureau has also undertaken a number of special projects. One major 
effort was to obtain disability benefits for women employees who missed 
work because of maternity related disabilities. 

INVESTIGATIVE SECTION 

This section continues to work in such consumer areas as real estate 
developments, advertising motor vehicle sales and repairs, home improve- 
ment, health care and insurance. There are three major on-going efforts in 
the motor vehicle area. First, consumer complaints are analyzed in order to 
spot any pattern of unfair or deceptive trade practices. Secondly, dealer- 
ships are monitored for compliance with the Attorney General's Motor 
Vehicle Regulations. And, finally, the section has developed a system for 
the investigation and prosecution of odometer cases. 

In addition to these efforts, the Bureau has undertaken three new major 
surveys, the Maternity Survey, the Hill-Burton Survey and a Housing 
Discrimination Survey. 

The purpose of the Maternity survey was to check major employers for 
compliance with M.G.L. c. 151B §4 and c. 149 §105D. This developed into 
a two phase operation. Phase one consisted of on-site visits by in- 
vestigators to check for compliance with the posting requirements of the 
above-mentioned statutes. Phase two dealt with various companies disabili- 
ty policies which were found to be discriminatory toward maternity related 
disabilities. To date, 360 companies were visited and 110 were not in com- 
pliance with the posting regulations. Settlements were made with those com- 
panies which were found to have discriminated against maternity related 
disabilities. 

The Hill-Burton Survey was developed in order to check participating 
facilities for compliance with the Hill-Burton Regulations. This project con- 
sists of on-site visits to the 131 participating facilities at which time a 15 
page questionnaire is filled out. To date, 101 facilities have been visited and 
76 were not in compliance according to our results. 

The Housing Discrimination Survey is designed to identify those 
landlords who discriminate against families with children. The survey was 
just getting underway as the fiscal year closed. 

In addition to the above, during the past fiscal year 2,209 consumer com- 
plaints were assigned and 1,869 were closed; 324 civil investigations were 
assigned and 131 were closed. Refunds to consumers totaled $168,178.14 



P.D.12 39 

and 14,358.82 was recovered in savings. 

COMPLAINT AND INFORM A TION SECTION 

The Complaint Section expanded in this period to serve the needs of the 
entire Public Protection Bureau. We have established a Civil Rights Intake 
Unit and received 5,463 inquiries about Civil Rights matters. In addition, 
that Unit handles calls that concern inquiries about other divisions within 
the Bureau, especially Public Charities. 

During the period of July 1, 1978 to June 30, 1979 the Complaint Section 
logged in 10,005 new complaints and closed 7,775. We recovered 
$577,972.91 for consumers in refunds, savings and the value of goods or 
services they would not have otherwise received but for our investigations. 

Almost a hundred individual businesses were investigated for patterns or 
practices which resulted in several dozen Requests for Attorney or Requests 
for Investigator litigation has resulted in many cases. 

During this period, all consumer complaints dating back to January 1, 
1977 have been computerized and a Computer Correction Program has 
begun, to weed out multiple listings on the computer. 

PUBLIC INFORM A TION LINE 

Last year the 8400 Line staff handled 177,295 phone calls; an average of 
almost 20,000 calls per person. 19,870 complaint forms were sent and infor- 
mation was given to 18,933 people. 78,542 persons were referred to agencies 
that could more appropriately handle their complaints. 

LOCAL CONSUMER AID FUND 

In July of 1978 the Massachusetts Legislature appropriated $250,000 to 
provide regional consumer groups throughout the Commonwealth with 
supplemental funding for their consumer complaint operations. This fun- 
ding is distributed through the Local Consumer Aid Fund and administered 
by the Department of the Attorney General. 

Through the success of this program consumer complaints of 80% of the 
cities and towns of the Commonwealth are now serviced at the local level. 

These funds have been distributed amongst twenty-six groups in the 
following manner: 

GRANT RECIPIENT AMOUNT A WA RDED 

Agawam Consumer Advisory Commission $ 7,800 

Arlington Office of Consumer Affairs 8,500 

Berkshire County Consumer Advocates 10,100 

Boston Consumers Council 4,500 

Brockton Consumer Advisory Commission 8,000 

Cape Cod Consumer Assistance Council, Inc. 4,900 
Fall River Community Development 

Service Center 6,000 

Hampshire-Franklin District Atty. Office 6,000 

Haverhill Community Action Commission 12,832 
Holyoke Community College Consumer 

Aid Center 7,600 

La Alianza Hispana 1,910 



40 P.D.12 

Greater Lawrence Community Action 

Council, Inc. $ 4,600 

Lowell Community Teamwork, Inc. 5,040 

Medford Consumers Council 9,200 

Newton Department of Human Services 4,500 

North Shore Community Action Program 11,061 
North Worcester County Consumer Protection 

Agency 8,800 
Peabody Municipal Consumer Protection 

Agency 8,800 

Quincy Consumer Council 11,300 

Revere Consumer Affairs Office 10,900 

Somerville Multi-Service Center 7,131 

Springfield Consumer Action Center 12,400 
On the Cornor Taunton Area Consumer 

Protection Program 11,000 
Worcester Consumer Protection 

Coalition, Inc. 14,782 

So. Middlesex Consumer Protection Office 13,000 
The program is growing simultaneously with its success and additional 
funds will be required in the future not only to maintain the current pro- 
gram, but to reach the goal of 100% of cities and towns being serviced at the 
local level. 

ANTITRUST DIVISION 

A. Introduction 

Through the use of continuing federal funding, new state legislation, and 
increased staff capabilities, the Antitrust Division has continued to increase 
its activities in preventing unreasonable restraints of trade and monopoHstic 
practices within the Commonwealth. 

B. Legislation 

On August 10, 1978, Governor Dukakis signed into law the new 
Massachusetts Antitrust Act (G.L. c. 93, as amended). This new Act gives 
the Attorney General broad powers to investigate and prosecute, civil and 
criminally, antitrust violations throughout the Commonwealth of 
Massachusetts. Similar to the federal Sherman and Clayton Acts, the 
legislation prohibits restraints of trade, monopolization, and illegal tie-ins. 
The statute provides for broad civil investigative demand powers by the Of- 
fice of the Attorney General to permit appropriate investigations. The 
statute permits the Attorney General to bring civil actions on behalf of the 
Commonwealth and its political subdivisions as well as on behalf of all 
natural persons residing within the Commonwealth for damages sustained 
by such bodies and natural persons under the statute. The Act also provides 
for civil penalties of up to $25,000. In addition, the Act provides for 
criminal penalities of up to one year in prison as well as fines of up to 
$100,000.00 for a corporation or of up to $25,000.00 for an individual. The 
legislation also provides for the creation of an antitrust enforcement fund 
wherein recoveries will be used to fund the Antitrust Division in the Office 
of the Attorney General. 

C. Federal Funding 

The Antitrust Division continued to receive its operating funds from a 



P.D.12 41 

federal grant authorized under the Crime Control Act of 1976. In 
September, 1977, the Attorney General was awarded $320,681.00 to 
establish and develop the antitrust division. In March of 1979, the Attorney 
General was awarded an additional $305,091.00 to continue the develop- 
ment of an antitrust enforcement program in the Commonwealth of 
Massachusetts. Such funds are presently being used to fund much of the 
work of the Antitrust Division. 

D. Litigation 

As of June 30, 1979 the Antitrust Division had eleven cases which were 
various stages of litigation both the federal and state court systems. 

1. Commonwealth of Massachusetts \. N.B.M.A., et al 
Northern District of Georgia 
The Commonwealth brought suit against 37 major producers of chicken 
in the United States charging them with conspiring to raise the price of 
chicken throughout the United States. The suit was brought on behalf of the 
Commonwealth and its political subdivisions in their proprietary capacities. 
A settlement in excess of $35 million has been reached in this global class ac- 
tion and the Commonwealth is presently awaiting hearings to determine the 
adequacy of the settlements and for a final determination of the potential 
recoveries available to the Commonwealth. 

2. Commonwealth of Massachusetts v. Amstar Corp., et al. 
Eastern District of Pennsylvania 
The Commonwealth brought suit against 7 refiners of sugar alleging that 
they conspired to fix prices of sugar in violation of the Federal Antitrust 
laws. The Commonwealth is representing itself in its proprietary capacity as 
well as the Cities of Boston and Cambridge. Partial settlements of nearly 
$25 million have been achieved in this litigation and the Commonwealth is 
awaiting a determination of distribution to discover what its share of the 
recovery will be. The remaining portions of this litigation are scheduled to 
go to trial in October of 1979 in Philadelphia. 

3. Commonwealth of Massachusetts v. Medical Oxygen 
Service, Inc., et al. District of Massachusetts 
The Commonwealth alleged that defendants who are distributors of 
medical oxygen services in the New England area conspired to fix prices for 
their services and products as well as to divide territories in which they do 
business. This case was brought on behalf of the Commonwealth in its pro- 
prietary capacity and as parens patriae on behalf of the consumers of the 
Commonwealth of Massachusetts. This case is presently in pretrial 
discovery. 

4. Commonwealth of Massachusetts v. Brinks, Inc., et al 
Northern District of Georgia 
The Commonwealth of Massachusetts, on behalf of itself and its political 
subdivisions in their proprietary capacity, brought suit agianst three major 
armored car carriers alleging that they conspired to fix the price of armored 
car services throughout the United States. A settlement of $1 1 .8 million has 
been approved. The Commonwealth is presently awaiting a determination 
of the appropriate division of the settlement amounts in order to determine 



42 P.D.12 

its share of the recovery in this case. 

5. Commonwealth of Massachusetts v. Ahem Corp., et al 
District of Massachusetts 
The Commonwealth, on behalf of itself and its political subdivisions, 
brought action against 7 distributors of liquid asphalt products in the Com- 
monwealth of Massachusetts alleging that they conspired to fix prices, rig 
bids, and allocate customers among themselves in the sale of liquid asphalt 
products in the Commonwealth. This case is presently in class discovery 
phases. 

^-Commonwealth of Massachusetts v. Levi ton, Inc. et al 
Eastern District of New York 
The Commonwealth brought suit on its own behalf for injunctive relief 
under the Federal Antitrust Laws as well on behalf of the consumers of the 
Commonwealth under G.L. c. 93A alleging that the major wiring device 
manufacturers in the United States conspired to fix prices on wiring device 
products to the Commonwealth and to its citizens. This case is presently in 
pretrial discovery. 

7. Commonwealth of Massachusetts v. Boise Cascade, Inc. et al. 
Eastern District of Pennsylvania 
The Commonwealth, on behalf of itself and its political subdivisions, 
brought an action against 15 major paper manufacturers charging them 
with conspiring to fix the prices of fine paper products throughout the 
United States. The Commonwealth has been certified as a class represen- 
tative of its political subdivisions in this action. Presently there are more 
than $30 million in settlements in this action. These settlements are from 6 
of the 15 defendants. Pretrial discovery is ongoing against the 1 1 remaining 
defendants in this action. 

8. Commonwealth of Massachusetts v. Rockwell Corp., et al. 
Eastern District of Pennsylvania 
The Commonweahh has brought suit on behalf of four municipally- 
owned gas works alleging that the 3 major manufacturers of gas metters 
throughout the United States have conspired to fix prices and rig bids on gas 
meters. This cas has been settled for in excess of $15 million and the Com- 
monwealth is presently awaiting a final resolution of the method in which 
the settlement monies will be distributed in order to determine how much 
will be recovered for the four municipally-owned gas works. 
9. Commonwealth of Massachusetts v. Campbell 
Hardware, Inc., et al. 
District of Massachusetts 
The Commonwealth, on behalf of itself and its political subdivisions, 
brought suit against 12 distributors of architectural hardware in the Com- 
monwealth of Massachusetts alleging that they had conspired to rig bids on 
governmental building projects within the Commonwealth of 
Massachusetts. This case is presently in pretrial discovery. 

10. Commonwealth of Massachusetts v. D.H. Jones, et al. 

Hampshire County Superior Court 

The Commonwealth, on behalf of its citizens, is seeking a $25,000.00 civil 

penalty and restitution for consumers as a result of an alleged conspiracy to 

fix and raise the rate of real estate brokerage commission fees in the 

Amherst arfp 



P.D.12 43 

This case is presently in pretrial discovery. 

1 1. Commonwealth of Massachusetts v. Massachusetts Nurses 

Association 

The Commonwealth of Massachusetts brought suit against the 
Massachusetts Nurses Association seeking a $25,000.00 civil penalty under 
the new state Antitrust Statute alleging that the Massachusetts Nurses 
Association has conspired with its members to submit fixed fee schedules in 
violation of the Massachusetts Antitrust Statute. That case is presently in 
pretrial discovery. 

In addition to the above cases the Commonwealth has also disposed of a 
number of cases without having had to file formal proceedings against the 
respondents therein. 
In the matter of Levi Strauss & Company 

The Commonwealth accepted a Consent Decree from Levi Strauss regar- 
ding certain alleged activities concerning resale price maintenance. In addi- 
tion, the Commonwealth accepted a civil penalty of $20,000.00 as well as in 
excess of $8,300 in costs. 
In the matter of Massachusetts Wholesale Drug Companies 

The Commonwealth accepted Letters of Assurance of Discontinuance 
from 5 wholesale drug companies doing business in Massachusetts regar- 
ding alleged activities concerning their participation in a program sponsored 
by the National Wholesale Drug Association. The five companies paid 
$62,500 to the Commonwealth in settlement of this matter. 
In the matter of Massachusetts Board of Real Estate Appraisers 

The Commonwealth accepted an Assurance of Discontinuance from the 
Massachusetts Board of Real Estate Appraisers wherein they agree to 
eliminate a ban on competitive bidding which was contained in their by- 
laws. 
In the matter of Massachusetts Interscholastic Athletic Association 

The Commonwealth accepted an Assurance of Discontinuance from the 
Massachusetts Interscholastic Athletic Association wherein they agreed to 
eliminate any requirements regarding non-members makeing payments to 
officials at fees which the M.I. A. A. had negotiated. 
In the matter of Steyr Daimler Puch of America Corporation 

The Commonwealth of Massachusetts accepted an Assurance of Discon- 
tinuance from Steyr Daimler Puch of America Corporation wherein they 
agreed not to engage in activities regarding possible resale price 
maintenance in the Commonwealth. 
In the matter of L.D. Plastics 

The Commonwealth has accepted an Assurance of Discontinuance from 
L.D. Plastics wherein it was agreed that L.D. Plastics would not refuse to 
supply dealers who did not sell at the normal list price. 
In the matter of United X-ray Corporation Massachusetts 

The Commonwealth received a Letter of Assurance of Discontinuance 
from United X-ray Corporation of Massachusetts wherein they agreed to 
not refuse to deal with any individual or entity who sought to purchase parts 



44 P.D.12 

for x-ray machines. 

In the matter of New England Home Furnishing Representatives Associa- 
tion Inc. 

The Commonwealth of Massachusetts accepted a Letter of Assurance 
from the New England Home Furnishings Representatives Association Inc. 
wherein they agreed not to seek to curtail the right of sales personnel in- 
sofar as where they could sell or to whom they could sell. 
In the matter of Metropolitan Buick-Opel Dealers Advertising Association 
Inc. 

The Commonwealth of Massachusetts accepted a Letter of Assurance of 
Discontinuance from the Metropolitan Buick-Opel Dealers Advertising 
Association Inc. wherein they agreed not to jointly advertise automobiles 
with pricing. 

'E. Other Activities 

The Antitrust Division concluded a lengthy review of all regulatory 
boards of the Commonwealth of Massachusetts in an attempt to determine 
whether or not any of the rules or regulations posed a problem insofar as 
antitrust violations were concerned. On the advice of the Antitrust Divi- 
sion, the Board of Public Accountancy passed an emergency regulation 
repealing its Rule E-3 relative to the ban on competitive bidding. 

New England Bid Monitoring Project - Using federal antitrust grant monies 
the Commonwealth of Massachusetts began a pilot program to determine 
the feasibility of collecting and analyzing masses of bid data in order to 
determine whether antitrust violations were occuring in the sale of certain 
specified products. Through the cooperation of state and municipal pur- 
chasing officials, the Commonwealth has been able to analyze data from 
over 100 cities and towns throughout the Commonwealth on over 100 
separate products. The data that has been collected is presently being 
analyzed in conjunction with data that is also being collected by the five other 
New England states. Great interest has been generated throughout the 
United States by this program and it is anticipated that the Department of 
Justice will grant a supplementary grant to the 6 New England states to con- 
tinue the expansion and development of this program. 

CONSUMER PROTECTION DIVISION 

I. Introduction 

The Consumer Protection Division of the Department of the Attorney 
General underwent significant growth and development during the previous 
fiscal year. In that time period the non-legal functions of the Division, in- 
cluding investigation and mediation work, were transferred to the Public 
Protection Bureau. In addition, separate Divisions responsible for in- 
surance and utility matters were established. Finally, local group coordina- 
tion was also handled outside the Division. 

This reorganization left the personnel of the Division free to focus on its 
primary responsibility, namely the enforcement of G.L. c. 93A, the 
Massachusetts Consumer Protection Act. While the non-legal functions 
described above are not formally within the Consumer Protection Division 
as currently constituted, there remains sufficient coordination and interac- 



P.D.12 45 



tion among all units of the Department working on consumer issues so that 
the Attorney General maintains a unified approach in this area. 

II. Division Reorganizations 

As part of our effort to maximize our potential for effective litigation, a 
complete review of the procedures for case control and movement was 
undertaken during this past fiscal year. This resulted in a major reorganiza- 
tion of the Division's operational policies. For the first time, the Consumer 
Protection Division has standardized orientation, case control, and over- 
sight policies which should insure the best possible utilization of our limited 
resources. The policies provide for a standard format for case organization, 
computerized quarterly work-product goals for all attorneys, and the im- 
provement of the consent-judgement monitoring system to insure that all 
judgements obtained during the Bellotti administration are regularly check- 
ed for compliance. The Division's procedures are set out in the Consumer 
Protection Division Attorney Manual. 

We have also moved toward the establishment of case-area specialities. 
Each attorney in the Division has developed expertise in a particular area of 
consumer law, including for example, franchising, advertising, and major 
automobile defects. Perhaps the most significant of these is the health 
speciahy. We have identified consumer health issues as an important, but 
previously unidentified, area of consumer law. A health specialty team, con- 
sisting of two attorneys and support staff, was created in the Division in 
May of 1979. Since then, the health specialists have brought one major 
piece of litigation, discussed below, and initiated a series of important in- 
vestigations. Other speciality teams will be created as necessary in the 
future. 

Finally, we have addressed the problem of unenforceable judgements 
which has been raised on occasion in the past by some judges. Following a 
comprehensive review of procedures governing the entry of consent 
judgments, we modified our standard form judgment to reflect its binding 
and enforceable nature. We also proposed a formal rule for the considera- 
tion of the Superior Court to bring uniformity to the system by which such 
judgments are entered. Then we met with the Chief Justices of both the 
Superior and District Court Departments to clarify that c. 93A consent 
judgments were enforceable by contempt in the manner proposed by the At- 
torney General. 

III. Statistics 

During the past fiscal year, there were 251 active cases in the Consumer 
Protection Division. Of those, 98 were continued on an active status from 
the previous year and 153 were commenced as original matters. 

Also, during the year, the Consumer Protection Division entered into 49 
consent judgments, received 14 judgments after litigation, and accepted 25 
assurances of discontinuance pursuant to G.L c. 93A, §5. The total dollars 
recovered from these completed actions and other settled matters was ap- 
proximately $1,622,000. 

It is the goal of the Division to maintain manageable caseloads for all at- 
torneys. Currently, there are 112 open cases in the Division which is consis- 
tent with our view that each attorney should maintain a manageable 



46 P.D.12 

caseload. Of course, each attorney also has long-term investigations and 
other projects which occupy his or her time. 

IV. MAJOR CASE AREA 

A. Automobile Defect Cases 

1 . Saab - This case was the most significant one under the Motor Vehi- 
cle Regulations to date. It involved an investigation of a manufacturing 
defect in the paint on certain models produced in the company's Belgian 
factory. After extensive negotiation following our 5-day notice of intent to 
sue, Saab entered into a settlement resolving the problem. The settlement, 
included both a consent judgment and an assurance of discontinuance, was 
significant in several respects. It was the first recognition by an automobile 
manufacturer of implied warranty obligations extending beyond the terms 
of its express warranty. Also, it was the first time a manufacturer agreed to 
send the notices of defect required by the Attorney General's Motor Vehicle 
Regulations. Over 1000 Massachusets Saab owners will receive the benefits 
of this action. 

2. Chrysler Corporation - During this past year we sued Chrysler, 
following unsuccessful negotiations, for its failure to promptly notify 
Massachusetts consumers of the defect arising out of its carburator problem 
which had previously been the subject of a NHTSA-initiated recall. Our suit 
seeks an injunction requiring future defect notices and restitution for the 
several thousand affected Massachusetts owners of defective Chryslers. 

B. Bankruptcy Cases 

1. Holliston Junior College -- In this case, we successfully protected a 
large number of students who were threatened with the loss of deposits 
because of the failure of this two-year school. The bankruptcy court ordered 
the segregation and repayment of advance tuition deposits. We also arrang- 
ed for transfer of credits and a teach-out for those students who were 
caught unaware at mid-term by this problem. 

2. In re Vincent Hale - This is a bankruptcy appeal in which we are try- 
ing to establish the important principle that judgments rendered under c. 
93A are non-dischargeable in bankruptcy. If we succeed, defendants will 
not be able to avoid paying restitution for unfair or deceptive practices by 
filing bankruptcy, as was attempted in this case. This principle has already 
been recognized by Congress in its adoption of the "Bellotti Amendments" 
to the Bankruptcy Reform Act. Pub. L. No. 95-598 in 1978. These amend- 
ments, drafted, and lobbied for by the Consumer Protection Division, 
recognize a priority status for prepaying consumer creditors ahead of 
federal and state taxes. These amendments become effective on October 1, 
1979. 

3. Grahm Junior College - In this case, which for most of the year was 
an operating Chapter XI reorganization, we arranged for the protection of 
prepaying students and for credits for students who received less then a full- 
year's education when the school closed prematurely. Since then, the case 
has been converted into a straight liquidation, and we are seeking to have 
the benefits of our consent judgment with the school recognize that pro- 
ceeding. 



P.D.12 47 

4. Design Research -- In this major bankruptcy, we are trying to firmly 
establish the principle that prepaying consumers are entitled to the protec- 
tion of a constructive trust when the company with whom they have 
deposited their funds knew or should have known it was unable to honor 
such contracts. The results of this case are particularly important in this 
period of financial instability. 

C. Enforcement Actions, Including Contempt 

1. Neighborhood Reader's Service - This case, tried during the sum- 
mer of 1978, was brought to enforce a consent judgment obtained during 
Attorney General Richardson's term. The judgment prohibited the defen- 
dant from using the word "free" in connection with its magazine sales pro- 
gram. After a three-day trial, the defendant plead guilty and agreed to close 
for a period of eight weeks at a total cost of $250,000 in lost sales. 

2. Bel tone Hearing Aid and Ranaan Katz - These are two cases in 
which the division successfully brought enforcement actions for defendants' 
failure to comply with Civil Investigative Demands issued under c. 93A, §6. 
In both cases, following hearings, the defendants were ordered to produce 
documents and fined substantial amounts of money. 

3. Hampden Village - A case involving a mobile home park operator in 
Springfield produced this contempt. The park operator was enjoined from 
expanding his park until he had corrected the drainage problems already ex- 
isting. After a lengthy trial, the Court found that he had indeed expanded 
without correcting the drainage and ordered the defendant to fund a 
substantial drainage construction project. The total cost, including an 
award of attorney fees, exceeded $12,000. 

4. Kenneth Wasil - The defendant was found guilty and fined, after 
trial, of several violations of an order prohibiting him from further 
automobile sales business. 

5. Randolph Messineo/ William Hartwick - Defendant Hart wick was 
ordered to file monthly reports with the Attorney General and the Court 
regarding the construction business he was engaged in with Defendant 
Messineo. The reports were false and failed to reveal substantial deposits 
taken from consumers. We brought contempt charges against both defen- 
dants. Hartwich plead guilty and was sentenced to 2'/; years in jail for his 
contempt; Messineo went to trial and was found guilty by a jury. He was 
sentenced to 2Vi years, with all but four months of the term suspended. 
Both men will receive consideration if they repay the $48,000 which they 
took from consumers improperly. 

D. Health Care 

1. Diamedic, Inc. — This was an action for injunctive relief and restitu- 
tion against a promoter of a diet plan which guaranteed weight loss. The 
Superior Court enjoined any further business activity by the defendant pen- 
ding full restitution to all injured consumers. The Division is seeking repay- 
ment of up to $250,00 in this case. 

2. Genesis Laboratory, Inc. — This was an action for injunctive relief 
and damages against a medical testing laboratory which was certifying 
medical test results at a time when we believe it had no ability to accurately 



48 P.D.12 

perform the tests. The Appeals Court, on our petition to review the inaction 
of the Superior Court, ordered the laboratory to cease testing until it met 
specified standards acceptable to the Division and until it had a qualified 
director. The action for permanent relief and damages continues in the 
Superior Court. 

3. Heritage Hill and Resthaven -- These are two cases brought by the 
Division to place nursing homes operating at substandard care levels in 
receivership. The homes both contested the actions and the courts have 
responded with unusual and creative orders in a situation which we believe 
will become increasingly common. 

4. Urea Formaldehyde Foam Insulation -- This is an action against the 
manufacturers of urea formaldehyde foam insultation, a common home in- 
sulating product which, if improperly installed and at other times, may con- 
stitute a danger to the health of residents in the homes. The Division in- 
dicated its intention to sue the manufacturers to withdraw the product, and 
constructive, extensive negotiations ensued. Immediately prior to the en- 
try of an agreement to protect the public, the Department of Public Health 
determined that proceedings to ban the product were in order. Thus, further 
negotiation by the Consumer Protection Division became impossible. This 
issue was not finally resolved at the end of the fiscal year. 

E. Real Estate 

1 . Land and Leisure -- In a suit brought in Massachusetts, the Division 
seeks a declaration that the defendant falsely advertised improvements to 
vacation property in Florida that it was marketing. In order to recover 
funds to pay any judgment, the Division has filed a petition to attach the 
proceeds of a bond filed with the Florida Department of Land Sales 
Registration and will appear there in the future to argue this case. 

2. Kaufman and Broad Homes, Inc. - The Division entered into a set- 
tlement agreement with this subsidiary of the second largest residential 
home builder in the United States. The agreement provided for repurchase 
of a condominium development in the event that certain defects were not 
cured by the developer within a specified period. Because of the non- 
performancce by the developer prior to that time of ancillary obligations 
under the agreement, the Division brought suit to enjoin the developer from 
building unsafe and/or uninhabitable homes in the Commonwealth, to 
establish an implied warranty of habitability in the sale of homes in the 
Commonweahh, and to order the defendant to repurchase, at full equity, the 
homes it had already built in Massachusetts. Extensive litigation is ex- 
pected. 

F. Advertising 

1 . Columbia Research Company - This was a suit against a company 
which promised a "free" vacation and other benefits for the payment of 
$15.95. Hundreds of Massachusetts residents lost money in this scheme. 
The Division secured a refund of all monies paid. Many other states, and 
the F.T.C, brought suit against this Illinois corporation, but only 
Massachusetts, to date, has successfullly recovered all outstanding money 
owed. 

2. Boston Red Sox Ticket Case - This was an investigation of allega- 



P.D.12 49 

tions of ticket price false advertising during the previous season. In settle- 
ment, the Red Sox offered to reduce the price of approximately 10,000 
reserved and unreserved bleacher tickets by $1.00 each and to offer 10,000 
reserved bleachers, at $3.00 each, to groups of underprivileged youth in 
Massachusetts. 

3. J.M. Fields Liquidation - Major discount store liquidation being 
conducted in apparent violation of Massachusetts going-out-of-business 
and warranty laws was investigated and responded to promptly by the Divi- 
sion. An Assurance of Discontinuance was negotiated which provided for 
compliance with all applicable laws and notification from liquidators of all 
future liquidations in Massachusetts as well as maintenance of adequate 
security to cover problems arising from this sale. 

G. Automotive 

1. General Motors Engine Interchange Litigation - This settlement 
agreement, negotiated by the Consumer Protection Divisions of forty-four 
states led by Massachusetts, was finally put into full effect this year. After a 
number of problems, including an adverse opinion of the 7th Circuit Court 
of Appeals, General Motors extended the offer of $200.00 and an extended 
warranty plan to all 67,000 eligible Oldsmobile owners, including over 1 ,600 
Massachusetts residents. Thus, the largest negotiated settlement of a con- 
sumer protection action anywhere was finally put into effect. 

2. Colonial Motors - This was a summary judgment against an 
odometer spinner under both state and federal provisions. This case was a 
precedent-setting action establishing that, in the absence of contrary 
documentary evidence, odometer Uability will be found against offending 
dealers. 

3. 128 Sales -- This is an action for breach of warranty against retail 
automobile dealer. It is notable for its injunction requiring the dealer to 
honor revocations of acceptance within a specified period for defective 
automobiles and to make repairs in a merchantable manner. The case con- 
tinues on restitution, 

H. Miscellaneous 

/. Cuna Mutual - This is an action to enforce a C.I.D. against a pro- 
spective defendant. The Superior Court ruled that, regardless of the theory 
on which the Attorney General issued the C.I.D., enforcement was required 
because of the broad scope of investigatory powers conferred. The defen- 
dant has appealed. 

V. LEGISLA TION AND REGULA TIONS 

A. Breton v. Haas. 

In this case, the defendants challenged the constitutionality of the At- 
torney General's regulatory authority under c. 93A §2(c) in general, and 
Regulation XV(c) in specific. The Consumer Protection Division intervened 
to contest both points and to urge the Court not to rule on either as they had 
not been raised below. The Supreme Judicial Court ruled that the Housing 
Court had no jurisdiction over c. 93A in the first place, and thus did not 
rule on the consititutional questions. 



50 



P.D.12 



B. Debt Collection Regulations. 

After over two years of work, four drafts, and two public hearings, the 
Attorney General promulgated Debt Collection Regulations under c. 93A, 
§2(c). A copy of the regulations appears as Appendix A to this division's 
Report. A comprehensive enforcement program is planned for Fiscal 1979. 

C. "As Is" Legislation 

In part as the result of extensive lobbying by the department, a bill pro- 
posed by the Massachusetts Automobile Dealers Association to allow "no 
guarantee" used car sales suffered a significant defeat in th House. By a tie 
vote, the House failed to move the bill to vote on the floor, and it was refer- 
red to a "study" in the Senate Ways and Means Committee. 

VI. FEDERAL ACTIVITIES 

A. Hearing Aid Testimony 

During the past year, the Division prepared testimony on behalf of the 
Attorney General opposing proposed preemptive regulations of the Food 
and Drug Administration which would deny Massachusetts consumers the 
protection of our statute on hearing aid sales. Because of our strenuous op- 
position to the position advocated by the federal government, further hear- 
ings will be held in Boston in the fall to take additional testimony. 

B. F. T C. Used Car Sales Rule 

The Division also submitted testimony to the Federal Trade Commission 
on behalf of the Attorney General concerning the proposed trade regulation 
rule on used car sales disclosures. While we generally favor increased 
disclosure and support Commission efforts in this direction, we noted 
several areas where Massachusetts law was more protective than federal and 
asked for specific exemption language. No final rule has been promulgated 
yet. 

C. Urea Formaldehyde Foam Insulation 

Members of the Consumer Protection Division led the effort of the Na- 
tional Association of Attorneys General in bringing the problem of poten- 
tially dangerous emissions of formaldehyde from this product to the atten- 
tion of various federal agencies. The CPSC has already reacted positively in 
this area and other federal agencies are also expected to do so. 

VII. CONSUMER PROTECTION CASE LIST 



A. ADVERTISING 



Defendant 
AAA Rental Corp. 
Aaron Glickman, d/b/a 
Aaron's Advertising Agency 
B & G Industries, Inc. 
Boisvert, Richard 
Boston Red Sox 
Chala Foods 
Cohen, Leon d/b/a 

Aqua King Pool Co. 
Columbia Research 
Edward's Wayside 

Furniture Inc. 



Status/Disposition 


County/Court 


Consent Judgment 


Middlesex 


Consent Judgment 


Suffolk 


Assurance 


Norfolk 


Litigation 


Hampden 


Settled 


Suffolk 


Consent Judgment 


Middlesex 


In Litigation 


Hampden 


Consent Judgment 


Suffolk 


Consent Judgment 


Hampden 



P.D.12 



51 



Lane's Furniture 


Appeal Decided 


S.J.C. 


Lechmere Sales 


Closed 




Leonard, Paul 


Consent Judgment 


Hampden 


M & M Publications 


In Litigation 


Norfolk 


Max Okun Furniture Co. Inc. 


Consent Judgment 


Hampden 


National Business 


Assurance 


Middlesex 


Association Directory 






Northeast Marketing 


In Litigation 




Precision Motors Rebuilders 


Consent Judgment 


Middlesex 


Pyramid Slenderizing 


In Litigation 


Plymouth 


Salon 






Rautio, James, d/b/a 


Assurance 


Essex 


Treasure Chest 






Advertising Co. 






S and L Sound Services 


Assurance 


Suffolk 


d/b/a K and L Sound 






Seiden Sound Inc. 


Consent Judgment 


Hampden 


Sherman's 


Assurance 


Suffolk 


Stanley Shuman 


In Litigation 


Suffolk 


Stavis, Steve 


In Litigation 


U.S.D.C. 


Swiss Fabric Outlet 


Closed 




Volkswagen of America 


In Litigation 


Middlesex 


Young Enterprises, d/b/a 


Contempt 


Suffolk 


Neighborhood Readers 






Service 






Additional three cases in 


this area are under active 


investigation. 


B 


. ANTI-TRUST 




Defendant 


Status/Disposition 


County/Court 


Atlantic Richfield Co. 


Closed 




One additional case in 


this area in under active investigation. 


C. 


AUTOMOBILES 




Defendant 


Status/Disposition 


County/Court 


Aamco Trans. Inc. 


Closed 




Abel Ford 


In Litigation 


Suffolk 


Ace Motors Of Somerville 


In Litigation 


Middlesex 


Alewife Motors 


Closed 


Middlesex 


Back Bay Motors 


In Litigation 


Suffolk 


Borlen, Edward J. d/b/a 


In Litigation 


Hampden 


City Auto Sales 






Cape Motors 


Consent Judgment 


Suffolk 


Carol Cars, Inc. 


Settled 




Chrysler Corp. 


In Litigation 


Suffolk 


Colonial Motors Sales, Inc. 


Final Judgment 


Hampden 


& Bruce Milton 






Darryl Riverside, d/b/a 


In Litigation 


Worcester 


Lakeside Auto Sales 






DeSautels, William 


In Litigation 


Bristol 


Eck, David, d/b/a. 


Consent Judgment 


Norfolk 



Eck's Auto Sales 



52 



P.D.12 



Elro Enterprises 


In Litigation 


Plymouth 


General Motors Corp. 


Settled 




Fife, Walter 


In Litigation 


Middlesex 


Foreign Auto Imports 


Consent Judgment 


Middlesex 


Hallissey Chevrolet 


In Litigation 


Middlesex 


Highland Auto Repair Inc. 


Closed 




Holyoke Auto Corp. d/b/a 


Consent Judgment 


Hampden 


Toyota of Holyoke 






Joe CuUinan Ford Inc. 


In Litigation 


Middlesex 


Lamolino, Don & Michael B. 


Consent Judgment 


Hampden 


Iscaldi, d/b/a, Don's 






Getty Service 






Lord Toyota Inc. 


Consent Judgment 


Suffolk 


McManus, Thomas L./ 


In Litigation 


Suffolk 


128 Sales 






Medeiros Williams Chevrolet 


In Litigation 


Hampden 


Muzi Motor Inc. 


Consent Judgment 


Norfolk 


O'Connor, Francis A. d/b/a 


Final Judgment 


Hampden 


Car Finders 






O'Connor, Thomas/ 


In Litigation 


Middlesex 


O'Connor Bros 






Pandy Pontiac 


In Litigation 


Essex 


Richard Ryll and 


Consent Judgment 


Berkshire 


Automotive Products 






Saab of America 


Consent Judgment 
Assurance 


Suffolk 


Santilli Auto Sales 


Closed 




Schaffer Motor Car Co. 


In Litigation 


Norfolk 


Stop & Go Transmissions 


Final Judgment 


Essex 


Sullivan Motors 


In Litigation 


Plymouth 


The Bug Hospital 


In Litigation 


Norfolk 


Topor Motor Sales 


Consent Judgment 


Hampden 


Valley Chevrolet 


Assurance 


Suffolk 


Village Chevrolet 


Assurance 


Suffolk 


Wasil, Kenneth 


Contempt 


Suffolk 


West Springfield Chyrsler - 


Consent Judgment 


Hampden 


Plymouth, et al. 






Wilmington Sales, Inc. 


In Litigation 


Middlesex 


Two additional cases in 


this area are under active invest; 


igation. 


D. BANKING AND CREDIT 




Defendant 


Status/ Disposition 


County/Court 


Allied Bond & Collection 


In Litigation 


Suffolk 


Agency 






Bassett Furniture 


In Litigation 


Middlesex 


Bealieu, Rene, etc 


In Litigation 


Suffolk 


Capital Banking 


Settled 




Commercial Bank 


Settled 




Cuna Mutual Insuance 


On Appeal 


Appeals Court 


Society 






Ford Motor Credit Corp. 


Assurance 


Suffolk 


H & H Furniture Co. Inc. 


Settled 


Middlesex 


Industrial National Bank 
Of R.I. 


On Appeal 


Appeals Court 


In re: Vincent Hale 


In Litigation 


U.S.D.C. 



P.D.12 



53 



North Shore Agency Closed 

Northampton National Bank On Appeal 

Ramos, Frank Closed 

St. Anne's Credit In Litigation 

Union, et. al. 
Van Ru Credit Corp. 



Appeals Court 



U.S.D.C. 



Consent Judgment Suffolk 

Seven additional cases in this area are under active investigation. 

E. CONTRACTS 



Defendant 


Status/Disposition 


County/Court 


Cuffee, Welton 


Closed 




Depasquale/Hub Contracting 


In Litigation 


Suffolk 


Gray, Edward, d/b/a 


Final 


Essex 


Picture Your World 






Gesner, James 


Consent Judgment 


Norfolk 


International Magazine 


Consent Judgment 


Suffolk 


Service of Boston 






Kiddy Photographs 


Assurance 


Norfolk 


Paglia, Gene d/b/a 


In Litigation 


Suffolk 


American International 






Holidays 


F. HEALTH 




Defendant 


Status/Disposition 


County/Court 


Interchurch Team Ministries 


In Litigation 


Plvmouth 


E. & S. Enterprises, 


Consent Judgment 


Suffolk 



d/b/a, Beltone Hearing 

Aid Service 
Genettis, Andrew, d/b/a In Litigation Norfolk 

Genesis Laboratory and 

Hospital Services Inc. 

Four additional cases in this area are under active investigation. 
G. EDUCATION 
Defendant Status/Disposition County/Court 

Grahm Jr. College Inc. Consent Judgment Suffolk 

Holliston Jr. College Final Judgment U.S.D.C. 

H. HOME IMPROVEMENTS/APPLIANCE REPAIRS 



Defendant 


Status/Disposition 


County/Court 


Andrews, Frederick 


Partial Judgment 


Norfolk 


Economy Engineering 


In Litigation 


Suffolk 


Home Insulation of 


In Litigation 


Hampden 


New England 






Johnson, Paul, d/b/a 


Final Judgment 


Middlesex 


Factory Heating Service 






Jones, John W. 


Final Judgment 


Middlesex 


Rigione, Ralph 


Consent Judgment 


Suffolk 


Siano, William Jr., 


In Litigation 


Hampden 


Benjamin Stanley, d/b/a 


In Litigation 


Bristol 


B. & L. Paving et al 






Supreme Remodeling Inc. 


Contempt 


Norfolk 


Sutter, William, d/b/a. 


Closed 




Sutter's Home Improvements 




I. 


INSURANCE 





54 



P.D.12 



Defendant 

Aetna Life & Casualty 
Bay Colony Insurance, Inc. 
Roche, John C. 



Status/Disposition 
In Litigation 
In Litigation 
Consent Judgment 

LICENSING 

Status/ Disposition 
In Litigation 
Final Judgment 



Defendant 

Colonial Travel Service 

Doe, John d/b/a 

Prestige Coins 
Eastern Atlantic 

Tractor Training School 
New England Tractor Trailer 

Training of Connecticut 
South Eastern Academy, 

d/b/a. New England 

Academy 

K. MOBILE HOMES 



Consent Judgment 



Consent Judgment 



In Litigation 



Defendant 
Bluebird Acres 

Mobile Home Park, Inc. 
Hampden Village Inc. 
Mogan's Mobile Home Park 
Suburban Mobile Home Park 



Status/ Disposition 
Consent Judgment 



Contempt 
Consent Judgment 
In Litigation 

L. NURSING HOMES 
Status/Disposition 
In Litigation 
In Litigation 
In Litigation 



Defendant 

East Village Nursing Home 
Jewish Nursing Home 
John E. Hill, Jr., 

Nursing Home 
Joseph Hill, Jr./ 

Heritage Hill 
Idak 

Kenwood Nursing Home 
Kimwell Nursing Home 
Lewis Bay Convalescent 

Nursing Home 
Linden Nursing Home 
Logan Nursing Home 
Q.T. Services, d/b/a 

Harvard Manor 

Nursing Home 
Resthaven Corp. 
St. Patrick Manor 

Nursing Home 

Three additional cases in this area are under active 
M. PRICING/FOOD 
Defendant Status/Disposition 



In Litigation 

In Litigation 
In Litigation 
In Litigation 
In Litigation 

Closed 
Closed 
In Litigation 



In Litigation 
In Litigation 



County/Court 
Suffolk 
Suffolk 
Suffolk 

County/Court 

Middlesex 

Suffolk 

Hampden 

Hampden 

Plvmouth 



County/Court 
Hampden 

Hampden 
Middlesex 
Bristol 

County/Court 
Middlesex 
Hampden 
Middlesex 

Middlesex 

Suffolk 
Worcester 
Norfolk 
Norfolk 



Suffolk 



Suffolk 
Middlesex 



mvestigation. 



Countv/Court 



P.D.12 



55 



Bi-Lo Warehouse, Inc. 
First National Stores 
Purity Supreme. Inc. 

N. REAL 
Defendant 
Acres 'n Acres 
Alba Realty 

Apartment Showcase Co., Inc 
Aubin, William E. 
Bonnie Rigg Camping Inc. 
Capewide Development 
Cohen, Terry 

Country Shore Homes, et al. 
Equity Realty 
Friend Lumber Co. 
Gladstone, Alfred, et al. 
Gramatan Home Investors Inc 
Greenway Estates Inc. et al. 
Katzeff, Margy 
Land & Leisure 

Ledgemere Farms 
Murphy, Christopher 
Nat Sergi Enterprises, Inc. 
Randv's Realtv Trust 



Assurance 
Assurance 
On Appeal 

EST A TE/ HO USING 

Status/ Disposition 

In Litigation 

In Litigation 

Consent Judgment 

In Litigation 

Assurance 

Consent Judgment 

In Litigation 

Closed 

Closed 

Closed 

In Litigation 

Closed 

In Litigation 

Consent Judgment 

In Litigation 

Consent Judgment 

Contempt 

Assurance 

In Litigation/ 

Contempt 

In Litigation 

Closed 



Contempt 



Santullo, Anthony, et al. 
Souther Development 

Co. and Crest Realty 
Walo, William and Levine, 

Richard, d/b/a. Homes by 

Design 

Two additional cases in this area are under active 
O. SALES PRACTICES 
Defendant Status/Disposition 

Air Temp Engineering Corp. Judgment 
Bragel, Shirley, d/b/a 

American International 

Holidays 
Bulk Meat Co. d/b/a 

Holyoke Packing Co. Inc. 
Chalue, Robert E. 
Diamedic Weight Loss Clinic 
Diversified Health, d/b/a 

Roman Health Spa 
Jacks Radio and TV, d/b/a 

John Debie 
Kasparian, Charles 



Hampden 
Middlesex 
Appeals Court 

County/Court 

Essex 

Essex 

Middlesex 

Hampshire 

Hampden 

Barnstable 

Suffolk 



Middlesex 

Suffolk 

Essex 

Middlesex 

Suffolk/ 

Florida 

Middlesex 

Middlesex 

Essex 

Middlesex 

Middlesex 



Middlesex 



mvestigation. 



Assurance 



Closed 



County/Court 

Middlesex 

Suffolk 



Consent Judgment 


Hampden 


In Litigation 


Suffolk 


In Litigation 


Hampden 


Consent Judgment 


Essex 


In Litieation 


Worcester 



56 



P.D.12 



Katz, Ranaan Contempt Suffolk 

Kaufman Carpet Co. Closed 

Keene, Allen C. In Litigation 

International Health Spa 
Kilgo, John W., Assoc. Closed 

d/b/a Evelyn Wood 

Reading Dynamics 
Konior, Michael J. d/b/a 

Executive Dating Systems 
Lamar, Inc. 
Leisure Distributors. Inc. 

d/b/a Hi-Fi Buys 
Lloyd Carr & Co. 
Mold Specialists 
Murphy, Wayne, C. 
Pioneer Pools of Boston, Inc. 
Railroad Salvage of 

Connecticut Inc. 
Reinman, Joseph, et al. 
Rich Alan 
Seamless Floor Specialists 

of New England, et al 
Selective Singles 
Simmons, Harold, d/b/a 

Marquise China Co. et. al 
Spray-a-Way Marketing Co. 
Stereo Components Systems 
Stott, Charles 
United Resources 
Universal Marketing Corp. 
Vlahakis, Leander, et al 
Wilensky, Julius, d/b/a 

Orleans Coal & Oil Co. 
Window Systems Inc. Assurance 

Four additional cases in this area are under active investigation. 
P. SWIMMING POOLS 
Defendant Status/ Disposition County/Court 

Associated Pool In Litigation Norfolk 

Distributors 
Houghton, Richard d/b/a In Litigation Hampden 

Alco Aluminum Pool and 

Siding Co. 

One additional case in this area is under active investigation. 
Q. WEIGHTS AND MEASURES 
Defendant Status/ Disposition County/Court 

Admiral Petroleum Corp. Consent Judgment Suffolk 

Butcher's Pride Assurance Suffolk 

Family Associates, et al. Consent Judgment Suffolk 



In Litigation 

Assurance 
Consent Judgment 

Final Judgment 

Closed 

Consent Judgment 

In Litigation 

Assurance 

Closed 

Final Judgment 

In Litigation 

In Litigation 
Consent Judgment 

In Litigation 
Assurance 
In Litigation 
In Litigation 
In Litigation 
Consent Judgment 
Contempt 



Suffolk 



Suffolk 

Suffolk 
Hampden 

Suffolk 

Middlesex 

Norfolk 

Hampden 



Hampden 
Suffolk 

Norfolk 
Hampden 

Suffolk 

Suffolk 

Middlesex 

Middlesex 

Norfolk 

Middlesex 

Middlesex 

Suffolk 



P.D.12 



57 



Feinstein, George, d/b/a 

Maynard Market 
Holding. R.J., Oil & Gas 
Ray S. Iga Store, et al. 
Russo Oil Co. Inc. 

Ralph DiRusso 
Schultz Lubricants Inc. 



Closed 

Consent Judgment 
Consent Judgment 
Consent Judgment 



Defendant 

Anderson, Ralph 
Celsius Insulation 

Resources 
Chateau DeVille 
Clene Heat 

Colonial Travel Service 
Coastal Furniture Company 

Inc. 
Deltex Distributing Corp. 
Diversified Products Corp. 
Doucette, Paul d/b/a 

Paul's Furniture 
Goldstein & Gurwitz 

Autioneers, Inc. 
Indiana Merchandising Corp. 

and Sam Nassi Assoc. 

d/b/a N.I. Associates 
Ledger Publications 
Mego Inc. 

North American Travel 
Philipoff, Thomas E. 
Sheridan, Paul, d/b/a 

Sherry Decorators 
Troob, Bruce 
Wholesale Marketing Inc. 

Joanne L. Sheff 
Zuker. Alan 



Assurance 
R. MISCELLANEOUS 

Status/Disposition 
Consent Judgment 
Closed 



Closed 
Assurance 
In Litigation 
Closed 

Closed 

Consent Judgment 

Assurance 

Consent Judgment 

Assurance 



Closed 

Closed 

Closed 

In Litigation 

Final Judgment 

In Litigation 
Assurance 

Consent Judgment 



Suffolk 
Suffolk 
Suffolk 

Suffolk 

County/Court 
Suffolk 



Suffolk 
Middlesex 



Middlesex 
Suffolk 

Middlesex 

Suffolk 



Hampden 
Suffolk 

Middlesex 
Suffolk 



Norfolk 

Four additional cases in this area are under acti\c investigation. 

940 CMR: OFFICE OF THE ATTORNEY GENERAL 

940 CMR is amended by adding the following chapters: 

940 CMR 7.00: DEBT COLLECTION REGULATIONS 

Section 

7.01 Purpose of Regulations 

7.02 Scope 

7.03 Definitions 

7.04 Contact With Debtors 

7.05 Contact With Persons Residing In The Household Of A Debtor 

7.06 Contact With Persons Other Than Debtors Or Persons Residing In 
The Household Of A Debtor 

7.07 General Deceptive Acts Or Practices 

7.08 Inspection 

7.09 Post Dated Checks 

7.10 Relation To Other Laws 



58 P.D.12 

7.11 Pre-emption by Federal Law 

7.01 Purpose Of Regulations 

The purpose of these regulations is to establish stan- 
dards, by defining unfair or deceptive acts or practices, for 
the collection of debts from persons within the Com- 
monwealth of Massachusetts. 

7.02 Scope 

These regulations apply only to the collection of debts, as 
defined herein, and no conduct which is not the collection 
of debts or any part thereof is affected. 

7.03 Definitions 

(1) "Communication" or "communicating" 
means conveying information directly or in- 
directly to any person orally through any 
medium excluding non-identifying communica- 
tions. 

(2) "Creditor" means any person and his agents, 
servants, employees, or attorneys engaged in col- 
lecting a debt owed or alleged to be owed to him 
by a debtor provided, however, that a person 
shall not be deemed to be engaged in collecting a 
debt, for the purpose of these regulations, if his 
activities are solely for the purpose of repossess- 
ing any collateral or property of the creditor 
securing such a debt. 

(3) "Debt" means money or its equivalent which 
is, or is alleged to be, more than 30 days past 
due and owing, unless a different period is 
agreed to by the debtor, under a single account 
as a resuh of a purchase, lease, or loan of 
goods, services, or real or personal property, for 
personal, family or household purposes or as a 
result of a loan of money which is obtained for 
personal, family or household purposes; provid- 
ed, however, that money which is, or is alleged 
to be, owing as a result of a loan secured by a 
first mortgage on real property, or in an amount 
in excess of $25,000, shall not be included within 
this definition of "debt". 

(4) "Debtor" means a natural person, or his 
guardian, administrator or executor, present or 
residing in Massachusetts who is allegedly per- 
sonally liable for a debt. 

(5) "Non-identifying communication" means 
any communcation with any person other than 
the debtor in which the creditor does not convey 
any information except the name of the creditor 
and in which the creditor makes no inquiry 



P.D.12 59 



other than to determine a convenient time and place to con- 
tact the debtor. 

(6) "Person" means any natural person, corporation, trust, 
partnership, incorporated or unicorporated association and 
any other legal entity; provided, however, that if a creditor 
comprises or employs more than one natural person, all 
such individuals shall be deemed to be one and the same 
"person" with respect to any debt owed to alleged or be 
owed to such a creditor. 
7.04: Contact With Debtors 

(1) It shall constitute an unfair or deceptive act of prac- 
tice for a creditor to contact a debtor in any of the follow- 
ing ways: 

(a) Threatening to sell or assign to another the obliga- 
tion of a debtor with an attending representation or im- 
plication that the result of such sale or assignment 
would be that a debtor would lose any defense to the 
claim or would be subjected to harsh, vindictive or 
abusive collection attempts; 

(b) Threatening that nonpayment of a debt will result in: 

1 . Arrest of any debtor; or 

2. Garnishment of any wages of any debtor or the tak- 
ing of other action requiring judicial order without in- 
forming the debtor that there must be in effect a judicial 
order permitting such garnishment or such other action 
before it can be taken; 

(c) Using profane or obscene language; 

(d) Communicating by telephone without disclosure of the 
name of the business or company of the creditor and 
without disclosure of the personal name of the individual 
making such communication provided, however, that any 
such individual utilizing a personal name other than his 
own shall use only one such personal name at all times and 
provided that a mechanism is established by such creditor 
to identify the person using such personal name; 

(e) Causing expense to any debtor in the form of long 
distance telephone calls, or other similar charges; 

(0 Engaging any debtor in communication via telephone, 
initiated by the creditor, in excess of two calls in each 
seven-day period at a debtor's residence and two calls in 
each thirty-day period other than at a debtor's residence, 
for each debt, provided that for purposes of this division, a 
creditor may treat any billing address of the debtor as his 
place of residence; 

(g) Placing telephone calls at times known to be times other 
than the normal waking hours of a debtor called, or if nor- 
mal waking hours are not known, at any time other than 
between 8:00 A.M. and 9:00 P.M.; 
(h) Placing any telephone calls to the debtor's place of 



60 P.D.12 



employment if the debtor has made a written or oral re- 
quest that such telephone calls not be made at the place of 
employment, provided, that any oral request shall be valid 
for only ten (10) days unless the debtor provides written 
confirmation postmarked or delivered within seven (7) days 
of such request. A debtor may at any time terminate such a 
request by written communication to the creditor; 
(i) Failing to send the debtor the following notice in writing 
within 30 days after the first communication to a debtor at 
his place of employment regarding any debt, provided that 
a copy of the notice shall be sent every six months 
thereafter so long as collection activity by the creditor on 
the debt continues and the debtor has not made a written 
request as described in the previous division, but only if 
such first communication is made after the effective date of 
these regulations: 
NOTICE OF IMPORTANT RIGHTS 

YOU HAVE THE RIGHT TO MAKE A WRITTEN OR ORAL 
REQUEST THAT TELEPHONE CALLS REGARDING YOUR 
DEBT NOT BE MADE TO YOU AT YOUR PLACE OF 
EMPLOYMENT. ANY SUCH ORAL REQUEST WILL BE 
VALID FOR ONLY TEN (10) DAYS UNLESS YOU PROVIDE 
WRITTEN CONFIRMATION OF THE REQUEST 
POSTMARKED OR DELIVERED WITHIN SEVEN (7) DAYS 
OF SUCH REQUEST. YOU MAY TERMINATE THIS RE- 
QUEST BY WRITING TO THE CREDITOR, 
(j) Visiting the household of a debtor at times other than 
the normal waking hours of such debtor, or if normal wak- 
ing hours are not known, at any time other than between 
8:00 A.M. and 9:00 P.M., provided however that in no 
event shall such visits, initiated by the creditor, exceed one 
in any thrity-day period for each debt, excluding visits 
where no person is contacted in the household, unless a 
debtor consents in writing to more frequent visits, provid- 
ed, further, that at all times the creditor must remain out- 
side the household unless expressly invited inside by such 
debtor; and provided further, that visits to the household 
of a debtor which are solely for the purpose of repossessing 
any collateral or property of the creditor (including but not 
limited to credit cards, drafts, notes or the like), are not 
limited under this division; 

(k) Visiting the place of employment of a debtor, unless re- 
quested by the debtor, excluding visits which are solely for 
the purpose of repossessing any collateral or property of 
the creditor, or confrontations with a debtor regarding the 
collection of a debt initiated by a creditor in a public place 
excluding courthouses, the creditor's place of business, 
other places agreed to by a debtor, offices of an attorney 
for the creditor, or places where the conversation between 
the creditor and debtor cannot be reasonably overheard by 
any other person not authorized by the debtor; 



P.D.12 61 



(1) Stating that the creditor will take any action, including 
legal action, which in fact is not taken or attempted on 
such debtor's account, unless an additional payment or a 
new agreement to pay has occured within the stated time 
period. For purposes of this division the time period in 
connection with such statement shall be presumed to expire 
14 days from the date the statement is made, unless other- 
wise indicated by the creditor; 

(2) Subject to applicable law, after notification from an at- 
torney for a debtor that all contacts relative to the par- 
ticular debt in question should be addressed to the at- 
torney, a creditor may contact the debtor only to perfect or 
preserve rights against the debtor or collateral securing the 
debt; 

(3) Divisions (j) and (1) of Subsection (1) and Subsection (2) 
of this section shall not apply to telephone, gas and electric 
utility companies regulated by Massachusetts General Laws, 
Chapter 164 and the Department of Public Utilities. 

7.05: Contact With Persons Residing In The Household 
Of A Debtor 

(1) It shall not constitute an unfair or deceptive act or prac- 
tice for a creditor to assume that all contacts directed to the 
debtor's household are received either by the debtor or per- 
sons residing in the household of the debtor unless the 
creditor knows or should know information to the con- 
trary. 

(2) It shall constitute an unfair or deceptive act or practice 
for a creditor to imply the fact of a debt, orally or in 
writing, to persons who reside in the household of a deb- 
tor, other than the debtor. 

(3) It shall constitute an unfair or deceptive act or practice 
for a creditor or debt collector to contact or threaten to 
contact persons who reside in the household of a debtor, 
other than the debtor, in any of the following ways: 

(a) Using profane or obscene language; 

(b) Placing telephone calls, disclosing the name of the 
business, or company of the creditor, unless the reci- 
pient expressly requests disclosure of the business or 
company name; 

(c) Causing expense to any person in the form of long 
distance telephone calls, or other similar charges; 

(d) Engaging any person in non-identifying communica- 
tion via telephone with such frequency as to be 
unreasonable or to constitute a harassment to such per- 
son under the circumstances, and engaging any person 
in communications via telephone, initiated by the 
creditor, in excess of two calls in each seven-day period 
at a debtor's residence and two calls in each thirty-day 
period other than at a debtor's residence, for each debt; 



62 P.D.12 



(e) Placing telephone calls at times known to be times other 
than the normal waking hours of the person called, or if 
normal waking hours are not known, at any time other 
than between 8:00 A.M. and 9:00 P.M.; 

(f) Visits to the place of employment of any person, 
unless requested by such person, or confrontations regar- 
ding the collection of a debt in a public place, excluding 
courthouses, the creditor's place of business, places agreed 
to by the person, offices of the person's attorney or of the 
attorney for the creditor or debtor, or places where the 
conversation between the creditor and such person cannot 
reasonably be overheard by anyone not authorized by such 
person; 

(g) Using language on printed or written materials, except 
materials enclosed in sealed envelopes, indicating or imply- 
ing that the communication relates to the collection of a 
debt, which in the normal course of business may be receiv- 
ed or examined by any such person residing in the 
household of a debtor. 

(4) Nothing in this section shall prohibit any contact re- 
quired by law to be made by a creditor or attorney acting 
on his behalf engaged in collection activities, including 
notices required prior or subsequent to repossession. 
7.06: Contact With Persons Other Than Debtors Or Persons 
Residing In The Household Of A Debtor 

(1) It shall constitute an unfair or deceptive act or practice 
for a creditor to contact or threaten to contact persons, 
other than the debtor and those residing in the household 
of the debtor, in any of the following ways: 

(a) Implying the fact of the debt to any such person; 

(b) Using language on envelopes indicating or implying 
that the contact relates to the collection of a debt; 

(c) Using language on any other printed or written 
materials, except materials enclosed in sealed envelopes, 
indicating or implying that the contact relates to the col- 
lection of a debt, which in the normal course of 
business, may be received or examined by persons other 
than the debtor. 

(2) The following contacts shall not be deemed unlawful: 

(a) Any contact with any such persons which results 
solely from efforts to contact the debtor at the debtor's 
place of residence or at places other than a debtor's 
residence pursuant to Division 7.04 (1)(0, provided the 
creditor limits the contact to disclosing only his personal 
name unless the recipient expressly requests the 
disclosure of the business or company name, provided, 
however, that any such individual using a personal 
name other than his own shall use only one such name at 
all times and provided that a mechanism is established 



P.D.12 63 



by such creditor to identify the person using such personal 
name; and provided further, that with respect to contacts 
made at the debtor's place of employment, the debtor has 
not made a request pursuant to Division 7.04 (l)(h) that 
such contact not be made. 

(b) Any contact with any such person made for the purpose 
of and limited to determining the current location of the 
debtor, provided the creditor, after making 

reasonable attempts to locate the debtor, does not have cor- 
rect information as to the debtor's current residence or 
location and provided further, that the creditor reasonably 
believes that the earlier response of such person, if any, is 
erroneous or incomplete and that such person now has cor- 
rect or complete locational information, and in no event 
shall such contacts exceed three per person contacted in any 
twelve-month period for each debt. The creditor in making 
said contacts may reveal only his personal name unless the 
recipient expressly requests the disclosure of the business or 
company name, provided, however, that any such in- 
dividual using a personal name other than his own shall use 
only one such personal name at all times and provided that 
a mechanism is established by such creditor to identify the 
person using such personal name. Any contacts at the deb- 
tor's place of employment, made pursuant to this division, 
shall be lawful, notwithstanding a request made by the deb- 
tor, pursuant to Division 7.04 (l)(h), that such contacts not 
be made. 

(c) Any contact with respect to such debt to any attorney or 
other person employing or employed by the creditor, or to 
any attorney employed by the debtor; to a consumer repor- 
ting agency; or, where there are actual negotiations or ar- 
rangements for assigning or purchasing or settling of ac- 
counts, to potential assignees or purchasers or the like; or 
to persons who have any interest in property securing all or 
part of the debt; or to any bona fide credit counseling 
agency not connected to the creditor and designated in 
writing by the debtor; 

(d) Any Communication of the fact of such debt by an at- 
torney involved in litigation in connection with such debt, 
or after a judgment on the debt has been entered by a court 
of competent jurisdiction; 

(e) Any contact required by law to be made by a creditor 
engaged in collection activities, including notices required 
prior or subsequent to repossession. 

7.07: General Deceptive Acts Or Practices 

It shall constitute a deceptive act or practice to engage in 
any of the following practices: 

(1) Any false representation that the creditor has informa- 
tion in his possession or something of value for the debtor; 



64 P.D.12 



(2) Any knowingly false or misleading representation in any 
communication as to the character, extent or amount of the 
debt, or as to its status in any legal proceeding, provided, 
however, that an incorrect or estimated bill submitted by a 
gas or electric utility company regulated by Chapter 164 of 
the Massachusetts General Laws, and the Department of 
Public Utilities shall not be prohibited by this Section; 

(3) Any false or misleading representation that a creditor is 
vouched for, bonded by, affiliated with, or is an instrumen- 
tality, agency, or official of the state, federal or local 
government; 

(4) Any false or misleading representation that a creditor is 
an attorney or any other officer of the court; 

(5) The use, distribution or sale of any written communica 
tion which simulates, or which is falsely represented to be, 
or which otherwise would reasonably create a false impres- 
sion that it was, a document authorized, issued or approved 
by a court, a government official or other governmental 
authority; 

(6) Any representation that an existing obligation of a deb- 
tor may be increased by the addition of the attorney's fees, 
investigation fees, service fees, or any other fees or charges, 
if in fact such fees or charges may not legally be added to 
the existing obligation; 

(7) Any solicitation or obtaining of any written statement 
or acknowledgement in any form containing an affirmation 
of any obligation by a debtor who has been adjudicated 
bankrupt, without clearly and conspicuously disclosing the 
nature and consequences of such affirmation. 

7.08: Inspection 

It shall constitute an unfair or deceptive act or practice 
for a creditor to fail to allow a debtor or an attorney for a 
debtor to inspect and copy the following materials regar- 
ding a debt during normal business hours of the creditor 
and upon notice given to such creditor not less than five 
business days preceding the scheduled inspection: 

(1) All papers or copies of papers in the possession of the 
creditor which bear the signature of the debtor and which 
concern the debt being collected; 

(2) A ledger, account card, or similar record in the posses- 
sion of a creditor which reflects the date and amount of 
payments, credits, and charges concerning the debt. 

7.09: Post Dated Checks 

It shall be an unfair or deceptive act or practice for a 
creditor to request or demand from a debtor a post dated 
check, draft, order for withdrawal or other similar instru 
ment in payment for the debt or any portion thereof, or for 
a creditor to negotiate such instrument before the due date 



P.D.12 65 



a creditor to negotiate such instrument before the due date 
of the instrument. 

7.10: Relation To Other Laws 

This chapter does not exempt any person from complying 
with existing laws or canons of ethics with respect to debt 
collection practices. To the extent that any provision of this 
chapter is specifically inconsistent with the Canons of 
Ethics and Disciplinary Rules Regulating the Practice of 
Law, as currently appearing in Supreme Judicial Court 
Rule 3:22 and then only to the extent of the inconsistency, 
this chapter is not applicable. 

7.11: Pre-emption By Federal Law 

In the event any conflict exists between the provisions of 
these regulations and the provisions of Federal statutes or 
regulation's relating to the collection of debts, such Federal 
law shall control but only to the extent that such Federal 
statutes or regulations relating to the collection of debts, 
such Federal law shall control but only to the extent that 
such Federal law mandates actions or procedures prohibited 
by these regulations. 

REGULATORY AUTHORITY 

940 CMR 7.00: M.G.L. c. 93A, §2(c). 

(940 CMR 8.00 - 940 CMR 15.00 are reserved for future 

consumer protection regulations). 

CIVIL RIGHTS AND LIBERTIES DIVISION 

A. Introduction 

The Civil Rights and Liberties Division operates to protect the civil rights 
and civil liberties of citizens in the Commonwealth. Specifically, the divi- 
sion initiates affirmative litigation on behalf of citizens, citizen groups, 
agencies and departments of the Commonwealth in matters involving con- 
stitutional protections, and defends government agencies in cases which 
raise constitutional issues. In addition, staff of the division advise the At- 
torney General of developments and issues in the area of civil rights, draft 
legislation, comment on agency regulations 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, pur- 
suant to the provisions of G.L. C.151B, §§5 and 9, to initiate complaints 
before the Massachusetts Commission Against Discrimination (MCAD), to 
represent that agency before trial and appellate courts when judicial review 
of MCAD decisions is sought, and to bring legal actions for violations of 
Chapter 151B in the Massachusetts Superior Court. 

In FY-79, the division was staffed by a Chief, six assistant attorneys 
general, one of whom directed the Women's Rights Unit and another of 
whom supervised a privacy and public records section, and appropriate sup- 
port personnel. In addition, the general counsel to the Security and Privacy 
Council was located physically within the division and was available for 
specific case assignments in areas consistent with her expertise. 



66 P.D.12 

II. Description of Activities 

Through Fiscal Year 1979, the activities of the division were catalogued 
according to the nature of the division's involvement in any one of several 
substantive areas involving the protection of civil rights and civil liberties. 

Activity was divided generally into litigation and non-litigation matters. 
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 ad- 
ministrative agency and included affirmative lawsuits or administrative 
matters initiated by the division in response to perceived patterns and prac- 
tices of discrimination. Such patterns were generally found to exist follow- 
ing self-initiated investigations or were brought to the division's attention 
through citizens' complaints. Non-litigation activities included cases dispos- 
ed of through preliminary negotiations or activities not of a litigation 
nature, such as drafting of legislation or position papers. Matters in which 
staff of the division were involved, whether through litigation or non- 
litigation, occurred in the following areas: 



1. 


Correctional/Youth Services 


2. 


Credit Discrimination 


3. 


Developmentally Disabled 


4. 


Equal Educational Opportunities 


5. 


Employment Discrimination 


6. 


Health 


7. 


Housing 


8. 


Privacy 


9. 


Public Accommmodation 


10. 


Public Records 


11. 


Voting Rights 


12. 


Farm Labor 



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

1 . CORRECTIONAL/YOUTH SER VICES 

Inmates of the John Connolly Detention Center v. Dukakis. 

In FY-79, we continued to represent the Department of Youth Services in 
this class action suit brought against the Department alleging unconstitu- 
tional conditions at the John Connolly Detention Center. After numerous 
hearings, the parties were able to negotiate a consent decree remedying the 
alleged abuses and providing the DYS with flexibility necessary to ad- 
minister the detention center. Ongoing monitoring continues. 
In re MCI Walpole. 

In October, 1977, we were asked by the Governor to investigate allega- 
tions of physical abuse and related matters at MCI Walpole. 

On February 21, 22 and 23, 1979, an attorney within the division, with an 
assistant district attorney from Norfolk County, presented information to a 
Norfolk County investigative grand jury concerning allegations of excessive 
use of force by the officers at Massachusetts Correctional Institute, 
Walpole. Several indictments were obtained against prisoners for acts of 
violence committed by them in a series of disturbances occurring in 



P.D.12 67 

September, 1978. 

2. CREDIT DISCRIMINATION 
Attorney General v. Standard Oil Co. 

In FY- 1978, a complaint was filed against Amoco Oil Company for 
discriminating against credit card applicants by "redlining" certain 
Massachusetts communities. The complaint alleges that Amoco penalizes 
all credit applications from residents of 36 Massachusetts zip code areas 
regardless of the personal qualifications of the applicants. The complaint 
alleges further that Amoco's practice is unfair to individuals and has a 
disproportionately heavy impact on black Massachusetts residents because 
the penalized zip code areas include most of the black neighborhood of 
Boston. 

3. DEVELOPMENTALLY DISABLED 
Ricci V. Greenblat 

With attorneys from the Government Bureau, we continue to represent 
the Department of Mental Health and other state defendants, in this suit 
challenging the conditions of the facility and the nature of care provided to 
mentally retarded residents at the Belchertown State School and four other 
state institutions for the mentally retarded. Efforts in fiscal year 1979 have 
concentrated on implementation of a consent decree and on continuation of 
the transition from an institution-based to a community-based 
delivery system. 
Architectural Barriers Board v. Clark 

This is a Superior Court action brought to require a shopping center to 
make its common area accessible to the physically handicapped. 
Guardianship of Bassett 

In Feburary, 1979, the Appeals Court upheld the authority of a Probate 
Court judge to order limited guardianship for a mentally retarded person. 
Architectural Barriers Board v. Maxwell Silverman's 

In February, 1979, a consent agreement was reached in this case brought 
in 1978 to compel a Worcester restaurant to provide access to the handicap- 
ped. As a result of the agreement, the restaurant is constructing a new addi- 
tion which will be modified to be fully accessible. 

A. EQUAL EDUCATIONAL OPPORTUNITIES 

Attorney General v. Massachusetts Interscholastic Athletic Association, 

Inc. 

On July 2, 1979, the Supreme Judicial Court issued its unanimous deci- 
sion in this case brought to enjoin the Association from enforcing its rule 
absolutely prohibiting any boy from playing on any girl's interscholastics 
athletic team. The Court held the rule invalid under the State Equal Rights 
Amendment and enjoined its enforcement. 
Department of Education v. New Bedford School Committee 

In FY-79, we continued to represent the Department of Education in this 
administrative action against the New Bedford School Committee for its 
failure to implement G.L. c. 71 A, the Transitional Bilingual Education Act. 
The suit's objective, filed in FY-78, was to ensure that every student within 



68 P.D.12 

the New Bedford School system had access to education in his or her 
primary language, 
Morgan v. McDonough 

In FY-79, we continued to represent the State Board of Education in the 
implementation of the United States District Court's decision and order re- 
quiring the establishment of a unified school system in the City of Boston. 
Ashbury v, Tri-County Regional School Committee 

Plaintiff sued, claiming religious objections, to have her son admitted to 
school without the required vaccination. School Committee chose not to 
contest the matter and the boy was admitted. 
Holyoke School Committee v. Bardige 

In this case, the Division of special Education has charged the School 
Committee and School Superintendent with discrimination against Black 
and Hispanic students in the special education program. Before a decision 
was rendered, the School Committee sought an injunction directing the 
Hearing Officer to prohibit intervenors from participating further and from 
considering the intervenors' testimony. After hearing, a Superior Court 
judge denied the injunction. 

5 . EMPL O YMENT DISCRIMINA TION 

Mary Day Fewlass v. Allyn and Bacon; Bette Bough ton v. Addison- Wesley 
and Katrina Richardson and Lynn Stevens v. 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, the cases were filed in the United States 
District Court. In FY-79, extensive discovery continued. A class has been 
certified in the Addison-Wesley case. 
Lie Detector Tests 

During the period of March through May, 1979, we settled a complaint 
against Quinlan Publishing Company and Addison Getchell Publishing 
Company, and complaints against two other Massachusetts corporations, 
alleging they had violated state law by requiring employees to take lie detec- 
tor tests. The companies agreed to void the tests, not to give any more, and 
to rehire employees terminated for refusal to take required tests. 
Maternity-Related Disability 

In FY-79, attorneys in the Division joined with others in the Public Pro- 
tection Bureau and, in one case, with the Massachusetts Commission 
Against Discrimination, to enforce women's rights to receive disability 
benefits for maternity related disabilities. Settlement agreements were sign- 
ed with dozens of employers, including major manufacturers, banks, in- 
surance companies, and retailers, among others. To date, over $400,000 in 
retroactive benefits has been paid. 

6. HEALTH 
Custody of a Minor 

In FY-79, we represented the Department of Welfare in the second trial 
and appeal of the Chad Green matter arguing that parents do not have the 
right to withhold necessary chemotheraphy for lymphocytic leukemia where 
chemotherapy has a strong likelihood of saving the child's life and no alter- 



P.D.12 69 



native therapy is offered. In the first appeal, the Supreme Judicial Court 
held that where parents seek to withhold necessary life-saving medical treat- 
ment from a child, the state, acting through the care and protection process, 
should intervene to protect the child. The Court concluded that parents can- 
not assert privacy interests on behalf of their children where to do so will 
lead to the death of the child. 

In January, 1979, we represented DPW in the second trial of the matter 
where the parents attempted to show that so-called "metabolic therapy" 
utilizing laetrile was a viable alternative therapy. Our evidence, introduced 
through expert witnesses and blood tests, demonstrated that Chad was suf- 
fering from chronic cyanide poisoning from laetrile and from hyper- 
vitaminosis A as a result of megadoses of vitamins. The Court agreed and 
ordered these substances not to be administered. In the meantime, the 
parents fled with the child to Mexico. They have been held in civil contempt 
and warrants have been issued. Their second appeal to the Supreme Judicial 
Court has been argued. 
Green v. Truman 

The Federal District Court granted our motion to dismiss efforts by the 
Greens challenging, in federal court, the first state court determination. 

Health Guardianship Cases 

We have filed numerous petitions in Probate Court seeking authorization 
for administration of various medical procedures under the Saikewicz doc- 
trine. 
Commissioner of Correction v. Myers 

This case, filed in December, 1978, was concerned with whether an in- 
mate who had received hemodialysis for one year could refuse the treatment 
in order to secure different security classification. We represented the 
treating physicians from the Department of Public HeaUh. The Superior 
Court ordered treatment and reported the case to the Supreme Judicial 
Court. 

Commonwealth v. Marmer 
Marmer v. Benedict 
Marmer v. Frechette 

In these three cases, we represent the Commonwealth in criminal matters 
and related civil matters challenging the Constitutionality of the childhood 
lead paint poisoning statute. The Superior Court has dismissed the 
landlord's attempted collateral attack on the criminal proceeding. 
The criminal appeal will be tried before a jury in August, 1979. 

United States v. Rutherford 

In March, 1979, on behalf of the Department of Public Welfare, we sub- 
mitted a brief to the United States Supreme Court as amicus curiae suppor- 
ting the Food and Drug Administration's ban on laetrile. Our argument 
discussed the medical dangers from cyanide poisoning in laetrile and the un- 
workability of any Umited exceptions to an absolute ban. 

In June, the United States Supreme Court reversed the decision of the 
United State Court of Appeals for the Tenth Circuit and upheld the Food 
and Drug Administration's ban on laetrile. 



70 P.D.12 

7. HOUSING 

Department of Community Affairs v. Massachusetts State College Building 

Authority 

In FY-79, the Supreme Judicial Court issued its opinion in this housing 
case declaring that the relocation assistance statute applies to the Authority. 
The Court significantly limited the autonomy claims of independent 
authorities and thus the decision will have significant impact on future 
regulation of quasi-independent authorities. 

Attorney General v. Orantes 

In FY-79, this suit alleging that defendant refused to sell an apartment 
house to interracial couple was settled favorably to plaintiff. 

Attorney General v. Wedgewood Realty 
Attorney General v. Liberty Real Estate Co. 
Attorney General v. Corcoran Management Co. 

In May, we filed three cases, two against Boston real estate firms and one 
against a large south shore developer, for discrimination against families 
with children in apartment rentals in violation of M.G.L.c. 151B §4 (11). 
Shortly after the cases were filed, two defendants agreed to a consent judg- 
ment. 

Attorney General v. Longfellow Management 

In a fourth case involving complaints of discrimination against famihes 
with children, we reached a settlement without the necessity of filing a for- 
mal complaint. 

In the Matter of Maverick Square Housing Project 

On April 10, 1979 two of three white co-defendants accused of setting fire 
to a black couple's apartment in this East Boston housing project pleaded 
guilty to arson and breaking and entering. This criminal prosecution follow- 
ed months of investigation by Boston Police and State Police attached to 
this Department and was accomplished in concert with an attorney from the 
Criminal Bureau. 

Attorney General v. Mariano and Pike Realty Company 

In February, a consent agreement was approved in this case brought to 
enjoin the defendants from blockbusting in the Hyde Park section of 
Boston. 

Classified Advertising of Residential Housing 

After an investigation of classified residential housing advertising in the 
Boston Globe, we obtained the voluntary agreement of the Globe to carry a 
public notice in its Sunday classified section that discrimination against 
families with children is unlawful. 

Anti-Snob Zoning 

The Division participated in negotiations between a non-profit developer, 
various state agencies and the Town of Saugus in efforts to ensure that the 
statutorily-granted appeal processes were not being used to frustrate the 
construction of low and moderate income housing. As a resuU of our in- 
tervention in this matter, the Town subsequently dropped its appeals and 
the housing is being constructed. 



P.D.12 71 

8. PRIVACY MATTERS 

New Bedford Standard Times v. Clerk of the Third District Court of Bristol 

In March, 1979, the Supreme Judicial Court reversed the Superior Court 
and upheld the validity of part of the Criminal Offender Record Informa- 
tion Act which limited public access to alphabetical indexes concerning 
criminal offenders. The Court upheld the privacy statute over objections 
that it violated the doctrine of separation of powers and the First Amend- 
ment guarantees of free press. 
Suffolk Franklin Savings Bank, et al. v. Commissioner of Banking 

This and related cases concerned the Commissioner of Bank's redlining 
study. Citizens groups and the Attorney General argued that the study 
should be made public. The banks sought to prevent its release. At the close 
of FY-79, discovery was continuing. 
Allston Finance Co. v. Commissioner of Banking 

The Superior Court granted our motion for Summary Judgment and 
upheld the Commissioner of Banking in this case involving the release of in- 
formation pertaining to an insurance premium finance agency. Plaintiff's 
appeal is pending. 
Swartz V. Department of Banking and Insurance 

In this case, the Supreme Judicial Court reversed the Superior Court and 
stated that a solo practitioner selling insurance could claim protection under 
the Fair Information Practices Act. 

Opinion of The Attorney General 

The Division drafted an opinion of the Attorney General to the Depart- 
ment of Public Health concerning aspects of the Proposed Management In- 
formation System for Alcoholism. 

9. PUBLIC ACCOMMODA TIONS 
U.S. Labor Party 

Upon complaint of this group that it was denied access to the public 
sidewalk and parking lot outside Registry of Motor Vehicles offices in 
Brockton and Quincy for purpose of leafletting and selling its newspapers, 
an agreement was reached that RMV officials would not deny access and 
that citizen harassment complaints against the group would be handled by 
the local police. 
Attorney General v. Sambo's Restaurants, Inc. 

In FY-79, this action to enjoin defendants from using the name "Sam- 
bo's" was filed in Superior Court under state laws prohibiting discrimina- 
tion in, and discriminatory advertising of, places of public accommodation. 
The Superior Court denied a preliminary injunction and discovery con- 
tinues. 
Sambo's of Massachusetts, Inc. v. Smith, et al. 

In March, an amicus memorandum was submitted in opposition to plain- 
tiff's motion for summary judgment. The memorandum addressed the 
issues of the power of the state to regulate the use of trade names; the 
breadth of the "public good" standard employed by licensing authorities; 
and the liability of public officials for damages. 



72 P.D.12 

10. PUBLIC RECORDS 

Attorney General v. Collector of Lynn 

The Supreme Judicial Court reversed the Superior Court, overturned its 
own 1945 decisions and declared that lists of delinquent property tax 
records are a public record. 
Cunningham v. Health officer of Chelsea 

The Appeals Court declared health inspection reports to be public 
records. 
Boston Globe v. Boston Retirement Board 

In March, 1979, we intervened in this case involving the issue of whether 
disability information is a public record. 

Attorney General v. Winchester School Committee 

This case involving the issue of whether the Supervisor of Public Records 
was correct in his ruling that Parent/Teacher Association evaluations of 
secondary school teachers were public records was settled after we sought to 
enforce the Supervisor's ruling. 

Attorney General v. Assistant Real Property Commissioner of Boston 

This case involves the issue of whether lists of the Mayor of Boston's long 
distance telephone calls are public. The Superior Court granted partial 
relief. Our appeal is pending. 

Martin v. Registrar of Motor Vehicles 

Upon our intervention on behalf of the Registrar of Motor Vehicles, a 
stipulation of dismissal was filed in this suit which sought disclosure of 
Registry reports of fatal accident. 

Crooker v. Commissioner of Probation 

This case, brought under the public records law, sought disclosure of 
records of an investigation by the Commissioner of Probation of a proba- 
tion officer who was charged with mishandling the cases of a prisoner. 
After an in camera inspection of the requested documents, a Superior Court 
Justice ruled that the records requested were exempted from disclosure 
under G.L. c. 4, §7 (26) (a) on the grounds that they were a report by a pro- 
bation officer to the Commissioner of Probation and because the 
documents contained CORI information about the prisoner. 
Attorney General v. Housing Rehabilitaion Committee of Leominster 

This public records and open meeting law case filed in March sought 
disclosure of names of recipients of housing rehabilitation subsidies. In 
June, summary judgment for the plaintiff was granted by the Superior 
Court. 

Francis X. Bellotti v. George Bennett 

This public records suit seeks to compel disclosure of the address of eligi- 
ble applicants for CETA public service employment jobs with the City of 
Boston. 

Attorney General v. Revere Housing Authority 

This case seeks to enforce a ruling of the Supervisor of Public Records 
that names of landlords receiving state funds from the Authority for rent 



P.D.12 73 

subsidies, and terms of leases between the Authority and landlords, are 
public records. 

11. VOTING RIGHTS 
Worcester Registrars of Voters 

Upon complaint of improper procedures by Worcester voting registrars, 
an agreement to conform to statutory registration procedures was 
negotiated. 

12. FARM LABOR 
Commonwealth v. Palumbo 

We brought three cases against persons employing farm laborers who had 
not obtained certificates of occupancy from the Department of Public 
Health. The Superior Court ordered compliance. 

13. OTHER MA TTERS 

Additional activities in FY-79 included the following: 

a. Substantial amendments to the mental health laws to provide 
necessary civil rights protections for women in the Worcester Intensive Care 
Unit were written with members of an advisory committee. 

b. Members of the division drafted a state civil rights bill which was filed 
with the legislature as part of the Attorney General's legislative package. 
The bill provides for private causes of action as well as suits for injunctive 
relief or criminal penalties initiated by the Attorney General. 

c. An attorney in the division has formulated and submitted a grant ap- 
plication for an arson program to be conducted from this Department in 
coordination with the Secretary of Public Safety and the state police. 

d. On June 5, an attorney in the division presented testimony in 
Washington, D.C., to a subcommittee of the U.S. Senate Banking Commit- 
tee on legislation to ban redlining in the provision of unsecured credit. Our 
testimony included the first statistical findings concerning the racial impact 
of credit card redlining practices and the first description of the weight of 
redlining in credit evaluations. 

e. On June 20,1979, written comments were filed with the Federal 
Reserve Board on proposals to amend sections of Regulation B as they app- 
ly to credit scoring systems. The Attorney General opposed those proposals 
that would effectively exempt creditors using scoring systems from the cur- 
rent requirements regarding the treatment of income from part-time 
employment, alimony, child support, public assistance, and social security 
or other retirement benefits. Other proposals commented upon were those 
concerning the applicatiions to credit scoring systems of Regulation B's re- 
quirement that applicants for credit be given specific reasons for adverse ac- 
tion by creditors. 

f . In FY-79, the Federal Reserve Board adopted a regulation we had sup- 
ported and on which we had filed written comment extending Regulation B 
to arrangers of credit such as real estate brokers and car dealers. 

g. In FY-79, comments were filed concerning the Department of Correc- 
tions' regulations regarding the use of force. 

h. In FY-79, comments were filed concerning the Department of Correc- 
tions' proposed regulations concerning visitation rights. 

i. Through informal negotiation, we clarified with the Massachusetts 



i 



74 P.D.12 



Department of Revenue that the common law rule that a married woman's 
domicile was that of her husband may not be used in determining residency 
for tax purposes. 

j. In April, we reviewed and commented on the State Office of Affir- 
mative Action's proposed revision of Executive Order No. 116. 

k. In June, a petition was filed with the Commisioner of Insurance re- 
questing promulgation of regulation requiring inclusion of benefits for 
pregnancy related disability in comprehensive employee disability insurance 
policies. 

1. On June 9, the Department co-sponsored a conference on women's 
issues in Worcester County. Approximately 280 women attended the one- 
half day conference which was held at the Worcester YMCA. Workshops 
were held on employment issues, finances, housing and governmental 
benefits, divorce and separation, patient rights and women and politics. 

m. In FY-79, a follow-up investigation of conditions was conducted at 
New Chardon Street, a D.P.W. shelter providing emergency housing for 
women and children. Conditions were found to have significantly improv- 
ed. 

n. Following passage of the Abuse Prevention Act in October, 1978, the 
Department sponsored a meeting for police departments, court clerks, and 
women's groups, to discuss the changes made by the new law. 

o. An attorney from the Division spoke to the American Bar Association 
Family Law Committee on medical consent issues. 

p. An attorney from the Division represented the Attorney General on 
the Criminal History Systems Board and the Committee on Criminal 
Justice. 

ENVIRONMENTAL PROTECTION DIVISION 

General Laws c.l2, §11D established the Environmental Protection Divi- 
sion. The Division is litigation counsel to the agencies of the Com- 
monwealth charged with protecting the environment, principally those 
within the Executive Office of Environmental Affairs. Cases handled on 
their behalf account for the bulk of the Division's work. The Division also 
represents the Energy Facilities Siting Council. In addition, the Division in- 
itiates cases on behalf of the Attorney General pursuant to the mandate of 
G.L. C.12, §11D, which authorizes the commencement of actions on behalf 
of the environment of the commonwealth in both judicial and ad- 
ministrative forms. 

As a result of its role in environmental enforcement (particularly enforce- 
ment of state and federal air and water pollution standards), the Division 
has been the recipient of substantial grant money from the United States 
Environmental Protection Agency. In fiscal year 1979, the Division received 
one hundred and seventy-five thousand dollars ($175,000.00) in such funds, 
which are used primarily for staffing. 

The Division's vigorous enforcement policy has included seeking 
monetary penalties (usually civil) in appropriate cases. During the fiscal 
year the Division obtained a total of approximately three hundred and 
seventy-thousand dollars ($370,000.00) in such penalties. 

At the end of the fiscal year, the Division was staffed by a Chief, seven 



P.D.12 75 

Assistant Attorneys General, a Wetlands Scientist and six secretaries. 

CATEGORIES 
AIR 

Air pollution cases are usually referred from the Department of En- 
vironmental Quality Engineering, Division of Air and Hazardous 
Materials, and involve violations of the state Air Pollution Regulations. 
The statutory authority is G.L. c.lll, §42. 
WATER 

Water Pollution cases are referred from the Division of Water Pollution 
Control. Most of these cases involve violations of discharge permits issued 
jointly by the Division of Water Pollution Control and the United States 
Environmental Protection Agency. Others seek to recover costs expended in 
cleaning up oil spills. The statutory authority is G.L. c.21, §§26-53. 
WETLANDS 

Wetlands cases are generally referred from the Department of En- 
vironmental Management, Wetlands Section or Department of En- 
vironmental Quality Engineering, Wetlands Divison. Others begin with 
citizen complaints. The cases fall into two categories: (1) those involving the 
permit program for ahering of wetlands under G.L. c. 131, §40 and (2) those 
challenging the development restrictions the state imposes on inland and 
coastal wetlands pursuant to G.L. c.l30, §105 and G.L. cl31, §40A. 
SOLID WASTE 

SoHd waste cases originate in the Department of Environmental Quality 
Engineering, Division of General Environmental Control. They involve the 
manner in which refuse is disposed and the enforcement of the state's 
sanitary landfill regulations. The statutory authority is G.L. c.lll, §150. 
HAZARDOUS WASTE 

Hazardous waste cases are referred by both the Division of Water Pollu- 
tion Control and the Department of Environmental Quality Engineering. 
They involve the transport and disposal of certain hazardous substances in 
violation of state regulations. The statutory authority is G.L. c. 21 , §§57-58. 
BILLBOARD 

Billboard cases are referred from the Outdoor Advertising Board. A ma- 
jority are defenses to petitions for judicial review of decisions of the Out- 
door Advertising Board. The statutory authority is G.L. c.93, §§29-33 
OTHERS 

A number of the cases handled by the Division do not fall into any of the 
above categories. Some of them involve representation of state agencies, for 
example, the defenses, in federal court, of the Massachusetts Coastal Zone 
Management Program and the Energy Facilities Siting Council. Others are 
brought pursuant to the Attorney General's statutory authority to prevent 
environmental damage. These are frequently in areas of broad concern, 
such as energy policy, the siting of nuclear facilities and the interpretation 
of state and federal environmental statutes. They involve the initiation of or 
intervention in proceedings in a variety of forums, judicial and ad- 
ministrative, state and federal. 



76 P.D.12 



SPECIFIC SIGNIFICANT CASES 

Following are brief descriptions of several of the most significant cases 
the Division handled during the past fiscal year. 

Cassidy v. Kendall - The Division successfully defended the first serious 
attack on the commonwealth's wetland restriction program. In Febuary of 
1978 two landowners in Millis obtained an injunction against Department 
of Environmental Management enforcement of that portion of the Millis 
restriction order applying to their land, and in May they obtained an injunc- 
tion against operation of the program throughout the state. Relief from 
both injunctions was sought in the Appeals Court, and in August Judge 
Brown vacated the state-wide injunction; with respect to the first injunc- 
tion he reserved and reported eight questions to the full court. Among the 
questions reported were: 1) whether the Millis restriction order constituted a 
taking without compensation, 2) whether the mapping and boundary 
delineation techniques employed by DEM described with sufficient par- 
ticularity the land being restricted, 3) whether DEM's landowner notification 
procedures violated due process and 4) whether the order issued complied 
with the enabling legislation. After hearing oral argument, the Appeals 
Court panel returned the matter to Judge Brown, who wrote an extensive 
opinion upholding the DEM position on all questions but that concerning 
mapping, which he did not reach because of an insufficient record. The 
original injunction was ordered vacated, and the matter returned to the 
Superior Court for further proceedings. 
Department of Environmental Quality Engineering v. Town of Manchester 

This case marked the first use of an innovative technique for the applica- 
tion of fines to the solution of environmental problems. The Division had 
filed a Petition for Contempt for violation of a judgment which required 
the Town to bring its sanitary landfill into compliance with the Depart- 
ment's regulations. After trial the court ordered the town to pay a civil 
penalty of $30,000 for its violation of the judgment. At the Division's sug- 
gestion, the order directed the Department and the Attorney General to 
solicit proposals for projects designed to enhance or restore the natural 
resources of the Commonwealth from cities, towns and non-profit 
organizations. The Court will then select projects to receive grants from the 
penalty fund. 

Division of Water Pollution Control v. Charles F. Redler 

The defendant was convicted on two counts of violating the 
Massachusetts Clean Waters Act for discharging waste motor oil from a 
garage in Kingston into a tributary of the Jones River and fined $4,500. 
This was the Division's first criminal prosecution under the Act. 
Attorney General v. Kingston Steel Barrel Company 

Acting on information supplied by an informant, the Division, in con- 
junction with the M.D.C., apprehended an employee of the defendant cor- 
poration as he was about to empty the contents of a tank truck into an 
M.D.C. sanitary sewer. The tank contained highly toxic chemical residue 
from recycled 50-gallon steel drums. The sewer into which the discharge was 
attempted empties into Boston Harbor from the Deer Island Treatment 
Plant. The corporation pled guilty to one count of violating the 
Massachusetts Clean Water Act and agreed to pay a total penalty of 
$20,000. 



P.D.12 77 

Medical Area Total Engergy Plant v. Department of Environmental Quality 
Enginering 

In a significant victory for the commonwealth's air pollution regulations, 
the Division successfully defended a challenge by a consortium of hospitals 
to DEQE's authority to prevent construction of a disapproved plant. The 
plaintiff argued, in effect, that so long as it did not operate the plant, it was 
free to construct it in spite of DEQE's disapproval. 
Massachusetts, et al. v. Andrus, et al. 

The Division has continued its involvement in the litigation surrounding 
the possible leasing of tracts for oil and gas exploration on Georges Bank. 
Our objective is to ensure that, if drilling occurs, it does not jeopardize 
other economically valuable activities, particularly the billion dollar a year 
fishing industry. 

After obtaining a preliminary injunction if federal district court halting 
the lease sale in January 1978 and successfully opposing a motion for stay in 
the First Circuit, the Division argued the appeal. In February 1979 the First 
Circuit, the Division argued the appeal. In February 1979 the First Circuit 
vacated the injunction on the ground that there was no longer a scheduled 
lease sale. The court suggested, however, that the environmental impact 
statement was inadequate and that it should be redone before any further 
lease sale was attempted. 

The Department of Interior is redrafting the EIS, and the Division is 
monitoring the results. In addition, we are watching closely Interior's 
response to the nomination of Georges Bank as a marine sanctury. Marine 
sanctuary designation would assure that all activity, including oil and gas 
American Petroleum Institute v. Knecht 

The oil industry filed suit in federal district court in Washington to pre- 
vent the Department of Commerce from approving Massachusetts' Coastal 
Zone Management Program. The Division intervened on behalf of the Pro- 
gram. After hearing, the court dismissed the suit on the grounds advanced 
by the Division-that the palintiffs lacked standing and the issues were not 
ripOe. The case is on appeal, but the program is fully in operation. 
Pilgrim 2 Nuclear Power Plant 

The Division has continued its participation in the NRC licensing hear- 
ings for construction of the Pilgrim Unit 2 in Plymouth. Our overriding 
concern is that, if and when the plant is built, there has been adequate 
assurance that Massachusetts' citizens can be protected from serious harm. 
In response to 1978 decisions of the NRC Licensing and Appeal Boards, the 
NRC staff issued a new environmental impact statement on alternative 
sites. The Division filed extensive comments on the draft statement with 
respect to the staff's methodology and its treatment of population densities 
and accident risks. We also introduced a new contention in the hearings on 
evacuation and emergency planning. 
New Jersey v. EPA 

We have intervened in an action brought by the state of New Jersey in the 
Court of Appeals for the District of Columbia Circuit challenging EPA's 
attainment status desinations with respect to photochemical oxidents. 



78 P.D.12 



(ozone). EPA has determined that most of the northeast quadrant of the 
country, including Massachusetts, is in violation of the national standard 
for ozone. The rest of the country was found to be in attainment or 
"unclassifiable", in spite of considerable evidence that virtually all of the 
United States east of the Mississippi experiences frequent violations of the 
ozone standard. Ozone can be transported hundreds of miles beyond its 
point of origin, and much of the northeast's ozone pollution problem can 
be traced to these other states. The purpose of the suit is to force correction 
of the erroneous designations. Without such correction, those states cur- 
rently designated as in attainment or unclassifiable with respect to ozone 
will not have to adopt the stringent pollution control measures mandated by 
the Clean Air Act. This would have two serious consequences for 
Massachusetts. First it will make it much more difficult for the northeastern 
states to acheive compliance with national standards. Second, it will place 
us at acompetitive disadvantage since industry will tend to migrate out of 
the northeast into those areas where pollution abatement is not required. 
The case has been briefed, and we are awaiting oral argument. 
Red Line Alert, et al. v. 
Brock Adams, et al. 

This was an action brought by community organizations in Cambridge to 
enjoin further construction of the Red Line subway extension. The exten- 
sion will provide rapid-transit access to downtown Boston for thousands of 
additional suburban commuters. Its construction is probably the largest 
public works project going on in the commonwealth. The Division 
represented the Executive Office of Transportation and Construction. 

The plaintiff's motion for preliminary injunction was heard before a 
magistrate in federal district court, who recommended that it be denied. 
The court has not yet acted on the magistrates's report. 
Department of Environmental Quality Engineering 

V. Westport Sand & Gravel Corporation - This action, under the 
Massachusetts Clean Air Act, sought to compel the defendant to install 
noise abatement devices on its rock-crushing equipment. Noise pollution is 
a new field in environmental regulation, one that will become increasingly 
important. As a result of negotiations, the defendant agreed to install the 
equipment and to pay damages in the amount of $5,000.00 
Division of Water Pollution Control v. James River, 
Massachusetts - For improper sludge disposal, the defendant agreed to pay 
a civil penalty of $97,000, immediately cease its discharges and develop ac- 
ceptable plans for future sludge handling. 
Division of Water Pollution Control v. City of Gloucester - 

After protracted negotiations, the city has committed itself to a long term 
pollution abatement program that includes construction of a wastewater 
treatment plant in Gloucester Harbor and the sewering of a number of 
outlying districts that are currently discharging directly into the Atlantic 
Ocean, 

City of Lynn v. Division of Water Pollution Control - The city agreed to 
remedy the chronically sub-standard quality of its drinking water by taking 
certain interim measures, constructing a $15,000,000 treatment plant and 



P.D.12 79 

replacing or relining all of its water delivery pipes. 
Division of Water Pollution Control v. Town of Shrewsbury and 
Division of Water Pollution Control v. Town of Westboro - These two 
towns were referred to the Division for failure to construct a joint treatment 
plant as called for in their respective facilities plans. They have been feuding 
for years over governance of the plant, but after our intervention and chair- 
ing of a series of meetings an agreement was reached that has subsequently 
been ratified by both town meetings. 

STATISTICS 

Cases opened in Fiscal Year 1979, by category 

AIR 5 

WATER 37 

WETLANDS 30 

SOLID WASTE 27 

BILLBOARDS 21 

MISCELLANEOUS 5 

TOTAL 125 



Cases closed in Fiscal Year 1979, 


by category: 




AIR 




5 


WATER 




20 


WETLANDS 




13 


SOLID WASTE 




8 


BILLBOARDS 




6 


MISCELLANEOUS 




9 


TOTAL 




61 



INSURANCE DIVISION 

During 1978-1979, the Insurance Division expanded its legal staff to four 
lawyers. The Divsion concentrated its efforts primarily on automobile and 
health insurance. In these areas the Division intervened in various ad- 
ministative rate proceedings and initiated a number of actions under 
Chapter 93A. 

93A cases: In separate automobile and health insurance cases commenced 
under Chapter 93A, the Division recovered approximately $250,000 in 
restitution for consumers in 1978-1979. In addition, we have secured rights 
by way of assignment of commissions or agency sale proceeds to an addi- 
tional $100,000. These cases have involved overcharges on automobile in- 
surance to the elderly. 

Rate proceedings: In the area of automobile rates, the Division played a 
prominent role as an intervenor in hearings to fix and establish 1979 rates. 
The hearing consumed sixteen days, and resulted in a 2^o reduction in the 
average statewide premium. In the Spring of 1979, the Commissioner decid- 
ed, primarily on the basis of evidence presented by the Insurance Division, 
to fix and establish rates for 1980. During 1978-79, the Division also com- 
mented on rules promulgated by the Commissioner of Insurance governing 
the Massachusetts Motor Vehicle Reinsurance Facility; and participated in 
the rate hearing before the Insurance Premium Finance Board. 

In the area of health insurance, the Insurance Division played a major role 



80 



P.D.12 



in hearings which considered the approval by the Commissioner of In- 
surance of the method of compensation utiHzed by Massachusetts Blue 
Shield to compensate positions providers. In addition, the Division com- 
mented on regulations proposed by the Commissioner of Insurance govern- 
ing the content and marketing of health and accident insurance sold to the 
elderly. 





INSURANCE 








93A CASES 










RESTITUTION 


FUTURE 


COUNTY/ 


CASENAME 


DISPOSITION 


RECOVERED 


SECURITY 


COURT 


Automobile Insurance 










1. Commonwealth v. 


Consent 


$84,00.00 


$4,000.00 


Norfolk 


Brookfield Insur- 


Judgment 








ance Agency 










2. Commonwealth v. 


Consent 


7,195.75 




Hampden 


Belmar Insurance 


Judgment 








Agency 










3. Commonwealth v. 


In Litigation 


19,000.00 




Worcester 


Mainstreet Insur- 










ance Agency 










4. Commonwealth v. 


In Litigation 




19,000.00 


Suffolk 


E.J. Bruce Insur- 










ance Agency 










5. Commonwealth v. 


Consent 


2,605.00 




Middlesex 


J.J. Bodner Insur- 


Judgment 








ance Agency 










6. Commonwealth v. 


Consent 


10,000.00 


(approx.) 


Suffolk 


Rock Insurance 


Judgment 




30,000.00 




7. Commonwealth v. 


Consent 




(approx.) 


Hampden 


TKO Insurance 


Judgment 




25.000.00 




Agency - Holyoke 










8. Commonwealth v. 


Consent 




(approx.) 


Hampden 


TKO Insurance 


Judgment 




35,000.00 




Agency (expected) 










in December, 










1978) 






1 




9. Commonwealth v. 


In Litigation 






Hampden 


Cross Country 










Motor Club, Inc. 










10. Commonwealth v. 


In Litigation 






Middlesex 


Peter Scribner 










Insurance Agency 










11. Commonwealth v. 


In Litigation 








Calianos 










In surance 










Agency 










Health Insurance 










Commonwealth v. 


In Litigation 






Hampden 


Marquis Insurance 










Agency 










Commonwealth v. 


In Litigation 






Suffolk 


Travelers, et al. 










Miscellaneous 










Commonwealth v. 


In Litigation 






Middlesex 


Standard Indem- 










nity 











P.D. 81 

PUBLIC CHARITIES DIVISION 

During the past fiscal year, we have developed a system for dealing with 
the large volume of paper work that the Division handles. The staff has 
transferred the file of nearly 13,000 charities from an alphabetic to a 
numeric system to enable the files to be more easily retrieved. This task en- 
tailed a complete review of the contents of each file. 

In conjunction with this effort, each registered charity was entered on the 
computer. To date, the Division has received alphabetic and numeric print- 
outs laying the foundation for developing a system to analyze pertinent 
financial data and locate delinquent charities. (See Attachment I for 
statistics involving public charity filing). 

The division has also been involved in 18 affirmative litigation cases (see 
Attachment II) as well as 195 probate cases. Many of the affirmative litiga- 
tion cases raise important issues such as the application of the first amend- 
ment to religious charities and the fiduciary responsibility of corporate 
directors. 

We have undertaken two projects utilizing information to maximize the 
effect of funds donated for public charitable use. 

1) An effort to identify sources of private aid for per- 
sons and families who may need fuel assistance this 
winter has been initiated. Thus far this has entailed 
meeting with representatives of private philanthropy 
to discuss strategy as well as research, using the Divi- 
sion's records, into possible untapped charitable funds 
as well as existing available funds for this purpose. 

2) The Division has begun a series of inquiries directed 
to the charitable trust funds held by the cities and 
towns of the Commonwealth. Issues concern trust 
restriction and guidelines for distribution. 

I . Probate Matters & Cases 

In addition to the cases specifically mentioned above, the Division 
regularly handles numerous "probate" matters relating to preservation of 
charitable interests. This year we have been involved in over 5, 261 actions. 
These include allowance of wills, fiduciary accountings and various peti- 
tions as well as suits in which the Attorney General is named a party in order 
to protect charitable interests. (See Attachment III). 

II. Fees and Escheats Collected during the Fiscal Year 

Pursuant to Mass. G.L. c68, §19 and c.l2, §8F the Attorney General col- 
lects fees for the filing of annual financial reports and for issuing cer- 
tificates for solicitation. 

Total fees of +111,427 were collected from July 1, 1978 to June 30, 1979. 
(See Attachment I). 

Total escheats received from public administrations during the same 
period were $192, 416.62. (See Attachment IV). 



82 



P.D.12 



ATTACHMENT I 
FORM PC ST A TISTICS 

1st Quarter - July 1, 1978 through September 30, 1978 
15.00 Fee 1,918 $ 28,770.00 

3,520.00 



10.00 Fee 
3.00 Fee 
4.20 Fee 



352 
45 
16 



135.00 

67.20 

32,492,20 



2nd Quarter - October 1, 1978 through December 30, 1978 

$ 15.00 Fee 1,972 $ 29,580.00 

10.00 Fee 448 4,480.00 

3.00 Fee 9 27.00 

4.20 Fee 3 12.60 

$ 34,099.60 

3rd Quarter - January 1, 1979 through March 30, 1979 



15.00 Fee 1,194 $ 
10.00 Fee 257 
3,00 Fee 38 
4.20 Fee 1 

$ 


17,910.00 

2,570.00 

114.00 

4.20 

20,598.20 


4th Quarter - April 1, 1979 through June 30, 1979 
15.00 Fee 1,448 $ 21,720.00 
10.00 Fee 249 2,490.00 

3.00 Fee 9 27.00 

4.20 Fee 

$ 24,237.00 


BREAKDOWN 




^otal 

$ 15.00 Fee 6532 $ 
10.00 Fee 1306 
3.00 Fee 101 
4.20 Fee 20 


97,980.00 

13,060.00 

303.00 

84.00 


PC GRAND TOTAL $ 


111,427.00 



ATTACHMENT II 
I. AFFIRMATIVE ACTION CASES: 
A. Opened and/or Pending at Fiscal Year End - Total 6 

Bellotti V. Christian Broadcasting Network 
Suffolk Probate Court No. 27644 

Suit to require registration and filing of financial statements. Defendant 
claims statutory exemption and constitutional protection as a religious 
organization. 

Bellotti V. Aids to Community, Inc. 
Supreme Judicial Court 

Suit to dissolve 32 charitable corporations for failure to file annual finan- 
cial reports. 

Bellotti V. Silver 

Suffolk Superior Court No. 31575 

Suit to invalidate mortgage of and transfer of charitable corporation's 
assets to private persons contrary to corporate powers and purposes. State 
action in abeyance pending Federal bankruptcy proceeding. 



P.D.12 83 

Bellotti V. Hippocrates Health Institute 
Suffolk Superior Court No. 31736 

Suit to compel defendant to register and file annual financial reports, to 
refund tuition charges and to cease offering or advertising certain courses of 
study without Department of Education license. Consent judgment entered. 

Bellotti V. Star Island Corporation 
Suffolk Superior Court No. 27645 

Suit to compel filing annual financial report. Defendant argued that it 
was entitled to a statutory religious exemption and constitutional protec- 
tion. The Court granted defendant's Motion for Summary Judgment. 

Bellotti V. World Changers, Inc. 
Suffolk Superior Court No. 25343 

Suit to restrain solicitation in Massachusetts where defendant not proper- 
ly registered. Consent judgment entered. 

Bellotti V. Torch Products, Inc. 
Suffolk Superior Court No. 

Consent judgment entered requiring Torch Products to disclose profit- 
making status in sales and advertising of household products. 

Bellotti V. Richard E. Byrd, Jr. et al 
Suffolk Probate Court ko. 

Suit to remove trustees for breach of fiduciary duty. Agree judgment 
entered. 

Bellotti V. Boston Mental Health Foundation, Inc. 
Suffolk Probate 1574 

Suit filed to investigate the financial activities of defendant. After 
reaching agreement regarding items of information which would become 
public records, the defendant voluntarily allowed Division to examine all its 
books and records. The Division determined that there was no misuse of 
funds. Case dismissed. 

Bellotti V. Swedish Mission Fund 
Suffolk Probate 1703 

Suit filed to investigate activities of defendant and require defendant to 
file an accounting. Case was settled and suit dismissed. 

Bellotti V. Mary Brooks School, Inc. et al. 
Suffolk Superior Court 33 763 

Suit filed seeking to hold directors personally liable for property taxes in- 
curred by School as a result of director's failure to use property as a school 
or dispose of property. School merged with another school and directors 
paid one-half of outstanding taxes owed. Consent judgment entered. 

Bellotti V. Roger Slawson (3 cases) 

Hampshire Probate Court Nos. C.A. 247, 248, 249 

Suit to hold defendant in contempt for failure to file accountings for 3 
public administration estates. Subsequently, defendant did file accounts. 
Suit dismissed with an award of costs to the Attorney General. 



84 P.D.12 

II. Significant Cases to Which Attorney General was Named 

as Necessary Party - 

State Street Bank v. F.X. Bellotti et al 

SJC 79-25 

Complaint for instructions. Plaintiff is trustee u/will of Charles Farn- 
sworth who died leaving funds in 3 trusts. Income from the trusts was paid 
to a life tenant and, upon her death, all funds were to be used to construct 
and maintain a home for aged people in the Boston area. 

On the death of the life tenant, the trust had a value of approximately $6 
million. After consulting with the Attorney General, the trustee petitioned 
the Court seeking permission to use a portion of the Trust to construct 
model congregate housing for the elderly, the remainder of the funds to be 
invested with income to be used to provide assistance to the elderly. 

Fitzgerald et al v. FXB 

Worcester Probate Court No. 1426 

Complaint for Instructions brought by Trustees of Worcester Public 
Library seeking permission to sell manuscripts and anatomical drawings 
valued at $1 million. The materials were part of a restricted gift to Library 
made is 1858. The Court determined that the Library could sell the 
materials. 

Boston V. A ttorney General et al 

Supreme Judicial Court no. 79-155 

Suit by the Mayor and the City of Boston against the Attorney General 
and the Trustees of the Boston Athenaeum seeking the Court's declaration 
that the Gilbert Stuart portraits of George and Martha Washington were 
held by the Athenaeum in trust for the City. Extensive research was done on 
standing issue, since only the Attorney General has standing to sue on 
behalf of the public to enforce charitable trusts. Investigation was made in- 
to whether a trust was created by acquisition of the portraits. After con- 
siderable publicity, the City dismissed its action and the trustees agreed to 
attempt fund-raising to retain the portraits and reiterated their agreement to 
inform the Attorney General of and seek court approval for any transfer of 
the portraits. 

Kid well V. Rich 

Plymouth Superior Court No. 77-5920 

The Attorney General participated in extensive Master's hearings regar- 
ding the validity of certain mortgages executed by a church minister without 
authorization from his congregation. The Attorney General also filed a 
cross-claim against the Shawmut First County Bank as constructive trustee 
of certain funds pledged by the minister in derogation of restricted trust 
uses. 

Chase v. Peavear 

Essex Probate Court No. 282207 

Suit involving accounts of trustee of charitable remainder trust. Issues 
concern prudence of investments and amount of trustee fees. Extensive 
master's hearings were held as well as considerable court involvement in 
hearings regarding the Master's report and applications for fees by various 
counsel. 



P.D.12 85 

ATTACHMENT III 
TOTAL STATISTICS 

WILLS: 1,391 

ACCOUNTS: 

Trustee 2,334 

Executor 676 

Administrator 48 

Conservator 80 

Guardianship 14 

PETITIONS: 

Trustee appointment 39 

Real Estate 90 

Miscellaneous 74 

NO INTEREST: 273 

No //e;>5 25 

REFERRALS: 22 

NfH^ C/ISES; 100 

rO 7>4 L CASE A CTIONS: 1 95 

^New and Pending) 

ATTACHMENT IV 
PUBLIC ADMINISTRA TION ESCHEA TS 



1st Quarter 


18 Estates 




$ 39,105.61 


2nd Quarter 


25 Estates 




53,559.21 


3rd Quarter 


11 Estates 




25,119.43 


4th Quarter 


28 Estates 




74,632.37 




82 TOTAL 




$192,416.62 




NEW PUBLIC ADMINISTRA TION ESTA TES 




1st Quarter 


45 






2nd Quarter 


45 






3rd Quarter 


40 






4th Quarter 


43 
173 






CLOSED PUBLIC ADMINISTRA TION ESTA TES 




Without 


With 






Escheat 


Escheat 


Total 


Ist Quarter 


32 


18 


50 


2nd Quarter 


37 


25 


62 


3rd Quarter 


23 


11 


34 


4th Quarter 


35 


28 


63 




127 


82 


209 



UTILITIES DIVISION 

The Utilities Division represents the public interest pursuant to G.L. 
C.12, §11E in administrative and judicial proceedings affecting electric, gas, 
and telephone rates. The Utilities Division employs a staff of seven lawyers, 
one accountant, two utility rate analysts, one grant coordinator, and three 
secretaries. The Utilities Division continued its past practice of appearing in 



86 P.D.12 



every utility proceeding of importance to the Massachusetts consumer in the 
past year. 

A summary of cases handled by the Utilities Division follows. First, the 
Division represented the public in every electric and gas rate case before the 
Department of Public Utilities (D.P.U.) in the past year, a total of 13 rate 
cases. Of the approximately $180 million requested in these cases, the 
Utilities Division was successful in arguing reductions of over $100 million. 
Second, the Division continued its representation of the public in the three 
adjudicatory proceedings before the D.P.U. which are controlling the in- 
stallation of time-of-use (or peak-load) rates, an important reform which 
will resuh in significant long-run savings to the Massachusetts consumer. 
Third, the Division represented the public interest in various proceedings in- 
volving nuclear power plants: the hearings before the Atomic Safety and 
Licensing Board of the United States Nuclear Regulatory Commission con- 
cerning the licensing of Pilgrim II, the hearings before the D.P.U. on the 
propriety of the construction of Pilgrim II, and the hearings before the 
D.P.U. of the propriety of purchases by Massachusetts utilities of increased 
shares in Seabrook I & II. Fourth, the Division represented the pubUc in- 
terest before the Energy facilities Siting Council in its review of all of the 
electric utility companies' long-range energy and demand forecasts. Fifth, 
the Division participated in a wide range of additional cases involving utility 
issues: a petition to the U.S. Securities and Exchange Commission concern- 
ing two gas companies' holding company structure, various appeals from 
regulatory decisions of administrative agencies, an action before the U.S. 
Supreme Court to attempt to invalidate a Louisiana tax on natural gas, and 
several financing approval cases before the D.P.U. 

In sum, the Utilities Division continues to operate as the major, and in 
most cases the only, representative of public interest in utility matters affec- 
ting Massachusetts citizens. Its statutory budget of $250,000 pursuant to 
G.L. c.12, §11E has recently been supplemented by a United States Depart- 
ment of Energy grant of approximately $200,000, which has permitted the 
employment of additional professional personnel and which has also per- 
mitted the making of sub-grants to Massachusetts consumer groups who 
have advocated additional points of view in utility proceedings. 



V. ELECTIONS DIVISION 

A. CAMPAIGN AND POLITICAL FINANCE. 

The primary responsiblity of the Elections Division is to oversee the in- 
vestigation and prosecution of violations of the Commonwealth's election 
laws. 

Under statutory mandate (G.L. c.55) the Division is directly engaged in 
the enforcement of laws pertaining to campaign and political finance. In 
fiscal 1979 the Office of Campaign and Political Finance alone reported 178 
disclosure reports. Compliance with the statute was affected in 153 in- 
stances by administrative action, and in 16 instances by the institution of 
civil litigation. There are currently 9 such suits in litigation. In addition a 



P.D.12 87 

substantial number of required filings by local candidates was affected 
upon reports of violations to the Division by city and town clerks. 

B. LOBBYISTS. 

The Elections Division also enforces the statue requiring legislative agents 
and their employers to file financial disclosure statements with the Office of 
the Secretary of the Commonwealth. (G.L. c.3, §§43, 44, 47). In fiscal year 
1979, 17 violations of that section were reported by the Secretary. As a 
result of administrative action by this Division, the require statements were 
filed by all reported violators. 

C. 1978 STATE ELECTION AND PRIMARY. 

During the period encompassing the 1978 biennial state and primary elec- 
tions, the Elections Division was extremely active in the defense of 
challenges to various state election laws and to the decisions of state election 
officials. Over a half-dozen separate attempts to enjoin the state primary 
and general elections were successfully opposed in both state and federal 
courts, while the validity of statues pertaining to the position of candidates 
names on the state ballot and entitlement of candidates to public campaign 
financing were upheld in DeCara v. Guzzi, and Crampton v. Guzzi. Also of 
note is Farland v. Guzzi, which upheld the use of voting machines against a 
challenge that they imposed an unconstitutional impediment to write-in 
candidates. In all, the Division successfully represented the Secretary of the 
Commonwealth and the State Ballot Law Commission in 22 lawsuits during 
that period alone. 

D. INITIATIVES. 

The Division recieved and processed eight initiative petitions during the 
August 1978 filing period. Currently, it represents the Senate Clerk in King 

V. O'Neil, a suit challenging legislative proceedings during consideration of 
an amendment to State Constitution proposed by iniative petition. 

E. OPEN MEETING LAW. 

Enforcement of the "Open meeting law" at the state level, both ad- 
minstratively and through litigation is another important responsibility of 
the Elections Division. In that area, Bellotti v. Andrade, a case before the 
State Appeals Court, is noteworthy for clarifying what is permissible in the 
conduct of collective bargaining sessions vis-a-vis the open meeting law. 

VI. VETERANS DIVISION 

The Veterans Division continues to function primarily as an informa- 
tional agency, referring private citizens to appropriate federal and state of- 
ficials and agencies regarding veterans' benefits. The Division also provides 
counsel to the Commissioner of Veterans Services and the Veterans Affairs 
Division of the Department of the Treasury. 

The Division is presently involved in a number of cases pending before 
various State and Federal courts. The most noteworthy of these cases - 
Feeney v. Dukakis, an appeal to the United States Supreme Court from a 
decision of the Federal District Court ruling that the Massachusetts 
Veterans' Preference laws are unconstitutional. The United States Supreme 
Court reversed the Federal District Court and found that the Veterans' 
Preference law was constitutional. Pending in the United States 



88 P.D.12 

District Court are the cases oi Reynolds v. Dukakis, challenging the exclu- 
sion of conscientous objectors from state veterans' benefits and Houle v. 
Veterans' Commissioner, Governor, and Executive Council, claiming that 
veterans' hearings before state agencies do not conform with due process. 
A Hard v. Governor, et ai, is pending in the state superior court claiming 
that certain regulations of the Commissioner of Veterans' Services are in- 
valid. Pelargaino v. Commissioner of Veterans' Services and Sanastano v. 
Civil Service Commissioner, are cases assigned to the Division in the state 
superior courts involving the eligibility of individual plaintiffs for state 
veterans' benefits. 

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

VII. SPRINGFIELD OFFICE 

The primary function of the Springfield Office of the Department of the 
Attorney General is to handle all matters of concern to the Attorney 
General in Hampden, Hampshire, Franklin, and Berkshire counties. To that 
end, the office in Fiscal year 1978-79 handled all division references and re- 
quests for assistance pertaining to Eminent Domain, Criminal, Torts, Con- 
tracts, Collection, Public Charities Victim of Violent Crime, and election 
law cases in the four western counties. Only consumer protection matters 
originate in the Springfield Office. 

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

During the fiscal year the Springield Office was responsible for 10 Emi- 
nent Domain cases, 27 Victim of Violent Crime cases, 16 Tort matters, 18 
Collection matters and 5 Administrative cases. The actual number of mat- 
ters handled for the Government Bureau is difficult to determine 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 
with out actually handUng the entire case. 

The Consumer Protection Section of the Springeld Office continued to 
actively pursue enforcement of consumer protection laws and regulations. 
Additionally the office provided assistance and information to the local con- 
sumer groups in the four western counties and aided individual consumer 
groups where no local consumer groups existed. In 1978-79, the office 
handled 182 such compalints resuhing in savings of $6844.07 to consumers. 

The bulk of the Consumer Protection section's work involved 43 separate 
investigations of firms involved in unfair or deceptive practices. These in- 
vestigations resulted in 10 Consent Judgments, 4 Assurances of Disconti- 
nuance, 2 injunctions, 1 contempt citation and recovery of $29,486 for con- 
sumers. Investigations covered automobiles, trailer parks, health spas, 
career schools, land sales, tour and swimming pool sales. Additionally, in- 
vestigators initiated a wide scale review of automotive repairs and sales con- 
tracts throughout the four counties. The Springfield Office in 1978-79 also 
conducted public hearings on proposed debt collection regulations and 
fulfilled speaking engagements for numerous groups. 



P.D.12 89 

The staff consists of the chief administrator, two assistant attorneys 
general, two investigators and two secretaries. 

Number 1 July 19, 1978 

Joseph P. Foley 

Commissioner of Probation 

206 New Court House 

Pemberton Square 

Boston, Massachusetts 02108 

Dear Commissioner Foley: 

You have asked three questions concerning your obligations as Commis- 
sioner of Probation with respect to criminal records you have sealed under 
G.L. C.276, §100A, in cases where municipal police chiefs request informa- 
tion about the criminal records of applicants for licenses to sell and carry 
firearms and to sell ammunition.^ The three questions are in substance the 
following: 

1. When a police chief requests the Commissioner of 
Probation for information about the criminal 
record of an individual who has applied for a 
license to sell or to carry firearms or to sell am- 
munition, is the Commissioner required to provide 
any information other than the fact that the appli- 
cant has a sealed record? 

2. If the Commissioner is required to furnish more in- 
formation, will he satisfy the "need to know" 
aspects PI of G.L. c. 140, §§122, 122B and 131 if 
he responds to a police chief's inquiry by stating 
whether the license applicant does or does not have 
a felony convinction included in his or her record? 

3. If the answer to Question 2 is "no," is the Com- 
missioner required to : (a) break the seal of the 
criminal record of a license applicant upon the de- 
mand of the licensing authority; and (b) 
disseminate the information in the record to the 
authority? 

For the reasons discussed below, I answer your questions as follows. As 
Commissioner you may not answer a police chief's inquiry about a firearm 
license applicant who has a sealed record by simply stating that there is a 
sealed record on file in you office. Rather, you must inform the police chief 
whether the applicant has a felony conviction or a misdemeanor 



90 P.D.12 



conviction for the unlawful use, possession or sale of narcotic or harmful 
drugs, ^ whether or not the applicant's record has been sealed pursuant to 
statute. You are not required, however, to provide a police chief with any 
other information which may be contained in the applicant's sealed record. 

Before considering your questions, it is useful to review their statutory 
background and the reasons they have recently arisen. Under G.L. c. 140, 
§§122, 122Band 131, municipal police chiefs, after investigation, may grant 
the firearm and ammunition licenses described in those statutes (see n. 1 
supra) to any applicant except a minor, an alien, or a person who has been 
convicted of either a felony or the unlawful possession, sale, or use of nar- 
cotic or harmful drugs. Knowledge of such felony or drug convictions is 
thus essential to the police chief's investigation. 

The firearm statutes must be read in conjunction with G.L. c.276, §100A. 
That statute permits any person who has been convicted of a misdemeanor 
or a felony to request and require that the Commissioner of Probation seal 
the person's record of court appearances and dispositions 10 years (in the 
case of misdemeanors) or 15 (in the case of felonies) after convinction or 
termination of sentence, whichever is later, provided that he has not been 
found guilty of any other criminal offense within the 10 years preceding his 
request and can meet certain other statutory standards. When the Commis- 
sioner seals such a record, he is to notify the clerks and probation officers of 
the appropriate courts, and these officials are also to seal their own records 
concerning the individual, /cf." 

You indicate in your opinion request that when police chiefs have in- 
quired in the past about firearm or ammunition license applicants with seal- 
ed records, the practice of your office has been to respond only that the ap- 
plicant had a sealed record. The responses have not indicated whether or 
not a record showed a felony or drug convinction. You state, however, that 
the recent decision of the Supreme Judicial Court in Rzeznik v. Chief of 
Police of Southampton, Mass. Adv. Sh. (1978) 461, has called this 
established practice into question. You request my opinion to determine 
whether or not past practice continues to be valid in light of the Rzeznik 
decision, and if not, what kind of modifications are called for. 

In Rzeznik, the court upheld the right of a police chief to obtain informa- 
tion concerning a person's prior criminal record even though sealed by the 
Commissioner of Probation pursuant to G.L. c. 276, §100A, and to use the 
information in considering whether or not the person would be eligible for 
firearm licenses issued pursuant to G.L. c. 140, §§122, 122Band 131. Mass. 
Adv. Sh (1978) at 469. The court in reaching this resuh referred to the 
language in §100A which provides that the Commissioner, "in response to 
inquiries by authorized persons other than any law enforcement agency 
. . . shall in the case of a sealed record . . . report that no record exists" 
(emphasis supplied); it concluded that "[t]his provision must be read to 



Criminal offenses involving narcotic or harmful drugs are nov\' designated as offenses relating to "controlled substances" and 
are set forth in G.L. c. 94C. 

'General Laws, c. 276, §§100Band lOOC, also authorize the sealing of certain records by the Commissioner: §100B applies to 
certain records of juvenile proceedings; and §100C concerns records of criminal cases where the defendant has been found not 
guilty or for other reasons has not been convicted. Since these statutes do not involve records of criminal convictions, however, 
they are not pertinent to the questions you raise. Similarly, G.L. c. 94C, §44, which involves the sealing by a court of certain 
criminal records relating to controlled substances offenses, has no relevance here: it does not apply to convictions. General 
Laws, c. 94C. §34, which has related sealing provisions, is discussed in n. 9 infra. 



P.D.12 91 



imply that law enforcement agencies . . . do have access to criminal records 
which have been sealed" (emphasis supplied). Id. at 467. ^ See also Police 
Comm'r of Boston v. Municipal Court of the Dorchester District, Mass. 
Adv. Sh. (1978) 685, 695, 697-698 (recognizing availability of information 
in sealed records to certain law enforcement agencies.) 

General Laws, c. 276, §100A, does not expressly require you to 
disseminate information about sealed criminal records to law enforcement 
agency officials. Nevertheless, implicit in the Rzeznik opinion is the conclu- 
sion that under §100A, you may not merely inform police chiefs who in- 
quire about gun license applicants that an applicant has a sealed record. 
Rather, you appear to have an obligation to provide an inquiring police 
chief with relevant, substantive information about an applicant's criminal 
offender record; only in this way will he be able to complete the mandatory 
investigation of the license application. 

The remaining issue, and the subject of your second and third questions, 
is how much information must be supplied. The Rzeznik opinion itself does 
not answer or directly consider the character or quantity of sealed criminal 
record information which you must give to a police chief. ^ However, the 
criminal offender record information (CORI) statutes, G.L. c.6, §§167-178, 
offer guidance on this issue. General Laws, c. 6, §172, as amended through 
St. 1977, c. 841, provides in part: 

Except as otherwise provded in IG.L. c.6, §§173-175] in- 
clusive , [^] criminal offender record information . . . shall 
be disseminated, whether directly or through any in- 
termediary, only to (a) criminal justice agencies; land] (b) 
such other agencies and individuals required to have access 
to such information by statute . . . The extent of such ac- 
cess shall be limited to that necessary for the actual perfor- 
mance of the criminal justice duties of criminal justice agen- 
cies under clause (a); land] to that necessary for the actual 
performance of the statutory duties of agencies and in- 
dividuals granted access under clause (b) . . . 

As the court noted in Rzeznik, supra, Mass. Ave. Sh. (1978) at 468, 
police chiefs are members of "criminal justice agencies" as defined in G.L. 
c.6, §167, and are also individuals authorized under G.L. c.276, 
§100A, to have access to criminal record information. (See N. 5 supra.) The 
quoted provisions of G.L. c. 6, § 172, thus specify that while these police of- 
ficials are entitled to obtain criminal record information, their access must 



*The court referred lo the statutes governing the maintenance and dissemination of criminal offender record information 
(CORI), G.L. c, §§167-178, and stated that its reading of c. 276. §100,A, was consistent with these statutes: the CORI statutes 
authorize dissemination of criminal record information to "criminal justice agencies" and statutorily authorize individuals 
and agencies. The defendant police chief qualified under both categories. Rzeznik v. Chief of Police of Southampton, Mass. 
Ave. Sh. (1978) 461, 468. 

'In Rzeznik the defendant police chief granted the plaintiff firearms licenses, and then later revoked them on the basis of the 
plaintiff's prior felony conviction. It appeared that the police chief know of the conviction independently of an inquiry to the 
Commissioner of Probation, Mass. Ave. Sh. (1978) at 463-464, and the opinion does not treat the Commissioner's dissemina- 
tion of information under G.L. c.276, §100A. 
'These sections have no relevance to your questions. 



92 P.D.12 



be restricted to only that information needed for performance of their 
duties.^ 

In order for a police chief to determine whether a person with a sealed 
record is entitled to obtain a firearm license, he would need to know 
whether the person's record contained a notation of (1) a felony conviction 
or (2) a conviction of a drug offense which was a misdemeanor.^ These 
statutorily created needs in turn define your obligation to disseminate infor- 
mation about sealed records. You have informed me that the sealing 
method which your office uses would permit someone to determine whether 
or not a record contained a felony conviction without breaking the seal. Ac- 
cordingly, in cases where an individual record does indicate a felony convic- 
tion, you may inform the inquiring pohce chief of that fact, and need not 
break the seal and disseminate any additional information. ^° If, however, 
the outside of a record shows that the individual has only a misdemeanor 
conviction, you will be required to break the seal in order to determine 
whether that conviction relates to the possession, use or sale of a narcotic or 
harmful drug. If it does not, you may inform the police chief that the sealed 
record does not contain a drug offense conviction. If the conviction is for a 
drug offense, you must tell the chief of the existence and the nature of the 
offense. 

My conclusion finds support in the Supreme Judicial Court's opinion in 
Police Comm'r of Boston v. Municipal Court of the Dorchester District, 
Mass. Adv. Sh. (1978) 685. In that case the court considered in what cir- 
cumstances, if any, a Juvenile Court judge had the power, independent of 
statute, to order certain juvenile records expunged. In the course of its opi- 
nion the court reviewed the CORI statutory scheme as well as various record 
seaHng statutes, including G.L. c. 276, §100A. Mass. Adv. Sh. (1978) at 
694-704. In both its analysis of these statutes and its separate treatment of 
the juvenile record question, the court stressed the legislative intent and the 
need, respectively, to balance the privacy and other interests of a criminal 
record holder with legitimate law enforcement concerns. See id. at 697-698, 
701, 704, 707-708 and n. 11, 712-713; cf Utz v. Cullinane, 520 F. 2d 467, 
474-483 (D.C. Cir. 1975). By limiting your transmittal of information about 
a sealed criminal record to the facts of whether or not it indicates a felony or 
drug offense conviction, you would satisfy a police chief's "need to know" 
about such convictions and at the same time protect the confidentiality of 
the individual's record to the greatest degree possible. 

Very truly yours 

FRANCIS X. BELLOTTI 

Attorney General 



'Accord. Criminal Hisiory Systems Board Regulations, §§2.14. 2.17 (1974), reprinted in I C.M.R., Pan 3. at 20-21 
KiT' ^i,'^''k^''" ^' '^*^' ^^-^*"-^^- ' "°'^- however, that in certain circumstances, a record of a conviction under G.L. c. 94C, 
•i s^^'i ^ '■°"" ^^^ ordered sealed pursuant to that section, is not to be used to disqualify a person for any purpose. See also 
'"■• ^^': '" 'he case of a person who comes within these statutory provisions, you would have no oblieation to disseminate in- 
formation about the person's sealed record. 

The prohibitions in G.L. c. 140, §§122, 122B and 131, against granting firearm licenses to anyone convicted of a felony are 
separate trom the other statutory disqualifications, and sufficient in themselves to preclude the issuance of a license. In the 
case ol any individual whose sealed record shows a felony conviction, therefore, it would not be necessary to determine in ad- 
uilion whether any misdemeanor conviction listed on the outside of the record was for a drug offense. 



P.D.12 93 



Number 2 July 24, 1978 

Frederick P. Savucci 
Secretary of Transportation 
One Ashburton Place 
Boston, Massachusetts 02108 

Dear Secretary Salvucci: 

You have requested my opinion whether the Massachusetts Bay 
Transportaion Authority (MBTA) and various regional transit authorities 
(RTAs), are agencies or instrumentalities of the Commonwealth within the 
meaning of the federal Intergovernmental Cooperation Act of 1968, Pub. 
L. 90-577, 42 U.S.C. §§4201 et seq. (1970) (the Act) J The question arises 
because under this Act, transit authorities which quality as state "agencies" 
or "instrumentalities" may retain interest on federal grant funds, while 
authorities classified as "political subdivisions" may not. 

For the reasons set forth below, it is my opinion that the MBTA and the 
RTAs are agencies or instrumentalities of the Commonwealth for purposes 
of the Act. They therefore may retain interest earned on grant-in-aid funds 
disbursed to them by the federal Department of Transportation. 

The background of your opinion request is the following. The United 
States Department of Transportation, through its Urban Mass Transit Ad- 
ministration (UMTA), oversees a variety of federal transit programs. 
UMTA's responsibilities include the awarding of federal funds to regional 
transit authorities to assist in the development of improved mass transpor- 
tation. See 49 U.S.C. §§1601-1613. UMTA notified its grantees in July, 
1977, that a ruling of the United States Comptroller General permitted tran- 
sit authorities to retain interest on federal funds if the authorities were 
defined under state law as "instrumentalities" of the state, but not if state 
law defined them as "political subdivisions." The Comptroller General's 
ruling was based on his interpretation of two sections of the Act: 42 U.S.C. 
§4213, governing the scheduling of all federal grants-in-aid to states, ^ and 
§4201 . This latter section contains the definitions which apply to all the pro- 
visions of the Act, including §4213. Its critical definitions, for purposes of 
this opinion, are those of the terms "State" and "political subdivision." 
They read as follows: 

... (2) The term "State" means any of the several states of 
the United States ... or any agency or instrumentality of a 
State, but does not include the governments of the political 
subdivisions of the State. 



'Bolh the MBTA and the RTAs are under the jurisdiction of the Executive Office of Transportation and Construction, G.L. c. 
6A, §19. Questions relating directly to their activities, therefore, are of concern to you as Secretary of Transportation and 
Construction. 
'Section 4213 provides: 

Heads of Federal departments and agencies responsible for administering grant-in-aid programs shall schedule the transfer of 
grant-in-aid funds consistent with program purposes and applicable Treasury regulations, so as to minimize the lime elapsing 
between the transfer of such funds from the United States Treasury and the disbursement thereof by a Slate .... Stales shall 
not be held accountable for interest earned on grant-in-aid funds, pending their disbursement for program purposes. |Em- 
phasis supplied.) 



94 P.D.12 



(3) The term "political subdivision" or "local govern- 
ment" means a local unit of government, including specifical- 
ly a county, municipality, city, town, township, or a school or 
other special district created by or pursuant to State law. [Em- 
phasis supplied].^ 
Accepting, for this opinion, the Comptroller General's reading of 42 
U.S.C. §§4213 and 4201, I am asked to resolve the issue whether, under 
Massachusetts law, the MBTA and the RTAs fit within the definition of 
"State" set forth in 42 U.S.C. §4201 (2), and thus become entitled to retain 
interest on federal grants pursuant to §4213.'' I will consider the issue in 
relation to the MBTA and the RTAs separately. 

The MBTA was established persuant to St. 1964, c. 563, §18, enacting 
G.L. c. 161A. General Laws, c. 161A, §2, provides in part as follows: 
The territory within and the inhabitants of the fourteen cities 
and towns and the sixty four cities and towns are hereby made 
a body politic and corporate and a political subdivision of the 
Commonwealth under the name of Massachusetts Transpor- 
tation Authority.^ 
This section shows that, in contrast to the transportation authority describ- 
ed in the Comptroller General's opinion, the MBTA is specifically defined 
as a "political subdivision of the commonwealth."^ Nevertheless, I do not 
read that opinion as intending to limit the scope of my inquiry to the 
description of the MBTA contained on the face of its enabling statute.^ An 
examination of other statutes defining the MBTA's relationship to the 
Commonwealth, as well as any decisions of the state courts in which the 
nature of the MBTA has been discussed, should also be undertaken in deter- 
mining the authority's status. In the case of the MBTA such an analysis 
leads me to conclude that the language of G.L.c. 161A, §2 should not be 
read to establish the MBTA as a "political subdivison" within the meaning 
of 42 U.S.C. §4201(3). 



Mn light of its central importance to the questions you raise, the Comptroller General's opinion at issue here, No. B-180617, 56 
Comp. Gen. 353 (1977), requires further discussion. It was issued in response to a request by UMTA to clarify the proper 
meaning of 42 U.S.C. §§4201 (3) and 4313, in order to resolve a dispute between UMTA and a Pennsylvania regional transit 
authority. UMTA had determined that the transit authority was a "political subdivision" and therefore not entitled to retain 
interest on federal grants under §4213. Its decision was based on the Bureau of Census' classification of the authority as a 
"special district." See U.S. Bureau of ibe Census, Census of Governments. 1972, Vol. 1 at 437 (1973). In UMTA's view of the 
legislative history of §§4201 and 4213, the Census classification in and of itself established the Pennsylvania authority's status 
as a "political subdivision" for purposes of §§4201 and 4213. The transit authority's challenge to this ruling focused on its 
state enabling statute, describing the authority as "a separate body corporate and politic which ' . . . shall exercise the public 
powers of the Commonwealth as an agency and instrumentality thereof. ' " 56 Comp. Gen. at 355. Additionally, the authority 
relied on decisions of the Pennsylvania courts which defined it as a stale agency. 

The Comptroller General accepted the Pennsylvania transit authority's argument. He ruled that neither the Act nor its 
legislative history required the Bureau of Census classification of an entity to be dispositive of the question whether it was a 
state "agency or instrumentality," or a "political subdivision." 56 Comp. Gen. at 356-357. Rather, for purposes of the Act, a 
federal grantor agency 

... is bound by the classification of the entity in State law. Only in the absence of a clear indication of the status of 
the entity in State law may [the grantor agency] make its own determination based on reasonable standards, including 
resort to the Bureau of the Census' classification. It would not be unreasonable ... for UMTA to require a transit 
authority to get an opinion for the State Attorney General as to whether such authority is a State agency or in- 
strumentality ... . fd. at 357. 

'It bears mention at the outset that I only treat here the proper classification of the authorities as "state instrumentalities" or 
political subdivisions" for purposes of the two pertinent federal statutes. It may be that under other federal or state statutes 

using these terms the authorities would be differently classified; I do not consider such questions. 

*The statutory distinction between the 14 cities and towns and the 64 cities and towns relates to differences in the manner in 

which a particular city or town is assessed a percentage of the annual deficit of the Authority, if any. See G.L. c. 161 A, §§9-12. 

'However the MBTA, like the Pennsylvania Authority, is classified by the Bureau of Census as a "special district." Under the 

prior UMTA practice, therefore, it was not permitted to retain interest earned on federal funds. 

'I hold the same view with respect to the RTAs, discussed below 



P.D.12 95 



First, it has been recognized that the term "political subdivision" may 
connote both a unit of local government and an instrumentability of the 
state. ^ In Commissioner of Internal Revenue v. Shamberg's Estate, 144 F. 
2d 998 (2d Cir. 1944), cert, denied, 323 U.S. 792 (1945), the court stated: 

The term "political subdivision" may be used in statutes in 
more than one sense. It may designate a true governmental 
subdivision such as a county, town, etc., or, it may have a 
broader meaning, denoting any subdivision of a state created 
for a public purpose although authorized to exercise a portion 
of the sovereign power of the State only to a limited degree. 
See Boston Elevated Ry. Co. v. Welsh, 25 F. Supp. 809, 810 (D. Mass. 
1939) (considering whether transit company was "political subdivision" or 
private corporation under Social Security Act). No decisions of the Com- 
monwealth's appellate courts have construed the term "political subdivi- 
sion" as it appears in G.L. c. 16IA, §2,^ Nevertheless, a review of the 
statutes defining the purposes and responsibilities of the MBTA clearly 
shows that the MBTA is a political subdivision in the second sense described 
in the Shamberg's Estate case, viz., a governmental entity of the state 

The MBTA is an agency included generally within the Executive Office of 
Transportation and Construction, G.L. c. 6A, §19 its capital investment 
program and mass transportation plans are prepared specifically under that 
Office's "direction, control and supervision . . . ." G.L. c. 161 A §5(g); and 
the State Auditor annually audits the MBTA's accounts, id., §17. In addi- 
tion, the Commonwealth is obligated to fund annually any cost of service 
deficit the MBTA may experience as well as deficits in operating revenues, 
and may pledge its credit to meet these financial obligations, id., §§12, 13; 
see also id., §§28, 28A. I note further that the Governor appoints and may 
remove the authority's board of directors, id., §6;^° and he has specific 
statutory authority in an emergency to take over and operate the MBTA 
through any department or agency of the Commonweahh, id., §20.^' 

These statutes manifest a high degree of direct state involvement with the 
operations of the MBTA and with its financial operations in particular. ^^ 
Viewing the MBTA against this statutory framework, I believe it clear that 
the authority should not be classified as a "political subdivision," as that 
term is defined in 42 U.S.C. §4201(3). The MBTA does not fit within the ex- 
plicit provisions of the definition since it is not a "county, municipality, ci- 
ty, town, township, or a school or other special district . . . ." Cf. 
Massachusetts Bay Trans. Authority v. Labor Relations Comm'n, 356 
Mass. 563, 566 (1970). Nor does it appear to come within the definition's 



'Because 42 U.S.C. §4201(2) makes the lerms "state" (including "agency or instrumentality of a state") and "political sub- 
division" mutually exclusive, I am required in this instance to define the MBTA as either one or the other. 
'Nor did research uncover any Massachusetts decisions which interpret the term as used in other state statutes, or elsewhere. 
Accordingly, judicial guidance on this issue is lacking with respect to both the MBTA and the RTAs. 
'"Moreover, the directors and employees of the MBTA are considered "state employees" for purposes of the Com- 
monwealth's conflict of interest statute, G.L. c. 268A. See, e.g.. Conf. Op. Atty Gen. Nos. 82.1, 795. 
"I note as well that in a previous opinion, i ruled thai the MBTA qualifies as a "purchasing agency" under a program 
established by St. 1976, c. 484 [G.L. c. 7 App. §§2-1 el seg.]. 1976-77 Op. Atty. Gen. No. 25. The purchasing program statute 
specifically defines "purchasing agency" as "any agency, department, board, commission, office of authority of the com- 
monwealth. " St. 1976, c. 484, §2(4) (G.L. c. 7 App., §2-2(4)) 

"Given the subject matter of the federal statutes under review here-the handling of federal grants-in-aid-the degree of stale 
participation in the MBTA's financial and fiscal operations would seem to be one of the most significant factors in determin- 
inc whether it is a stale instrnmenialiiv 



96 P.D.12 



implicit scope as suggested by the entities enumerated in the statute. I con- 
clude, therefore, that for purposes of 42 U.S.C. §§4201 and 4213 (and the 
Comptroller General's ruling), the MBTA is properly defined as a "state in- 
strumentality." 

The provisions of G.L. c. 161 A, §29, lend support to this conclusion. Sec- 
tion 29 reads in part: 

It is the intent of this section that the provisions of any federal 
law, administrative regulation or practice governing this 
chapter shall, to the extent necessary to enable the com- 
monwealth or its subdivisions to receive such assistance and 
not constitutionally prohibited, overrule any inconsistent pro- 
visions of this chapter. 

This statutory language is significant, for it shows a legislative intent that 
the statutory label given the MBTA's structure not hinder its ability to max- 
imize the receipt of available federal funds. Interest earned on federal 
grants-in-aid can provide a significant source of funds to the MBTA, as you 
suggest in your opinion request. Section 29 in effect overrides any inference 
that the MBTA's designation as a "political subdivision" in G.L. c. 161A, 
§2 should control the authority's classification for purposes of 42 U.S.C. 
§§4201 and 4213, and thereby render it unable to retain the interest on 
federal funds to which it might otherwise be entitled.'^ 

I now turn to the question whether the RTAs are state agencies or in- 
strumentalities. The RTAs' statutory structure strongly resembles that of 
the MBTA: each RTA is a "body politic and corporate and political sub- 
division of the commonwealth," G.L. c. 161B, §2; all RTAs are within the 
Executive Office of Transportation and Construction, G.L. c. 6A , §19; 
RTAs are required to prepare and annually revise their public mass 
transportation programs in consultation with the Office, G.L. c. 161 B, 
§8(0;'" the Commonwealth is obligated to fund in the first instance any 
deficits in the RTAs' cost of service and any inability of the RTAs' to meet 
their current obligations, and may pledge its credit for these purposes, id., 
§§10, 11 (see also id., §23); and the RTAs are subject to audit by the State 
Auditor on an annual basis, id., §12. In addition, every RTA must obtain 
prior approval from you in order to issue bonds, and as Secretary of 
Transportation and Construction you are required to establish guidelines 
for allocating and distributing the principal of such bonds among the 
RTA's, id., §17. Finally, the statute creating RTAs, St. 1973, c. 1141, con- 
tains a section substantively identical to the portion of G.L. c. 161 A, §29, 
quoted above, which provides that: 

. . . any federal law, administrative regulation or practice 
governing federal assistance for the purpose of this chapter 
shall, to the extent necessary to enable the commonwealth or 



I recognize thai G.L. c. 16IA, §29 has limits; it cannot be relied upon to transform automatically every governmental entity 
into a "state instrumentality" for the purpose of increasing available federal funds. In the case of the MBTA, howe\er, I 
believe there are sufficient indicators of its status as a state instrumentality independent of §29. I cite §29 onlv insofar as it rein- 
torces this judgment. I reach the same conclusion with respect to the RTAs. discussed below. 

Moreover, the RTAs must annually report on their operations and mass transit programs to the Governor, lo you as 
Secretary of Transportation and Construction, and to the Legislature, G.L. c. 161 B, §8(g). 



97 P.D.12 



its subdivisions to receive such assistance and not constitu- 
tionally prohibited, override any inconsistent provisions of 
. . . this act ... . St. 1973, c. 1141, §10. 

In my view, the characteristics of RTAs enumerated here are sufficient to 
qualify them as state agencies or instrumentalities within the meaning of 42 
U.S.C. §§4201 and 4213. 

In reaching this result, I recognize that the RTAs present a closer case 
than the MBTA. For example, while G.L. c. 161B, §2 provides for the crea- 
tion of certain RTAs, other cities and towns, either singly or in combina- 
tion, may form an additional RTA, subject to your approval. G.L. c. 161 B, 
§3. There is no comparable provision applicable to the MBTA. Additional- 
ly, every RTA is managed by an administrator appointed by an advisory 
board composed of municipal officials, id., §§4,5. As noted above, the 
MBTA is managed by a board of directors appointed by the Governor, see 
G.L. c. 161A, §6. Nevertheless, although there is greater municipal involve- 
ment in the management of the RTAs than is true of the MBTA, I do not 
believe the differences between the two types of authorities require that 
RTAs be classified as "political subdivision[s]" as defined in 42 U.S.C. 
§4201(3). The RTAs' financial relationship with the Commonweahh is 
substantially the same as that of the MBTA, and in any event is a very close 
one. As I have indicated, I consider the financial aspects of both types of 
authorities' operations to be the most critical for purposes of determining 
whether they qualify as state agencies or instrumentalities under 42 U.S.C. 
§§4201 and 4213. See n 12, supra. I therefore conclude that the RTAs as 
well as the MBTA do so qualify, and both may retain interest on federal 
grants-in-aid. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 3 July 3 1,1978 

John R. Buckley 
Secretary of Administration 

and Finance 
Executive Office of Administration 

and Finance 
State House 
Boston, Massachusetts 02133 

Dear Secretary Buckley: 

You have requested an opinion concerning your efforts to implement St. 
1978, c. 60 ("c. 60"), a recently-enacted' statute which provides in pertinent 



'The substance of c. W), discussed in ihe le\l below, was originally enacted in Si. 1977, c. 965, which was approved on January 
1 1, 1978 without an emergency declaration or express effective date. Corrective amendments were made by c. 60. which replac- 
ed in tolo the provisions of the earlier bill. Chapter 60 took effect by its express terms on April 1 1 , 1978. 



98 P.D.12 



part: "[t]he commisioner of administration ^ shall file with the state 
secretary prior to July first, nineteen hundred and seventy-eight, rules and 
regulations for the conduct of adjudicatory hearings ..." You state that 
you were unable to draft and promulgate the rules and regulations called for 
by c. 60 ("standard rules") prior to July 1 because of the magnitude of the 
task and the necessary participation of a large number of state agencies, but 
that you plan to file the standard rules within three months. You ask 
whether the July 1, 1978 date in c. 60 is mandatory or directory. The 
underlying question is whether the failure to meet the statutory deadline will 
affect the validity of either the standard rules you ultimately file or ad- 
judicatory proceedings before state administration agencies in the interim. 

My conclusion, based on clear judicial precedent, is that the filing date 
which c. 60 prescribes for the standard rules is directory in nature rather 
than mandatory. Accordingly, in my view the failure to file the rules by July 
1 will have no effect on their ultimate validity, provided that you proceed to 
promulgate them as speedily as possible. Until the standard rules are in ef- 
fect, agencies should continue to use their existing procedural rules to con- 
duct adjudicatory proceedings, and the delay in promulgating the standard 
rules will not undermine the validity of these proceedings. I state my reasons 
below. 

The pertinent portion of c. 60 amends §9 of the state Administrative Pro- 
cedure Act ("APA"), G.L. c. 30A, §9, to require that the Commissioner of 
Administration promulgate and file with the State Secretary a single set of 
"standard rules" to govern adjudicatory proceedings before all state ad- 
ministrative agencies subject to the APA.^ The standard rules will replace 
the separate sets of rules for adjudicatory proceedings which each agency 
from time to time has adopted under the original version of G.L. c. 30A, 
§9. See St. 1954, c. 681, §1.^ 

Under c. 60, §1, adoption of the standard rules is expressly made subject 
to the rulemaking provisions of G.L. c. 30A, §§2 and 3. The standard rules 
will not, however, become effective until 90 days after publication by the 
State Secretary and will govern only adjudicatory proceedings "com- 
menced" after the effective date. Chapter 60, §1, 1 l.^C/. G.L. c. 30A, §§5, 
6. Substitute rules, if any, go into effect at the same time. 

Two points emerge from this review of the provisions of c. 60. First, ex- 
isting agency rules and regulations governing adjudicatory proceedings 
which were adopted pursuant to the original mandate of G.L. c. 30A, §9, 
remain in effect at the present time. Second, these rules will be in effect for 
an indefinite period in the future, as the standard rules will not apply to ad- 
judicatory proceedings commenced prior to the rules' effective date. 



'The siibsiancc of c. 60, discussed in Ihe text below, was originally enacted in St. 1977, c. 965, which was approved on January 
1 1 , 1978 without an emergency declaration or express effective date. Corrective amendments were made by c. 60, which replac- 
ed in low the provisions of Ihe earher bill. Chapter 60 took effect by its express terms on April II, 1978. 
'The Secretary of the Executive Office of Administration and Finance is also ihe Commissioner of Administration. G.L. c. 7, 

§4. 

'General Laws, c. .10A, §§1(1) and (2), respectively, delineate the scope of adjudicatory proceedings and the state agencies 
which are subject to the APA. See also 1961/62 Op. Atty. Gen. at 43. 

'Even under c. 60, agencies will be able to promulgate rules which "... substitute in whole or in part, or are additions to Ihe 
standard rules filed by the commissioner." Agencies must, however, secure your approval to adopt substitute rules. Chapter 
60 provides that agencies shall promulgate and file substitute rules with the Stale Secretary within 60 days after he publishes the 
standard rules. 

Thus the standard rules would not have been in effect at the present time even if you had filed them with the State Secretary by 
.luly I, 1978, since c. 60 contemplated an effective date 90 days thereafter, or about October 1, 1978 (depending on the precise 
date of publication by the Slate Secretary). 



P.D.12 99 



The question presented is the appropriate construction in these cir- 
cumstances of c. 60's command that the standard rules "shall" be filed with 
the State Secretary prior to July 1, 1978. The Supreme Judicial Court has 
noted that: 

The word "shall' as used in statutes, although in its common 
meaning mandatory is not of inflexible signification and not in- 
frequently is sustained as permissive or directory in order to ef- 
fectuate a legislative purpose. 

Swift V. Board of Registrars of Voters of Quincy, 281 Mass. 
271, 276(1932). 
Moreover, when referring in particular to statutory time requirements the 
court early stated: 

As to a statute imperative in phrase, it has often been held that 
where it relates only to the time of performance of a duty by a 
public officer and does not go to the essence of the thing to be 
done, it is only a regulation for the orderly and convenient con- 
duct of public business and not a condition precedent to the 
validity of the act done. 

Cheney v. Coughiin, 201 Mass. 204, 211 (1909).^ 
Applying these principles to the present case, I believe that the filing date 
specified by c. 60 should be treated flexibly and not as a prerequisite to the 
validity of the standard rules. 

The primary legislative purpose of c. 60 is to make more uniform the pro- 
cedures governing adjudicatory hearings before administrative agencies. The 
number of such agencies and the matters entrusted to them have greatly in- 
creased since the enactment of the APA in 1954, and uniformity would ap- 
pear to be a metter of increasing interest to parties to adjudicatory pro- 
ceedings, the lawyers who represent them and the courts which review those 
proceedings under G.L. c. 30A, §14. These considerations underscore the 
importance of careful preparation of the standard rules. You have indicated 
that you were not able to meet the July 1 deadline primarily because of the 
time it takes to obtain the comments, suggestions and advice of the various 
agencies and departments which will be affected by the standard rules. Your 
efforts in seeking agencies' views of the draft rules are intended to enhance 
their ultimate quality and usefulness. At the same time agencies' existing pro- 
cedural rules remain in effect, so that the failure to file the standard rules by 
July 1 has not created a procedural vacuum. These circumstances indicate 
that the underlying aims of c. 60 will best be served by construing the word 
"shall" in a directory rather than mandatory sense.' 



^Accord. Kiss \. Board of Appeals of Lonf-nieadoH.Mds',. Adv. SI). (1976) 2?55. 2166-2167: Cullcn \ . Building Inspeclor of 
Sonh Alllehorouf-h: 151 Mass. 671, 679-680 ( 19681; Biirwick \. /.oninf: Bd. of Appeals of Wonesier. 1 Mass. .App. Cl. 739, 
741 (1974); see Boston \. Qiiinev Market Cold Storune and Warehouse Co.. 112 Mass. 618. 646-647 (1942); Rea '. . Board of 
Aldermen of Everett. 217 Mass. 427, 410 (1914); \^lb.'ll Op. Ally. Cicn. No. 10. 

See Torrey \ . Millhury. 21 Pick. 64, 67 (1818) whcri: ihc court staled that llcxibiliiy in interpreting and appiyinj: legislative direc- 
tives as to time is appropriate where a statutory time requirement is "intended lo promote method, system and uniformity in the 
modes ol proceeding . . . ." See also 1976/77 Op. Ally. Cicn. No. 10. at 2. 

The conclusion that "shall" in c. 60 has been used in a directory sense is also bosiered by comparison ol c. 60 lo prior amend- 
ments to ,M'A. In Si. 1969, c. 808. SIO. the Legislature provided that agency regulations became "null and void" il the Stale 
Secretary lailed lo compile and publish them vviihin si\ months. See also St. 1970, c. 168. No comparable provision appears in c. 
6(1. ;md ihc draconiaii result prescribed by the earlier amendments should iioi be interred lightly. 



100 P.D.12 



While I have concluded that the July 1 filing date is directory, you should 
nevertheless seek to complete and file the standard rules with the State 
Secretary as soon as possible. The Legislature's directives are to be respected, 
and a long-continued failure to file the rules could not be justified. Cf. West 
Broadway Task Force, Inc., v. Commisioner of the Dept. of Comm'y Affairs, 
363 Mass. 745, 751 (1973). However, in the particular situation at hand, I do 
not view a delay of three months as unreasonable. 

Very truly yours 

FRANCIS X. BELLOTTI 

Attorney General 



Number 4 . July 3 1,1978 

Robert Q. Crane 

Treasurer and Receiver General 

State House 

Boston, MA 02133 

Dear Treasurer Crane: 

You have asked two questions relating to the investment of the funds of the 
state employees' and teachers' retirement systems, pursuant to G.L. c.32, 
§23(1) (a) and (b). The questions may be summarized as follows: 

1. Does the Treasurer, as treasurer-custodian of "funds and 
securities" of the state employees' and teachers' retirement systems, 
have custody for investment purposes over solely the employee and 
teacher contributions, or does his custody extend as well to the an- 
nual amount appropriated as the Commonwealth's contributions to 
these statements? 

2. Should funds appropriated by the Legislature in the annual budget 
to provide for the Commonwealth's share of financing the state 
employees' and teachers' retirement systems be transferred to the 
control of the investment committee of the two systems upon 
passage of the annual budget? 

You pose these questions on behalf of the investment committee of the two 
retirement systems, appointed under G.L. c.32, §23(1) (a). You have in- 
dicated that the committee wishes to know whether it may have a duty to take 
control over all legislative appropriations for the systems at the beginning of 
each fiscal year, since if the full amounts of the appropriations were separately 
invested, interest accruing on the investments would inure to the specific 
benefit of the retirement systems' members. 1 

In response to your first question, it is my opinion that the "funds and 
securities" referred to G.L. c. 32, §23 (1) (b), signifies the employee contribu- 
tions to the retirement systems. Therefore, as treasurer-custodian your 
custody for investment purposes extends only to the monies which these con- 
tributions represent, and not to the amounts appropriated by the Legislature. 
My answer to your second question is that the funds annually appropriated 



P.D.12 101 

by the Legislature for the state employees' and teachers' retirement systems 
should not be transferred to the systems' investment committee at the time 
the budget is passed or at any other time. My reasons are set forth below. 

Your first question in essence asks for an interpretation of the term "funds" 
in G.L. c. 32, §23 (1) (b).^ In order to appreciate this problem of statutory 
construction fully, it helps to examine the statutory framework and ad- 
ministrative practices which govern the retirement systems. 

Both the state employees' and teachers' "funds." See G.L. c. 32, 
§22(l)-(5). The funds are the following: 

(a) an "Annuity Savings Fund," in which regular salary or wage 
deductions of current members of the system accumulate (G.L. c. 
§22[1]); 

(b) an "Annuity Reserve Fund," to which regular accumulated con- 
tributions of a member of the system are transferred when the 
member becomes eligible for retirement benefits {id., §22[2]); 

(c) a "Pension Fund," to which all amounts appropriated by the 
Commonwealth for payment of pensions to members are credited 
(id., §22[3]);2 

(d) a "Special Fund for Military Service Credit," in which are placed 
special contributions made by the Commonwealth for retirement 
allowances of member-employees who are veterans {id., §22[4]); 

(e) an "Expense Fund," which contains all moneys appropriated for 
payment of the expenses of administration of the system {id., 
§22[5]); 

The first two funds are composed of employees' contributions; the remaining 
three are funded by legislative appropriations. 

Your current practice as treasurer-custodian of the two systems is to take 
custody of and to invest only the employee-contributed annuity savings and 
annuity reserve funds, as advised by the investment committee established 
under G.L. c. 32 §23(l)(a). Monies used to satisfy the legislative appropria- 
tions for the other three funds remain commingled with all Commonwealth 
revenue^ until the respective retirement boards, pursuant to G.L. c. 32, 
§23(1) (b), present vouchers to you in your capacity as state Treasurer to ac- 
commodate monthly payments to members. G.L. c. 32, §13. At that point 
you withdraw sufficient funds from the Treasury to satisfy the amounts called 
for in the vouchers. 

The question whether G.L. c. 32, §23 (1) (b) authorizes and directs the in- 
vestment committee or you as treasurer-custodian to assume custody over all 
funds annually appropriated for two retirement systems at the beginning of 
each fiscal year arised in large part because the meaning of the word "funds" 



'Scciion Z'^i 11(b) icail'. in pcnincni pan: 

(h) I Ik- suiic ircasiirci shall be ilic ircasurci-Liisiodlan ol ilic ■iialc employee" rciircmcni \ystciii and ol ibe leachcrs' reiircnieni 
s\Meni and -.hall ha^e ihc cusiodv ol ihe lunds and -ccnrnics ol eacli -iich svvieni. The Unids or each such s\sicm shall be ni- 
vesietlseparaieK Ol inoneoi mote eombincd nnesinieni liiiids esiablished b\ ibe siale Ireasnrei . . . Paymenis Irom ihe funds ol 
each such s\siem shall he made h\ ihc slate iteasuiei onl\ upon unichors siimed b\ iwo persons desjynaied b\ ibe respcciue 
boaidsol sucbs\siemsb\ a vole a duly aliesied copy ol uhich. heatin;: upon iis lace specimenl slenaiuies ol such peisons. shall 
be liled wilb the stale treasurer as bis aulhorin lor makme pa\iiicnis upon \ouebers so siiined. 

Ibis liind is 1 he means b\ «ich ibe fomnioii" call b makes up i he "usualK considerable dillcrence needed lo iiuikeyood ibenoi- 
mal \earK allowance paid lo the member uiilil his death. " OpiiKon i>/ llw Jininvs. 164 Mass. 847. S54 (1971.) 

.As \\n\\ all slate lunds not needed loi immediaie disburscmem, il is imcsied b\ you as Treasurei loi the benclil ol the Com- 
monucahh. (..I . c.lO.. ^(: 51!, ?t . 



102 P.D.12 



in that section is ambiguous. The rule is well settled that words used in 
statutes, when not specially defined, are ordinarily to be given "their usual 
and accepted meanings ..." which may be ascertained from other statutory 
or legal contexts or dictionary definitions. Commonwealth v. Zone Book, 
Mass. Adv. Sh. (1977) 743, 746. "Funds" is generally defined to mean 
monies and related assets such as securities, notes, bill, checks, drafts, pro- 
ceeds from the sale of other assets, etc. See Black's Law Dictionary at 802 
(Rev. 4th ed. 1968); see also Salter v. Salter, 338 Mass. 391, 393 (1959). 

On the othe*- hand, as the summary of G.L. c. 32, §22 above 
demonstrates, the retirement statute in some places uses the term "fund" or 
"funds" (albeit in conjunction with other words, "annuity", "annuity reserve", 
"pensions", etc.) specifically to designate the five components of each retire- 
ment system's assets. If "funds" in c. 32, §23(1) (b) is interpreted in its more 
general sense, as indicating existing available cash and similar assets, then as 
treasurer-custodian you would assume custody only of the employee con- 
tributions to the two systems as they were made." If "funds" means the five 
components described in c. 32, §22, however, then you would have a duty to 
assume custody of the appropriated monies as well, and to invest them in ac- 
cordance with the directions given in §23 (1) (b). 

In my judgment, "funds" as used in §23 (1) (b) should be given its ordinary, 
general meaning, and should not be read as referring to the specific funds 
established and described in G.L. c. 32, §22. I reach this result primarily by 
reading §23 (1) (b) in conjunction with statutory provisions touching upon 
related matters of state appropriations and finance; it is a governing principle 
of statutory interpretation that "[i]n construing the language of the statue in 
question, consideration must be given to the general body of statutory law 
relating to the same subject . . . ." Davis v. School Comm. of Somerville, 
307 Mass. 354, 361 (1940); see School Comm. of Gloucester v. Gloucester, 
324 Mass. 209, 212 (1949)^ 

Turning, then, to related statutes, the provisions of G.L. c. 29 generally 
govern the expenditure of state appropriations by all state departments, agen- 
cies and officers. There is nothing in G.L. c. 32 to suggest that appropriations 
for the three Commonwealth-contributed retirement funds are not subject to 
c. 29, or that they are to be treated differently than other legislative appropria- 
tions.^ Yet several sections of c. 29 are inconsistent with the concept of 
transferring the entire appropriation for the state employees' and teachers' 
retirement systems to you as treasurer-custodian immediately upon passage 
of the annual budget. 

The most significant provision in G.L. c. 29, for purposes of the question 
you have raised, is §22. It states: 



'TliclciiislaincappropriaiioMs lo ihc syslcms are noi scparaiely axailablc lo yiiu as ircasiircr-Liisiodian; ilic rcwniic- ulilcli lo lo 
make lip ihesc appropriaiions remain pan ol ihe C'limmonuealih's pool ol general levcmie-. held in ilie Tceasui\. lo he 
wiihdrawn by ilie Ircasiirer only upon prescnimenl ol a proper soucher. 

The langnageand slrueuire ol Ci.L. c.12. eonsidcred indcpcndcnily, also siippoil riu irileipreialion. The li\e liiuK assoeiaied 
uilli eaeli ol ihe rciirenieiu sysienis ai isMie here are dcTincd in e. ?2. 51. and liinher described in );22. In bolli seeiions. ihe 
relerences unhese I nnds always give ihe lull nanieol ihe lund. e.e., "amuiiis saMnes tiind." pension liind." eie.. or speeiliealK 
relcr back loihe Hill presume ihai had ihe Leeislalure iniended To reler loiiic live hinds in e. 12. 521(b) ( I ), ii would luneaeam 
used iheir lull names. (;/. Senron \. Gordon. Mass. Ads. Sh. (1077) 1701, 1706; c/. also Bolslei \ . Coiiiiuiw»wr of Corpora- 
lions and Taxation. 119 Mass. 81. 84-85 (1946). 

"C'lcarb il ilie legislaiure had iniended lo c\eepi ihesc appropriaiione Iroiii ihe rinanee sialule il could and would have said so 
specilicalK. Cf. School Coniniiliee of Gloucester \ . Gloucester, \:ipra. 124 Mass ai 21V 



P.D.12 103 



Except as otherwise expressly provided, no greater sum from an 
appropriation shall be drawn from the treasury at any one time 
than is necessary to meet expenses then incurred. 

In the context of the retirement statute "expenses" plainly seems to refer to 
administrative expenses associated with the state-operated retirement 
systems, see G.L. c.32, §22(5), and the monthly payments of benefits to 
retired members, see id., §13. Under the terms of §22, a one-time transfer of 
the total retirement systems' appropriations from the Treasury to the 
respective retirement boards or to you as treasurer-custodian, independent 
of actual expenses, would not be permitted. Only by reading G.L. c.32, 
§23(1) (b), to refer to "funds" in the general sense of "monies" can a con- 
flict between c. 29, §22 and c. 32, §12(1) (b) be avoided. It is therefore the 
reading which I adopt. See, e.g., Goldsmith v. Reliance Inc. Co., 353 Mass. 
99, 102 (1967).' 

Another bar against interpreting the term "funds" in G.L. c. 32, §23(1) 
(b) to include the legislative appropriations can be found in G.L. c.29, §47. 
The Commonwealth relies on the receipt of tax revenues throughout the 
year in order to fund budget appropriations; it does not actually have the 
full amounts appropriated by the Legislature on hand at the beginning of a 
fiscal year. In order for you as treasurer-custodian to take custody of the 
full appropriations for the state employees' and teachers' retirement 
systems at the beginning of the fiscal year, you might well be required to 
borrow the money. General Laws, 

The state treasurer may borrow at any time during the fiscal 
year, in anticipation of the receipts for that year . . . such sums 
of money as may be necessary for the payment of ordinary 
demands on the treasury and toher legal obligations of the com- 
monwealth, and may issue notes therefor . . . 

In my view, payment of money to the systems' treasurer-custodian for inn- 
vestment is not an "ordinary demand" on the Treasury, giving those works 
their usual and ordinary meaning. See Prudential Insurance Co. of America 
v. Boston, Mass. Adv. Sh. (1976) 182, 188. « 

Finally, when construing an ambiguous statute, which G.L. c. 32, §23(1) 
(b) decidedly is, the long-established practice of the administrator charged 
with implementing the statute is entitled to weight. See, e.g.. Ace Heating 
Service, Inc. v. State Tax Commission, Mass Adv. Sh. (1976), 2490, 
2492. As discussed above, your practice has been to invest as treasurer- 
custodian of the two retirement systems, only the employee-contributed 
funds. This long-standing practice offers useful guidance as to the proper 
construction of the statute at issue. 



'General Laws, c. 29, §9B, the so-called allotment statute is also relevant. That statute directs the Governor to divide the fiscal 
year into equal periods and to allot to each state office and department for each period the pro rata protion of its annual ap- 
propriation. The statute thus precludes making the total annual retirement systems' appropriations available to you at the lime 
the budget passes. 

'Your letter suggests that G.L. c.32, §25 1 4, constitutes the kind of "legal obligation" on the Commonwealth which would 
justify borrowing money. Section 25. 1 4, provides that "[t)he payment of all annuities, pensions, retirement allowances, and 
refunds |in the case of the state employees' and teachers' retirement systems] . . . are hereby made obligations of the com- 
monwealth ..." This section has been interpreted to mean that retirees who qualify for a retirement allowance have a con- 
tracutal right to their benefits. Opinion of ihe Justices, 364 Mass. 847, 860 (1973). But there is no suggestion thai the section 
entitles a retiree to a lump sum payment geing set aside in advance and separately invested in order to obtain additional in- 
terest. In interpret the contract descripbed in §25, 1 4, to provide that payments will be made at the time that the contract 
prescribes they are to be made. i.e. on a monthly basis, G.L. c. 32, §13. 



104 P.D.12 



You have also asked whether the legislative appropriations to the state 
employees' and teachers' retirement systems should be transferred to the in- 
vestment committee established under G.L. c. 32, §23(1) (a), at the time the 
budget is passed. My answer to your first question indicates that funds 
representing the appropriations for the systems should not be withdrawn 
from the Treasury when the budget passes or at any time except to pay ac- 
tual expenses; the identity of the propsed transferee is irrelevant. Moreover, 
the unambiguous language of §23(1) (a) and (b) establishes that you as 
treasurer-custodian are to retain custody of the two retirement systems' 
"funds and securities." The investment committee is to have "general 
supervision of the investment and reinvestment" of those monies (§23[1] 
[a]), and your investment decisions are subject to its approval (§23 [1] [d]), 
but nothing in the statues authorizes the committee to acquire actual control 
over the funds. These clear statutory directives must be respected. See, e.g. 
Hoffman v. Howmedica, Inc., Mass. Adv. Sh. (1977) 1488, 1493. I 
therefore answer your second question "no". 

Very Truly Yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 5 

Alexander E. Sharp 
Commissioner of Public Welfare 
Department of Public Welfare 
600 Washington Street 
Boston, Massachusetts 02111 

Dear Commissioner Sharp: 

You have asked my opinion on three questions arising from the following 
limitation on the Medicaid appropriation in the fiscal year 1979 general ap- 
propriations statute, St. 1978, c. 367, §2, Item 4402-5000: 

... no funds appropriated under this item shall be expended 
for the payment of abortions not necessary to prevent the 
death of the mother. This provision does not prohibit pay- 
ment for the medical procedures necessary for the prompt 
treatment of the victims of forced rape or incest if such rape 
or incest in reported to a licensed hospital or law enforcement 
agency withing thirty days after said incident. 

Your three questions may be summarized as follows: 

1. May you authorize the payment^ of claims of Medicaid providers 



'The Depanment of Public Welfare's paymeni for Medicaid services is governed in pan by G.L. c. 18, §17. Section 17 per- 
iiiils the Comptroller to advance funds to the Department for the purpose of directly paying the bills incurred in implementing 
various public assistance programs. This procedure is in contrast with the usual method of disbursing appropriated funds to 
pay claims or bills, which requires (I) the Comptroller's certification of all amounts due and allowed and (2) a warrant from 
the Governor before bills may be paid from such funds. See G.L. c. 29, §20. As authorized bv G.L. c. 18, §17, the Department 
actually pays those Medicaid claims which comply with the requirements of G.L. c. 1 18E, §§8E, §§1 el seq.. provided that such 

payment is not other wi<;p nrr»hihil*.H h\j ln,», 



paymeni is not other wise prohibited by law. 



P.D.12 105 



for abortions they performed prior to the effective date of the ap- 
propriations act, in cases where the claims would be payable but for 
the quoted provisions of Item 4402-5000. 

2. May you authorize payment of claims for abortions performed 
between July 1, 1978 and July 10, 1978, the date on which the ap- 
propriations act was signed by the Governor. 

3. May you authorize payment of claims for abortions performed 
between July 10, 1978 and August 1, 1978, the date by which the 
Department complied with certain notice requirements set forth in 
federal Medicaid regulations it believes controlling in this instance. 

For the reasons set forth below, it is my view that you may authorize and 
approve payments to providers for abortion services provided to eligible 
Medicaid recipients through July 7, 1978^ out of the funds appropriated 
under c. 367, Item 4402-5000. You may not, however, authorize and ap- 
prove payments out of that appropriation for abortions performed between 
July 7 and August 1, 1978 other than those necessary to prevent the death of 
the mother or in cases of rape or incest. 

I first address the issue of payment for abortion services provided to 
Medicaid recipients prior to July 1, 1978, The language of Item 4402-5000 
expressly prohibits payment for abortions unless necessary to prevent the 
death of the mother and allows payment for necessary medical procedures 
in reported cases of rape or incest. However, the item does not indicate 
whether the Legislature intended it to apply prospectively or retroactively. 
Several considerations convince me that the statute should be read to apply 
prospectively. 

Initially I note that although Item 4402-5000 appears as part of an ap- 
propriations measure, St. 1978, c. 367, that statute is an Act of the 
Legislature and general rules of statutory construction apply to it. Cf. Ten- 
nessee Valley Authy. v. Hill. U.S , 98 S.Ct. 2279, 2299 (1978). 

Statutes are presumed to operate prospectively where substantive rights are 
involved absent a clear expression of legislative intent that the statute is to 
have retrospective effect. Austin v. Boston Univ. Hosp., Mass. Adv. Sh. 
(1977) 1166, 1170; See Goodwin Bros. Leasing, Inc. v. Nousis, Mass. Adv. 
Sh. (1977) 1663, 1667. Here, the substantive rights of providers of abortion 
services are clearly involved, for at issue is their ability to receive payment 
for abortions already performed. A retroactive reading of the pertinent pro- 
hibitory language in c. 367 would interfere with those rights. Since the 
statute does not expressly provide that it is intended to achieve this result, I 
believe it properly should be interpreted to apply solely to Medicaid abor- 
tions performed after the statute's enactment. 

This conclusion is supported by the rule that statutes, where possible, are 
to be construed to avoid constitutional doubts. E.g, Baird v. Attorney 
General, Mass. Adv. Sh. (1977) 96, 100; Juvenile w Commonwealth, Mass. 
Adv. Sh. (1976) 1237, 1246. You have informed me that the Department has 
entered into contracts which authorize the provision of abortion services to 
Medicaid recipients and require that the providers be reimbursed at rates 

Set' p. 6. n. 6 infra. 



106 P.D.12 



approved by the Rate Setting Commission. See G.L. c. 6A, §§32-36. The 
United States Supreme Court has recently stressed the continued vitaHty of 
the impairment of contracts clause of the United States Constition, Art. 1, 
§10, especially as applied to impairments of a state's own contracts. United 
States Trust Co. v. New Jersey, 421 U.S. 1, 22-23 (1977); see Allied Struc- 
tural Steel Co. V. Spannaus, U.S. , 98 S. Ct. 2716, 

2721-2723 and n. 15, (1978). 

In the United States Trust Co. case, the Court held that in order to suc- 
cessfully withstand a constitutional challenge under the contracts clause in 
cases where a state statute impairs the rights of a party who has contracted 
with the state, the state must demonstrate that the statute is both reasonable 
and necessary to serve an important governmental purpose. 431 U.S. at 29. 
See Allied Structural Steel Co., supra at 2722. It is likely that a retroactive 
application of Item 4402-5000 to prohibit payment for services provided 
under a contract with the Department would not pass constitutional muster 
under this contracts clause test. The state would be refusing to honor 
obligations legally incurred at the time the services were performed, and 
such refusal would be neither necessary not reasonably related to carrying 
out an important state purpose.^ See United States Trust Co. v. New Jersy, 
supra; cf. American Manufacturers Mut. Ins. Co. v. Commissioner of In- 
surance, Mass. Adv. Sh. (1978) 58; Wasser v. Congregation Agudath 
Sholom of Chelsea, 262 Mass. 235, 237 (1928)." Accordingly, in my judg- 
ment the limiting language of c. 367 should be interpreted as operating pro- 
sepectively. The statute therefore does not prohibit you from authorizing 
and approving payment for abortion services provided to eligible Medicaid 
recipients prior to July 1, 1978.^ 

My answer to your first question applies as well to your second, concern- 
ing abortions performed between July 1, and July 7, 1978.^ Although c. 367 
states that it shall take effect as of July 1, 1978 see c. 367, §72, there is no 
specific indication that the Legislature intended the July 1 effective date to 



'In Beal \ . Doe. U.S. 438 (1977). ihe Supreme Court upheld a PennsyKania statute which restricted the funding of abortions 
on childbirth." The limitation contained in Item 4402-5000 arguably has a similar purpose if applied prospectively, but a 
retroactive application to prohibit payment for abortions which have already been performed could hardly be said to serve 
such a goal. 432 U.S. at 445-446. Instead, retroactive application could only be read as a puntitive measure aimed at those vvho 
have exercised a constitutionally protected right with the justifiable expectation of reimbursement based on statutes existing at 
the time of their action. 

'.\ssuming the Legislature might pass an additional appropriations measure at some time in the future to satisfy the claims of 
Medicaid providers for authorized abortions performed before July 1, 1978, a retroactive reading of c. 367 would still raise 
constitutional doubts. \ portions of the fund appropriated by Item 4402-5000 is allocated to pay the prior year's bills. See n.6, 
infra. If these funds may not be used to pay for one particular class of authorized medical services, abortions, the proscription 
may give rise to a claim that the statute violates the equal protection clause of the Fourteenth Amendment by making it more 
difficult and burdensome for providers of abortion services to obtain reimbursement than for providers of other medical ser- 
vices. 

■Moreover, Item 4402-5000 itself contains a separate proviso stating that "an amount not exceeding (5120.000,000] may be ex- 
pended from this item for expenses incurred in the prior year ..." You have stated that the abortions performed before luly 
1 , 1978 for which payment is now claimed were authorized under the Commonwealth's Medicaid statute, G.L. c. 1 18E. and 
the Department's regulations at the time the services expenses does not expressly prohibit the Department from paying for any 
abortion services which were reimbursable when performed. I recognized that Item 4401-5000's limitation on utilizing "funds 
appropriated under this item" for payment could be construed to apply to the separate proviso quoted immediately above. 
Given the constitutional implications of such a construction, however, see pp. 4-5 and n. 4, the proviso itself can be said to 
authorize the Department to approve payment for any valid obligations incurred in the 1978 fiscal vear for services which were 
reimbursable when rendered. 

'Subsequent to receiving your opinion request I was informed that you were uncertain as to which date Item 4402-5000 was 
enacted. I construe the date of enactment as the date upon which the General Court overrode the Governor's veto of the Item, 
July 7. 1978, rather than the date that the Go\ernor signed the remainder of c. 367. See Mass. Const., .Articles of .Amendment, 
art. 63, Id., Part 2, c.l §1, art. 2. Thus the operative period for purposes of vour second question is Julv 1 throueh Julv 7 
rather than July 1 through July 10. 



P.D.12 107 



apply to Item 4402-5000's limitation on the payment for abortions services/ 
Like the payment claims for abortions performed prior to July 1, claims for 
abortions performed between July 1 and July 7 relate to Medicaid services 
which were reimbursable when rendered. For the reasons given in response 
to your first question, I do not believe the portions of Item 4402-5000 at 
issue should be interpreted in such a way as to prohibit payment for 
authorized abortion services rendered before the Medicaid portion of the 
budget was enacted on July 7, 1978. 

Your final question asks whether you may use the funds appropriated by 
c. 367, Item 4402-5000 to pay for abortions performed between July 7 and 
August. 1, 1978, the date you completed the process of notifying Medicaid 
recipients of the new statutory limitation on abortion services.® 

It is a fundamental tenet of our system of government that the power of 
appropriation lies exclusively in the legislative branch. Opinion of the 
Justices, Mass. Adv. Sh. (1978) 1811, 1813, Baker v. Commonwealth, 312 
Mass. 490, 493 (1942). The Legislature exercises this power by setting apart 
from public revenues a specific amount of money to be used by officers of 
the executive branch to implement and maintain programs the Legislature 
has established. Opinion of the Justices, supra at 1814; Opinion of the 
Justices, Mass. Adv. Sh. (1978) 1412, 1419-1420. 

The Legislature, in appropriating funds for the Medicaid program in St. 
1978, c. 367, has determined that no funds shall be expended for abortions 
except in the circumstances enumerated in Item 4402-5000. Although I have 
construed the relevant language of the item as not prohibiting you from 
authorizing payments for abortions performed prior to its enactment, it is 
clearly intended to proscribe such expenditures for most abortions perform- 
ed thereafter. I recognize the possibility that since your Department made 
abortion services available to eligible Medicaid recipients until August 1, 
1978, failure to pay the providers of these services could subject the Com- 
monwealth to possible sanctions by the Department of HeaUh, Education 
and Welfare, including the withholding of federal funds. See, e.g., Rosado 
V. Wyman, 397 U.S. 397, 407-420 (1970). However, an executive or ad- 
ministrative officer such as yourself may not expend state funds for a pur- 
pose other than that for which the Legislature appropriated them, and may 
be subject to criminal penalties if he does so. See G.L. c. 29, §§26, 66; cf 
1976/1977 Op. Aty. Gen. No. 8; Compare Opinion of the Justlices, Mass. 
Adv. Sh. (1978) 1811, 1815-1816. These governing principles of state law 
control here and preclude your authorizing the use of funds appropriated by 



'The July 1, 1978 effective date for c. 367 was required in order to authorize payments for services, salaries and other obliga- 
tions which the Commonwealth had incurred between June 30, 1978, the end of the 1978 fiscal year, and the date of enactment 
of a budget for the 1979 fiscal year. 

'You have informed me that vou construe federal law, in particular the Department of Health. Education and Welfare's 
Medicaid regulation appearing in 45 C.F.R. 205.10(a)(4)(iii), to require that abortion services authorized by slate law prior to 
July 7 continue to be provided until the Department's regulations were changed on August 1, and eligible recipients duly 
notified of the reduced availability of abortion services. You have not asked whether your interpretation of this regulatory pro- 
vision is correct and therfore I make no judgment on the question. For purposed of this opinion I accept your interpretation, 
and address the question whether, notwithstanding recipients' entitlelment to full abortion ser\ices until ,\ugust 1, 1978, you 
are precluded from authorizing payment to providers who performed those services between July 7 and August 1, 1978 from 
:he funds appropriated in Item 4402-5000. 



108 P.D.12 



Item 4402-5000 for any abortions performed between July 7 and August 
1, 1978 other than those described in the Item.^ 

In reaching this conclusion 1 do not mean to suggest that providers who 
furnished full abortion services to eligible Medicaid recipients between July 
7 and August 1 are not entitled to be paid for their services. See 
Massachusetts General Hospital v. Sargent, 397 F. Supp. 1056 (D. Mass. 
I915);^°see also Massachusetts General Hospital v. Department of Public 
Welfare, 359 Mass. 306 (1971)." As these cases demonstrate, both the 
federal and Massachusetts courts have recognized the right of a provider to 
be reimbursed for authorized Medical services rendered to eligible reci- 
pients. Nevertheless, the specific language of Item 4402-5000 makes plain 
that the funds it appropriates may not be used to satisfy such rights, and 
that language is binding on you with respect to the period from July 7 to 
August 1, 1978. Accordingly you may not now authorize and approve the 
payment for claims for abortions performed during that period which were 
not necessary to prevent the death of the mother. You may, of course, 
authorize and approve payment for medically necessary services rendered 
during that period fro the prompt treatment of reproted cases of force rape 
of incest. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



'My opinion to you with respect lo expenditures for the Department's Emergency Assistance Program, another federal-state 
welfare program, does not apply lo this case. 1976/1977 Op. Atty Gen. No. 20. There, you asked whether a federal court order 
holding invalid a recent state statute restricting state expenditures for the program required you to withdraw from it entirely in 
order to implement the offending statutory provision. In that case the court order had altered the situation which the 
Legislature has faced in enacting the statute, and I was asked to interpret the legislative intent in light of the judicial order. 
In the present situation there is no comparable judicial determination. It is true that on July 28, 1978, a judge of the Federal 
District Court for the District of Massachusetts enjoined the implementation of St. 1978 bursed abortions authorized by Sec- 
tion 209 of Public Law 95-205, 91 Stat. 1460, commonly known as the Hyde Amendment." See Ja/fe v. Sharp. C.A. No. 
78-I637-C (D. Mass., order for preliminary injunction, dated July 28, 1978); Preterm, Inc. v. Dukakis, C..^. No. 78-1653-C 
(D. Mass. order, dated July 28, 1978). However, neither the district court's preliminary injunction nor its subsequent enlarg- 
ment by the First Circuit Court of Appeals affects the questions you have presented because the injunction did not take effect 
until August I, 1978. Of course the courts' injunctive orders apply to your implementation of Item 4402-5000 after that date. 
'°In that case, the court was faced with a claim by providers that the Commonwealth had failed to pay promptly for services 
rendered to eligible Medicaid recipients, resulting from the lack of appropriated funds sufficient to meet Medicaid expenses. 
Id. at 1058. The Court first ruled that the plaintiff providers had standing to challenge the Commonwealth's alleged failure lo 
comply wilth federal Medicaid requirements regarding payment for services, and then held that the .Medicaid statutes, 42 
U.S.C. ^\i96el seq., entitled plaintiffs to full and prompt payment by the state for the hospital inpatient services involved in 
the case. Id. at 1062. The court entered a declaration that the Commonwealth's failure to pay providers for services rendered 
under the Medicaid program violated the Social Security Act and the supremacy clause of the United Slates Constitution. Id. 
at 1057. Additionally, the court noted as follows: 

It appears that the . requirement for full and prompt payment to providers is embodied in the formal 

statutory structure of the Massachusetts Medicaid law. Mass. G 



P.D.12 109 

Number 6 September 7, 1978 

John F. Hodgman 
Director, Divsion of 

Employment Security 
Charles F. Hurley Employment 

Security Building 
Government Center 
Boston, MA 02114 

Dear Mr. Hodgman: 

You have requested my opinion whether you may refrain from implemen- 
ting certain provisions of St. 1978, c. 4 (c.4), which was enacted as a reac- 
tion to the severe snowstorm of February, 1978. Chapter 4 amends the 
Commonwealth's unemployment compensation law, G.L. c. 151 A, by 
waiving the ordinary prohibition against receiving benefits during the first 
week of unemployment' for persons unable to work and unpaid because of 
the storm. The specific provisions in c. 4 which concern you related to the 
manner in which the benefits are charged to employers. The Regional Ad- 
ministrator For Employment and Training of the United States Department 
of Labor (DOL) has interpreted^ these portions of c. 4 as inconsistent with 
the Federal Unemployment Tax Act.^ For the reasons which follow, I con- 
clude that you may not refrain from implementing those disputed provisions 
of c. 4 at the present time. 

The unemployment benefits system is a cooperative venture between the 
states and the federal government. See Bucks taff Bath House Co. v. 
McKinley, 308 U.S. 358, 363-364 (1939) citing Steward Machine Co. v. 
Davis, 301 U.S. 548, 588 (1937) (focusing on provisions of the Social Securi- 
ty Act from which the current provisions of the Federal Unemployment Tax 
Act were derived). Unemployment benefits are financed by taxes imposed 
on employers by both the states and the federal government. States are 
given wide latitude in determining what type of employment compensation 
system they will establish. See Steward Machine Co., supra, 301 U.S. at 
592-595; see also Howes Brothers Co. v. Unemployment Compensation 
Commission, 296 Mass. 275, 294 (1931). However, as an inducement for 
states to develop sound, effective unemployment programs. Congress has 



"G.L. c. 15IA, §23 



i'You have provided me with a copy of a lelter dated April 27, 1978 from Region I Administrator Luis Sepul\cda to you. 
'References to the Regional Administrator's interpretation made later in this opinion refer to this letter. 
'The Federal Unemployment Tax Act is codified as part of the Internal Revenue Code. I.R.C. (!!J3.10I - 3.311; w alsa 20 
r.F.R §§601 el seq. (1977), as amended by 43 Fed. Reg. 13,828 (March 31, 1978) (DOL regulations.) 



110 P.D.12 



established financial incentives to states whose systems conform to federal 
statutory standards. See Steward Machine Co., supra, 301 U.S. at 575, 594. 

The most significant of these incentives provides a credit against federal 
unemployment taxes'* for employers who also pay into a state system which 
the Secretary of Labor has deemed to be consistent with the Federal 
Unemployment Tax Act requirements. I.R.C. §§ 3302(a), (c); 3304. In addi- 
tion, employers are eligible for further tax credits if the Secretary of Labor 
finds that the state law includes a vaild "experience rating" system under 
which variations in an employer's tax rate bear a direct relation to his 
employment risk experience. I.R.C. §§ 3302, 3303. This "additional credit 
allowance" provision constitutes the focal point of your inquiry. 

General Laws, c. 151 A establishes an experience rating system deter- 
mined valid by the Secretary of Labor, at least prior to the enactment of c. 
4. Under the system, employers' state taxes are paid into a state unemploy- 
ment compensation fund from which all benefits are then paid.^ The fund is 
divided, for bookkeeping purposes, into two types of accounts: individual 
employer accounts and solvency account. G.L. c. 151 A, § 14(c). When 
benefits are paid for unemployment which is in some sense attributable or 
"chargeable" to a particular employer (e.g., due to layoffs), the employer's 
account is charged and his "experience rating," which may in turn vary his 
tax rate, is affected. G.L. c. 151 A, §14(d). When benefits are not chargeable 
to a particular employer (e.g., when a worker involuntarily leaves through 
no fault of the employer), the general solvency account is charged. G.L. c. 
151 A, § 14(e). With several minor exceptions not here relevant,^ the cost of 
funding the solvency account is shared by all employers. 

In authorizing unemployment benefits for storm victims, c. 4 addresses 
the problem of how those benefits would be charged. Specifically, it states 
that storm-related benefits are to be charged to the solvency account, but 
"only to those employers who did not pay their employees" during the 
Strom week.^ By letter dated April 27, 1978, the Regional Administrator in- 
formed you^ that he construes the statute's quoted proviso (see n. 7) to re- 
quire that only certain employers, i.e., those who did not pay their 
employees during the storm week, bear the cost of charges made to the 
solvency account. He further stated that he considers the proviso to be in- 
consistent with I.R.C. §3303(a)(l), which he interprets to prohibit solvency 
account charges from being imposed on only a certain class of employers. 



'Inderal uiicnipliuiiicni iu\cs arc- picsciilK sol al cilhcr V2 iir V4 pci\cm ol an cniplciver's pa>ioll. I.K.t . !; '^M)\. 

I he hind cdiisisi', ol ciuplovcrs' coninhiiimns and sonic k-dcial nionK's rclaiint: lo ccriain spi.-i.ial hcncliis pioeranis. Ilicii.- 
'.SccCi.l , c. I51A, SUCcX.M'and (6). 

I he iclc\ani ponion ol Ihc siauiic is huiiid In c. 4. 51: 
All iiaymenls lor ihc |su)rm| pciiod . . . lo employees made elieihle lor heneliis because ol |llie sioniil or lo einplo\ees olher- 
\Mse evperlencint! lolal or pariial uncmploynicnl because ol sescre weather condillons . . . shall he dwrncd lo the uilvemv ac- 
ioiiiu established persuani lo |Ci.l-. c. 151 A, SH] . . . provided, fiinher thai noiwilhsiundiiti: the i'ro\i\i(>n\ of /c. 151 A. ^14], 
aiiv addiiional aiuouiu churned lo ihe solvency uccouni imrsuani lo the provisions ol ihis Act shall, siih/ecl lo ihe rules and 
rcKiilalions ol ihc Division of Linploynieni Seciirily, he churvcuhic only lo those employers who did not puv llieir einplovees 
lor the Istornil period I.M ans pan ihereol « ho could not uoik because ol sc\ere uealhci condiiions (emphasis sup- 

plied ) . 

( hapler 4 orifunaled as Mass. S. 1154. proposed b> the Cjo\ernor. Ihis bill pnnided ihai stoiiiMclaied benelils would be 
chareed simpK to the soKencs account. The prosiso quoled above was added on ihe Moor ol ihe Mouse ol Kepresenialives. 

I)()l IS required lo assess the conlormits ol anv new stale uiiemploMiieni statute with the conditions uoveinint: the addiiional 
credit allowance set lorth in I.R.C . i;1V)1(a). See id.. ilKHlbXI); 20 1,1 .R. ^ifiOl, et seq. As discussed below, the Icderal 
assessment heems with the Reiiional Admimsiratoi . See p. M. n 12. mini. 



P.D.12 111 



In his view, no differentiation among employers can be made for solvency 
account charges.^ 

Your question is whether, in view of the Regional Administrator's inter- 
pretation of c. 4, you can refrain from implementing the two provisions 
which he considers to conflict with federal law.^° As a general matter of- 
ficials of the executive branch of the Commonwealth are required to carry 
out state legislative mandate. See Opinion of the Justices, Mass. Adv. Sh. 
(1978) 1412, 1421; Opinion of the Justices, Mass. Adv. Sh. (1978) 1811, 
1814; G.L. c. 29, §26. It is not usually within their province to refuse to im- 
plement statutes they believe to be unconstitutional or otherwise invalid. 
Assessors of Haverhill v. New England Telephone & Telegraph Co., 332 
Mass. 357, 362 (1955). Howevei, where a court of competent jurisdiction 
finds that a state legislative mandate conflicts with federal law, the state law 
must give way under the Supremacy Clause of the United States Constitu- 
tion." In such a case, state officials would have to refrain from implemen- 
ting the state statute or at least the invalid portions of it. 

In cooperative federal-state programs such as the unemployment com- 
pensation system, federal law is binding only if the state elects to participate 
in the scheme. See Townsend \ . Swank, 404 U.S. 282(1971). If a court finds 
state and federal law to conflict in such a situation, the state could avoid the 
conflict by withdrawing from the federal program and continuing to imple- 
ment the state law. Alterntively, the state statute might be subject to a con- 
struction which avoids the Supremacy Clause conflict and permits the state 
to remain in the federal program. The appropriateness of these alternatives 
is likely to turn on an analysis of legislative intent: did the state Legislature 
intend to withdraw from the federal program if necessary to save the offen- 
ding provision of state law? See 1976/77 Op. Atty. Gen. No. 20 at 5-6.'^ 

The Massachusetts unemployment compensation law, like the Aid to 
Families with Dependent Children (AFDC) statute discussed in 1976/77 Op. 
Atty. Gen. No. 20, demonstrates a general a general legislative intent to re- 
main in conformity with federal law. See DeCordova & Dana Museum & 
Park V. Director of the Division of Employment Security, Mass. Adv. Sh. 



'The Regional Administrator has also interpreted as inconsistent with I.R.C. §3303 (a)(1) a provision of c. 4 directing that the 
solvency account be charged for benefits paid to persons who have 'reopened' unemployment claims because of the 
snowstorm. Whenever employees receive benefits for two distinct periods of unemployment within a calendar year, the 
Regional Administrator takes the position that the second set of benefits must be charged lo their employers' accounts and not 
to the solvency account. Thus, benefits paid to persons who had collected benefits within a year of the storm, had resumed 
working and then had been forced into partial or total unemployment again because of the storm, must, according to the 
Regional Administrator, be charged lo their employers' accounts lo satisfy federal law. 

'"Implicit in your opinion request is the question of whether c. 4 conflicts with G.I, . c. 151 A and thereby can be ignored by the 
Director of the Division of Employment Security. It is a fundamental principle of statutory construction that statutory provi- 
sions must be reconciled where possible so as "to accomplish harmoniously the legislative purpose." Doliner v. Planning 
Board of Millis. 343 Mass. 1, 5(1961). However, you imply that c. 4 and the provisions of c. 151 A arc contradictory. See p. 4, 
supra. In such circumstances, the general statute (c. 151 A) would yield to the specific statute (c. 4), particularly where the 
specific statute is the more recent of the two. Pereira v. New England LNG Co.. Inc.. 364 Mass. 109, 118 (1973); see Island 
Properties, Inc. v. Martha's Vineyard Comm'n. Mass. Adv. Sh. (1977) 555, 571. Thus, c. 4 must be enforced by the Director 
of the Division of Employment Security even if it docs conflict with G.L. c. 151 A. 

'See Florida Lime and Avocado Growers v. Paul. 373 U.S. 132 (1963) for a discussion of the application of the Supremacy 
Clause lo invalidate state laws conflicting with federal law. 

"The cited opinion was rendered lo the Commissioner of Public Welfare in conneclion with a ruling by a federal judge thai 
certain provisions of the Commonwealth's Aid lo Families with Dependent Children (Al DC) statute, G.L. c. 118, were un- 
consliiutional under the Supremacv Clause as long as the slate participated in the federal AFDC program under 42 U_S.C. 
§§601 el seq. The Commissioner asked mv opinion whether he was required to withdraw from the federal program in order to 
carry out the offending section of c. 1 18. I concluded that G.I c. 1 18 taken as a whole evinced an overriding legislaine man- 
date to obtain the maximum available federal financial participation in all state-run welfare programs, and the specific section 
found invalid contained no language to indicate a contrary intent. In these circumstances, I ruled thai the Commissioner 
possessed the authority not lo implement the unconstitutional provisions of stale law and thereby protect the state's ability lo 
obtain federal funds for its AFDC program. 



112 P.D.12 



(1976) 1064, 1068-1071; see also St. 1977, c. 720; St. 1971, c. 940 (both 
amending G.L. c. 151A for express purpose of conformity with federal 
law). However, in contrast to the facts surrounding the earlier opinion (see 
n. \2 supra), there is not yet a sufficiently clear indication that c. 4 conflicts 
with federal law. Accordingly, at the present time it is not necessary to 
choose between the general statutory intent of G.L. c. 151A to remain in 
conformity with federal law and the specific intent of c. 4. 

The process by which the Labor Department assesses the conformity of 
state and federal law is set out in l.R.C. §3303(b) (3): 

The Secretary of Labor shall, within 30 days after any State law is 
submitted to him for such purpose, certify to the State agency his 
findings [as to conformity]. After making such findings, the 
Secretary of Labor shall not withhold his certification ... of such 
State law . . . unless, after reasonable notice and an opportunity 
for hearing to the State agency, the Secretary of Labor finds that 
the State law no longer contains the provisions specified in subsec- 
tion (a) or the State has . . . failed to comply substantially with any 
provision. 

This provision should be read in conjunction with the accompanying 
regulations promulgated by the Secretary of Labor, 20 C.F.R. §§601 et seq. 
(1977), as amended by 43 Fed. Reg. 13,828 (March 31, 1978).'^ 

To characterize the Regional Administrator's interpretation of c. 4 as 
final would be inconsistent with the review process established by §3303(b) 
and the regulations promulgated thereunder. It seems that DOL review of c. 
4 ceased just prior to the point at which matters are to be presented to the 
Secretary, '" and the Regional Administrator's interpretation cannot be con- 
sidered a certification of the Secretary within the meaning of l.R.C. §3303 
(b) (3). 

Moreover, treating the Regional Administrator's interpretation as final 
would contravene the principle that administrative decisions are not deemed 
final unless a judicial appeal may appropriately be taken from them. See 
Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 
400 U.S. 62, 71 (1970). Under the Federal Unemployment Tax Act a state 
may not bring a court appeal until the Secretary himself has determined to 
withhold certification of the state's law. l.R.C. §§3310; see id. §3303(b). 

In these still fluid circumstances, I must advise you that you have an 
obligation at present to carry out the express intent of the Legislative clearly 
set forth in c. 4 Opinion of the Justices, Mass. Adv. Sh. (1978) 1412, 1421. 



The Regional Adminisirator's April 27, 1978, Idler lo you appears lo represeni only ihc position ol the Employmeni and 
Training Adminisiralion, and nol of ihe Secreiary. The leiler makes no meniion thai the matter has been referred to Secretary, 
and indeed suggests that the state and federal officials were seeking to resolve the problem so thai is would not need to reach 
the Secretarial level. 

''Under the cited regulations, stales seeking approvial of experience rating systems submit a copy of their law to the Regional 
Ksini'Th^"'^ reviews the law in conjunction with the Office of the Assistant Secretary for Employmeni and Training. Id. 
{!S601.2(b), 601.3(b). "II questions are raised concerning such conformity, negotiations to resolve them are undertaken with 
slate otficials." Id. §601. ?(b). Only if those questions are not satisfactorily resolved is the issue presented to the Secretary. Id. 

I the Secretary is unable lo certify thai the slate law conforms lo federal law, he orders further negotiations with slate of- 
licials. Id. ()601 .3(c); it these fail, he must offer the state agency an opportunity for a hearing at which it can present arguments 
onbchall ol its law. /rf. S60I .5(b), (d); see S. Rep. No. 752. 91si Cong, 2nd Sess. (1970), repnn/erfm (1970) U.S. Code Cong. 
& Ad. News 3606, 3630-363 1 . Finally, a stale may appeal adverse decisions of the Secretary of Labor lo the appropriate federal 
y'[>'"',' ';°"'' "' aPPc-als, l.R.C. §3310, with the court having full jurisdiction to review the Secretary's findings of law. Cf. 
l.R.C. §3301(b), (c); S. Rep. No. 752, 5i//7ro. 



P.D.12 113 



The question whether the express intent of c. 4 must, if ever, yield to the 
general intent of c. 151 A to remain in conformity with federal law must 
await further action by DOL.^^ 

For the foregoing reasons, I conclude that you do not have the authority 
to refrain from implementing the provisions of c. 4 which the Regional Ad- 
ministrator interprets as inconsistent with the additional credit provisions of 
the Federal Unemployment Tax Act. 



Very truly yours, 

FRANCIS X. BELLOTTl 

Attorney General 

Number? September 29, 1978 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi; 

By letter dated September 11, 1978, you have asked me whether the 
following question is one of public policy in accordance with G.L. c.53, 
§19: 

"Shall the Senator from this District be instructed to sup- 
port and vote in favor of legislation providing for a man- 
datory deposit on containers in which malt beverages or 
soft drinks are sold?" 
It is my opinion that the question is an "important public question" in 
which "every citizen of the Commonwealth has in interest" and is therefore 
a question of "public policy" within the meaning of G.L. c.53, §19. See, 
1976/77 Op. Atty. Gen. No. 7; 1974/75 Op. Atty. Gen. No. 20 at 61; 
1974/75 Op. Atty Gen. No. 19 at 61; 1974/75 Op. Atty. Gen. No. 18 at 59; 
1974/75 Op. Atty. Gen. No. 17 at 58; 1974/75 Op Atty. Gen. No. 16 at 58; 
1974/75 Op. Atty. Gen. No. 15 at 57; 1974/75 Op. Atty. Gen. No . 12 at 55; 
1974/75 Op. Atty. Gen. No. 10 at 54; 1974/75 Op. Atty. Gen. No. 9 at 53. 
Consequently, the question may properly be included on the election ballot 
in the Senatorial District which you have mentioned, namely, the 2nd 
Worcester. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation on 
the ballot. In my opinion, the question should be printed in the form in 
which it was submitted to you. 



1 Ins is not to suggest thai a finding of c. 4's nonconformity with federal law can be considered final only after all possible 
ncnues of administrative and judicial appeal are exhausted. The Division itself should exercise its discretion in deciding 
vOiciher 10 request a hearing to dispute an adverse finding by the Secretary, keeping in mind the intent of the Legislature. As to 
ludicial review available under I.R.C. §3310, as legal representative of the Division, G.L. c. I51A. §42A, 1 am responsible for 
Jecidlng whether to appeal. 



114 P.D.12 



Very truly yours. 

FRANCIS X. BELLOTTI 

Attorney General 

Numbers September 29, 1978 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

By letter dated September 1 1, 1978, you have asked me whether the follow- 
ing question is one of public policy in accordance with G.L. c. 53, §19: 

"Should the State Representative be instructed to oppose 
the Charter Revision changes as proposed by the town 
meeting and support the development of a charter commis- 
sion for the town of Saugus?" 
Under prior opinions of the Attorney General, it has been determined 
that the term "public policy" as used in section 19 should not be given a 
restrictive meaning. 1974/75 Op. Atty. Gen. No. 22 at 63; 1974/75 Op. At- 
ty. Gen. No. 1 1 at 54; 1968/69 Op. Atty. Gen. No. 5 at 37; 1966/67 Op. At- 
ty. Gen. No 34 at 77. However, it is well established that the question must 
constitute an "important public question" in which "every citizen of the 
Commonwealth has an interest." See, 1976/77 Op. Atty. Gen. No. 7; 
1974/75 Op. Atty. Gen. No. 20 at 61; 1974/75 Op. Atty. No. 19 at 61; 
1974/75 Op. Atty. Gen. No. 18 at 59; 1974/75 Op. Atty. Gen. No. 17 at 58; 
1974/75 Op. Atty. Gen. No. 16 at 58; 1974/75 Op. Atty. Gen. No. 15 at 57; 
1974/75 Op. Atty. Gen. No. 12 at 55; 1974/75 Op. Atty. Gen. No. 10 at 54; 
1974/75 Op. Atty Gen. No. 9 at 53. 

Although the proposal involved in the question is certainly an important 
question in the Town of Saugus, it cannot be said that it is a question in 
which "every citizen of the Commonwealth has an interest."' Id. Further- 
more, the laws authorizing charter revisions by town charter commissions 
provide for such revisions by vote of a town meeting. They do not con- 
template legislative involvement in the process of charter revision by a town 
charter commission. See, Const. Amend. Art. 2, 89; G.L. c.43B, §§1 et seg. 
1 am therefore of the opinion that the question does not meet the re- 
quirements of G.L. C.53, §19, and should not be included on the election 
ballot in the 9th Essex Representative District. 



Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



'It should be noied ihai this is not a situation in which the t'orm ol the question is ot particular interest geographically, but the 
substance ol the proposeal has broad import. See. e.g., 1974/75 Op. Atty. Gen. No. 22 at 63 ("pilblic transportation"); 
1974/75 Op. Atty. Gen. No. 21 al 62 ("environmental issues"); 1974/75 Op. Attv. Gen. No. H at 56 ("environmental 
issues"); 1974/75 Op. Atty. Gen. No. 1 1 at 54 ("public transportation"). 



P.D.12 115 



Number 9 September 29, 1978 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

By letter dated September 11, 1978, you have asked me whether the 
following question is one of public policy in accordance with G.L. c.53, 
§19: 

"Shall the Representative from the District be instructed to 
vote to approve passage of a bill which: 

(A) Sets a property tax limit of 2'/2% of full cash value as the 
maximum property tax. 

(B) limits authority of the State Legislature and the State 
Treasurer to impose and assess costs on Cities and Towns 
unless the State provides full financing for its programs, in- 
cluding State Aid to Education. 

(C) amends school fiscal autonomy to allow the reduction or 
deletion of increases in school budgets by a two-third vote 
of town meeting or city council. 

(D) establishes a maximum limit on State Tax Revenue each 
year. The percentage increase in State Tax Revenue shall be 
limited to the percentage increase in total Massachusetts 
personal income?" 

It is my opinion that the question is an "important public question" in 
which "every citizen of the Commonwealth has an interest" and is 
therefore a question of "public policy" within the meaning of G.L. c.53, 
§19. See, 1966/67 Op. Atty. Gen. No. 33 at 76. See, also, 1976/77 Op. Atty. 
Gen. No. 7; 1974/75 Op. Atty. Gen. No. 20 at 61; 1974/75 Op. Atty. Gen. 
No. 19 at 61; 1974/75 Op. Atty. Gen. No. 18 at 59; 1974/75 Op. Atty. Gen. 
No. 17 at 58; 1974/75 Op. Atty. Gen. No. 16 at 58; 1974/75 Op. Atty. Gen. 
No. 15 at57; 1974/75 Op. Atty. Gen. No. 12 at 55; 1974/75 Op. Atty. Gen. 
No. 10 at 54; 1974/75 Op. Atty. Gen. No. 9 at 53. Consequently, the ques- 
tion may properly be included on the election ballot in the Representative 
District which you have mentioned, namely, the 2nd Essex. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation on 
the ballot. In my opinion, the question should be printed on the ballot in the 
following form: 

"Shall the Representative from this District be instructed to 
vote to approve the passage of a bill which: (a) sets a pro- 
perty tax limit of two and one half percent (2'/2%) of the 
full cash value as the maximum property tax; (b) limits the 
authority of the state to impose and assess costs on 
municipalities, including educational assessments, unless 



116 P.D.12 



full state funding is provided; (c) limits the fiscal autonomy 
of schools by allowing the reduction or deletion of in- 
creases in school budgets upon a two-thirds vote of the 
town meeting or city council; (d) establishes a maximum 
yearly limit on state tax revenue and provides that the 
percentage increase in such revenue be limited to the 
percentage increase in the total personal income of 
Massachusetts?" 



Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 10 ^ September 29, 1978 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston Massachusetts 02133 

Dear Secretary Guzzi: 

By letter dated September II, 1978, you have asked me whether the 
following question is one of public policy in accordance with G.L. c.53, 
§19: 

"Shall the Senator from this District be instructed to vote 
to approve the passage of a bill requiring the reduction and 
limitaiton of local property taxes by substituting revenue 
from state taxes; and providing that all state and local taxes 
combined shall not take a larger percentage of the total 
personal income in Massachusetts than the average percen- 
tage taken in the three year period immediately preceding 
approval?" 
It is my opinion that the question is an "important public question" in 
which "every citizen of the Commonwealth has an interest" and is 
therefore a question of "public policy" within the meaning of G.L. c.53, 
§19. See. 1966/67 Op. Atty. Gen. No. 33 at 76. See, also, 1976/77 Op. Atty. 
Gen. No. 7; 1974/75 Op. Atty Gen. No. 20 at 61; 1974/75 Op. Atty. Gen. 
No. 19 at 61; 1974/75 Op. Atty. Gen. No. 18 at 59; 1974/75 Op. Atty. Gen. 
No. 17 at 58; 1974/75 Op. Atty. Gen. No. 16 at 58; 1974/75 Op. Atty. Gen. 
No. 15 at 57; 1974/75 Op. Atty. Gen. No. 12 at 55; 1974/75 Op. Atty. Gen. 
No. 10 at 54; 1974/75 Op. Atty. Gen. No. 9 at 53. Consequently, the ques- 
tion may properly be included on the election ballots in the various 
Senatorial Districts for which application has been made. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation on 
the ballot. In my opinion, the question should be printed on the ballot in the 
form in which it was submitted to you. 



P.D.12 117 



Very truly yours 

FRANCIS X. BELLOTTl 

Attorney General 

Number 1 1 September 29, 1978 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

By letter dated September 11, 1978, you have asked me whether the 
following question is one of public policy in accordance with G.L. c.53, 
§19: 

"Shall the Representative from this District be instructed to 
vote for the passage of a bill requiring that before an 
elementary school is closed, a Neighborhood Impact State- 
ment describing all alternatives to the closing and the im- 
pact of the closing on the affected neighborhood must be 
prepared?" 
It is may opinion that the Question is an "important public question" in 
which "every citizen of the Commonwealth has an interest" and is 
therefore a question of "public policy" within the meaning of G.L. c.53, 
§19. See, 1976/77 Op. Atty. Gen. No. 7; 1974/75 Op. Atty. Gen. No. 20 at 
61; 1974/75 Op. Atty. Gen. No. 19 at 61; 1974/75 Op. Atty. Gen. No. 18 at 
59; 1974/75 Op. Atty. Gen. No. 17 at 58; 1974/75 Op. Atty. Gen. No. 16 at 
58; 1974/75 Op. Atty. Gen. No. 15 at 57; 1974/75 Op. Atty. Gen. No. 12 at 
55; 1974/75 Op. Atty. Gen. No. 10 at 54; 1974/75 Op. Atty. Gen. No. 9 at 
53. Consequently, the question may properly be included on the election 
ballot in the Representative District which you have mentioned, namely, the 
12th Middlesex. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation on 
the ballot. In my opinion, the question should be printed on the ballot in the 
form in which it was submitted to you. 

Very truly yours, 

FRANCIS X. BELLOTTl 

Attorney General 

Number 12 September 29, 1978 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 
By letter date September 1 1 , 1978, you have asked me whether the follow- 



118 P.D.12 

ing question is one of public policy in accordance with G.L. c.53, §19: 
"Do you favor a moratorium on the construction of nuclear 
power plants until safe methods of waste disposal are devised?" 
It is my opinion that the question is an "important public question" in 
which "every citizen of the Commonwealth has an interest" and is 
therefore a question of "public policy" within the meaning of G.L. c.53, 
§19. See 1976/77 Op. Atty. Gen. No. 7; 1974/75 Op. Atty. Gen. No. 21 at 
62; 1974/75 Op. Atty. Gen. No. 13 at 56. See, also, 1974/75 Op. Atty. Gen. 
No. 20 at 61; 1974/75 Op. Atty. Gen. No. 19 at 61; 1974/75 Op. Atty. Gen. 
No. 18 at 59; 1974/75 Op. Atty. Gen. No. 17 at 58; 1974/75 Op. Atty. Gen. 
No. 16 at 58; 1974/75 Op. Atty. Gen. No. 15 at 57; 1974/75 Op. Atty. Gen. 
No. 12 at 55; 1974/75 Op. Atty. Gen. No. 10 at 54; 1974/75 Op. Atty. Gen. 
No. 9 at 53. Consequently, the question may properly be included on the 
election ballot in the Representative District which you have mentioned, 
namely, the 27th Middlesex. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation of 
the ballot. In my opinion, the question should be printed on the ballot in the 
following form: 

"Shall the Representative from this District be instructed to 
vote in favor of the passage of a measure which would require a 
moratorium on the construction of nuclear power plants until 
safe methods of waste disposal are devised?" 

Very Truly Yours 
FRANCIS X. BELLOTTI 

Attorney General 

Number 13 September 29, 1978 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House \ 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

By letter dated September 11, 1978, you have asked me whether the 
following question is one of public policy in accordance with G.L. c.53, 
§19: 

"Shall the Representative from this District be instructed to vote 
for legislation assuring citizens clean air by restricting smoking to 
separate and clearly posted areas in enclosed places by the 
general public, with fines for non-compliance?" 

It is my opinion that the question is an "important public question" in 
which "every ciltizen of the Commonwealth has an interest" and is 
therefore a question of "public policy" within the meaning of G.L. c.53, 
§19. See 1974/75 Op. Atty. Gen. No. 16 at 58. See, also, 1976/77 Op. Atty. 
Gen. No. 7; 1974/75 Op. Atty. Gen. No. 20 at 61; 1974/75 Op. Atty. Gen. 
No. 19 at 61; 1974/75 Op. Atty. Gen. No. 18 at 59; 1974/75 Op. Atty. Gen. 



P.D.12 119 

No. 17 at 58; 1974/75 Op. Atty. Gen. No. 16 at 58; 1974/75 Op. Atty. Gen. 
No. 15 at 57; 1974/75 Op. Atty. Gen. No. 12 at 55; 1974/75 Op. Atty. Gen. 
No. 10 at 54; 1974/75 Op. Atty. Gen. No. 9 at 53. Consequently, the ques- 
tion may properly be included on the election ballot in the various 
Representative Districts for which application has been made. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation on 
the ballot. In my opinion, the question should be printed on the ballot in the 
following form: 

"Shall the Representative from this District be instructed to 
vote for the passage of legislation which would assure citizens 
clean air by restricting smoking by the general public to separate 
and clearly posted areas and which would provide for fines in 
the event of non-compliance?" 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 14 September 29, 1978 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

By letter dated September 11, 1978, you have asked me whether the 
following question is one of public policy in accordance with G.L. c.53, 
§19: 

"Shall the Representative from this District be instructed to vote 
in favor of legislation to require the democratic selection of all 
legislative leadership, committee chairpersons, and committee 
members, within the Massachusetts House of Representatives, to 
require an open vote to be taken on every bill, and to require 
that legislative salaries be based on recommendations by a 
citizen panel?" 

It is my opinion that the question is an "important public question" in 
which "every citizen of the Commonwealth has an interest" and therefore a 
question of "public policy" within the meaning of G.L. c.53, §19. See 
1976/77 Op. Atty. Gen. No. 7; 1974/75 Op. Atty. Gen. No. 20 at 61 
1974/75 Op. Atty. Gen. No. 19 at 61; 1974/75 Op. Atty. Gen. No. 18 at 59 
1974/75 Op. Atty. Gen. No. 17 at 58; 1974/75 Op. Atty. Gen. No. 16 at 58 
1974/75 Op. Gen. No. 15 at 57; 1974/75 Op. Atty. Gen. No. 12 at 55 
1974/75 Op. Atty. Gen. No. 10 at 54; 1974/75 Op. Atty. Gen. No. 9 at 53. 
Consequently, the question may properly be included on the election ballot 
in the various Representative Districts for which application has been made. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation of 
the ballot. In my opinion, the question should be printed on the ballot in the 



120 P.D.12 



following form: 

"Shall the Representative from this District be instructed to 
vote in favor of legislation which would require the democratic 
selection of all legislative leadership, committee chairpersons and 
committee members within the Massachusetts House of 
Representatives, the taking of an open vote on every bill, and the 
fixing of legislative salaries on recommendations by a citizen 
panel?" 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 15 September 29, 1978 

The Honorable Paul Guzzi 
Secretary of the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

By letter dated September 1 1 , 1978, you have asked me whether the follw- 
ing question is one of public policy in accordance with G.L. c. 53, §19: 

"Shall the Representative from this District be instructed to vote 
for the passage of a bill which makes youth employment, with 
affirmative action concentrating on low income youth, a top 
priority for immediate state action with the creation of 10,000 
new, productive jobs for youth by the end of 1979, through the 
use of three percent increase in the corporate profits tax and 
through all available federal resources, and with the development 
of a plan and timetable for achieving full employment for youth 
within five years?" 

It is my opinion that the quesiton is an "important public question" in 
which "every citizen of the Commonwealth has an interest" and is 
therefore a question of "public policy" within the meaning of G.L. c.53, 
§19. See, 1976/77 Op. Atty. Gen. No. 7; 1974/75 Op. Atty. Gen. No. 20 at 
61; 1974/75 Op. Atty. Gen. No. 19 at 61; 197475 Op. Atty. Gen. No. 18 at 
59; 1974/75 Op. Atty. Gen. No. 17 at 58; 1974/75 Op. Atty. Gen. No. 16 at 
58; 1974/75 Op. Atty. Gen. No. 15 at 57; 1974/75 Op. Atty. Gen. No. 12 at 
55; 1974/75 Op. Atty. Gen. No. 10 at 54; 1974/75 Op. Atty. Gen. No. 9 at 
53. Consequently, the question may properly be included on the election 
ballot in the Representative District which you have mentioned, namely, the 
28th Middlesex. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation on 
the ballot. In my opinion, the question should be printed in the form in 
which it was submitted to you. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



P.D.12 121 



Number 16 September 29, 1978 

The Honorable Paul Guzzi 
Secretary of the Commonwealth 
State House 
Boston, Massachusetts 

Dear Secretary Guzzi: 

By letter dated September 11, 1978, you have asked me whether the 

following question is one of public policy in accordance with G.L. c.53, 

§19: 

"Should Amesbury allow a resource recovery plant (trash in- 
cinerator) to be built?" 

While the proposal involved in the question encompasses a small area 
geographically, the question is also an "important public question" since it 
concerns itself with an important environmental issue in which "every 
citizen of the Commonwealth has an interest." For this reason, it is my opi- 
nion that the question is one of "public policy" within the meaning of G.L. 
c.53, §19. See, 1976/77 Op. Atty. Gen. No. 7; 1974/75 Op. Atty. Gen. No. 
20 at 61; 1974/75 Op. Atty. Gen. No. 19 at 61; 1974/75 Op. Atty. Gen. No. 
18 at 59; 1974/75 Op. Atty. Gen. No. 17 at 58; 1974/75 Op. Atty. Gen. No. 
16 at 58; 1974/75 Op. Atty. Gen. No. 15 at 57; 1974/75 Op. Atty. Gen. No. 
12 at 55; 1974/75 Op. Atty. Gen. No. 10 at 54; 1974/75 Op. Atty. Gen. No. 
9 at 53. Consequently, the question may properly be included on the 
election ballot in the Representative District which you have mentioned, 
namely, the 1st Essex. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation on 
the ballot. In my opinion, the question should be printed on the ballot in the 
following form: 

"Shall the Representative from this District be instructed to 
vote for the passage of a measure which would allow a resource 
recovery plant (trash incinerator) to be built in the town of 
Amesbury?" 

Very truly yours 

FRANCIS X. BELLOTTI 

Attorney General 

Number 17 September 29, 1978 

The Honorable Paul Guzzi 
Secretary to the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

By letter dated September 11, 1978, you have asked me whether the 



122 P.D.12 

following question is one of public policy in accordance with G.L. c.53, 
§19; 

"Should Amesbury allow a landfill (dump) larger than needed to 

dispose of its own solid waste?" 

While the proposal involved in the question encompasses a small area 
geographically, the problem of soHd waste disposal is one of concern to the 
Commonwealth in general. In addition, the provisions of G.L. c.53, §19 
have consistently been given a broad interpretation in prior opinions of the 
Attorney General. See, e.g., 1974/75 Op. Atty. Gen. No. 1 1 at 54; 1966/67 
Op. Atty. Gen. No. 34 at 77. 

For these reasons, it is my opinion that the question is an "important 
public question" in which "every citizen of the Commonwealth has an in- 
terest" and is therefore a question of "public policy" within the meaning of 
G.L. c.53, §19. See, 1976/77 Op. Atty. Gen. No. 7; 1974/75 Op. Atty. Gen. 
No. 20 at 61; 1974/75 Op. Atty. Gen. No. 19 at 61; 1974/75 Op. Atty. Gen. 
No. 18 at 59; 1974/75 Op. Atty. Gen. No. 17 at 58; 1974/75 Op. Atty. Gen. 
No. 16 at 58; 1974/75 Op. Atty. Gen. No. 15 at 57; 1974/75 Op. Atty. Gen. 
No. 12 at 55; 1974/75 Op. Atty. Gen. No. 10 at 54; 1974/75 Op. Atty. Gen. 
No. 9 at 53. Consequently, the question may properly be included on the 
election ballot in the Representative District which you have mentioned, 
namely, the 1st Essex. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation on 
the ballot. In my opinion, the question should be printed on the ballot in the 
following form: 

"Shall the Representative from this District be instructed to 
vote for the passage of a measure which would allow a landfill 
(dump) in Amesbury larger than that needed to dispose of the 
town's solid waste?" 

Very truly yours 

FRANCIS X. BELLOTTI 

Attorney General 

Number 18 September 29, 1978 

The Honorable Paul Guzzi 
Secretary of the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

By letter dated September 11, 1978, you have asked me whether the 
following question is one of public policy in accordance with G.L. c.53, 
§19: 

"Do you support a moratorium on the MBTA Red-Line Exten- 
sion through Cambridge pending further study of the en- 
vironmental impact of a terminus at Alewife, the need to use 



123 P.D.12 



Russell Field as a staging area and the effects of noise, dust and 
air pollution.?" 

While the proposal involved in the question encompasses a small area 
geographaphically, the problem of public transportation is one of great 
concern to the Commonwealth in general. For this reason, I am of the opi- 
nion that the question is an "important public question" in which "every 
citizen of the Commonwealth has an interest" and is therefore a question of 
"public policy" within the meaning of G.L. c.53, §19. See, 1974/75 Op. At- 
ty. Gen. No. 22 at 63; 1974/75 Op. Atty. Gen. No. 11 at 54. See also, 
1976/77 Op. Atty. Gen. No. 7; 1974/75 Op. Atty. Gen. No. 20 at 61 
1974/75 Op. Atty. Gen. No. 19 at 61; 1974/75 Op. Atty. Gen. No. 18 at 59 
1974/75 Op. Atty. Gen. No. 17 at 58; 1974/75 Op. Atty. Gen. No. 16 at 58 
1974/75 Op. Atty. Gen. No. 15 at 57; 1974/75 Op. Atty. Gen. No. 12 at 55 
1974/75 Op. Atty. Gen. No. 10 at 54; 1974/75 Op. Atty. Gen. No. 9 at 53. 
Consequently, the question may properly be included on the election ballot 
in the Representative District which you have mentioned, namely, the 27th 
Middlesex. 

You have further requested that I supply your office with a simple, une- 
quivocal and adequate form of the question best suited for presentation on 
the ballot. In my opinion, the question should be printed on the ballot in the 
following form: 

"Shall the Representative from this District be instructed to 
vote in support of the passage of a measure requirng a 
moratorium on the MBTA Red-Line Extension through Cam- 
bridge pending further study of the environmental impact of a 
terminus at Alewife, the need to use Russell Field as a staging 
area and the effects of noise, dust and air pollution?" 

Very truly yours. 
FRANCIS X. BELLOTTI 

Attorney General 

Number 19 October 14, 1978 

Hon. Thaddeus Buczko 
State A uditor 
State House, Room 209 
Boston, Massachusetts 02133 

Dear Mr. Buczko: 

You have requested my opinion concerning the scope of your obligation 
and authority under G.L. c. 10, §45, to conduct audits of the State Election 
Campaign Fund (SECF).' 



'The SECF is csiablishcd as a separaled fund on ihc books of the Commonwealth pursuant to G.1-. c.lO, §42 (added by St. 
1975, e.774). The fund consists of revenues which the Commonwealth receives as a result of voluntary taxpayer contributions 
to public financing of statewide election campaigns under G.L. c.62, §6C (also added by St. 1975. c. 774). Pursuant to G.I.. c. 
10. §45 (also added bv St. 1975. c. 774). the Slate .Xudilor is to conduct a post-audit of "all accounts and transactions in\ol\- 
ing" the SECF. 



124 P.D.12 



Specifically, you ask whether you may conduct audits of the depository ac- 
counts^ of candidates who have received "limited public financing" in the 
form of monies from the SECF pursuant to G.L. c.lO, §44 and c. 55A. 

An analysis of the relevant statues and case law leads me to conclude that 
you are reuqired to conduct audits of the SECF itself, the primary election 
account, the state election account, and all primary and state election can- 
didate accounts^ other than those involving candidates for state auditor." 
You are neither obligated nor required, however, to audit the depository ac- 
counts of individual candidates who have received public financing from 
the SECF; that authority rests with the Director of the Office of Campaign 
and Political Finance. My reasons are set forth below. 

Chapter 774 of the Acts of 1975, enacting G.L. c.lO, §§42-45, C.55A, and 
c.62, §6C, creates a system for providing limited public financing of 
statewide political campaigns. This public financing is available to primary 
and state election candidates for statewide office who (1) have qualified for 
the ballot, (2) are opposed by ballot-qualified candidates running in the 
same election, (3) have filed a request for public financing with the Director 
of Campaign and Political Finance,^ and (4) have received the required level 
of qualifying contributions as established by G.L. C.55A, §§4 and 6. The ac- 
tual funds distributed to such eligible candidates originally come from the 
SECF.^ 

Under the scheme set forth in St. 1975, c. 774, the Comptroller of the 
Commonwealth divides the SECF into a "primary election account" and a 
"state eleciton account" on June 30 of every year in which a statewide elec- 
tion is to be held. G.L. c. 10, §43. He then further subdivides these two ac- 
counts into as many accounts as there are candidates for statewide elective 
office who are eligible for public campaign financing (primary candidate ac- 
counts and state election candidate accounts). Id. These various candidate 
accounts are then credited with portions of the primary election and state 
election accounts according to a statutory formula. Id. 

At specified times before the primary and statewide elections, the State 
Treasurer is required to distribute funds from each primary and state elec- 
tion candidate account to the specific depository account which has been 
disignated by each qualifying candidate. G.L. c. 10, §4; see G.L. C.55A, §§5 
and 7. The amounts to be distributed are determined and certified to the 
Treasurer by the Director of Campaign and Political Finance. Id. Once 
received by the candidate's depository account, the funds may be used to 
defray legitimate campaign expenses, see G.L. c.55A, §9;p c. 55, §6. Any 
unexpended funds are to be returned to the Commonwealth or, in the case of 
primary election funds, are to be credited against the amount available to 
the candidate for the general election. G.L. c. 55A, §9; c. 10, §44 



'Candidates for statewide and county offices must designate a bank or trust company as their depository upon becomini; a can- 
didate. G.L. c. 55, §19. Only candidates for statewide office arc eligible to receive funds from 1 he SECr. .See G.L. c.lO, §42; c. 
55A, §§4. 6. 

'The primary election account, slate elction account, and primary and stale election candidate accounts arc esiablishcd bv 
G.L. c. 10, §43 (added by St. 1975, c. 774). 

'With respect to these candidates' accounts, the post-audit functions you normally perform arc commiiicd lo ihc Comptroller 
1 express no view as to whether his authority to audit "the accounts and transactions of any candidate lor stale auditor" ex- 
tend 10 an audit of depository accounts. See 10-11 N. 12 infra. 

'See G.L. c. 55, §3, for a description of the Director's position and of the duties which he performs. 
\s mentioned above, the SECF itself is made up of taxpayer contributions. Sec n. 1 supra. 



P.D.12 125 

Your question relates to your authority to audit the various accounts that 
are established pursuant to the statutory scheme described above. In 
answering it I have considered in turn (1) the statues and case law which 
define the general authority and responsibilities of the State Auditor, and 
(2) the specific statute describing the Auditor's duties with respect to the 
new public campaign financing system. 

The State Autditor's basic functions and authority are defined in G.L. c. 
11, §12, which reads in relevant part: 

The department of the state auditor should make an audit as 
often as the state auditor determines it necessary, but in no event 
less than once in every two years of the accounts of all depart- 
ments, offices, commissions, institutions, and activities of the 
commonwealth, including those of districts and authorities 
created by the general court . . . [Emphasis supplied.] 

Judicial and Attorney General opinions considering the Auditor's powers in 
light of this section have established that in general the Auditor is responsi- 
ble only for auditing funds held in accounts of the Commonwealth, its 
agencies and departments, and of political entities established by the 
Legislature; accounts of private persons or organizations, even though the 
organizations may perform public functions or in certain circumstances 
may come under control of the state, are not, without more, subject to state 
audit. See Auditor of the Commonwealth v. Trustees of Boston Elev. Ry., 
312 Mass. 74 82 (1942); 1940 Op. Atty. Gen. at 64; 1939 Op. Atty. Gen. at 
117, 118; 1931 Op. Atty. Gen. at 94,95. Rather, as some of the cited opi- 
nions and other statutory provisions suggest, specific authority must be 
vested by the Legislature in the Auditor to permit his unilateral exercise of 
jurisdiction over private individuals or corporations. See 1931 Op. Atty. 
Gen. 94, 95; see also G.L. c.ll, §12, seventh sentence (expressly authoriz- 
ing Auditor to examine records of Department of Public Welfare vendors); 
cf 1976/77 Op. Atty. Gen. No. 13 (consent of private educational entity to 
be audited by State Auditor). 

Under the interpretation of G.L. c. 11, §12 which these opinions have 
established, I believe it clear that the State Auditor is responsible for 
auditing the SECF inself, since it is specifically defined as a fund on the 
books of the Commonwealth. G.L. c. 10, §42. He is also required to audit 
the primary and state election accounts as well as the primary and state elec- 
tion candidate accouts; all these accounts are created and controlled by the 
Comptroller and Treasurer of the Commonwealth respectively, and thus 
qualify as accounts "of offices ... of the Commonwealth." G.L. c.ll, 
§12. 

The depository accounts of the individual candidates who receive public 
campaign financing, however, do not fall into the same category. Every 
candidate for statewide or county elective office is required to set up such an 
account in order to receive and hold campaign contributions made to them 
by private individuals or organizations, see G.L. c. 55, §19. The depository 
accounts may also hold funds distributed by the State Treasurer from the 
primary and state election candidate accounts, see G.L. c. 10, §44, and are 
subject to inspection and regulation by the Commonwealth's Director of 



126 P.D.12 



Campaign and Political Finance/ Nevertheless, these facts alone do not br- 
ing the accounts within the scope of G.L. c.ll, §12, since they do not ap- 
pear to be accounts of the Commonwealth or of its departments, commi- 
sions, districts or authorities. Cf. Auditor of the Commonwealth v. Boston 
Elev. Ry., supra, 312 Mass. at 77, 82-83. 

The question that remains is whether G.L. c. 10, §45, which defines the 
State Auditor's role in the public campaign financing scheme, serves to 
enlarge the Auditor's authority in that specific area. Section 45 provides as 
follows: 

The state auditor shall conduct a post-audit of all accounts 
and transactions involving the state election campaign fund for 
any year in which elections are held for statewide elective office 
and shall conduct such other special audits and post-audits as he 
may deem necessary. The state auditor shall publish a report of 
any post-audit required by this section on or before April first of 
the year following any year in which elections are held for 
statewide elective office. The comptroller shall conduct a post- 
audit of the accounts and transactions of any candidate for state 
auditor. [Emphasis supplied.] 

In my view, the critical language of §45 is the prase, "accounts and tran- 
saction invloving the state election campaign fund ..." Unfortunately, its 
scope is ambiguous. Place in context, however, its meaning emerges. First, 
the quoted phrase shows an intent that the state Auditor audit the SECF 
and the accounts into which it is divided by the Comptroller, namely, the 
primary and state election accounts and the primary and state election can- 
didate accounts. What remains unsettled is whether the phrase should also 
be read to include the depository accounts of candidates who receive limited 
public financing, since such public funds originally derive from the SECF. I 
have concluded that such an expansive construction of §45 would not be ap- 
propriate; when §45 is read in conjunction with the statutory provision 
defining the duties of the Director of Campaign and Political Finance 
(Director) in the area of public campaign financing,^ it becomes evident that 
the Director and not the State Auditor is the proper official to audit these 
depository accounts. 

The Director plays a central role in the administration of the public cam- 
paign financing system created by St. 1975, c. 774. He determines and cer- 
tifies to the Treasurer the candidates eligible for public financing as well as 
the specific amounts of public financing to which each is entitled. G.L. c. 
55A, §§3-7; c. 10, §44. More pertinent to your question, every candidate 
must file a statement with the Director within two weeks of a primary or 
state election "showing the balance remaining in the candidate's depository 
account as of the primary or state election less any reserve necessary to cover 



'The Director's regulatory responsibilities concerning public campaign financing are treated below at 8-9, infra. 
"As indicated below, I believe a consistent and harmonious reading of these different provisions is called for because of their 
close relationship to each other. See Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514(1975); Wood \ . Coni- 
T\^n''?s"^[J'/ ^"''''^'^''°"- ^^^ ^^^^- ^^' *'"^^ (1973); cf Boston v. Massachusetts Bay Transportation Authy., Mass. Ad\ . Sh. 

Finally, the statute requires the Director to promulgate "such rules and reeulalions as are necessarv to effectuate the purpose 
of IG.L. c. 55A1." G.L. c. 55A. §11 



P.D.12 127 



[certain defined debts]," and must return a portion of the suplus balance, if 
any, to the SECF. G.L. c. 55A, §8. The Director is expressly empowered 
"to investigate the legality, validity, completeness and accurancy" of these 
despository account balance statements or reports, G.L. c. 55A, §11, and he 
is also authorized to compel candidates to repay surplus or improperly used 
public campaign funds to the SECF. Id., §§3, 8, 9.^ 

The broad powers which the Legislature has granted to the Director to 
monitor and investigate individual candidates' use of public campaign 
funds in G.L. c. 55A must be read to include implicitly the power to audit 
each candidate's depository account, since it appears that an audit would be 
a necessary step for the Director to take in the course of determining 
whether the candidate has received excess public financing or has used the 
pubhc funds for improper purposes. See G.L. C.55A, §9.^° To construe 
G.L. c. 10, §45 as requiring that the State Auditor also audit all individual 
depository accounts of candidates receiving public financing, would create 
an unnecessary overlap in jurisdiction between the two officers and prevent 
the effective administration of the public campaign financing scheme. Such 
a construction, therefore, should be avoided. See, e.g., Hein-Werner Corp. 
V. Jackson Industries, Inc., 364 Mass. 523, 528 (1974). 

Moreover, given the close indentity in subject matter, the public cam- 
paign financing system set forth in St. 1975, c. 774 should be read in rela- 
tion to and harmony with G.L. c. 55, the Commonwealth's campaign and 
political finance law. See n. 8 supra, and cases cited. ^' Under G.L. c. 55, the 
Director is responsible for investigating all financial reports of political can- 
didates, see id., §3; cf. 1977/1978 Op. Atty. Gen. No. 27; cf. also 
1916/1911 Op. Atty. Gen. No. 38. The State Auditor does not play a role in 
the process. A more harmonious and sensible administrative system results 
from interpreting the relevant portions of St. 1975, c. 774, in a similar 
fashion, entrusting the Director with the responsibility to audit individual 
candidates' receipt and use of the public campaign monies distributed from 
the SECF, and the Auditor with the duty to audit all accounts which hold 
SECF funds and are in the control of state officials, cf., e.g., Dedham v. 
Labor Relations Comm'n, 365 Mass. 392, 402 (1974); School Comm. of 
Gloucester v. Gloucester, 324 Mass. 209, 212 (1949); cf. also Thacher v. 
Secretary of the Commonwealth, 250 Mass. 188, 190 (1924). '^ 

In summary, both the general provisions of G.L. c. 11, §12, and the 
specific terms of G.L. c. 10, §45, indicate that under the public campaign 



'Finally, the statute requires the Director to promulgate "such rules and regulations as are necessary to eflecluaie the purposes 
of IG.L. c. 55A)." G.L. c. 55A, §11. 

'"This conclusion is reinforced by the position taken hy your Department on the function and purpose of an audit of a public 
fund such as the SECF. As explained in the memorandum you submitted lo me with your opinion request, the Department of 
the State Auditor views such an audit as encompassing at least (a) a financial accounting of the monies in the fund, and (b) a 
compliance accounting of those monies, in order to fulfill the mandate defined in G.L. c. 55A, §9. the Director would clearly 
be required to perform these two tasks. 

"Indeed, G.L. c. 55A, §1 1, appears to call directly for a parallel reading of the two statutes insofar as the Director is concern- 
ed, by stating that the Director's investigatory powers under the public campaign financing statute, G.L. C.55A, are to be the 
same as under the campaign and political contribution statute, G.L. c. 55A, §3. 

'^One additional observation about G.L. c. 10, §45 is called for. As indicated above, I believe the language of this section is 
ambiguous. The ambiguity is exacerbated by the last sentence of §45, which directs the Comptroller to conduct "a post-audit 
of the accounts transactions of any candidate for state auditor." This sentence could be read to mean that the Comptroller is 
not conduct audits of all accounts of every candidate for State Auditor, including depository accounts. I need not and do not 
resolve this question of statutory interpretation at the present time, however.. The different language used by the Legislature in 
§45 to describe the Auditor's and Comptroller's respective post-audit duties suggests, if an>thing. that the scope of the 
Auditor's review is narrower than the Comptroller's and is not intended to encompass individual candidates' accounts. Cf. 
Negroii V. Gordon, Mass. Ad\ . Sh. (1977) 1701. 1706: Hood \ . Commissioner of Correction, supra. 363 Mass. at 83. 



128 P.D.12 



finance system established by St. 1975, c. 774, the State Auditor is responsi- 
ble for auditing the SECF and the various accounts into which it is divided 
by theComptroller and held by the State Treasurer. The Auditor does not 
have the duty or authority to audit the depository accounts of political can- 
didates into which the SECF monies are ultimately placed. The duty to 
regulate these depository accounts, which includes the power of audit, lies 
with the Director of Campaign and Political Finance. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 20 November 8, 1978 

John Larkin, Chairman 

Alcoholic Beverages Control Commission 

100 Cambridge Street 

Boston, MA 02202 

Dear Mr. Larkin: 

You have requested my opinion whether the holder of a liquor license 
may, under the provisions of G.L. c. 138, § 23, pledge that license to the 
Commonwealth's Department or Commissioner of Revenue to secure the 
payment of Massachuestts taxes owed by the licensee to the Com- 
monwealth.^ General Laws, c. 138, § 23 provides in relevant part: 

Any license granted under the provisions of this chapter may 
be pledged by the licensee for a loan, provided approval of 
such loan and pledge is given by the local licensing authority 
and the [Alcoholic Beverages Control] commission. Such 
pledge shall not be construed so as to affect the right of such 
local licensing authority or the commission to suspend, 
revoke, or otherwise regulate such license, as provided by this 
chapter. 
For the reasons which follow, it is my opinion that § 23 does not authorize 
the pledge of a liquor license to the Department or Commissioner of 
Revenue to secure the payment of taxes owed to the Commonwealth.^ 

General principles of statutory interepretation dictate that when words or 
phrases used in a statute are not specifically defined, they are to be given 
their ordinary meaning and construed according to their natural import and 
approved usage. E.g., Burke v. Chief of Police of Newton, Mass. Adv. Sh. 
(1978) 425, 427; Commonwealth v. Zone Book, Inc., Mass. Adv. Sh. (1977) 
743, 746; Board of Education v. Assessor of Worcester, 368 Mass. 511,513 
(1975); Randall's Case, 331 Mass 383, 385 (1954). The relevant provision of 



'You have provided ihis Department with a legal memorandum addressing the question you raise. The Department of Revenue 
vsas also given the opportunity to file a memorandum, but has not done so. 

Mn a January 4, 1978 report lo the Governor, I suggested the implementation of a program coordinating the collection efforts 
of what was then the Department of Corporations and Taxation and the licensing activities of the Alcoholic Beverages Control 
Commission. The conclusion I reach in this opinion concerning the pledge of a Hcense to secure the payment of taxes does not 
signal that I am no longer interested in the development of such a program. On the contrary, I remain convinced that a 
cooperative effort between the two agencies is essential to effective tax collection and merely conclude that the particular 
mechanism described in your opinion request is not authorized by G.L. c. 138, § 23. 



P.D.12 129 



G.L. c. 1 38, § 23 in terms permits the pledging of a license for a "loan." As 
commonly defined and construed by the courts, a loan in substance con- 
stitutes the delivery of sum of money to another under a contract to return 
the equivalent amount, with or without an additional sum agreed upon for 
its use, at some future time. E.g., Rochester Capitol Leasing Corp. \. V. & . 
L. Litho Corp., 13 C.A. 3d 697, 91 Cal Rptr. 827, 830 (Ct. App. 1970); 
Kline v. Robinson, 83 Nev. 244, 428 P. 2d 190, 194 (1976); See Liberty Nat'l 
Bank & Trust Co. v. Travelers Indem. Co., 58 Misc. 2d 443, 295 N.Y.S.2d 
983, 986 (1968). The dictionary defines a loan as "something lent for the 
borrower's temporary use on the condition that it or its equivalent be 
returned." Webster's Third New International Dictionary (1964). 

Thus, a salient characteristic of the loan is the transfer of funds or other 
items of value to the borrower under a promise to return them at some 
future time. In my opinion, neither the creation of a tax liability to the 
Commonwealth nor the Commonweath's forebearance from collecting 
taxes constitutes a loan to a liquor licensee. No funds are transferred or 
otherwise extended to the licensee. The initial tax liability does not arise 
because the licensee has borrowed anything from the state, but is instead a 
liability which arises by operation of law. 

The language of G.L. c. 1 38, §23 itself supports the conclusion the pledge 
of a liquor license to secure the payment of taxes was not contemplated. 
Section 23 requires approval of both the loan and the pledge of the license 
by the local licensing authority and the Alcoholic Beverages Control Com- 
mission. However, since a person's tax liability arises as matter of law, 
neither the local licensing authority nor the Commission can have a role in 
approving the creation, existence or any modification of that liabilty. The 
portion of the statute requiring approval of the loan would thus have no 
meaning if tax liability were considered a loan. A construction which 
renders meaningless any part of a statute is to be avoided. See, e.g.. Com- 
monwealth V. Mercy Hospital, 364 Mass. 515, 521 (1974); Insurance Rating 
Board y. Commissioner of Ins., 356 Mass. 184, 189(1969); c/. Board of Ap- 
peals of Hanover v. Housing Appeals Committee in the Dept. of Comm'y 
Affairs, 363 Mass. 339, 355 (1973). 

Nothing suggests an intent by the Legislature to give the "loan" language 
of § 23 so expansive a construction as to encompass security for the pay- 
ment of taxes. The limited statutory authorization to pledge a liquor license 
to secure a loan is an exception to the general policy, as enunciated in other 
paragraphs of G.L. c. 138 § 23, that a licensee does not have a property 
right in the document or paper which evidences the granting of the license. 
G.L. c. 138, § 2311 1,2. See Opinion of the Justices, 349 Mass. 794, 797 
(1965); Jubinville v. Jubinville, 313 Mass., 103, 106 (1943). 

Moreover, I note that the Legislature has elsewhere provided the Depart- 
ment of Revenue with a broad set of administrative and judicial powers for 
the enforcement of tax liabilities. See G.L. c. 62C, §46 (incorporating tax 
collection remedies of lien, levy, imprisonment, and suit). The incongruity 
of permitting the pledge of a liquor license to deal with tax liabilities, in 
light of this extensive scheme, further negates an expansive construction of 
§23. 

For the foregoing reasons, it is my opinion that the language of G.L. c. 



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 2 1 November 24, 1 978 

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, ^ with its broad 
delegation of power to municipalities, now requires that the question be 
answered differently.^ 

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^ 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.^ These functions are, you state, vital to the continuation of 



'The Home Rule Amendment was adopled in 1966 as an. 89 ol ihe Amendmenis lo the Massachusetts Constitution, amending 

an. 2 of the Amendments. 

'The tactural background of your question relates to a dispute between the Town of Granville and th Lower Pioneer Valley 

Regional Planning District. This district was formed under G.L. c. 40B, §3. 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 

Irom the district on its own motion. 

"General Laws, c. 40B, §§ 9 and 10 provide for the formation of the Southeastern Regional Planning and Economic Develop- 

nieni District. As discussed below, the Southeastern Planning District is distinct in several respects from the regional planning 

districts established under c. 40B, § 3. The description of planning districts in the tevt refers to the section 1 districts. 

"The districts 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. 408 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 



General Court created regional planning districts in part for the purpose of 
effectively coordinating economic, environmental, social and governmental 
planning in cohesive units throughout the state. See G.L. c. 40B, §§3, 5, 5A, 
5B, 6. In addition, the planning districts are intended to serve in an organiz- 
ed fashion as regional clearinghouses for various federal grant-in-aid pro- 
posals, see, e.g., G.L. c. 40B, §4A. A sense of continuity and unity of pur- 
pose is essential to the success of these legislative goals. Termination at will 
of membership in established districts might well undermine the orderly 
operation of the districts and defeat the important planning and reviewing 
functions which they perform. 

In these circumstances, I do not believe that the legislative silence on the 
question of a city's or town's removal from a district should be read im- 
plicitly to authorize a municipality to withdraw its membership at will, par- 
ticularly in light of the prior Attorney General's opinion. Compare G.L. c. 
403, § 10; Southeastern Reg'l Planning and Economic Development Dist. v. 
Dartmouth, Mass. App. Ct. Adv. Sh. (1978) 345, 347-348; 1976/77 Op. At- 

ty. Gen. No. 29, Rep. A.G., Pub. Doc. No. 12, at (1977);^ cf. 

Broderick v. Mayor of Boston, Mass. Adv. Sh. (1978) 1066, 1068-1071 
(considering power of municipality to reject previously accepted local op- 
tion statute). 

A review of related sections in G.L. c. 40B supports the view that cities 
and towns which are members of districts formed under c. 40B, §3 may not 
withdraw on their own motion. General Laws, c. 40B, §§ 9 and 10, enacted 
in 1968, establish the Southeastern Regional Planning and Economic 
Development District, and § 10 expressly authorizes a member city or town 
to terminate its membership. In a prior, opinion, I interpreted this provision 
in §10 to empower the Towns of Plymouth and Kingston to withdraw from 
the Southeastern Planning District by majority votes of their respective 
town meetings. 1976/77 Op. Atty. Gen. No. 29 at 4, Rep. A.G., Pub. Doc. 
No. 12 at (1977). 

Notably, the critical provision analyzed in the 1977 opinion, G.L. c. 40B, 
§10, is part of a specific law concerning a single district and was enacted 
subsequent to the Home Rule Amendment. Since "[n]one of the words of a 
statute is to be regarded as superfluous, ''see Commonwealth v. Woods 
Hole, Martha's Vineyard & Nantucket S.S. Authy., 352 Mass. 617, 618 
(1967), the fact that the Legislature made express provision for withdrawal 
in §10 indicates an understanding that the already-established statutory 
scheme of c. 40B did not bestow withdrawal power as a general matter. 

"Subsequent legislation may be considered in the interpretation of prior 
legislation on the same subject." Boston v. Commonwealth, 322 Mass. 177, 
180 (1947). See Pereira v. New England LNG Co., Inc., 364 Mass. 109, 1 15 
(1973). Moreover, established principles of statutory construction indicate 
that when a legislature uses different language in tow related and similar 
statutes, a different meaning was intended. See Negron v. Gordon, Mass. 
Adv. Sh. (1977) 1701, 1706-1707; C. Sands, Sutherland Statutes and 
Statutory Construction, §51.02 (4th ed. 1973). Application of these prin- 
ciples to the instant case indicates that the Legislature did not intend to 
allow municipalities organized pursuant to c. 40 B, §3, to terminate their 



I his siaiuie and ihe ciied opinions which relate lo li are discussed immediaiely belov 



P.D.12 133 



membership from regional planning districts at will. Accordingly, in answer 
to your specific concern, the Town of Granville has not effectively with- 
drawn itself from membership in the Lower Pioneer Valley Regional 
Planning Commission. 

Very truly yours, 

FRANCIS X. BELLOTTI 

A ttorney General 



Number 22 December 19, 1978 

Richard F. Hodgkins 

Director of Aeronautics 

Massachusetts Aeronautics Commission 

General Edward Lawrence 

Logan Airport 

East Boston, Massachusetts 02128 

Dear Mr. Hodkins: 

You have requested my opinion on behalf of the Massachusetts Aeronau- 
tics Commission (Commission) concerning whether the Westover Metro- 
politan Development Corporation (WMDC) has the legal authority to 
operate and maintain a public airport.^ You state that your request is 
prompted by the fact that WMDC is anxious to acquire the "aviation 
assets" (I.e., runway, ramp, tower, etc.) of Westover Air Force Base if the 
corporation may legally operate and maintain a public commercial airport. 
You further state that the United States Air Force will not transfer the 
aviation assets of Westover Air Force Base to WDMC unless it is assured 
that WMDC has the requisite legal authority. ^ For the reasons discussed 
below I conclude that WMDC is empowered to operate a public commercial 
airport using former property of the Westover Air Force Base, provided it 
first amends its operative economic development plan to include such an 
activity. 

WMDC was created by St. 1974, c. 672 (c. 672). It is a "body politic and 
corporate" governed by a board of nine directors who are chosen directly or 
indirectly by the City of Chicopee and Town of Ludlow, c. 672, § 3. The 
stated purpose of WMDC is "... to aid private enterprise in the speedy 
and orderly conversion and redevelopment of lands formerly used for 
certain activities at (Westover Air Force Base) to nonmilitary uses ... in 
order to prevent blight, economic dislocation, and additional unemploy- 
ment and to aid private enterprise fully to utilize opportunities to alleviate 
unemployment." C. 672, § 1 ("Findings and Purpose"). In order to 
accompHsh this purpose, WMDC has been given broad powers to develop. 



' The Secretary of Transportation and Construction has joined in your request. The commission is an agency under the juris- 
diction of the Executive Office of Transportation and Construction. G.L. c. 6A, § 19. 

' The issue of WMDC's authority is of direct concern to the Commission because it is the state agency charged with "general 
supervision and control over aeronautics" in the Commonwealth, G.L. c. 90, § 39. It must prepare and adopt a comprehensive 
stale plan for the development of airports in Massachusetts, id., § 39A, and an airport potentially to be operated by WMDC 
obviously implicates the Commission's planning duties. Moreover, were WMDC to acquire the aviation assets of Westover Air 
Force Base and use them to operate a commercial airport, it would first be required to obtain a certificate of approval from the 
Commission and would be subject to the Commission's regulation. G.L. c. 90, § 39B; see Building Inspector of Lancaster v 
Sanderson. Mass. Adv. Sh. (1977) 479, 480, 490; compare St. 1974, c. 672, § 7. 



134 P.D.12 



construct and manage "economic development projects" ^ on land owned 
and used formerly by the United States as part of Westover Air Force Base, 
including authority to acquire and hold real and personal property, enter 
into necessary contracts, borrow and invest money, issue bonds, etc. See c. 
672, §§5, 10, 12, 13. 

The expansive scope of authority vested in WMDC^ to effectuate its 
purposes clearly includes the power to acquire the Westover Air Force Base 
aviation assets in order to operate and maintain an airport: a civilian 
commercial airport at Westover quaHfies as an "economic development 
project" within the meaning of c. 672;^ and WMDC's power to "manage" 
any such project, c. 672, § 6(s), encompasses the authority to take control of 
and operate the airport. See Fluet v. McCabe, 299 Mass. 173, 179 (1938).^ 

While c. 672 does provide WMDC with the substantive power to acquire 
and operate an airport, the statute imposes a procedural limitation on the 
corporation's exercise of that power. In particular, c. 672, § 6, requires that 
before WMDC undertakes any economic development project, the project 
must be included within "an economic development plan" that has been the 
subject of a public hearing and approved by Ludlow and Chicopee.^ I 
have been informed that WMDC's economic development plan currently in 
effect assumes the continued existence of a commercial airport for civilian 
use, but does not expressly provide that WMDC itself (or some entity with 
which it contracts) will operate the airport. Thus before WMDC undertakes 
the job of operating the Westover Air Force Base aviation assets as a 
commercial airport, it must secure municipal approval of an amendment to 
its economic development plan pursuant to c. 672, § 6. 

Very truly yours, 

FRANCIS X. BELLOTTI 

A ttorney General 



'An "economic development project" is defined by c. 672, § 2, as follows: 

. . . [A] project to be undertaken in accordance with an economic development plan (discussed below) for acquisition 

by the corporation of land and the improvements thereon, if any, within an economic development area (defined as "any 

part of the area formerly used by the United States for the Westover Air Force Base") and for clearance, if necessary, 

rehabilitation, improvement, and redevelopment for industrial, manufacturing, or commercial uses. An economic 

development project may include improvements necessary for carrying out the objectives of the economic development 

project . . . An economic development project may also include the construction by the corporation of any of the 

buildings, structures or other facilities for industrial, manufacturing, or commercial uses contemplated by the economic 

development plan .... 

* WMDC has specific and express authority to: designate portions of land formerly used for Westover Air Force Base as 

"economic development areas," § 5(k); acquire any such lands from the United States, §§ 5(1), (m); prepare or have prepared 

plans, specifications and cost estimates for the construction, development, redevelopment, rehabilitation, etc. of all 

"economic development projects," § 5(i); improve, construct, develop, etc., all properly which it buys, §§ 5(0), (p); and 

"manage" any project owned or leased by WMDC, or enter into agreements with public or private entities for managing the 

project, § 5(s). 

' See n. 3 supra, setting forth this term's definition. 

' In so concluding, I note that the final section of c. 672 reads: "This act, being necessary for the welfare of the 
commonwealth and its inhabitants, shall be liberally construed to effect the purpose thereof." C. 672, § 18. 
' "Economic development plan" is defined in c. 672, § 2, as "... a detailed plan, as it may be approved from time to time 
by the municipality (Ludlow or Chicopee or both) as herein provided, for one or more economic development projects within 
an economic development area . ..." 



P.D.12 135 



Number 23 December 26, 1978 

Dennis M. Condon 

Commissioner of Public Safety 

Department of Public Safety 

1010 Commonwealth Avenue 

Boston, MA 02215 

Dear Commissioner Condon: 

You have requested an opinion concerning the proper interpretation of 
St. 1977, c. 797 (c. 797), entitled "An Act Relative to Appointments to the 
Position of State Police Detective Lieutenant-Inspector."^ You raise three 
questions: 

1. Is the position of state police detective lieutenant-inspector 
effectively exempted from the scope of the civil service law, G.L. c 31, by 
the enactment of c. 797? 

2. Does G.L. c. 31 continue to govern promotions from the position of 
detective lieutenant-inspector to higher ranks within the Office of Investiga- 
tion and Intelligence? 

3. Under which statute and, thus, at what age, must state police 
detective lieuentenant-inspectors promoted to that position from the 
uniformed branch of the Division of State Police retire? 

For the reasons state below, I answer your questions as follows. (1) The 
position of state police detective^ is exempt from the operation of G.L. c. 
3 1 , except that detectives who are currently covered by the civil service law 
retain their entitlement to its protection. (2) General Laws, c. 31 does not 
govern promotions to higher ranks in the state police detective force. Such 
promotions are provided for, to a limited extent, in G.L. c. 22, § 9P, but no 
statute currently prescribes examination procedures or standards to govern 
such appointments. (3) Members of the uniformed branch in the Division of 
State Pohce promoted to the position of state police detective must retire at 
age 50 under the provisions of G.L. c. 32, § 26(3)(a). 

Your opinion request requires an initial understanding of the organiza- 
tional structure of the Department of Public Safety (Department) and the 
classification of the Department's personnel which the enactment of c. 797 
sought to alter. The Department consists of three divisions, each operating 
under the general supervision and control of the Commissioner: a Division 



'Chapter 797 has three sections which may be summarized as follows: 

Section I adds § 9S to G.L. c. 22. Section 9S in turn (1) established the position of state police detective lieutenant-inspector 
within the Office of Investigation and Intelligence of the Department of Public Safety's Division of State Police; (2) authorizes 
the Commissioner of Public Safety to promote eligible members of the uniformed branch of the state police to the detective 
position; and (3) prescribes substantive and procedural requirements which are to control such promotions and the 
accompanying examinations. 

Section 2 amends G.L. c. 31, § 20, 11, a statute governing competitive civil service examinations for several state and local 
public safety positions, to delete a reference to competitive examinations for the "detective force" of the Department of 
Public Safety. 

Section 3 transfers detective lieutenant-inspectors in the Department of Public Safety who currently hold positions classified 
under G.L. c. 31, or have tenure by reason of G.L. c. 30, § 9A, to the position of state police detective lieutenant-inspectors in 
the Office of Investigation and Intelligence without impairment of civil service status, seniority, retirement or other rights and 
without reduction in compensation or salary grade. 
Ilinuiglnuil ihcbaUiiKcol ihisopmuin I use ihc plu^i'-c "siaic police dclccinc" lo ilcnolc ihc posiiuin iil sialc |iolicc deiccluc 
licuuiKiiii-mspccloi . SinulaiK. I use ilic icrnis 'ilclccmc branch" and "dciccli\c lorcc" llirouiilioul lo picscr\c llic liisnirical 
dilkiciiiMlioii hciuccn nicnihcis ol ilic iiiiiloinicd hiancli and dcicciivc licuicnanl-inspcctois. Sec 1971 iy74()p. Alls, dcii. 
No aV Kcp, A (.., I'lib DoL, Nil 12 ai IV<; ( 19^4) I do sn Im purposes ol eoniiiuiil> and elaiiu. e%en llioui;!!. as ilus opinion 
eoiKluiles, llie disiiueiioiis beiueeii ihe uniloiined aiul ileieeiise hiaiKlies in lei ins ol oiieiiial appomimeni and cimI service 



136 P.D.12 



of State Police under the immediate charge of the Commissioner; a Division 
of Inspection under the immediate charge of the Chief of Inspections; and a 
Division of Fire Prevention under the direct charge of State Fire Marshal. 
G.L. c. 22, §§ 3, 4A. The Office of Investigation and Intelligence, in which 
all state police detectives are now to serve by virtue of c. 797, is an office 
within the Division of State Police. G.L. c. 22, § 9P. 

The Commissioner is authorized to appoint employees and officers to 
serve in the three divisions of the Department pursuant to two distinct 
sections of G.L. c. 22. Members of the uniformed branch of the Division of 
State Police are appointed under § 9A, which both prescribes the manner of 
appointment and explicitly exempts the officers from the requirements of 
the civil service law, G.L. c. 31. See Massachusetts Board of Retirement v. 
Murgia, All U.S. 307, 308, n.l (1976). All other officers and employees of 
the Division of State Police, and of the other two divisions within the 
Department, are originally appointed under § 6. These appointments are 
subject to the civil service law and rules. See Walsh v. Commissioners of 
Civil Service, 300 Mass. 244, 247 (1938). 

The impact of this bifurcated personnel system was particularly apparent 
in the detective branch of the Division of State Police. Until the enactment 
of c. 797, state police detectives were appointed under G.L. c. 22, § 6. They 
were, therefore, covered by the civil service statute, and all appointments 
and promotions were specifically required to be made on the basis of 
competitive civil service examinations. See G.L. c. 31, § 20, as amended by 
St. 1945, c. 704, § 6; see also 1913/14 Op. Atty. Gen. No. 43, Rep. A.G., 
Pub. Doc. No. 12 at 135 (1974). As a result, if a member of the uniformed 
branch sought appointment to a detective position, he was required to take 
a leave of absence from the uniformed branch and to suffer the impairment 
of his seniority rights in that branch. See 1970/71 Op. Atty. Gen. No. 21, 
Rep. A.G., Pub. Doc. No. 12 at 66 (1971). 

With this background in place, I now address each of your inquiries in 
turn. Your first question asks whether the position of state police detective 
is now covered by the civil service law. The clear intent of c. 797 is to 
remove that position from the scope of c. 31, to eliminate the bifurcated 
system described in the preceeding paragraph and to permit a more 
integrated personnel structure for law enforcement officers within the 
Division of the State Police. Thus c. 797, § 1, enacting G.L. c. 22, § 9S, 
explicitly authorizes the promotion to state police detective of members of 
the uniformed branch, whose original appointments are excepted from the 
requirements of the civil service law by G.L. c. 22, § 9A. In addition, c. 797, 
§ 2, amends G.L. c. 31, § 20, specifically to delete the requirement that 
"ta]ppointments and promotions ... in the detective force of the state 
department of public safety . . . shall be made only by competitive (civil 
service) examination . . . . " Finally, c. 797, § 3, permits the currently 
employed detectives who were appointed under G.L. c. 22, § 6. and its civil 
service concomitant, G.L. c. 31, § 20, to retain all civil service rights. If 
future appointments to the detective position were intended to remain 
subject to civil service, the protection accorded by this "grandfather" 
provision would be unnecessary. 

With c. 797's deletion of the reference to state police detectives in the civil 



P.D.12 137 



With c. 797's deletion of the reference to state poUce detectives in the civil 
service appointment and promotion provisions of G.L. c. 31, § 20, further 
appointments or promotions to the position of detective are to be governed 
exclusively by G.L. c. 22, § 9S. This conclusion is not altered by the 
reference to the Department's "detective force" which remains in c. 31, § 
20.^ In light of c. 797's specific deletion of the detective force from the 
scope of all civil service examinations in the first sentence of § 20, the 
remaining language, relating to eligibiUty criteria for entrance to promo- 
tional civil service examinations, must be deemed superfluous and of no 
effect. 

Ordinarily, no portion of statutory language may be treated as 
superfluous. Commonwealth v. Gove, 366 Mass. 351, 354 (1974); 
Commonwealth v. Woods Hole, Martha's Vineyard and Nantucket S.S. 
Auth'y, 352 Mass. 617, 618 (1967); see George S. Carrington Co. v. State 
Tax Comm'n, Mass. Adv. Sh. (1978) 1752, 1758. However, that maxim of 
statutory construction must yield when no other course is open and the 
object and plain meaning of the statute require it. Johnson's Case, 318 
Mass. 741, 747 (1945); see Massachusetts Comm'n Against Discrimination 
V. Liberty Mut. Ins. Co., Mass. Adv. Sh. (1976) 2403, 2407-2408. Since the 
one reference to state police detectives which is retained in c. 31, § 20, is 
inconsistent with, and in my judgment repugnant to, the legislative intent to 
remove the detective force from the civil service system as reflected in c. 
797, § 2, the more recent and specific provision must govern. See Rennert v. 
Board of Trustees of State Colleges, 363 Mass. 740, 743 (1973); Doherty v. 
Commissioner of Administration, 349 Mass. 687, 690 (1965) (repeal by 
implication of inconsistent statutory provisions). Accordingly, I answer 
your first question in the affirmative, concluding that the position of state 
police detective is removed from the scope of the civil service system by c. 
797. 

Your second question asks whether G.L. c. 31 will continue to govern 
promotions to higher ranks in the detective branch, such as the positions of 
captain and major of state police detectives. As my discussion of your first 
question indicates, I do not believe that the further promotion of state 
police detectives is to be governed by G.L. c. 31, notwithstanding the 
remaining reference to such police detectives in G.L. c. 31, § 20, third 
sentence. However, this conclusion does not end the inquiry since it is 
apparent that subsequent promotions in the detective branch are not other- 
wise covered by c. 797, or fully by any other statute. 

The issue presented by your second question stems from the fact that the 
promotional examination authorized by G.L. c. 22, § 9S (as inserted by c. 
797, § 1), relates only to the position of state police detective, the entry level 



^As mentioned above, c. 797, § 2, removed the reference to the state police detectives in the first sentence of G.L. c. 31, § 20, 
mandating the appointment and promotion of certain positions by competitive civil service examination. However, c. 797 did 
not delete a reference to state police detectives in the third sentence of § 20, defining general eligibility standards for promo- 
tional examinations for civil service positions: 

Eligibility for entrance to a promotional examination for any grade of service shall be 1 imited to permanent employees 
in the next lower grade . . . (with certain exceptions), provided, that . . . [no] persons shall ... be eligible to take any 
such examination for the first grade above the lowest grade in police and fire departments in cities and towns with a 
population in the excess of fifty thousand, in the detective force of the state department of public safety, in the capitol 
police force and in the poHce force of the metropolitan district commission unless . . . (specified length of service 
requirements are met). (Emphasis supplied.) 



138 P.D.12 



position in the detective branch. At the same time, G.L. c. 22, § 9P, 
implicitly assumes that additional positions of major and captain of 
detectives must exist: it places the Office of Investigation and Intelligence 
under the direction of a lieutenant colonel who has been selected from the 
grade of "major or captain of detectives"; and it provides for the selection 
of major of the Bureau of Investigative Services (within the Office of 
Investigation and Intelligence) from the grades of "captain of detectives or 
detective lieutenant inspectors . . . . " However, § 9P expressly states that 
these promotions must be made from officers appointed under G.L. c. 22, 
§ 6; officers appointed under §9A are not mentioned.* In addition, no 
statutory provision delineates procedures for the promotion of state police 
detectives to the grade of captain. As a result, the rank of captain of 
detectives currently can be staffed only with individuals now holding that 
title, and the ranks of major and lieutenant colonel within the detective 
branch must be filled solely by officers originally appointed under 
G.L. c. 22, § 6. Additional legislation will be necessary to establish a system 
for the promotion to captain of any state police detectives, and for all 
promotions of state police detectives originally appointed to positions in the 
Division of State Police under G.L. c. 22, § 9A.^ 

In response to your final question, it is my opinion that members of the 
uniformed branch promoted to the position of state poUce detective under 
G.L. c. 22, § 9S, would retire under the provisions of G.L. c. 32, § 26(3)(a), 
at age 50 or upon the expiration of 20 years of service, whichever last 
occurs. Notwithstanding such a person's promotion to the detective 
position, he would continue to qualify as a "member in service classified in 
Group 3 who is an officer appointed under (c. 22, § 9A) and who has 
performed service in the division of state police . . . . " G.L. c. 32, § 26(3)(a). 
See Massachusetts Board of Retirement v. Murgia, supra, All U.S. at 308, 
n.l. In other words, the promotion under § 9S would not alter the status of 
the person's original appointment and the retirement rights established 
thereby. See Opinion of the Justices, 364 Mass. 847, 860 (1973).^ 

Very truly yours, 

FRANCIS X. BELLOTTI 

A ttorney General 



'A separate system for the promotion of members of the uniformed branch does exist, see G.L. c. 22, §§ 90-9Q, but there is no 
reference in that promotional ladder to the position of state police detective. 

'I understand that you or members of the Department may wish to propose legislation responding to this statutory gap. In 
doing so, it might be appropriate to direct the Legislature's attention to the current requirement in G.L. c. 22, § 9P, that 
officers holding the positions of lieutenant colonel in the Office of Investigation and Intelligence and major of the Bureau of 
Investigative Services be appointed under G.L. c. 22, § 6. As indicated above, unless these references to § 6 are deleted or 
changed, uniformed branch members — by definition appointed under § 9A — who subsequently became state police 
detectives would have their promotional opportunities in the detective branch severely limited, and the supply of individuals 
eligible for subsequent promotion may eventually be exhausted. 

'Because of the savings provisions of c. 797, § 3, state police detectives originally appointed under G.L. c. 22, § 6, and 
transferred to the Office of Investigation and Intelligence, would continue to be subject to the mandatory retirement 
provisions governing employees classified in Group 4. See G.L. c. 32, §§ 3(2)(g) ("Group 4"), l("Maximum Age"). They 
would therefore retire at age 65. 



P.D.12 139 



Number 24 January 2, 1979 

John R. Buckley 

Secretary of Administration and Finance 

State House 

Boston, MA 02133 

Dear Commissioner Buckley: 

You have requested my opinion as to whether you can, with the 
Governor's approval, appoint a person to fill a vacancy in the position of 
Personnel Adminstrator of the Massachusetts Division of Personnel 
Administration. A vacancy now exists in that position, occasioned by the 
resignation of the former Personnel Administrator on December 22, 1978. 

It is my opinion that under G.L. c. 7, § 4A, your selection of a successor 
Personnel Administrator to fill that vacancy must be made from among the 
names of three persons submitted to you by a majority vote of the Civil 
Service Commission, and must be approved by the Governor. Nevertheless, 
you do have authority to designate, on a temporary or acting basis, an 
individual to perform the duties of Personnel Adminstrator until the 
vacancy is filled in accordance with G.L. c. 7, § 4A. My reasons are set 
forth below. General Laws, c. 7, § 4A^ provides that the Personnel 
Adminstrator is to be appointed by the Commissioner of Administration 
(Secretary of Administration and Finance) "from the names of three 
persons submitted by the majority vote of all the members of the civil 
service commission" and with the prior written approval of the Governor. 
It further states that the Personnel Administrator is to serve a four year 
term, ending "on June thirtieth of the first year of the term of the governor, 
except that he may be removed by the commissioner, with the approval of 
four fifths of the members of the civil service commission." However, 
although the section authorizes the appointment of a person to fill a 
vacancy created in the position of Personnel Administrator, it does not pre- 
scribe any procedure for such an appointment. Despite this absence of 
express statutory direction, in my opinion the procedural requirements of 
G.L. c. 7, § 4A, governing original appointments of a Personnel Adminis- 
trator must be construed to govern as well appointments made to fill mid- 
term vacancies in the position. 

ControUing rules of statutory interpretation dictate that where the 
meaning of a particular portion of a statute is in doubt, other provisions of 
the statute should be considered to ascertain its meaning, in order to give 
the Legislature's intended effect to the statute as a whole. E.g., Boston v. 
Massachusetts Bay Transp. Authy., Mass. Adv. Sh. (1977) 2588, 2593; see 
School Committee of Springfield v. Board of Educ, 362 Mass. 417, 438 



'G.L. c. 7, § 4A, provides in relevant part that: 

The personnel administrator shall be appointed by the commissioner, with the prior written approval of the governor, from the 
names of three persons submitted by the majority vote of all the members of the civil service commission. The said personnel 
administrator shall be a person familiar with the principles and experienced in the method and practice of personnel 
administration. The personnel administrator shall serve for a term of four years, which term shall end on June thirtieth of the 
first year of the term of the governor, except that he may be removed by the commissioner, with the approval of four fifths of 
the members of the civil service commission. Any person so appointed shall serve until the qualification of his successor; 
provided, however, that in such case, or in the case of a person appointed to fill a vacancy occurring during the prescribed term 
by reason of death, resignation or otherwise, the term of the successor in said office shall end on the year succeeding June 
thirtieth of the first year of the term of the governor. No person while holding such appointment shall be subject to section 9A 
of chapter thirty. 



140 P.D.12 



(1972); see also Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 
513-514 (1975). In requiring the Civil Service Commission's participation in 
the original appointment and removal of the Personnel Administrator, the 
Legislature in G.L. c. 7, § 4A, clearly intended that the Commission would 
play a significant role in his selection. Under the provisions of § 4A, an 
interim appointment made to fill a vacancy in the Administrator's position 
can potentially last even longer than an original appointment under that 
section.^ Given these time frames, the appointment procedures set forth in 
c. 7, § 4A, might well be undermined if a different method of selection were 
held to govern the appointment of an interim Personnel Administrator than 
that which controls original appointments to the position. See United States 
Trust Co. V. Commonwealth, 348 Mass. 378, 383 (1965).^ 

You have suggested that the broad appointment authority vested in you 
by G.L. c. 7, § 4D,^ implicitly allows you to appoint a person to fill the 
Personnel Administrator position vacancy without input from the Civil 
Service Commission. I do not believe that the provisions of § 4D can be read 
to apply to interim appointments of a Personnel Administrator. An intro- 
ductory caveat to c. 7, § 4D, states that its provisions apply "except as 
otherwise provided by law." In my judgment the appointment provisions of 
c. 7, § 4A, constitute such an alternative provision and, thus, supersede § 4D. * 

Finally, I draw support from G.L. c. 30, § 10,® for my determination that 
vacancies in the position of Personnel Administrator must be filled in 
accordance with the original appointment provisions of G.L. c. 7, § 4A. 
Section 10 deals with the problem of filling interim vacancies in positions 
appointed by the Governor where no method of filling such vacancies is 
explicitly provided for. It states that under such circumstances, vacancies 
are to be filled for the unexpired term in the same manner provided for the 
original appointment. Although G.L. c. 30, § 10, does not directly apply to 
the Personnel Adminstrator, since the Governor approves rather than 
directly appoints an individual to fill that position, the section reinforces, 
by analogy, the conclusion that I have reached above. 

Although you lack the power to appoint a person to fill the current 
vacancy in the position of Personnel Administrator without input from the 
Civil Service Commission, you may nevertheless designate a person to 



'While the term of an original appointee lasts four years, expiring on June 30 of the first year of the term of the Governor, the 

term of an interim appointee does not expire until the year succeeding June 30 of the first year of the term of the governor. 

Accordingly, if a Personnel Administrator resigned during the first year of his term, the person appointed to fill the vacancy 

might remain in office more than four years. G.L. c. 7, § 4A. 

M also note that the Legislature in G.L. c. 7, § 4A, refers to both original and interim selections of Personnel Administrators as 

"appointments." Had the Legislature intended fewer steps to accompany interim selections, it would not have used the same 

term to refer to interim selections as it used to refer to original appointments. See Webster v. Board of Appeals of Reading, 

349 Mass. 17, 19 (1965); cf G.L. c. 14, § 1 . 

'General Laws, c. 7, § 4D, provides in relevant part that: 

Except as otherwise provided by law, the commissioner [of Administration Finance) shall appoint all employees of the 

executive office for administration and finance . . . [I]n staffing at any time said office, the commissioner may, without regard 

to [G.L. c. 31] but subject to the approval of the governor, appoint such experts and other assistants in said office as he shall 

deem necessary .... 

'Even if G.L. c. 7, § 4D, contained no explicit language concerning its relationship to other appointment provisions, its terms 

would still have no applicability to interim appointments of a Personnel Administrator. Section 4D relates to appointments of 

a general category of Administration and Finance employees, not specifically to the Personnel Administrator; further, § 4D 

contains no explicit instructions for making interim appointments to any position. In contrast, G.L. c. 7, § 4A, focuses 

specifically on the Personnel Administrator and therefore is the more appropriate section from which to seek guidance. See 

Pereira v. New England LNG Company, Inc.. 364 Mass. 109, 118 (1973) (if general statute and a specific statute cannot be 

reconciled, the general must yield to the specific). 

•That section reads in pertinent part: 

Any vacancy in any office, the original appointment to which is required by law to be made by the governor . . . and for which 

no other method of filling vacancies is expressly provided by law, shall be filled for the unexpired term in the manner provided 

for an original appointment .... 



P.D.12 141 



perform the Personnel Administrator's duties until that vacancy is filled. As 
Secretary of Administration and Finance you are "responsible for the 
exercise of all powers and the performance of all duties assigned by law to 
the executive office for administration and finance or to any division 
. . . under said office." G.L. c. 7, § 4. The Division of Personnel 
Administration is "under" your office, and, as discussed above, you are the 
official ultimately charged with appointing the Personnel Administrator 
(subject to certain procedural requirements). G.L. c. 7, § 4A. 

Given your overall responsibiHty for the work of the Division and 
authority to appoint its head, you must be deemed to have the implicit 
power to select a person who can discharge the Personnel Administrator's 
duties on an acting or temporary basis. See Bureau of Old Age Assistance of 
Natick V. Commissioner of Public Welfare, 326 Mass. 121, 125 (1950);' c/. 
1976/77 Op. Atty. Gen. No. 17, Rep. A.G., Pub. Doc. No. 12 at 
(1977). 

Moreover, the importance of the Personnel Administrator's functions 
and duties to the operation of Commonwealth's personnel system is 
obvious. See generally G.L. c. 31. Necessity would seem to require that a 
vacancy in the position of Personnel Administrator be filled on at least a 
temporary basis until the procedural requirements of G.L. c. 7, § 4A, can be 
fulfilled. Since you alone possess the actual appointing authority, although 
subject to restrictions, it appears that you alone have the power to make the 
needed temporary selection. Cf Mayor of Everett v. Superior Court, 324 
Mass. 144, 150-151 (1949); Moran v. School Committee of Littleton, 317 
Mass. 591, 593-594 (rule of necessity appHcable to conduct of administra- 
tive adjudicatory hearings). 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 25 January 1 1 , 1979 

John F. Hagerty, Commissioner 

Metropolitan District Commission 

20 Somerset Street 

Boston, Massachusetts 02108 

Dear Commissioner Hagerty: 

Since 1966 the Massachusetts Port Authority (the Authority) has owned 
land in East Boston known as the Belle Isle Marsh property (the property). 
The Authority wishes to transfer the property to the Metropolitan District 
Commission (the MDC), subject to the Authority's retention of certain 



TTie court there observed: 

Where a grant of power is expressly conferred by statute upon an administrative officer or board or where a sf)ecific duty is 
imposed on them, they in the absence of some statutory limitation have authority to employ all ordinary means reasonably 
necessary for the full exercise of the power and for the faithful performance of the duty. 



142 P.D.12 



easement and related rights. Your predecessor in office has requested^ my 
opinion whether the proposed transfer, if accomphshed in the manner 
described in his letter of request, would require specific legislative authori- 
zation. Should the MDC acquire the property, he also asked me to 
determine the effect of Article 97 of the Amendments to the Massachusetts 
Constitution (art. 97) on any subsequent transfer of the property by the 
MDC. 

In an opinion issued inl976 to the former Commissioner of the MDC,^ I 
considered the same legal questions concerning a less completely developed 
or detailed proposed transfer of the property from the Authority to the 
MDC. The principal focus of that opinion, however, was the effect of art. 
97 on the transfer. On this issue, I ruled that (1) the Authority's transfer to 
the MDC of the property was not covered by art. 97, but (2) any subsequent 
transfer by the MDC of the property would fall under the Amendment's 
terms. On the separate question of legislative authorization for the transfer, 
I concluded that such authorization was necessary under the common law 
doctrine of "prior public use." 

Since the issuance of my prior opinion, it appears that the terms and 
conditions of the Authority's proposed transfer of the property have been 
further refined and spelled out in concrete terms. Based on the information 
presented to me and for the reasons discussed below, I conclude that the 
Authority may transfer the property to the MDC under the terms now 
proposed consistently with the doctrine of prior public use and without 
specific, additional legislative approval. On the application of art. 97 to 
future transfers of the property by the MDC, I adhere to the conclusions 
stated in my earUer opinion.^ 

I first consider the proposed transfer of the property in hght of the 
doctrine of prior public use. That doctrine provides in essence that: 

PubUc lands devoted to one public use cannot be diverted to another 
inconsistent public use without plain and explicit legislation authorizing 
the diversion .... Robbins v. Department of Pub. Works, 355 Mass. 
328,330(1969). 
The doctrine requires explicit legislative approval for transfers of public 
lands between government agencies if the respective existing and proposed 
uses are inconsistent or would materially interfere with each other. See, 
e.g., Robbins v. Department of Pub. Works, supra, 355 Mass. at 330-332 
(transfer of wetlands property held by MDC to the Department of Public 
Works for highway purposes); Gould v. Greylock Reservation Comm'n., 
350 Mass. 410, 419, 421-423 (1966) (lease of mountain reservation land to 
public authority for construction of ski facilities and resort); Common- 
wealth V. Massachusetts Turnpike Auth'y, 346 Mass. 250, 254-255 (1963) 
(taking of MDC reservation land in and adjacent to Charles River to build 
turnpike extension); see also Trustees of Reservations v. Stockbridge, 348 
Mass. 511, 513-514 (1965) (taking of reservation land to build school; 



'The former Executive Secretaries of Transportation and Construction and Environmental Affairs, respectfully, joined in his 

request. 

'1975/76 0p. Atty. Gen. No. 61.Rep. A.C.Pub. Doc. No. 12 at 157(1976). 

M have not been asked anew whether the Authority's transfer to the property to the MDC comes within the scope of art. 97, 

and I see no reason to reconsider my previous ruling on that issue. See 1975/76 Op. Atty. Gen. No. 61 at 2-3, Rep. A.G., Pub. 

Doc. No. 12 at 157, 158(1976). 



P.D.12 143 



taking specifically authorized by legislation),'' 

In each of the cited cases, the parties conceded or the court found that the 
proposed use of the land at issue was inconsistent with the existing use; what 
required resolution was whether the Legislature had authorized the transfer 
and new use in legislation that was sufficiently specific. A different 
situation presents itself here. It appears that there is no legislation which 
specifically authorizes the Authority's transfer of the property to the MDC* 
The MDC's authority to acquire the property derives from G.L. c. 92, § 33, 
a generally phrased statute which provides that the MDC "... may 
acquire, maintain and make available to the inhabitants of . . . Boston . . . 
Revere . . . [and] Winthrop . . . open spaces for exercise and recreation . . . 
called reservations . . . ." The Authority is empowered to convey the 
property under the even more general provisions of St. 1956, c. 465, § 3(j), 
G.L. c. 91 App., § 1-3G)- Neither cited statute mentions the Belle Isle Marsh 
property. The single question thus posed is whether the MDC's proposed 
and the Authority's continuning use of the property after its transfer is 
consistent with the use to which it has been put by the Authority since 
ownership was acquired in 1966. See Boston v. Inhabitants of Brookline, 
156 Mass. 172, 175-176 (1892). « 

Since this question turns on factual considerations regarding the present 
and proposed uses of the property, I will review in detail the information 
which your predecessor and representatives of the Authority furnished me 
about those uses. The property is part of a salt marsh located between the 
communities of Winthrop, East Boston and the Beachmont section of 
Revere. It is adjacent to the General Edward Lawrence Logan International 
Airport (Logan). The Authority acquired the property in 1966 under its 
eminent domain powers in pertinent part to provide for airport expansion 
and improvement, protect aerial approaches to Logan runways in 
accordance with federal standards, and meet federal runway clear zone and 
other aviation safety requirements. The Federal Aviation Agency (FAA) 
reimbursed the Authority for 50 per cent of the taking price of a portion of 
the property under a grant conditioned on the property's use for aerial 
approaches and runway clear zones. Since its acquisition, the property has 
been used by the Authority solely as a runway clear zone, and the salt marsh 
has been left in its undisturbed state. 



* The doctrine ol prior use thus differs from the requirements of art. 97. Pursuant to art. 97, an intragovernmental transfer of 
land acquired fro certain conservation purposes is a "disposition" requiring legislative approval regardless of present or 
proposed uses. See \975/lb Op. Atty. Gen. No. 61 at 4, Rep. A.G., Pub. Doc. No. 12 at 157, 159 (1976); 1972/73 Op. Atty. 
Gen. No. 45 at 10-15, Rep. A. G., Pub. Doc. No. 12 at 139, 144-146(1973); see also p. 11 infra. 

There is some confusion on this issue. By St. 1976, c. 481, § 19, effective July 1, 1976, the Legislature authorized and directed 
the MDC to spend certain bond proceeds ". . . for the acquisition of land in the Belle Isle section of East Boston and the 
construction of park and recreational facilities thereon and on the recently acquired Suffolk Downs drive-in theatre site." 
Your predecessor's staff, however, did not understand this legislation to apply specifically to the property transfer under 
consideration here. They pointed out that in the past legislation authorizing the transfer of land from a public agency to the 
MDC has described that land in far more detailed terms and, more significant, has specifically mentioned the transferring 
agency. See, e.g., St. 1%7, c. 518, cited in Robbins v. Department of Pub. Works, supra, 355 Mass. at 331, n. 4; see also St. 
1963, c. 824, cited in Trustees of Reservations v. Slockbridge, supra, 348 Mass. at 513-514 and nn. 1, 2; St. 1969, c. 648, 

discussed in 1977/78 Op. Atty. Gen. No. 23, Rep. A.G., Pub. Doc. No. 12 at (1978). Staff of the Authority 

concurred in the MDC's opinion about the import of St. 1976, c. 481, § 19. 

Unfortunately there is no formal legislative history to clarify the meaning of c. 481 . However, I find the legal considerations 
raised by your predecessor's and the Authority's staff f)ersua.sive. For purposes of this opinion, therefore, 1 assume that St. 
1976, c. 481, § 19, should not be treated as a specific legislative authorization of the property's proposed transfer sufficient to 
satisfy the standards of Robbins v. Department of Pub. tVorks, supra. (It should also be mentioned that the MDC does not 
now rely on St. 1971 , c. 276, § 2C, cited in my earlier opinion, to authorize its purchase of the property.) 
'In stating the question, 1 assume that the Authority has been using the property during its period of ownership in an 
authorized manner. The Authority's orders of taking relating to the property — copies of which have been furnished to me — 
support my assumption. 



144 P.D.12 



It appears that the use of the property would not materially change as a 
result of the transfer. The proposed deed of conveyance is to contain a 
covenant that the MDC shall u se the property solely for conservation and 
passive recreation purposes, on a non-commercial basis; this covenant is to 
run with the land/ Furthermore, the MDC's plan for the property calls for 
it to be maintained as a "public open space" for such activities as walking, 
biking, educational field trips, nature studies, and the preservation of 
wetlands and the ocean shore line.^ 

The Authority, in turn, intends permanently to reserve to itself a number 
of rights in the property as a condition of the transfer. Specifically, the deed 
of transfer will grant to the Authority a perpertual easement and right of 
way over the property — in essence air rights — for the unobstructed flight 
of aircraft. The easement would give the Authority continuing rights to (1) 
effectively maintain the property as a runway clear zone by preventing the 
erecton of structures that would interfere with flights or cause safety 
hazards, (2) erect markings, lights and navigation aids on the property, 
pursuant to FAA requirements, and (3) enter upon the property and take 
any necessary action with respect to it to insure the safe operation of 
aircraft.^ 

Finally, I have been informed that regardless of who owns the property, 
its future use for any projects involving the fiUing or other alteration of the 
salt marsh (e.g., projects for airport, commercial or industrial development 
or expansion) would be severely limited if not prohibited by the state's 
environmental protection statutes.^" Indeed, when the Authority recently 
had the property appraised, the appraiser determined that its commercial 
value was zero, primarily because of these statutorily-imposed envirormiental 
restrictions. 

"Inconsistent" is defined as "[m]utally repugnant or contradictory; 
contrary, the one to the other, so that both cannot stand, but the acceptance 
or estabhshment of one implies the abrogation or abandonment of the other 
. . . ." Black's Law Dictionary at 907 (4th rev. ed., 1967). The question 
whether a proposed future use of public land is inconsistent with its existing 
use 

... is not to be settled with reverence to every possible manner in 
which the land might be used for the purpose for which it had been 
acquired, but with a reasonable regard to the way in which it would 
naturally and reasonably be used in putting it to that purpose. Boston 
V. Inhabitants of Brookline, supra. 156 Mass. at 176. 

On the facts presented, it is clear that (1) for 13 years the Authority has 
used the land in question for aerial approaches and a runway clear zone 



The proposed covenant is to be binding on all persons for 30 years initially, and may be extended for successive periods of 20 

years pursuant toG.L. c. 184, § 27. 

'Members of your predecessor's staff further stated that the properly will not be used for any "active" recreational purposes. 

In particular, the property will have no functional relationship to the skating rink, referred to in the MDC's prior opinion 

request and my prior opinion, that the MDC is planning to build on adjacent land. See 1975/76 Op. Atty. Gen. No. 61 at I, 3- 

4, Rep. A. G., Pub. Doc. No. I2at 157, 158-159(1976). 

'Staff of the Authority informed me that under the terms of its 1966 grant from the FAA for the property's purchase, the 

Authority must restrict the u,se of land adjacent to the airport for purposes consistent with airport operations, including 

aircraft landings and takeoffs and clear zones. They indicated that regional officials of the FAA responsible for grant 

administration are satisfied that the proposed transfer of the property adheres to the terms upon which the FAA's 1966 grant 

was awarded. 

"See pp. 8-9, n. 1 1 infra. 



P.D.12 145 



compatibly and consistently with the property's continued existence and use 
as a salt marsh, and (2) under the terms of the proposed transfer both of 
these two heretofore compatible uses would continue. In sum, the 
restrictions which the MDC has covenanted to place on the property, the 
regulatory restrictions separately imposed by the Wetlands Acts, and the 
Authority's perpetual retention of necessary aviation rights, make clear that 
the property's future use will be harmonious and consistent with its existing 
use.^^ Accordings, compliance with the prior public use doctrine does not 
require additional, specific legislative authorization to effectuate the 
proposed transfer between the two agencies. See Eldredge v. County 
Comm'rs of Norfolk, 185 Mass. 186, 188 (1904); Boston v. Inhabitants of 
Brookline, supra, 156 Mass. at 176; Inhabitants of Easthampton v. County 
Comm'rs of Berkshire, 154 Mass. 424, 425-426 (1891); see also Needham v. 
County Comm'rs of Norfolk, 324 Mass. 293, 296-297 (1949); compare 
Boston & Albany R. Co. v. City Council of Cambridge, 166 Mass. 224, 225- 
226(1896). 

In reaching this conclusion I recognize that at some undefined time in the 
future the Authority, were it to retain ownership of the property, might seek 
to develop it for a more active airport use than a runway clear zone; and 
that the transfer to the MDC would preclude this possibility. On the facts 
presented, however, I do not believe such speculation about the future is 
relevant to whether the doctrine of prior pubHc use requires legislation 
beyond G.L. c. 92, § 33, and G.L. c. 91 App., § l-3(j), to authorize the 
proposed transfer. As a general matter, the case law indicates that current 
and currently contemplated uses of public lands are the important consider- 
ations, and not uses that might in theory be implemented in the future. See 
Boston V. Inhabitants of Brookline, supra, 156 Mass. at 176, 177 (taking 
and use by BrookHne of land as public way held not presently inconsistent 
with Boston's existing use of same land for laying water pipes, and no 
present indication that uses would be inconsistent in future); see also Old 
Colony R. Co. v. Framingham Water Co., 153 Mass. 561, 564-565 (1891) 
(in determining whether general statute in question authorized defendants' 
taking and use of railroad's "public land," court focused on actual, current 
use of land, not its potential future use). Turning to the specific case at 
hand, there is no current suggestion that the authority intends at any time 
to use the property for something other than a runway clear zone; and no 
indication that even assuming such an intention, the limitations and 
prohibitions imposed on development by the Wetlands Acts will be removed 
or modified. In other words, looking at the situation as now presented, I 



"In my prior opinion I concluded that the recreational uses to which the MDC intended to put the property represented a 
diversion from the existing "airport-connected" uses. 1975/76 Op. Atty. Gen. No. 61 a! 4, Rep. A.G., Pub. Doc. No. 12 at 
158-159 (1976). As stated above, however, the primary focus of the earlier opinion was the application of art. 97 to the 
proposed transfer of the property, and not the doctrine of prior pubUc use. Here, of course, the central question presented 
relates to that doctrine. In light of this shift in emphasis, 1 have examined very carefully the further details presented to me 
concerning the MDC's proposed use of the profierty, the Authority's current use, and the rights pertaining to the property 
which the Authority will perpetually retain as a condition of transfer. In addition, as noted above, I have considered the fact 
that the 'property is subject to the Wetlands Protection Act, G.L. c. 131, § 40; the Coastal Wetlands Restriction Act, G.L. c. 
130, § 105; and applicable regulations promulgated under these statues, see e.g., Department of Environmental Quality 
Engineering, "Additional Regulations for Coastal WcilaiaK," § 32, reprinted in Mass. Register, Issue No. 115, at 64, 87-89 
(1978). These statutory and regulatory provisions would operate independently to restrict almost any use of the property by the 
MDC (or the Authority) that might interfere with its existence as a natural salt marsh. Based on these factors, I conclude in 
these circumstances that the MDC's intended passive recreational uses would not disturb the property's existence as a salt 
marsh and runway clear zone or materially divert the property from its current use. To the extent that my prior opinion is 
inconsistent with this conclusion 1 must decHne to follow it. 



146 P.D.12 



believe the property's current use represents "the way in which it would 
naturally and reasonably be used . . ."to effectuate the purposes for which 
the Authority took it in 1966. Boston v. Inhabitants of Brookline, supra, 
156 Mass. at 176. 

Finally, it deserves mention that the doctrine of prior public use appears 
to have developed in significant part as a judicial means to further the 
Commonwealth's policy of protecting public parkland. See Higginson v. 
Treasurer and School House Comm'rs of Boston, 212 Mass. 583, 591-592 
(1912); accord, Brookline v. Metropolitan Dist. Comm'n, 357 Mass. 435, 
439-440 (1970); Robbins v. Department of Pub. Works, supra, 355 Mass. at 
330; Gould v. Greylock Reservations Comm'n, supra, 350 Mass. at 419; see 
also Sacco v. Department of Pub. Works, 352 Mass. 670, 673 (1967). Here, 
in contrast to the cited cases, the proposed transfer of the property to the 
MDC is intended specifically to preserve and indeed enhance the property's 
ecological, aesthetic and "open space" or parkland values. Thus there is 
not the same need for "stringent" application of the prior public use 
doctrine, see Robbins, supra at 330, in this situation. 

You have also asked whether art. 97 would apply to any subsequent 
transfer of the parcel by the MDC. As indicated above, I have previously 
concluded that art. 97 would govern such transfers. 1975/76 Op. Atty. Gen. 
No. 61 at 4, Rep. A.G., Pub. Doc. No. 12 at 157, 159 (1976). No new or 
different facts or legal considerations have been presented that would 
warrant a reconsideration of my prior answer at this time, and I respectfully 
decline to undertake the task. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 26 January 30, 1979 

William A. Burke 

Executive Secretary 

Group Insurance Commission 

One Ashburton Place 

Boston, Massachusetts 02108 

Dear Mr. Burke: 

You have requested my opinion on behalf of the Group Insurance 
Commission (Commission)^ with respect to four questions concerning the 
Commission's responsibiUty to implement certain provisions of St. 1978, c. 
367 (c. 367), the appropriations act for fiscal year 1979. The provisions at 
issue. Items 1 120-2000, 1 120-3000 and 1 120-4000 of c. 367, § 2, appropriate 
funds to pay the Commonwealth's share of group life and group health 



'The Commission is a state agency within but not under the jurisdiction of the Executive Office for Administration and 
Finance. G.L. c. 32A, § 3. Its members are the Commissioner of Administration, the Commissioner of Insurance and seven 
members appointed by the Governor. Id. The Commission is responsible for negotiating and purchjising, inter alia, 
". . . group general or blanket insurance providing hospital, surgical, medical, dental and other health insurance benefits 
covering persons in the service of the Commonwealth and their dependents . . . ."G.L. c. 32A, §4. 



P.D.12 147 



insurance premiums for certain insured state and retired municipal 
employees. Each item, however, contains the following proviso prohibiting 
the use of the funds to pay for most abortions: 

. . . and further provided that no funds appropriated under this 
item shall be expended for the payment of abortions not necessary to 
prevent the death of the mother. This provision does not prohibit pay- 
ment for medical procedures necessary for the prompt treatment of the 
victims of forced rape or incest if such rape or incest is reported to a 
licensed hospital or law enforcement agency within thirty days after 
said incident . . . .^ 

Your questions relate to the quoted proviso (referred to hereafter to as 
the "abortion proviso").^ You state that the Commission, in accordance 
with the provisions of G.L. c. 32A, §§ 4 and 14, has entered into a number 
of contracts for group health insurance for the period October 1, 1977, 
through June 30, 1981." Although the length and terms of the contracts 
vary, each establishes rates and coverages through July 1, 1979, with 
provision for renegotiation of renewal rates and coverages annually 
thereafter, and at the present time each contract specifically provides health 
insurance coverage for abortions.^ 

Based on these facts, you ask the following: 

(1) Effective July 1, 1979, or at some future date, is the Commission 
required by c. 367 to reduce the coverage for abortions under contracts 
which it has entered into in accordance with G.L. c. 32A? 

(2) Once the Commission and its contracting parties have executed 
health insurance contracts pursuant to G.L. c. 32A and its supporting 
appropriation act,^ does the Commission possess the power unilateral- 
ly or by mutuality to change the provisions of those contracts by reducing 
benefits, i.e. the level of the coverage they provide for? 



HDne of the Items containing the quoted abortion proviso, Item 1120-2000, also contains a separate provision stating that 
". . . the present level of insurance coverage shall be maintained but shall not constitute payment in full of charges for health 
care services . . . ." The provision also appeared in the previous year's appropriations act, St. 1977, c. 363A, § 2, Item 1 120- 
2000. I do not view the quoted general language as inconsistent with the Item's separate proviso restricting coverage for 
abortions. In any event, doubts about the harmonious construction of the two provisions must be resolved by giving weight 
and precedence to the later and more specific provision relating to abortions. Cf. Pereira v. New England LNG Co.. Inc., 364 
Mass. 109, 118-119(1973). 

'An identically phrased proviso was also attached to the fiscal year 1979 Medicaid appropriation, set forth in c. 367, § 2, Item 
4402-5000 ("Medicaid abortion proviso"). Two lawsuits were brought challenging the Medicaid abortion proviso as violating 
Title XIX of the "Medicaid Act," 42 U.S.C. §§ 1396 el seq., and certain constitutional guarantees. Preterm, Inc. v. Dukakis, 
No. 78-1324 (1st. Cir. 1919); Parenl's Aid Society, Inc. v. Sharp. Nos. 78-1325, 78-1326 (1st Cir. 1979). Without reaching the 
constitutional questions, the United States Court of Appeals for the First Circuit entered judgments in these cases on January 
15, 1979, affirming the District Court's injunctions against the full implementation of the Medicaid abortion proviso. Because 
these cases turned on the interpretation of the Medicaid Act (Title XIX), which has no bearing on the abortion proviso 
applicable to the Commission's appropriations, the cases are not relevant to my resolution of the questions you have raised. 

In 1978/79 Op. Atty. Gen. No. 5, Rep. A.G., Pub. Doc. No. 12 at (1979), 1 also considered certain questions 

relating to the Medicaid abortion proviso, but again, those questions are not pertinent to the ones you pose. 
'At least three contracts are with Blue Cross of Massachusetts Inc. (Blue Cross) and Blue Shield of Massachusetts, Inc. (Blue 
Shield), and run from October 1, 1977, to June 30, 1981. In addition, the Commission has entered into contracts with three 
health maintenance organizations (HMOs): the Harvard Community Health Plan, Inc.. Valley Health Plan and the Rhode 
Island Health Association, Inc. Each of these contracts with HMOs runs from July 1, 1978, through June 30, 1979, but 
provides for annual renewal. 

'You explain that the coverge provisions relating to abortions in the Commission's existing contracts are not identical: the Blue 
Cross-Blue Shield contracts cover fewer types of abortions for a smaller classification of employees than do the HMO 
contracts. For purposes of this opinion, however, these differences are no: pertinent. The important fact is that all existing 
contracts cover more categories of abortions than are included in the abortion proviso of c. 367. (The terms of the existing 
contracts, including those relating to abortion coverage, were negotiated and set before c. 367 was enacted.) The issue which 
arises is whether, and how, the abortion proviso can be implemented in light of the contracts' current terms. 

'1 understand your mention of the "supporting appropriations act" to refer to G.L. c. 32A, § 8, which (I) defines the 
portion of the group health insurance premium to be paid by the Commonwealth and by employees, respectively; and (2) 
provides that the ratio or relative portions of the premiums to be paid by each may be varied by annual appropriations acts. 



148 P.D.12 



(3) Is the Commission required, by the provisions of G.L. c. 32A or 
any other law, to provide equitable treatment and uniformity of 
coverage between employees who elect to participate in the convention- 
al health insurance plans and those who elect to participate in the HMO 
plans? 

(4) If it is determined that the abortion proviso of c. 367 requires health 
insurance coverage provided under the Commission's existing 
contracts to be reduced to exclude abortions, do the provisions of the 
state's collective bargaining agreement with the Alliance supersede or 
otherwise negate such a requirement? 

I discuss each of these questions separately below. In summary, however, 
I answer them as follows. (1) The abortion proviso of c. 367 governs appro- 
priations for the current fiscal year only, which ends on June 30, 1979. 
Thus, if the fiscal year 1980 budget is enacted before July 1, 1979, the 
abortion proviso does not impose any requirements on the Commission 
effective July 1, 1979, or thereafter. However, the Commission does have a 
present, ongoing duty to implement the proviso's mandate during this fiscal 
year. Further, if the fiscal year 1980 budget is not passed by July 1, the 
abortion proviso will continue to apply to the Commission's expenditure of 
funds under c. 367. (2) Under the terms of its group health insurance 
contracts, the Commission is empowered to amend existing contracts with 
the consent of the contracting insurers in order to reduce coverage for 
abortions. If any contracting party is unwiUing to agree to such an 
amendment, the Commission should explore and exercise other contractual 
options available which would enable it to carry out the restrictions in c. 
367's abortion proviso. (3) The Commission is not required to provide the 
same coverage in HMO plans as it does in conventional insurance plans. (4) 
The Commonwealth's collective bargaining agreement does not negate or 
supersede the Commission's duty to implement the abortion proviso. 
Question One: 

Your first question asks whether the abortion proviso in c. 367, § 2, Items 
1120-2000, 1120-3000 and 1120-4000, obligates the Commission to reduce 
group insurance coverage for abortions "effective July 1, 1979, or at some 
future date." The direct answer to this question is "no." 

Chapter 367 is the Commonwealth's General Appropriations Bill, see 
Massachusetts Constitution, Amendments, art. 63, § 3. Each item described 
in c. 367, including the three at issue here, sets apart from the general public 
revenues, " 'a certain sum of money for a specified object in such manner 
that the executive officers are authorized to use that money, and no more, 
for that object and no others.' " Opinion of the Justices, 323 Mass. 764, 
766 (1948) (citations omitted). Accord, Opinion of the Justices, Mass. Adv. 
Sh. (1978) 1412, 1419-1420; Opinion of the Justices, Mass. Adv. Sh. (1977) 
2339, 2342. Items 1120-2000, 1120-3000 and 1120-4000 appropriated funds 
for the 1979 fiscal year and the abortion proviso attached to each of those 
items only pertains to and restricts funds so appropriated. The 1979 fiscal 
year ends June 30, 1979. Accordingly, and assuming that the fiscal year 
1980 appropriations act is passed before the fiscal year begins on July 1, 
1979, the abortion proviso in c. 367 does not govern the Commission's 



P.D.12 149 



expenditure of funds during any time period beginning July 1, 1979, or 
thereafter/ At tliis point in time (the middle of fiscal year 1979), the 
question whether subsequent appropriations acts will contain a similar 
proviso is a matter of speculation. Therefore, insofar as you seek guidance 
as to the Commission's legal obligations beyond June 30, 1979, you must 
await the action of the Legislature.* 

Nevertheless, the Commission must recognize that the abortion proviso 
in c. 367 does apply to funds expended during the current, 1979 fiscal year. 
The proviso expresses a clear and affirmative legislative mandate, and 
absent a determination by a court or other competent authority that the 
proviso is constitutionally invalid or otherwise not enforceable, the 
Commission is charged with the duty to implement the proviso to the fullest 
extent possible. See Opinion of the Justices, supra, Mass. Adv. Sh. (1978) 
1412, 1419-1420.® Since there has been no judicial or other decision holding 
that certain constitutional or statutory provisions supersede the 
Commission's obligation to implement the abortion proviso at the present 
time, it should proceed expeditiously to exercise all available options to 
fulfill this duty. I consider those options in my answer to the second 
question, immediately below. 
Question Two: 

The second question concerns the Commission's power, unilaterally or by 
agreement, to change the provisions of the existing group health insurance 
contracts in order to exclude coverage of abortion services which do not fit 
within the scope of the abortion proviso.^" Treating first the issue of 
mutuality, the contracts expressly contemplate amendments by agreement, 
in order to conform to newly enacted legislation, among other reasons. ^^ I 
also understand that in fact Blue Cross-Blue Shield is presently willing to 
execute such an amendment limiting the abortion services covered under its 
contracts; as amended, the contracts would conform to the restrictions of 
the abortion proviso. In my view, the Commission should accept the offer 



There have been instances when the Legislature has not enacted a budget or appropriations act before the start of a fiscal year; 
fiscal year 1979 is the most recent example. If such a situation should occur with respect to the 1980 budget, the abortion 
proviso in c. 367 would apply to the Commission so long as the Commission continues to expend funds appropriated by c. 367 

I discuss the Commission's current obligations concerning the implementation of c. 367's abortion proviso in the remainder of 
my answer to the first question and in my answer to the second question. 

•Since the matter is one of legislative determination, it would be inappropriate for me to conjecture whether tuture appro- 
priations acts will contain identical or related abortion spending restrictions, and to consider your first question accordingly. 
Presumably, the Commission in the course of its negotiations over insurance coverage applicable to periods on and after July 
1 , 1979, might provide for a mechanism to adjust rates and coverages depending upon whether such restrictions are attached to 
future Commission appropriations. ..... 

'As a general matter the Commission is required to obey a legislative mandate absent a court order enjoining implementation 

of the statute or act in question. Compare 1976/77 Op. Atty. Gen. No. 20, Rep. A.G., Pub. Doc. No. 12 at — ;;M , '' 

with 1978/79 Op. Atty. Gen. No. 6, Rep. A.G., Pub. Doc. No. 12 at (1979); see also Preterm, Inc. v. Dukakis 

supra and Parent S Aid Society. Inc. v. Sharp, supra, discussed in n. 3 above, where the court enjoined full implementation ot 
the Medicaid abortion proviso in c. 367; 1978/79 Op. Atty. Gen. No. 5, supra at 9, n. 9. 1 believe it would be inappropriate for 
me to posit or hypothesize a set of circumstances in which a court might issue an order enjoining the implementation of the 
abortion proviso. Questions involving the proviso's validity under such constitutional provisions as Article 1, § 10, of the 
United States Constitution (the Contracts Clause) or Mass. Const. Amendments, art. 106 (the Equal Rights Amendment) must 
await actual litigation raising such claims. 

IndtpciKJciu ol conn aciioiis. I ha\c nn occasion answered qiicsiioiis aboiil ilic coiililulionalin ol spccihcd sialulcs in opi- 
nions tendered lo siaie olllcials. •.ee. e.K. 1974/75 Op. Aii\. den. No. 65. Kep. A.C... I'uh. Doc. No. 12 al 151 (1975), and 
ha\e e\eii adMsed olTicials noi lo enlorce sialules which I found direclly lo oirend the Consiiiuiion. .See 1974/75 Op. Ally. 
Cell. No. I2al 151 (1975). Voin lirsi quesiion, however, does nol ask an> guesiion aboul ihe eonsiiiulionaliiy of Ihc abortion 
piiuisio. and insolar as voiir second and lourih questions raise consiiuiiional issues, my answers show ihal 1 lia\e nol found 

II necessan In resohc ilieiii. I decline lo opine ueneralK on ihe possible consiiuiiional iinpedinieius lo ilie aboriion proviso. 
"T assume your question refers onfy to the contracts with Blue Cross-Blue Shield and HMOs, ana not to the Commission's 
obligations (if any) relating to the collective bargaining agreement between the Commonwealth and the "Alliance" (i.e., the 
alliance of the American Federation of State, County and Municipal Employees Union [AFSCME], AFL-CIO, and its affiliate 
councils, and the Service Employees International Union [SEIU], and its affiliate locals). 

"You have given me copies of relevant portions of the Commission's contracts with Blue Cross-Blue Shield and with the 
HMOs. Each contains a provision explicitly authorizing changes by written agreement between the insurer and the 
Commission without the consent of any covered employee, dependent, or other person. 



150 P.D.12 



of Blue Cross-Blue Shield and proceed to execute the necessary contract 
amendments J ^ 

The HMOs pose a different problem. You have stated that none of them 
is wilHng to amend its group insurance contract until July 1, 1979, after the 
end of fiscal year 1979. Thus a mutually agreed-upon change designed to 
implement the abortion proviso is not an option. The question whether the 
Commission has the authority to require an amendment of each HMO 
contract so as to comply with the abortion proviso's mandate is not an easy 
one, compare e.g., American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 
Mass. Adv. Sh. (1978) 58, with Wasser v. Congregation Aqudath Sholom 
of Chelsea, 262 Mass. 235, 236-237 (1928). However, I do not believe it 
necessary to answer the question here, because the Commission has other 
remedies available under its existing contracts.^' If the HMOs persist in 
their unwillingness to amend their group insurance contracts before July 1 , 
1979, the Commission may be required to proceed under the contractual 
provision described in n. 13 above or some other pertinent provision, in 
order to comply with the mandate of the abortion proviso. 
Question Three: 

The third question asks whether G.L. c. 32A "or any other law" requires 
the Commission to provide uniform insurance coverage to employees who 
elect to participate in the different group health plans for which you have 
entered into contracts. As framed, the question is extremely general in 
nature, making its answer difficuh. Cf. 1977/78 op. Atty. Gen. No. 18, 

Rep. A.G., Pub. Doc. No. 12 at (1978). It appears, however, 

that the Commission is concerned because the coverage provided to 
employees who elect to participate in an HMO insurance plan differs quite 
substantially from that given employees who choose the more conventional 
insurance plan offered by Blue Cross-Blue Shield. 

General Laws, c. 32A does not prohibit differences between the coverage 
provided by HMO contracts and conventional contracts.^* Pursuant to 
G.L. c. 32A, § 14, and c. 176G, § 11, the Commission is authorized to enter 
into group health insurance contracts with HMOs, and the scope of its 
authority to set the terms of such contracts is very broad: 

The Commission may enter into a contract ... to make available the 
services of a health care organization [or HMO] to certain eligible 
active and retired employees and dependents ... on a voluntary and 
optional basis, as it deems in the best interest of the Commonwealth 
and such eligible persons as aforesaid . . . (emphasis supplied). G.L. 
c. 32A, § 14^5 



'H3iven the position of Blue Cross-Blue Shield, it is therefore not necessary to consider whether the Commission unilaterally 
could implement such amendments to its Blue Cross-Blue Shield contracts. 
"Each of the HMO contracts forwarded to me contains a provision statmg: 

The Commission may discontinue this contract at any time by giving (to the HMO) written notice stating when, after the 
date of such notice, such discontinuance shall become effective, but in no event shall such discontinuance be less than 
thirty (30) days from said notice. 
In addition, there may be provisions of the contracts in the portions I have not seen which offer alternative (and less drastic) 
options that might be pursued to effectuate c. 367's requirements. "Nor am I aware of "any other law" that might indepen- 
dently prohibit such differences. However, I should point out that this portion of your inquiry is too broad and too general to 
answer; under the circumstances it would be inappropriate to undertake an exhaustive review of every statute to detertnine its 
appUcation to the issue you raise. 
"The section attaches two conditions to the Commission's contracting power, neither of which relates to coverage terms. 



P.D.12 151 

No other provision in § 14, or in any other section of c. 32A,^^ Umits the 
Commission's power to contract with HMOs for such insurance coverage as 
it deems appropriate. The broad discretion vested in the Commission by the 
quoted language of § 14 is to be given effect. Cf. Multi-Line Ins. Rating 
Bureau v. Commissioner of Ins., 357 Mass. 19, 21-22 (1970); cf. also First 
Nat 'I Bank of Cape Cod v. Board of Bank Incorporation, 361 Mass. 381, 
382(1972). 
Question Four: 

Your fourth question asks whether the Commonwealth's collective 
bargaining agreement with the Alliance, the primary collective bargaining 
representative of state employees, supersedes the Commission's obligation 
to reduce the coverage for abortion services now provided in its health 
insurance plans in order to comply with c. 367's abortion proviso. 

Two independent factors restrict my abihty to respond. The first concerns 
pending litigation. The Commission is not a party to the Commonwealth's 
collective bargaining contract. Nevertheless, a question was raised in a 
proceeding before the Labor Relations Commission whether the Group 
Insurance Commission, as a state agency, is subject to some of the bargain- 
ing duties and obligations imposed by the public employees' collective 
bargaining statute (G.L. c. 150E) on the Commonwealth as the "employer" 
(see G.L. c. 150E, § 1). This question is one of the issues presented in a case 
now before the Massachusetts Appeals Court, Group Insurance 
Commission v. Labor Relations Commission, No. 78-630 (1978), in which I 
represent the Commission. To the extent that your fourth question raises 
the same legal issue, the pendency of the litigation precludes my answering 
it. See, e.g., 1977/78 Op. Atty. Gen. No. 6, Rep. A.G., Pub. Doc. No. 12 at 
(1978). 

Apart from the litigation, in large measure your question calls for a 
reading and interpretation of the existing collective bargaining agreement 
between the Commonwealth and the Alliance. The duty to interpret the 
terms of the agreement, however, lies with others, for example an arbitrator 
or the Labor Relations Commission. See School Comm. of Danvers v. 
Tyman, Mass. Adv. Sh. (1977) 415, 427; see also 1977/78 Op. Atty. Gen. 

No. 14 at 3, n. 4., Rep. A.G., Pub. Doc. No. 12 at , n. 4 (1978). 

Nevertheless, since the Commission is not a party to the collective 
bargaining agreement, it is not in a position to seek an answer in the 
collective bargaining forum to the question you pose. As its lawyer I am 
responsible for advising the Commission of questions relating to its official 
duties. To that end 1 respond to your question insofar as I am able, taking 
into account the pending lawsuit just mentioned. 

The current collective bargaining agreement between the Commonwealth 
and the AlHance runs from July 1, 1977, through June 30, 1980. Article 13 
of the agreement relates to group insurance, setting forth the portions of the 
group insurance premium which the Commonwealth and each insured state 



"The other pertinent sections in G.L. c. 32A which concern the Commission's authority to contract for group insurance and 
the amount of coverage to which each insured employee is entitled, e.g., c. 32A, §§ 4, 5 and 6, do not require, expressly or 
implicitly, uniform coverage for every employee. 



152 P.D.12 



employee respectfully agree to pay during the contract period J ^ Neither 
Article 13 nor any other provision of the agreement describes the coverage 
offered by any group insurance policy. The agreement thus appears to 
indicate on its face (see n. 17 supra) that specific types of benefits provided 
— for example abortion services — are not considered in or treated by it. 
Cf. Watertown Firefighters, Local 1343, I.A.F.F., AFL-CIO v. 
Watertown, Mass. Adv. Sh. (1978) 2956.^8 

Further, as the cited case shows, provisions in a public employee collective 
bargaining agreement which contavene a declared legislative policy with 
respect to group insurance cannot be enforced. Id. at 2963, 2964-2967.^^ 

It is therefore my opinion that the current collective bargaining agree- 
ment with the Alliance does not override or negate the Commission's duty 
to comply with the abortion proviso in c. 367. 

In summary, then, I conclude that neither the terms of the Commission's 
existing group health insurance contracts nor the provisions of the 
Commonwealth's collective bargaining agreement with the Alliance 
removes the Commission's obligation to implement c. 367's abortion 
proviso. The Commission should take the necessary steps to ensure that its 
expenditure of funds appropriated by c. 367 complies with that proviso. 
The abortion proviso, however, does not itself govern the Commission's 
expenditure of funds appropriated for fiscal year 1980, beginning July 1, 
1979. 

Very truly yours, 

FRANCIS X. BELLOTTI 

A ttorney General 

Number 27 February 2, 1 979 

Robert Q. Crane 

Treasurer and Receiver-General 

Chairman, State Board of Retirement 

One Ashburton Place 

Boston, MA 02108 

Dear Mr. Crane: 

As Chairman of the State Board of Retirement (Board), you have 
requested my opinion on the proper construction of G.L. c. 32, § 91 (§ 91), 
which concerns in relevant part the relation between retirement benefits and 



"For example. Article 13 § 1, reads: 

(Until January 1, 1978] [tlhe Commonwealth shall pay eighty percent of the monthly premium rate for the Group Health 
Insurance Plan and each employee covered shall pay twenty percent of this premium rate for the type of coverage that is 
provided for him/her and his/her dependents under the plan. 
This language by its terms concerns only the allocation of responsibility between the Commonwealth and its employees for 
payment of contract premiums during the life of the agreement. The subsequent pertinent sections of Article 13 vary the 
relative portions on the premium to be paid by the Commonwealth and the employee at specified points in time, but are 
otherwise identical to § 1 (quoted here). 

"That case concerned the relationship between municipal employees' collective bargaining agreements and group insurance 
contracts which certain local governments enter into for such employees pursuant to G.L. c. 32B. In the course of its opinion 
the court indicated that the Legislature did not intend municipal bargaining agreements to reach specific types of benents to be 
covered by employee insurance policies, since such provisions might seriously impair the municipality's ability to contract for 
health insurance on a group ba.sis. Mass. Adv. Sh. (1978) at 2961. The same rationale apphes to the Commission's duty to 
provide group health insurance for state employees under ag.l. c. 32A. 

' General Laws, c. 150E, § 7, provides that the terms of a collective bargaining agreement may supersede contrary provisions 
of certain enumerated statutes; G.L. c. 32A is not one of those listed. Cf. Watertown Firefighters, supra at 2964 and n. 16. 



P.D.12 153 



compensation paid to retired public employees who return to active public 
service. Your present request arises out of an informal opinion which a 
member of my staff gave to the Executive Secretary of the Board on 
February 15, 1978, and which also involved an interpretation of § 91. 
Because of the informal nature of the previous opinion and the close 
relationship between it and your present opinion request, I have addressed 
in this opinion both requests in order that an integrated and comprehensive 
response can be made.^ Accordingly, the questions which I consider here are 
the following: 

1 . Whether a retired state employee who waives his retirement benefits 
and then accepts a full-time, paid position with a municipal or 
county government may have his state retirement allowance reinstated 
for 90 days, or 720 hours, during any calendar year.^ 

2. Whether, assuming the answer to the first question is no, the Board 
may: (a) require an individual to return retirement benefits received 
in violation of § 91 , as construed by this opinion and by the February 
15, 1978 informal opinion; (b) alternatively, require that the amount 
of retirement benefits received in violation of § 91 be recovered by 
setting off such amounts from subsequent valid retirement benefits 
made to the individual; or (c) give only prospective effect to the 
informal opinion of February 15, 1978.^ 

In summary, my answer to the first question is that § 91 does not permit a 
retired state employee who waives his retirement benefits and then accepts 
employment with a municipal or county government to supplement his 
income by the device of reinstating his retirement allowance for 90 days, Or 
720 hours, during each calendar year.* The answer to the second question is 
that the Board may exercise either alternative (a) (retroactive reimbursement), 
alternative (b) (set-off), or some other reasonable method to recover 
benefits to which a retired state employee is not entitled; the Board is not 
limited to a prospective enforcement of § 91'$ provisions from the date of 
the informal opinion. My reasons for these conclusions are discussed below. 
Question 1: 

Two portions of § 91 are particularly relevant to the first question: § 91(a) 
and (b). Section 91(a) provides in part: 

No person while receiving a pension or retirement allowance from the 
commonwealth, or from any county, city, town or district, shall, after 
the date of his retirement be paid for any service rendered to the 
commonwealth or any county, city, town or district [except in certain 



'This opinion therifore supersedes the earher informal opinion. As a general matter, I wish to discourage requests for informal 
opinions. Since informal opinions are rarely prepared with the same amount of research and consultation as formal opinions 
of the Attorney General, I believe that in many instances they are not an appropriate way for my Department to advise state 
agencies and state officials on important legal questions. 

'This issue was the subject of the previous informal opinion and arose out of two factual situations. The first involved an 
individual who retired from state employment on August 9, 1974. Effective the same day, he waived and renounced his 
retirement allowance pursuant to G.L. c. 32, § 90B. On September 2, 1976, he requested that his retirement allowance be 
reinstate; he again waived the allowance on May 3 1 , 1977. The individual had been appointed chief of police of a municipality 
on June 2, 1974, and was employed in that capacity at least through 1977. 

The second situation concerned an individual who retired from state employment on July 31, 1976. He received a retirement 
allowance from August 1, 1976 through March 31, 1977, when he waived and renounced the allowance. The individual had 
been appointed by the Governor to be a county sheriff on August 1, 1976, and served in that capacity until 1978. 
'This second group of questions represents those which you have posed in your formal opinion request. 

'The same conclusion was reached in the informal opinion of February 15, 1978, although by a somewhat different interpre- 
tation and application of § 91 than are employed in the present opinion. 



154 P.D.12 



circumstances]. . . . Notwithstanding the foregoing provisions of this 
section ... a person who, while receiving ... a pension or retirement 
allowance [from the commonwealth or any county, city, town or district], 
is appointed ... to a position by . . . [the Governor, a mayor or a 
city council, or the Legislature], shall be paid the compensation attached 
to such position; provided that he files with the treasurer of the govern- 
mental unit paying such pension or allowance, a written statement 
wherein he waives the same for the period during which such compen- 
sation is payable. 
The plain import of § 91(a) is that retired state employees are generally 
prohibited from receiving retirement beneftis during any period in which 
they are receiving compensation for services to the Commonwealth or to a 
county, city, town or district. See 1971/72 Op. Atty. Gen, No. 15, Rep. 
A.G., Pub, Doc. No. 12 at 76 (1972). ^ 

Section 91(b)® offers a specific and narrow exception to § 91(a)'s prohibi- 
tion, permitting, under certain conditions, retired public employees to be 
reemployed in public service for not more than 90 days in any calendar year. 
It presently reads^ in relevant part: 

In addition to and notwithstanding the foregoing provisions of this 
section or similar provisions of any special law, any person who has 
been retired and who is receiving a pension or retirement allowance 
. . . may ... be employed in the service of the commonwealth, county, 
city, town, district or authority for not more than [90] days or [720] 
hours in the aggregate, in any calendar year; provided that the earnings 
therefrom when added to any pension or retirement allowance he is 
receiving do not exceed the salary that is being paid for the position 
from which he was retired or in which his employment was terminated. 
(Emphasis supplied.) 

Section 91(b) thus explicitly limits its exception to a person "who has 
been retired and who is receiving a pension or retirement allowance" 
(emphasis supplied). The exception does not extend to persons who have 
retired but have waived their retirement benefits (pursuant to § 91(a) or 
G.L. c. 32, § 90B) in order to accept public employment: clearly such 
persons are not "receiving a pension or retirement allowance." The plain 
language of the § 91(b) exception must be given effect. See, e.g., Burke v. 
Chief of Police of Newton, Mass. Adv. Sh. (1978) 425, 427; Moynihan v. 
Arlington, Mass. App. Ct. Adv. Sh. (1978) 1225. 

Moreover, it would be anomalous to read § 91(b) as a device for allowing 
employed persons to supplement their incomes with retirement benefits for 
up to 90 days or 720 hours each year. Such a reading would turn the statutory 



'Although the current form of § 91(a) has evolved as the result of numerous statutory amendments and redrafts over the years, 
its general prohibition against simultaneous receipt of retirement benefits and remuneration for service to the Commonwealth 
or local units of government may be traced without interruption to the section's origins. See St. 1913, c. 657, § 1. The force and 
intent of the general prohibition have consistently been recognized by previous Attorneys General. See, e.g., 1943/44 Op. 
Atty. Gen., Rep. A. G., Pub. Doc. No. 12 at 45 (1944); 1962/63 Op. Atty. Gen., Rep. A. G., Pub. Doc. No. 12 at 74 (1963); 5ee 
also G.L. c. 32, § 90B; 1963/64 Op. Atty. Gen., Rep. A.G., Pub Doc. No. 12 at 144 (1964). "Actual receipt of a retirement 
allowance contemporaneous with remuneration for the rendition of services to the Commonwealth is the practice explicitly 
prohibited by the statute" (emphasis omitted). 1971/72 Op. Atty. Gen. No. 15, Rep. A.G., Pub. Doc. No. 12 at 76, 77 (1972). 
1 concur m the quoted analysis of the 1972 opinion of the Attorney General and of the other opinions cited. Cf. 1975/76 Op. 
Atty. Gen. No. 77, Rep. A.G., Pub. Doc. No. 12 at 198 (1976). 

'Section 91(b) was added by St. 1968, c. 676, a statute which rewrote § 91 and subdivided it into subsections (a) through (d). 
Before the enactment of c. 676, the language of general prohibition now contained in § 91(a) and quoted in the text at i, supra, 
appeared in § 91, i 1. 

'Section 91(b) was amended by St. 1973, c. 587, to change the term "[90) days" to "(90] days or [720] hours." Otherwise it has 
remained in the form originally enacted in 1968. 



P.D.12 155 



retirement scheme on its head by providing retirement benefits to employed 
persons rather than a Hmited opportunity for compensated employment to 
retired persons. See Little v. Rosenthal, Mass. Adv. Sh. (1978) 2793, 2796- 
2797; see also Department of Pub. Welfare v. Anderson, Mass Adv. Sh. 
(1979) 31, 36, n. 3; see generally Labor Relations Comm'n v. Board of 
Selectmen of Dracut, Mass. Adv. Sh. (1978) 657, 662; Commonwealth v. 
Gove, 366 Mass. 351, 354 (1974); Commonwealth v. Lamb, 365 Mass. 265, 
269 (1974). Additionally, the fact that § 91(b) represents an exception to the 
long-established, general prohibition of § 91(a) requires that the subsection 
be given a narrow interpretation. See Baker Transport, Inc. v. State Tax 
Comm'n, Mass. Adv. Sh. (1977) 259, 266. 

Reference to the two factual situations described in n. 2, supra, may help 
clarify the relation between subsections (a) and (b) of § 91. Prior to 
September 2, 1976, the first individual described had been employed as 
chief of police for a municipality and had waived and renounced his 
retirement benefits. On September 2, 1976, he requested that his retirement 
allowance be reinstated. The general prohibition of § 91(a), considered 
alone, dictates the conclusion that the individual was not entitled to collect 
both retirement benefits relating to his former state employment and 
compensation for his ongoing services as poHce chief on and after 
September 2. Further, in the situation described the limited exception of § 
91(b) does not aid the individual since, on September 2, he was not a retired 
person "who is receiving a pension or retirement allowance . . . .''Id. 

Different considerations apply, however, to the case of the second person 
mentioned in n. 2. On August 1, 1976, the date of his appointment as 
sheriff, he was a retired person receiving a retirement allowance. Under the 
provisions of § 91(b), he was therefore entitled to collect, in addition to his 
retirement benefits and within the Umits specified in § 91(b), compensation 
for his services as sheriff for an aggregate period of up to 90 days or 720 
hours in the calendar year 1976. Depending on the facts, he also may have 
been entitled to collect both retirement benefits and compensation for 
services during a period of 90 days or 720 hours in the calendar year 1977.® 
Subsequent to March 31, 1977 — the date on which he waived and 
renounced his retirement benefits — he was no longer a retired person 
receiving retirement benefits and therefore was not entitled to claim the 
limited exception of § 91 (b).^ 
Question 2: 

The second question also involves an interpretation of § 91. You ask 
whether the Board (a) may require an individual to return retirement 
benefits received in violation of § 91 prior to February 15, 1978, (b) 
alternatively, may offset the amount of such benefits against future valid 
allowances, or (c) is required to give only prospective effect to this opinion 
and the informal opinion of February 15, 1978. 

It is a well-established principle of statutory construction that statutes 



'Whether the individual qualified for retirement benefits in 1977 depends on the calculation of days or hours he served as 
sheriff in 1976. That calculation is necessarily a factual determination for the Board to make, and I cannot advise you on it. 
'Nothing stated here is intended to suggest that a retired employee who waives his retirement benefits is then forever precluded 
from receiving them; G.L. c. 32, § 90B makes clear that a waiver may be restricted in time and also rescinded. Rather, the 
benefits preclusion 1 discuss lasts only so long as the retired employee continues to hold a job with a governmental unit after his 
retirement. 



156 P.D.12 



affecting substantive rights are presumed to be prospective in their 
operation unless a contrary intent is clearly expressed. In contrast, statutes 
relating to remedies and not affecting substantive rights are commonly 
treated as operating retroactively. See, e.g., Welch v. Mayor of Taunton, 
343 Mass. 485, 487-488 (1962). However, these principles primarily have 
application to the question whether an act or occurrence prior to the 
effective date of the statute in question should be subjected to the mandates 
of the statute. Cf. Elmer v. Board of Zoning Adjustment of Boston, 343 
Mass. 24, 25 (1961). Entirely different considerations apply where, as here, 
the acts in question occurred after the effective date of the statute. 

As I previously noted, § 91 was substantially rewritten and reorganized by 
St. 1968, c. 676, which added subsection (b) to § 91 in essentially its present 
form. Chapter 676 was approved on July 19, 1968, and became effective 90 
days thereafter, see Opinion of the Justices, 368 Mass. 998, 891, n. 4 (1975). 
The informal opinion of February 15, 1978, as well as this opinion, merely 
apply the clear language of § 91(a) and (b) in the context of factual 
situations arising subsequent to the effective date of c. 676.^° The Board 
therefore is not limited by the dates of the informal opinion or of this 
opinion in seeking to enforce the provisions of these two subsections. 

The powers and duties of the Board are delineated in G.L. c. 32, § 20(5); 
see id., § 20(l)(b). Under the expUcit terms of § 20(5)(b), the Board is to 
have such powers and duties as are necessary to satisfy the requirements of 
the statutory retirement scheme of c. 32. This general regulatory and 
administrative mandate carries with it the authority to take all necessary 
steps to fulfill the Board's responsibihties. Multi-Line Ins. Rating Bureau v. 
Commissioner of Ins., 357 Mass. 19, 22 (1970); Massachusetts Bay Trans. 
Auth'y V. Boston Safe Deposit & Trust Co., 348 Mass. 538, 544 (1965). In 
cases in which retirement benefits have been received in violation of any 
provision of c. 32, it is therefore the duty of the Board to take remedial 
action. As you have suggested, one remedial step might be to require that an 
individual who has violated § 91(b) repay the Commonwealth the excess of 
otherwise improper retirement benefits he has received." Cf. G.L. c. 32, §§24, 
91(c). Alternatively, again as you have suggested, in an appropriate 
situation the Board might choose to offset the excessive amount against 
future valid payments. See G.L. c. 32, § 20(5)(c). It is my opinion that, as a 
general matter, both methods of collecting past invalid payments are 
available to the Board, and that the Board has the duty to enforce the 
statute by actively employing these or similar methods. 

Very truly yours, 

FRANCIS X. BELLOTTI 

A ttorney General 



"Neitner § 91 (a) nor (b) falls in the categor>' of statutes which are arguably so vague and unclear that serious questions of due 
process would arise if they were construed to apply to conduct undertaken before a formal judicial or Attorney General's 
interpretation of the statute had been given. Compare Commonwealth v. Templeman, Mass. Adv. Sh. (1978) 2738, 2743-2744 
(due process might prohibit application of vague criminal statute to defendant's conduct before court clarified statute's 
meaning and cured its defect of vagueness), with Commonwealth v. Gallant. Mass. .Adv. Sh. (1977) 2254, 2270-2272 (rejecting 
vagueness attach on another criminal statute and upholding defendant's conviction under it); see generally Gravned v. City of 
Rockford, 408 U.S. 104, 108 and n. 3 (1972); Commonwealth v. Gallant, supra. Mass. Adv. Sh. (1977) at 2256-2258 
(discussion of vagueness doctrine). Nor is this a situation where a long established rule or interpretation of a statute, on which 
parties have relied, is suddenly altered. Cf. Tucker v. Badoian, Mass. Adv. Sh. (1978) 3207, 3220 (Kaplan L.etal.. concurring 
in result). 

"In this regard, 1 understand that pursuant to the informal opinion of February 15, 1978, the Board sought and received the 
excessive retirement allowance paid to the first individual described in n. 2, supra. 



P.D.12 157 



Number 28 February 6, 1979 

Richard E. McLaughlin 

Registrar 

Registry of Motor Vehicles 

100 Nashua Street 

Boston, MA 02114 

Dear Mr. McLaughUn: 

You have requested an opinion concerning the present status of the arrest 
provisions set forth in G.L. c. 90, § 21, in view of § 41 of St. 1978, c. 478 (c. 
478), the comprehensive court reform act passed by the Legislature on July 
18, 1978. For the reasons discussed below, I conclude that c. 90, § 21, is 
unaffected by the court reform legislation. Accordingly, officers authorized 
under c. 90, § 21, to make arrests may continue to arrest motor vehicle 
operators pursuant to the provisions of that section.^ 

Since your question involves the interrelationship of c. 478, § 41, and 
G.L. c. 90, § 21, I begin with a description of these statutory provisions. 
Chapter 478 is a comprehensive statute which substantially reorganizes the 
Commonwealth's trial court system in order "to promote the orderly and 
effective administration of the judicial system of the Commonwealth." 
Chapter 478, § 1. Section 41 of c. 478 adds § 20F to G.L. c. 90, one of the 
principal chapters of the General Laws concerned with the regulation and 
operation of motor vehicles. 

Section 20F seeks to provide alternative procedures for handling "minor 
motor vehicle violations."^ These alternative procedures operate at the 
option of the offender, and, if followed, result in an administrative and 
non-criminal disposition of the minor motor vehicle violation.^ The purpose 
of the new administrative procedures is presumably to reduce some of the 
burdensome caseload of the district courts and probation offices, in order 
to free them to deal with more serious criminal (as well as civil) cases. Cf. 
Pinnick v. Cleary, 360 Mass. 1, 16-19 (1971) (reducing court congestion 
found to be one of purposes of no-fault insurance legislation). 

General Laws, c. 90, § 21, was enacted long before § 20F, and was not 
amended in any way by the court reform act's provisions. Section 21 

'You raise this question in relatjon to the duties of "enforcement personnel" of the Registry of Motor Vehicles, a term 1 
understand to refer to persons appointed by the Registrar who are entitled to exercise all the powers of police officers and 
constables pursuant to G.L. c. 90, § 29. The first sentence of G.L. c. 90, § 21, the portion of the section relevant to this 
opinion, appUes to "any officer authorized to make arrests . . . ," which includes police officers and therefore Registry 
"enforcement personnel." Cf. Commonwealth v. Sullivan, 311 Mass. 177, 179-180(1942). 
'I use the term "minor motor vehicle violations" as a shorthand expression to refer to the following language in § 20F: 

(A] violation of chapters eighty -five to ninety D, inclusive, involving the operation of a motor vehicle, other than a 
violation involving the parking of motor vehicles, where the maximum statutory penalty does not exceed one hundred 
dollars for the first offense and which does not provide for a penalty of imprisonment .... 
'In summary, the procedures offered under § 20F are the following. (1) A police officer who "takes cognizance" of a minor 
motor vehicle offense gives the offender a citation, called a "uniform traffic citation." (2) This citation notifies the offender 
that (a) he may request a hearing on the alleged violation within four days before any process shall issue, and (b) he may waive 
his right to trial and pay the maximum statutory penalty within ten days of the alleged violation; it also "contain fsj a space for 
the name and address of the offender, the number of his license to operate motor vehicles, the registration number of the 
vehicle involved, the time and place of the violation, the specific offense charged" (emphasis suppUed), and certain other 
information; finally, "fsjuch citation shall be signed by the officer and by the offender to acknowledge that the citation has 
been received" (emphasis supplied). (3) A person who receives such a citation may appear before the magistrate of the district 
court with jurisdiction and confess the offense charged or may mail to the magistrate the maximum statutory fine for that 
offense. (4) "The payment to the magistrate of such penalty shall operate as a final disposition of the case. If the citation is so 
returned by the offender, such an appearance shall not be deemed a criminal proceeding for the purposes of (G.L. c. 90). The 
offender shall not be required to report to any probation officer and no record of the case shall be entered in any probation 
records." 

Section 20F proceeds to make clear, however, that if an alleged offender fails to appear before the magistrate or "desire[sl 
not to avail himself of the benefits of the procedure established by this section, the clerk shall as soon as may be notify the 
officer concerned, who shall forthwith make a complaint and follow the procedure estabUshed for criminal cases." 



158 P.D.12 



provides in relevant part that an officer empowered to make arrests may 
arrest without warrant any person driving an automobile who commits one 
or more of the motor vehicle offenses enumerated in the section. * It goes on 
to provide that any person arrested under the section's terms is to be 
brought within 24 hours of his arrest "before a magistrate and [to be] 
proceeded against according to law." 

There is no express language in the new G.L. c. 90, § 20F, which repeals, 
modifies, or even refers to the arrest provisions of the older § 21. Section 
20F begins, however, with the phrase: "Notwithstanding any provisions of 
the General Laws to the contrary . . . ."As you have indicated, this phrase, 
and the new section in general, have caused a great deal of confusion and 
concern among law enforcement and other officials over the operation of 
the two statutes together. It seems that some officials believe an irreconcilable 
conflict arises between §§ 20F and 21 in that § 21 permits police officers to 
arrest and hold in custody alleged offenders for a number of minor motor 
vehicle violations which may be administratively processed on a non- 
criminal basis under § 20F.* In their view, it is wholly inconsistent with the 
concept of non-criminal dispositions of motor vehicle offenses to permit 
arrests for them. Accordingly, the assertion is made that § 20F impliedly 
repeals the conflicting provisions of § 21, and that officers may no longer 
arrest persons for those offenses listed in § 21 which also qualify as minor 
motor vehicle violations under § 20F.® 

In my opinion, G.L. c. 90, § 20F, does not operate as an imphed repeal of 
any portion of c. 90, § 21. Rather, a careful reading of the two statutes in 
light of the governing rules of statutory construction demonstrates that the 
statutes may operate consistently and harmoniously together. 

"The principle of interpretation is well established, that statutes alleged 
to be inconsistent with each other, in whole or in part, must be so construed 
as to give reasonable effect to both, unless there be some positive 
repugnancy between them." Brooks v. Fitchburg & Leominster St. Ry., 200 
Mass. 8, 17 (1908); accord. Goldsmith v. Reliance Ins. Co., 353 Mass. 99, 
102 (1967); Everett v. Revere, 344 Mass. 585, 589 (1962).^ In a similar vein, 
where possible, a statute is to be construed in harmony with earlier 



'These offenses, designated in the first sentence of § 21, are: (1) operation of a motor vehicle without having in possession an 
operator's license, when combined with the violation of "any statute, by-law, ordinance or regulation relating to the operation 
or control of motor vehicles"; (2) operation of a motor vehicle on a public way after the motorist's operator's license has been 
suspended or revoked by the Registrar of Motor Vehicles; (3) operation on a public way of a motor vehicle while under the 
influence of alcohol, marihuana or narcotic drugs, or other described substances; (4) unauthorized use of a motor vehicle; (5) 
refusal of a motorist, when requested by a police (or other authorized) officer, to give his name and address or the name and 
address of the vehicle's owner; (6) refusal of a motorist, on the demand of an officer, to produce for examination his 
operator's license or the registration certificate for the vehicle; (7) operation of a motor vehicle on a public way without 
stopping to give one's name, residence and vehicle registration number after knowingly colliding with or causing injury to any 
person. 

The following is an example of the purported conflict: the failure of a motorist to produce his operator's license upon the 
demand of a police officer is an arrestable offense under § 21; however, since that offense is punishable by a maximum fine of 
$100, .see G.L. c. 90, § 25, it constitutes one of the minor motor vehicle violations described in § 20F, and the alleged offending 
motorist has the option of selecting the non-criminal administrative procedures set forth in § 20F. 

•It bears emphasis that the implied repeal of § 21, if any, would only operate with respect to those § 20F minor motor vehicle 
violations for which warrantless arrests may normally be made under § 21 . Such violations are: (1) refusal of a motorist to give 
his name and address or the name and addressof the vehicle's owner (punishable by a maximum fine of $100 under G.L. c. 90, 
§ 25); (2) a motorist's refusal to produce his license and registration certificate (similarly punishable under c. 90, § 25); and (3) 
depending on the additional violations committed, operating without a license (punishable in certain instances by a maximum 
fine of $25 for the first offense under c. 90, § 20). The other violations listed in § 21, e.g., operating under the influence of 
alcohol, unauthorized use, etc., are all punishable by terms of imprisonment for the first offense, and thus do not qualify as 
minor motor vehicle offenses for which non-criminal procedures and dispositions are available under § 20F. By definition, 
therefore, arrests for such offenses do not contravene any provisions of § 20F. 

'See also Doherly v. Commissioner of Administration, 349 Mass. 687, 690 (1965): "The test of the applicability of the 
principle of implied repeal is whether the prior statute is so repugnant to and inconsistent with the later enactment covering the 
subject matter that both cannot stand" (citation omitted). 



P.D.12 159 



enactments to create a consistent body of law. Hadley v. Amherst, Mass. 
Adv. Sh. (1977) 341, 346; Everett v. Revere, supra at 589; see Common- 
wealth V. Wade, Mass. Adv. Sh. (1977) 395, 398. And the same rule of 
consistent construction apphes generally where statutes are part of one 
chapter of the General Laws. See, e.g., Gosselin v. Gosselin, 1 Mass. App. 
146, 149 (1973). Applying these maxims to G.L. c. 90, §§ 20 F and 21, it is 
clear that they "may be reconciled so that inconsistency is avoided." 
Commonwealth v. Wade, supra at 398. 

I consider first the operation of the two statutes with respect to the minor 
motor vehicle violations covered by both. Section 20F makes clear that a 
non-criminal, administrative disposition of a case involving a minor motor 
vehicle violation is not automatic; the alleged offender may choose to 
proceed criminally or may be required to do so because of his failure to 
follow the prescribed administrative procedures. The section also indicates 
in plain terms that the initial procedural step which ultimately leads to a 
non-criminal, administrative disposition — the issuance and receipt of a 
"uniform traffic citation" — requires the offender to provide the issuing 
police officer with (1) the offender's name and address, (2) the number of 
his operator's license, (3) the registration of the vehicle involved, and (4) his 
signature. (See n. 3 supra). Unless this information is furnished by the 
offender and filled out on the uniform traffic citation, the citation will be 
incomplete and could not serve as the basis of a non-criminal disposition of 
the case in conformance with the explicit provisions of § 20 F. Cf. 
Commonwealth v. Schiller, Mass. Adv. Sh. (1979) 13, 15-16; Common- 
wealth V. Sullivan supra, 311 Mass. at 178. In short, the driver's refusal to 
provide information would preclude the operation of the non-criminal 
options which are asserted as justification for the refusal. In these 
circumstances there is no inconsistency between §§ 20F and 21: an alleged 
offender who has failed to provide this information by definition would not 
be entitled to choose to have his case terminated on a non-criminal basis 
under §20F.« 

It thus appears that for virtually every § 20F minor motor vehicle violation 
which is also covered in § 21 (see n. 6, supra), a person committing the 
substantive offense would not be entitled in any event to have his case 
disposed of non-criminally under § 20F.^ But even if one assumes there are 
circumstances in which a person mights be arrested pursuant to § 21 and at 
the same time entitled to an administrative, non-criminal disposition of his 
case, I perceive no inconsistency between the operation of the two sections. 
I reach this conclusion because I do not agree with the underlying 
assumption that an arrest and a non-criminal disposition of a case are per 5e 
incompatible. 



'As a practical matter, the same conclusion would apply to the offenses of refusal to produce one's license and registration 
certificate or the registration certificate of the vehicle involved. While the uniform traffic citation specifically calls for only the 
motorist's license number and the registration number oi lUe vehicle involved, § 20F, 11, it is doubtful that an alleged offender 
could furnish both these items of information from memory and without producing the actual license and registration. Thus if 
the offender refused to produce these documents on the demand of an officer — an arrestable offense under § 21 — the 
chances are very good that he would also be unable to provide the information necessary to complete the uniform traffic 
citation. 

'Operation of a motor vehicle without having one's license available may be an exception in certain instances. However, since 
under § 21 this offense must be coupled with another motor vehicle violation to constitute an arrestable offense (see nn. 4 and 
6, supra), the frequency of this exception is not at all clear. 



160 P.D.12 



"[A]n arrest is not a conviction of a crime. It is not even a final formal 
charge of a crime. It is merely an order holding a person in custody until he 
answers a complaing." United States v. cooperstein, 221 F. Supp. 522, 526 
(D. Mass. 1963); see K. Smith, Criminal Practice and Procedure, § 74, n. 14 
(30 Massachusetts Practice Series [1970]). Section 21 specifically requires a 
person who has been arrested and held in custody under its terms to be 
brought before a magistrate "and proceeded against according to law." 
There is no reason that such a person, if otherwise entitled to have his case 
treated on a non-criminal basis under § 20F, could not pay (or arrange to 
pay) to the magistrate the maximum statutory penalty for the offense and 
thereby finally dispose of the matter. Section 20F states only that if the 
payment is made by the offender, his "appearance shall not be deemed a 
criminal proceeding for purposes of [c. 90] . . . [and] [t]he offender shall 
not be required to report to any probation officer and no record of the case 
shall be entered in any probation records." An arrest under § 21 is in no 
way inconsistent with this language, for an arrest in and of itself does not 
trigger the entry of a criminal action on anly judicial or probation records. 

Common sense lends strong support to this result. See Massachusetts 
Mut. Life Inc. Co. v. Commissioner of Corporations & Taxation, 363 
Mass. 685, 690-691 (1973). If, for instance, a motor vehicle operator cannot 
be arrested for failure to produce an operator's Hcense and the motor 
vehicle registration on the demand of a police officer, then the officer has 
no effective means accurately to identify the operator or the owner of the 
vehicle. Not only will the operator's identity perhaps never be known but 
far more serious violations of law — for example, larceny of a motor 
vehicle; operation of an uninsured motor vehicle; unauthorized use of a 
motor vehicle — will not be detected. 

The effective enforcement of most motor vehicle laws requires and 
depends on the abihty of police officers to identify motor vehicle operators 
and their vehicles correctly at the time of the incident being investigated. 
The system of licensing operators and registering motor vehicles correctly at 
the time of the incident being investigated. The system of hcensing 
operators and registering motor vehicles in part fulfills that requirement. 
However, there must be the additional factor of immediate sanctions for 
failure to produce a license or registration if the requirement is to be 
completely satisfied. Therefore the arrest sanctions set out in G.L. c. 90. § 
21, are necessary for the effective administration of motor vehicle laws in 
Massachusetts. 

It is useful to remember that G.L. c. 90. § 20F, originated as part of the 
court reorganization act, c. 478; its provisions must be read in that context. 
As mentioned,^" c. 478 was designed to improve the administration of the 
Commonwealth's court system, with emphasis on the trial courts. Before c. 
478, minor motor vehicle offenses were handled by the district courts and 
probation offices in the same manner as all other criminal offenses of the 
same seriousness. Chapter 478 created an avenue for disposing of these 
cases that rendered court (and probation office) involvement unnecessary. 
At the same time the Legislature appears to have determined that a person 

'"See p. 2 supra. 



P.D.12 161 



who allegedly commits a minor motor vehicle violation should not (or 
perhaps constitutionally could not) be cut off from the judicial process. 
Thus the choice of an administrative or judicial disposition of such cases 
was left to the offender. However, the focus of § 20F is not on the offender 
and his rights, but rater on the administration of the courts and what was 
viewed as a more efficient and sensible approach to processing slight 
violations of motor vehicle law. 

Viewing G,L. c. 90. § 21, against this background, it is reasonable to 
assume that the Legislature did not intend the new § 20F to alter any 
existing statutes governing the authority to arrest for violations of motor 
vehicle law. The Commonwealth's motor vehicle laws in themselves 
constitute a comprehensive regulatory scheme of which the arrest provisions 
established in § 21 are an integral part, since the removal of these traditional 
arrest powers is not necessary to the effective administration of the new § 20F, 
such a radical change in public policy should not be imputed to the Legislature. 
See Ferullo's Case, 331 Mass. 635,637 (1954); Commissioner of Corporations 
& Taxation v, Dalton, 304 Mass 147, 150 (1939); Commonwealth v. 
Welosky, 216 Mass, 398, 401-402 (1931), 

In summary, I conclude that the alternative, administrative procedures 
set forth in G.L, c, 90, § 20F, for resolving cases involving minor motor 
vehicle violations do not conflict with or imphedly repeal any of the 
provisions of G.L, c, 90, § 21. Enforcement personnel of the Registry of 
Motor Vehicles as well as other officers with the requisite authority may 
therefore continue to make arrests for motor vehicle violations pursuant to 
provisions of § 21, 

Very truly yours, 

FRANCIS X, BELLOTTI 

Attorney General 



Number 29 February 22, 1 979 

John E, Kearney, Chairman 
Teachers' Retirement Board 
One Ashburton Place 
Boston, MA 02108 

Dear Mr, Kearney: 

You have requested an opinion whether the Teachers' Retirement Board 
(Board) is the appointing authority for its own staff. For the reasons set 
forth below, I conclude that the Board is the appointing authority for the 
Board's staff. ^ 

The substance of your question arises as a result of the following statutory 
changes effected by the 1969 legislation establishing a Governor's cabinet. 



'I note that in 1971 an informal opinion on the same question was rendered by an Assistant Attorney General to the then 
Commissioner of Education. This opinion supersedes in all respects the 1971 opinion. I also reiterate that I discourage requests 
for and the issuance of informal opinions. Such requests do not receive the same degree of research and deliberation as formal 
requests, but regrettably the answers are often relied upon, mistakenly, to the same degree as formal opinions of the Attorney 
General. See 1978/79 Op. Atty. Gen. No. 27, Rep. A.G., Pub. Doc. No. 12 at (1979). 



162 P.D.12 



St. 1969, c. 704. The so-called Governor's Cabinet Act removed the Board 
from the Department of Education and placed it within the Executive 
Office for Administration and Finance. St. 1969, c. 704, §§ 8, 19. ^ 
However, c. 704 made no changes in G.L. c. 15, § 18. Section 18 expressly 
authorizes the Board to "employ a secretary . . . [and] such other necessary 
clerical and other assistants as it may require." 

Despite the language contained in G.L. c. 15, § 18, the previous Attorney 
General (through one of his assistants) informally took the view in 1971 that 
the power to appoint its staff did not rest in the Board itself, apparently 
because (1) appropriations for the maintenance of the Board continued to 
be allocated as part of the budget for the Department of Education;^ (2) he 
read G.L. c. 29, § 27, to prohibit the appointment of staff by any state 
agency which does not directly receive an appropriation to cover the costs of 
such appointments; and (3) he interpreted the word "employ," as it appears 
in G.L. c. 15, § 18, as having a meaning different from the word 
"appoint." My own consideration of the matter, however, leads me to 
conclude that the earUer informal opinion is incorrect and that the Board 
does have the power to appoint its own staff.* 

I consider first whether the Board is the "appointing authority" for its 
own staff as that term is used in the civil service law, G.L. c. 31. I under- 
stand that with the exception of the Board's executive secretary, the staff of 
the Board is within the civil service system. "Appointing authority," at 
least for civil service purposes, is defined in G.L. c. 31, § 1, as follows: 

. . . [A]ny person, board or commission with the power to appoint or 
employ personnel in civil service positions (emphasis added). ^ 
Thus the Board, having the express power to "employ" personnel by virtue 
of G.L. c. 15, § 18, clearly qualifies as an appointing authority for all 
purposes relating to the Commonwealth's civil service system. Cf. Johnson 
V. Mayor of New Bedford, 303 Mass. 381, 383 (1939) (petitioner's "employ- 
ment" began when he was "appointed"). 

Insofar as the Board employs personnel not governed by the civil service 
law, my conclusion is no different.^ As I have noted, when the Legislature 
placed the Board within the Executive Office for Administration and 
Finance (A & F), it expressly exempted the Board from A & F's "direction, 
control and supervision." St. 1969, c. 704, § 4. It would be anomalous for 



'Section 8 of St. 1969, c. 704, amended G.L. c. 7 by inserting, inter alia, § 4G. Section 4G declares the Board and certain other 
agencies to be within the Executive Office for Administration and Finance. It also provides, however: "Nothing in this section 
shall be construed as conferring any powers or imposing any duties upon the commissioner [of administration) with respect to 
the foregoing agencies except as expressly provided by law." Moreover, St. 1969, c. 704, § 4, amended G.L. c. 7, § 4, to 
provide: "[The Commissioner of Administration] shall be the executive and administrative head of said office [for 
Administration and Finance], and every division, bureau, section and other administrative unit and agency within said office, 
other than the agencies named in section four G, shall be under his direction, control and supervision" (emphasis added). 

To complete the Board's transfer to the Executive Office for Administration and Finance, St. 1969, c. 704, § 19, deleted 
language from G.L. c. 15, § 16, which had placed the Board within the Department of Education. 
^See, e.g., St. 1970, c. 480, Item 7025-0000. 

*As I have stated in other opinions, I am reluctant to reconsider legal questions decided by formal opinions of my predecessors. 
See, e.g.. 1976/77 Op. Atty. Gen. No. 77, Rep. A.G., Pub. Doc. No. 12 at 198, 199 (1977); 1978/79 Op. Atty. Gen. No. 21, 

Rep. A.G., Pub. Doc. No. 12 at (1979). As with informal opinions of my own staff, however, I do not believe that 

an informal opinion given by an Assistant Attorney General serving under a predecessor is entitled to the same deference as a 

formal opinion. 

'Prior to January 1, 1979, the definition appeared in G.L. c. 31 as follows: ". . . any person, board or commission having the 

pov/er of appointment or employment . . ." (emphasis added). 

'While the scope of the words "employ" and "appoint" may not be identical in all contexts, it may be noted that courts in 

other jurisdictions have held the terms to have congruent meanings in the context raised by your request. See, e.g., Burnap v. 

United Slates. 252 U.S. 512, 515 (1920); Morris v. Parks, 145 Or. 481, 28 P. 2d 215, 216 (1934); Board of Commissioners v. 

Department of Public Health, ^U.M. 189, 100 P. 2d 222, 223 (1940). 



P.D.12 163 



the Legislature to have ordained that the Board's executive secretary — the 
person who heads the Board's staff and bears responsibility for the Board's 
day-to-day operations — be appointed by precisely the same agency from 
whose direction and control the Board is exempted. Such a suggestion 
contradicts the clear legislative intent to preserve the Board's autonomy and 
cannot be accepted/ 

The provisions of G.L. c. 29, § 27, do not indicate a different result.^ 
Section 27 prohibits the employment of personnel by a state agency "unless 
an appropriation by the general court and an allotment by the governor, 
sufficient to cover the expense thereof, shall have been made." This 
language does not imply that the department or executive office in whose 
budget an appropriation may have been placed for the maintenance of a 
state agency thereby necessarily becomes the appointing authority for that 
agency's staff. As the limited case law under the statute suggests, § 27 was 
designed to limit the amount of money expended for the employment of 
personnel, not to allocate the authority to make appointments. See Baker v. 
Commonwealth, 312 Mass. 490, 493 (1942). « 

Accordingly, in the context of your question, I view G.L. c. 29, § 27, as a 
fiscal control statute whose impact on the Board is to prohibit the hiring of 
personnel beyond the amount annually appropriated for their salaries. 
Section 27 should not be applied as a personnel statute to render ineffectual 
the clear language of G.L. c. 15, § 18, and the manifest intent of St. 1969, c. 
704, § 4. Statutes relating to a common issue should be read harmoniously 
together so as to preserve the meaning and practical effect of all. School 
Committee of Gloucester v. Gloucester, 324 Mass. 209, 212 (1949); see 
Morse v. Boston, 253 Mass. 247, 252 (1925); see also Labor Relations 
Comm'n v. Board of Selectmen ofDracut, Mass. Adv. Sh. (1978) 657, 662. 

In summary, the provisions of G.L. c. 15, § 18, read in the context of 
G.L. c. 7, §§ 4 and 4G, clearly indicate that the Board has the authority to 
appoint its own executive secretary and its other staff. 

Very truly yours, 

FRANCIS X. BELLOTTI 

A ttorney General 



'Since 1975, appropriations for the maintenance of the Board have appeared as line items in the budgets of A & F. Moreover, 
within the A & F budget the Board's appropriation is listed under the heading of "Division of Personnel Administration" (the 
Division). See St. 1978, c. 367, § 2, Item 1 1 1 1-0010. Because the Division is both statutorily distinct and functionally unrelated 
to the Board, it cannot reasonably be inferred from their respective positions in the budget act that the Division is the 
appointing authority for the Board's staff. Yet, applying the logic of the 1971 informal opinion, A & F or the Division would 
now be responsible for appointing all personnel employed by the Board. 
'General Laws, c. 29, § 27, provides in relevant part as follows: 

Notwithstanding any provision of general law, no department, office, commission and institution shall incur an expense, 

increase a salary, or employ a new clerk, assistant or other subordinate, unless an appropriation by the general court and 

an allotment by the governor, sufficient to cover the expense thereof, shall have been made. Appropriations by the 

General Court, and any allotments by the governor, shall be expended only in the amounts prescribed in the subsidiary 

accounts, if any, established for the several appropriation accounts in schedules established by, and on file with, the 

joint committee on ways and means . . . . 

To the extent that G.L. c. 29, §27, has been held to touch upon the question of who has authority to make an expenditure, the 

Supreme Judicial Court has said that an appropriation to one agency cannot be construed to authorize expenditures by a 

second agency where the agencies are statutorily and functionally distinct and the legislative authorization neither states nor 

implies that the appropriation is made for the advancement of a function of the second agency. Shells v, Commonv/eallh, 306 

Mass. 535, 539(1940). The circumstances presented by your request differ markedly from those presented in S/ie//5. An express 

appropriation for the administration of the Teachers' Retirement Bureau is made annually. 



164 P.D.12 



Number 30 April 13, 1979 

Dennis Condon, Commissioner 
Department of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 02110 

Dear Commissioner Condon: 

You have requested my opinion whether responsibility for inspecting 
buildings owned by the Massachusetts Bay Transportation Authority 
(MBTA), other state authorities^ and the various counties in the 
Commonwealth vests in local building inspectors or inspectors of the 
Department of Public Safety (state inspectors).^ Specifically, your inquiry 
seeks an interpretation of G.L. c. 143, § 3A (§ 3A), and a determination 
whether Section 108.1 of the State Building Code is consistent with that 
statute.' 

For the reasons set forth below, I conclude that § 3A places the respon- 
sibihty for inspections of buildings owned by the MBTA and other state 
authorities (see n. 1, supra) on state inspectors, while it reserves the 
inspection of county-owned buildings for local building inspectors. 
Accordingly, I beheve that Section 108.1 of the State Building Code as 
presently written in part contravenes the provisions of § 3A, and requires 
amendment to conform to that statute. 
General Laws, c. 143, § 3A, provides in relevant part: 

. . . [T]he local inspector* shall enforce the state building code as to 

any building or structure within the city or town from which he is 

appointed, including any building or structure owned by any authority 

established by the legislature but not owned by the commonwealth . . . 

The [statel inspector shall enforce the state building code as to any 

building or structure within any city or town that is owned by the 

commonwealth or any departments, commissions, agencies or 

authorities of the commonwealth. The [state] inspector shall have all 

the powers of a local inspector under this chapter and under the state 

building code as to such buildings or structures that are owned by the 

commonwealth or any of its departments, agencies, commissions or 

authorities. (Emphasis supplied.) 

The State Building Code Commission (the Commission) was established by 

St. 1972, c. 802, § 1, and charged with the responsibiUty to promulgate the 

State Building Code. The Commission has interpreted § 3A to mean that 

local building inspectors have the full responsibihty for the inspection of 

buildings owned by the MBTA, other state authorities, and the various 

counties of the Commonwealth; and that state inspectors are responsible 



'In the context of your inquiry, the "other state authorities" treated in this opinion are the Massachusetts Port Authority 
(Massport) and the Massachusetts Turnpike Authority (MTA). 

'An informal opinion addressing these issues was rendered on July 22, 1975. This opinion supersedes that informal opinion. 
As 1 have recently indicated, I wish to discourage requests for and the issuance of informal opinions. See 1978/79 Op. Atty. 

Gen. Nos. 27,29, Rep. A.G., Pub. Doc. No. 12 at (1979). 

' 1 have received memoranda from the Executive Office of Transportation and Construction, the State Building Code 
Commission and legal counsel to the former Governor addressing the legal issues raised by your request. 

'The term "inspector" is defined in G.L. c. 143, § 1 , to refer to "an inspector in the division of inspection of the department 
[of Public Safety), except when qualified by the word 'local', whereupon it shall mean the inspector of buildings, building 
commissioner or local inspector of a city, town, or district . . . ." 



P.D.12 165 



for buildings owned by the Commonwealth and its agencies, divisions and 
commissions. The Commission's interpretation is set forth in Sections 108.1 
and 108.2 of the State Building Code.* You have indicated, however, that 
the Division of Inspection in the Department of Public Safety construes § 
3A to mean that state-owned buildings, as well as buildings and structures 
owned by the MBTA, Massport, the MTA, and generally by "political sub- 
divisions" of the Commonwealth are to be inspected by state inspectors.® 

I first consider buildings owned by the MBTA, Massport and the MTA. 
The question whether those authorities are under the jurisdiction of state or 
local inspectors is difficult because of the ambiguity in the pertinent 
language of § 3A. Under that section, local inspectors are to inspect "any 
building or structure owned by an authority estabUshed by the legislature 
but not owned by the commonwealth" while state inspectors have 
responsibility over those buildings or structures "owned by the 
commonwealth or any . . . authorities of the commonwealth." 

It is a well settled principle of statutory construction that effect must be 
given, if possible, to every word, clause and sentence of a statute so that no 
part will be inoperative or superfluous. Commonwealth v. Gove, 366 Mass. 
351, 354 (1974); Commonwealth v. Woods Hole, Martha's Vineyard and 
Nantucket S.S. Authy., 352 Mass. 617, 618 (1967). The task in this instance, 
then, is to identify some distinction (if possible) between "authorities 
estabhshed by the legislature" and "authorities of the Commonwealth" as 
those terms are used in § 3A. 

Virtually every authority in Massachusetts can properly be described as 
being "established by the legislature," either directly by a specific statute or 
indirectly by the enactment of general enabling legislation that permits 
another entity — a city or town, for example — to create the authority. If a 
distinction is to be made, therefore, it must turn on whether certain 
authorities can be separated out from the entire class and characterized as 
"authorities of the Commonwealth" for state inspection purposes. 

Authorities generally fall into two categories. The first, of which the 
MBTA, Massport and the MTA are members, is made up of those 
authorities established to perform vital governmental functions for usually 
large geographical areas. Thus the MBTA provides transportation services 
to some 78 or more communities in the Commonwealth, G.L. c. 161 A, §§ 1 , 
2, 16. Massport has control of the state's major commercial airport and 
other vital transportation faciUties located in Boston, Winthrop, Chelsea, 
Lincoln and Bedford, St. 1956, c. 465. The MTA's jurisdiction spans the 
Commonwealth from Boston to the New York boundary, St. 1952, c. 354. 



'Section 108. 1 reads in relevant part: 

108.1 THE BUILDING OFFICIAL: The building commissioner or inspector of buildings and the local Inspector shall 
enforce all the provisions of the Basic Code and any other applicable state statutes, rules and regulations, or ordinances 
and by-laws . . . [with respect to] all buildings and structures, including any building or structure owned by any authority, 
established by the legislature but not owned by the Commonwealth, such authorities to include, but not be limited to the 
Massachusetts Bay Transportation Authority, Massachusetts Turnpike Authority and the Massachusetts Port Authority. 

Section 108.2 provides: 

108.2 THE STATE INSPECTOR: In every city or town the Basic Code shall be enforced by the stale inspector as to any 
structures or buildings or parts thereof that are owned by the Commonwealth or any departments, commissions, agencies, 
or authorities of the Commonwealth ... All buildings and structures owned by any authority established by the legislature 
shall be regulated in accordance with Section 108. 1 of the Basic Code. 

While these provisions do not expressly mention counties, the Building Code Commission informs me that it considers 
counties to fall within the general jurisdiction of local inspectors. 

•The Executive Office of Transportation and Construction takes the position that buildings owned by the MBTA, Massport 
and the MTA are subject to state inspections. That office has not addressed the question of county-owned buildings. 



166 P.D.12 



Further, each of these authorities is placed by G.L. c. 6A, § 19, within the 
state's Executive Office of Transportation and Construction (EOTC) and 
each has a governing board of directors appointed by the Governor. G.L. c. 
161A, § 6 (MBTA); St. 1956, c. 465, § 2 (Massport); St. 1952, c. 354, § 3 
(MTA).' 

The second category of authorities consists of those which are directly 
established by local governing bodies or officers pursuant to enabling 
legislation enacted by the General Court. Examples are the housing 
authorities of various cities and towns organized in accordance with G.L. c. 
121B, § 3, and local redevelopment authorities organized under G.L. c. 
121 B, § 4.* Each of these authorities operates within the jurisdiction of the 
city or town which organized it,^ and its members must be residents in that 
city or town. G.L. c. 121B, §§ 3, 5, 6.^° Moreover, every housing project 
developed or operated by a housing authority is specifically made subject to 
all building, planning, zoning and health laws and ordinances of the 
community in which it lies. Id,, § 28. 

Viewing these two groups of authorities together, distinctions between 
them emerge which bear on the proper construction of § 3A. Authorities 
such as the MBTA, Massport and the MTA have by definition expansive 
geographical jurisdiction or scope of functions, or both. To require that 
these authorities comply with different and possibly inconsistent determi- 
nations of local building inspectors would make little administrative sense 
and could impede the efficient and effective operation of the authorities.^^ 
A construction of § 3A to produce a more administratively practical result 
should be adopted. See Hood Rubber Co. v. Commissioner of Corps. & 
Tax'n, 268 Mass. 355, 358 (1929); Hein-Werner Corp. v. Jackson 
Industries, Inc., 364 Mass. 523, 528-529 (1974). 

In addition, I hesitate to impute to the Legislature an intent to permit 
local authorities to interfere with the operations of entities such as the 
MBTA, Massport and the MTA, whose services and functions are of vital 
interest to the Commonwealth as a whole. Cf. Pereira v. New England LNG 
Co., Inc., 364 Mass. 109, 121 (1973); cf. also Boston v. Hospital Transpor- 
tation Serv. Inc., Mass. App. Ct. Adv. Sh. (1978) 329, 333. For these 
reasons, I conclude that these three authorities are properly classified as 
"authorities of the commonwealth" within the meaning of § 3 A, and 
therefore are exclusively subject to inspection by state building inspectors. 

The same reasoning does not apply to local housing and redevelopment 

'Other factors also show the state or in any event non-local orientation of these authorities. For example, the MBTA prepares 
its capital investment and mass transportation plans under the direction and supervision of EOTC, G.L. c. 161 A. § 5(g), and 
the Commonwealth is obligated to fund the M BTA's cost ol service and operating revenue deficits annually, ;d., §§ 1 2, 1 3 (and 

see id. § 28). See 1978/79 Op. Ally. Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at (1979). Massport must make 

annual reports on its activities to the Legislature, St. 1956, c. 465, § 21 , and the statute establishing it states: "This act, being 

necessary for the welfare of the (■OOTmonM'ea/r/ia/!rf/7i;n/iain/a;;/i, shall be liberally construed . . . .";c/.,§ 27. Similarly, the 

Act creating the MTA contains language about its necessity for the welfare of the Commonwealth, St. 1952, c. 354, § 19. That 

Act also provides that upon completion of the turnpike and establishment of a trust for repaying bondholders, the turnpike is 

to be turned over to and operated by the Commonwealth's DeparlmenI of Public Works, and the MTA itself dissolved. Id., 

§ 17. See Village on the Hill, Inc. v. Massachusetts Turnpike Authy., 348 Mass. 107, 118 (1964), cert, denied 380 U.S. 955 

(1965); Massachusetts Turnpike Authy. v. Commonwealth, 347 Mass. 524, 528 (1964) (outlining the nexus between the MTA 

and the state government). 

•Regional housing authorities operating under G.L. e. 121 B, § 3A, also seem to fall into this category. Cf. Perini Corp. v. 

Building Inspector of North Andover, Mass. App. Ct. Adv. Sh. (1979) 212, 215-217. 

'Ol course regional housing authorities operate within all the cities and towns joining in the authorities' creation. 

See also G.L. c. 12IB, § 7, which provides that housing and redevelopment authorities are to be considered municipal 
agencies for purposes of the Commonwealth's conflict of interest law, G.L. c. 268A. The MBTA, Massport and the MTA have 
always been treated as state agencies under the conflict statute. E.g.. Conf. Op. Atty. Gen. Nos. 795, 674, 639. 
"Appeals of a local building inspector's interpretation of the Slate Building Code may be taken to the State Buildmg Code 
Commission, G.L. c. 238, § 23. While the Commission through this appeal process may remove the burden of compliance 
with inconsistent Building Code rulings, an appeal can be lime-consuming and costly. 



P.D.12 167 



authorities. Given the local sphere in which these authorities operate, there 
is not the same need for them to be subject to a single set or source of 
building code determinations. Indeed, the opposite may be true. It appears 
highly sensible that authorities with local jurisdiction operate in concert 
with the Building Code interpretations of local building inspectors. 
Accordingly, I believe the language of § 3A granting to such local inspectors 
jurisdiction over buildings owned by authorities "established by the legis- 
lature but not owned by the commonwealth" should be considered to 
include buildings owned and operated by local or regional housing, 
redevelopment or similar authorities. SeePerini Corp. v. Building Inspector 
of North Andover, supra, Mass. App. Ct. Adv. Sh. (1979) at 215-217. ^^ 

I turn now to the question of who has the authority to inspect county- 
owned buildings. It is undisputed that these buildings are subject to the 
State Building Code. See G.L. c. 143, § 2A. Nevertheless, a county is not a 
department, commission, agency or authority of the Commonwealth {see 
generally G.L. c. 34, 35), and therefore buildings owned by counties do not 
fall expressly within the jurisdiction of state inspectors as defined by § 3A. 
The question, then, is whether § 3A should be read implicitly to bring 
county-owned buildings under the authority of state inspectors. I believe 
that question should be answered "no." 

The clear thrust of § 3A is to vest in local inspectors the general duty and 
authority to enforce the State Building Code, except where that authority 
has been specifically given to the state inspectors either by statute or the 
Code itself. Cf. 1974/75 Op. Atty. Gen. No. 33, Rep. A.G., Pub. Doc. No. 
12 at 74 (1975). Moreover, while counties have been called territorial sub- 
divisions of the Commonwealth, established by the Legislature to carry out 
public purposes, the case law makes clear that counties are not to be 
equated directly with the state. Rather, they function essentially as a type of 
local government. See Opinion of the Justices, 167 Mass. 599, 600 (1897); 
see also Worcester County v. Mayor and Aldermen of Worcester, 1 16 Mass. 
193, 194 (1874); Goodalev. County Comm'rs of Worcester, 277 Mass. 144, 
148-149 (1931); Thompson v. Chelsea, 358 Mass. 1, 9 (1970); cf Avery v. 
Midland County, 390 U.S. 474, 485 (1968). Given the nature and functions 
of county governments, there appears no reason to read into the provisions 
of § 3A an implicit delegation to the state inspectors of inspection responsi- 
bility for county-owned buildings. I conclude, therefore, that under § 3A, 
the local inspector has jurisdiction as to any county-owned building or 
structure "within the city or town from which he is appointed . ..." 

In summary, buildings owned by the MBTA and other non-local 
authorities created by the Legislature are subject to inspection by state 
inspectors, while local inspectors have the responsibility to inspect county- 
owned buildings in their respective communities. 

Very truly yours, 

FRANCIS X. BELLOTTI 
Attorney General 

"My construction of § 3A leads to the conclusion that Section 108.1 of the State Building Code (see n. 5, supra) is partially 
inconsistent with that statute and, to that extent, invalid. See Bureau of Old Age Assistance of Na lick v. Commissioner of 
Public Welfare, 326 Mass. 121, 124 (1950). While I recognize that the interpretation of a statute by the agency charged with its 
administration is entitled to weight, if the agency's reading is contrary to the statute's terms it cannot stand. School Comm. of 
Springfield v. Board of Educ, 362 Mass. 417, 441, n. 22 (1972). This rule applies to the Building Code Commission. The 
inconsistent portion of Section 108. 1 should be corrected by amending the Code in a manner that will bring it into conformity 
with§3A. 



168 P.D.12 



Number 31 April 23, 1979 

Alfred L. Frechette, M.D. 

Acting Commissioner of Public Health 

Department of Public Health 

600 Washington Street 

Boston, Massachusetts 02111 

Dear Dr. Frechette: 

You have asked for my opinion concerning whether or not the design of 
the proposed Management Information System^ developed by the Division 
of Alcoholism, within the Department of Public Health, complies with 
federally-imposed confidentiality requirements. For the reasons discussed 
below, I believe that the system does satisfy such confidentiality 
requirements and may be implemented. 

The Department's Division of Alcoholism (Division) administers the 
Commonwealth's program for alcohohsm treatment and rehabilitation 
which is established by G.L. c. 1 1 IB. You have indicated that the Division 
has developed the Management Information System in order to collect 
information about individuals who are served by organizations, agencies 
and other entities with which the Division contracts to provide a variety of 
alcohol abuse and alcoholism services. The general purpose of MIS is to 
obtain information for program evaluation and monitoring of about 150 
service providers. 

You stated that all providers who contract with the Division are to fill out 
an MIS form for each client they serve. The forms call for a variety of 
information relating to, inter alia, the client's employment, living arrange- 
ments, marital history and status, drinking habits and history, drug use, 
arrest history, medical history, treatment and treatment evaluation. You 
further indicate that in order to fulfill the purposes of MIS, the Division 
needs information about individual recipients of alcoholism services, but 
does not need to know the identity of any individual. Accordingly, the 
Division has created an alpha-numeric client code which consists of the first 
and third letters of the cUent's first name and surname, plus his or her 
middle initial, and a six-digit number derived from the client's date of 
birth.^Only alpha-numeric code identifiers are to be used on the individual 
client forms which providers are to complete and submit to the Division; 
providers will not transmit the client's name, address. Social Security 
number or other information which directly reveals the cHent's identity. 

The federal confidentiality requirements at issue are contained in 42 
U.S.C. § 4582 (1976), and implementing regulations promulgated by the 
Secretary of the Department of Health, Education and Welfare (HEW). 42 
C.F.R. § 2.1 et seq. (1978). These requirements are pertinent because they 
are incorporated into federal grants which were awarded to the Department 
for the development of the Management Information System, and more 
generally because they apply to all direct and indirect recipients of federal 



'Sometimes referred to hereafter as "MIS." 

'According to your calculation, there are approximately 40 billion possible combinations of the client code information. Thus 

the chance that any two individuals will have the same client code is very remote. 



P.D.12 169 



funds for alcoholism programs. The Division and the individual service 
providers with whom it contracts are all direct or indirect recipients of such 
funds. 
You have asked two related questions: 

(1) Whether the Management Information System client code number 
is "patient identifying information" as defined by federal regulation, 42 
C.F.R. §2.1ia)(1978);3and 

(2) If the information is "patient identifying information," whether 
the existing restrictions on dissemination of information received by the 
Division conform to federal requirements set forth in 42 C.F.R. § 2.53(c) 
(1978).'* 

These questions arise because if it is determined that the MIS code and 
related information are "patient identifying information," a further federal 
regulation implementing 42 U.S.C. § 4582 requires the Attorney General to 
issue an opinion that the confidentiahty provisions of 42 C.F.R. § 2.53(c) 
are satisfied before the Division can compel any provider to .comply with the 
MIS reporting requirements. 42 C.F.R. § 2.53(d)(l)(1978).5 

I begin by considering whether the MIS alpha-numeric client code is 
"patient identifying information" within the meaning of 42 C.F.R. § 2.110). 
At first glance, the code would appear to disguise identities sufficiently so 
that it would not come within the regulation's scope. Neither the name of 
the patient or cUent nor such commonly used identifiers as address or Social 
Security number appear anywhere on the MIS forms which providers are to 
transmit. These are the types of patient identifying information which the 
regulation specifically mentions. 

However, in your letter you suggest that the MIS records and client code 
which the Division has developed should be regarded as patient identifying 
information. You indicate that a person would be able to break the code by 
use of computer technology with relative ease.^ On the basis of your 
suggestion, I will assume that the identity of patients "can be determined 
with reasonable accuracy and speed" and therefore that the MIS records, 
containing the names of cHents scrambled according to the alpha-numeric 
code are "patient identifying information" as defined in 42 C.F.R. § 2.110). 

The import of this assumption is that before the Division can require 
providers to file with it the MIS forms, it must be determined that the 



That regulation provides: 

The term "patient identifying information" means the name, address, social security number, or similar information by 
which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to 
other publicly available information. The term does not include a patient identifying number assigned by a program. 
'That regulation reads: 

Scientific research and long-term evaluation studies. No State and no agency or political subdivision of a State may 
require as a condition to funding, licensing, or otherwise, that any program furnish patient identifying information for 
the purpose of conducting scientific research or long-term evaluation studies unless the recipient of such information in 
confidence, is prohibited from taking any administrative, investigative, or other action with respect to an individual 
patient on the basis of such information, and is prohibited from identifying, directly or indirectly, any individual in any 
report of such research or evaluation, or otherwise disclosing patient identities in any manner. 
"Section 2.53(d) of 42 C.F.R. provides in relevant part: 

Before any patient identifying information is required to be submitted by a program under the circumstances descnbed 
in [42 C.F.R. § 2.53(c)], the program [i.e., provider] shall be furnished — 
(1) An opinion by the attorney general or other chief legal officer of the State to the effect that the conditions vixvilioit 
in [§ 2.53(c)] are fulfilled with respect to all programs in such State similarly situated .... 
The hypothetical example you cite is a company which wishes to determine if any of its employees are or were in an alcoholism 
treatment program. The company could Hst the name and birthdate of its employees and convert the names and birthdates into 
the Division's code. If the company then obtained the MIS records, through the use of a computer it could match up the list of 
its employees" codes with the Division's codes, and could probably successfully identify some or all of the employees whose 
names in coded form appeared in the MIS records. 



170 P.D.12 



provisions of state law applicable to the Division satisfy federal privacy 
standards. 42 C.F.R. § 2.53(d)(1). 

As indicated above, the pertinent federal privacy requirements are found 
in 42 C.F.R. § 2.53(c). That regulation prohibits the Division's collection of 
patient identifying information unless the Division "[1] is legally required 
to hold such information in confidence, [2] is prohibited from taking any 
administrative, investigative, or other action with respect to an individual 
patient on the basis of such information, and [3] is prohibited from 
identifying directly any individual in reports ... or otherwise disclosing 
patient identities in any manner."^ In the case of the Division's handUng of 
MIS records, I believe the three quoted requirements are satisfied by the 
prohibitions contained in the Massachusetts Fair Information Practices 
Act, G.L. c. 66A (FIPA); by certain provisions in the statute defining the 
Division's functions, G.L. c. 1 1 IB; and by the medical records and privacy 
exemptions to the Public Records Law, G.L. c. 4, § 7, clause Twenty-sixth (c).* 

1 . Holding patient identifying information in confidence: Considering 
first the Public Records Law in relation to the confidentiality requirement 
of 42 C.F.R. § 2.53(c), it is reasonable to assume that much of the 
information contained in MIS forms which relates to alcohol treatment 
qualifies as "medical files or information" and is thus exempt from 
mandatory public disclosure as a pubhc record. C/. Whalen v. Roe, 429 U.S. 
589 (1977). Moreover, the general privacy exemption in the definition of 
public records excepts "any information relating to a specifically named 
individual, the disclosure of which may constitute an unwarranted invasion 
of personal privacy." This section has been interpreted to mean 
information relating to " 'intimate details' " of a " 'highly personal 
nature.' " Attorney General v. Collector of Lynn, Mass. Adv. Sh. (1979) 
191, 198. It seems obvious that information relating to alcohol abuse and 
alcoholism falls within the described class. Compare Hastings and Sons 
Pub. Co. V. City Treasurer of Lynn, Mass. Adv. Sh. (1978) 920, 928 (salary 
information paid to police not exempted from public disclosure by privacy 
provisions of clause (c)). Since, the MIS records thus do not qualify as 
"public records," the Division would have no obligation to disclose these 
records to members of the public or other agencies who might request them 
pursuant to G.L. c.66, §10. 

Exemption (c) to the Public Records Law offers essentially a negative 
form of protection; it does not require the Division to make the MIS forms 
available generally as public records. However, the MIS patient identifying 
information is more affirmatively protected from dissemination by the 
provisions of FIPA. FIPA strictly limits disclosure of and access to 
"personal data" which is collected, used, or held by any public agency. 
"Personal data" is defined as: 



It should be understood that the cited requirements apply to disclosures of patient Identifying information without the 
patient s or client's consent. If the client consents to disclosure, other statutory and regulatory provisions come into play. See 
42 U.S.C. § 4582(b)(l)(1976); 42 C.F.R. § 2.31 el seq. (1978). The general scope, basis and purpose of the statute and 
regulations governing non-conseasuai disclosures for research, audit and evaluation purposes are described in 42 C.F.R. §§ 2.52, 

tL.jZ- \ (1 V/o). 

•Clause Twenty-M\i h (c) exempts from the definition of public record: 

'u''i-^°?"^' ^"'^ "ledical files or information; also any other materials or data relating to a specifically named individual, 
the disclosure of which may constitute an unwarranted invasion of personal privacy .... 



P.D.12 171 



[A]ny information concerning an individual which, because of name, 

identifying number, mark, or description can be readily associated 

with a particular individual; provided, however, that such information 

is not contained in a public record, as defined in [G.L. c. 4, § 7, clause 

clause Twenty-sixth] .... G.L. c. 66A, § 1. 

For the same reasons which indicate that the MIS client code number and 

forms constitute "patient identifying information,"^ I believe that they also 

qualify as "personal data" within the scope of the quoted FIPA definition. 

One of the critical sections of FIPA, G.L. c. 66A, § 2(c), forbids the 

Department (and the Division) from disseminating personal data to any 

other agency or to any individual not employed by the Department except 

with the client's consent.^" Thus, the first requirement of 42 C.F.R. § 2.53(c) 

is satisfied because there can be no legal dissemination of patient identifying 

data contained in MIS forms to anyone outside the Department of Pubhc 

Health unless the client agrees. ^^ 

2. Administrative or investigative action: The second part of 42 C.F.R. 
§ 2.53(c) requires that the Division be "prohibited from taking any 
administrative, investigative, or other action with respect to an individual 
patient on the basis of such information . . . ." The Division can also meet 
this requirement. First, it does not appear that the Division itself will have 
any way to determine the identities of individual patients described in MIS 
forms. In order to break the alpha-numeric client code used on those forms, 
the Division would need to have a separate list of names and birthdates of 
patients against which it could match the client codes. I have not been 
informed that the Division would have access to such a separate list. 

Even if the Division did know the identity of individual patients, 
however, a prohibition against taking any action with respect to the patients 
is created by implication in G.L. c. IIIB. Sections 6 and 6A of c. IIIB 
permit the Division to require alcoholism programs to furnish "such data, 
statistics, schedules or information as the Department may reasonably 
require for the purposes of this section." The purposes set forth in both §§ 6 
and 6A include determining the need for certain types of provider facilities 
and licensing and evaluation of programs. ^^ There is no mention of a power 
vested in the Division (or indeed the Department) in these sections, in other 
provisions in G.L. c. 11 IB, or in separate statutes to take administrative, 
investigative, or other action relating to individual patients. In addition, 
G.L. c. IIIB, § 11, explicitly requires directors of alcoholism programs to 
insure the confidentiality of patient treatment records. ^^ 
The Division and the Department have "only those powers, duties and 



"See p. 5 and n. 6 supra. 

'"Federal law pertaining to dissemination of alcoholism treatment records of individual patients is substantially similar. 42 

U.S.C.§ 4582(b). 

11The statute enacting G.L. c. 11 IB provides that the Secretary of HEW and the Comptroller General are to be "afforded 

reasonable access to any reports, records, or the like, kept by the department of public health pursuant to and in accordance 

vvith the provisions of this act." St. 1971, c. 1076, § 20. While on the surface this language seems to call for disclosure of MIS 

reports in contravention of 45 C.F.R. § 2.53(c), the language cannot be so interpreted. The federal statute which 45 C.F.R. § 

2.53(c) is designed to implement requires the Department of Public Health to make such reports, and make available such 

records, as the Secretary of HEW may require; and to make the same reports and records available to the Comptroller General 

for auditing purposes. 42 U.S.C. § 4573(a)(6), (7) (1976). In light of the link between 42 C.F.R. § 2.53 and 42 U.S.C. § 4573, it 

would be anomalous to read the language in St. 1971, c. 1076, § 20, as violating the federal regulation, particularly when the 

state statutory provision clearly seems to have been adopted to reflect the federal reporting requirements in 42 U.S.C. § 4573. 

"5ee 105 C.M.R. 160.920 (1978) (regulation prescribing data reporting requirements for detoxification facilities); 105 C.M.R. 

Ih? 1211 1 iy"S) (similar regulation for halfway houses for alcoholics). 

''See 105 C.M.R. 165.560(B) (1978) (individual halfway house treatment and medical records to be kept confidential). 



172 P.D.12 



obligations conferred upon [them] by statute and those reasonably 
necessary for [their] proper functioning , . . ." Massachusetts Comm'n 
Against Discrimination v. Liberty Mut. Ins. Co., Mass. Adv. Sh. (1976) 
2403, 2405; Hathaway Bakeries, Inc. v. Labor Relations Comm'n, 316 
Mass. 136, 141 (1944). Given the statutory framework in which the Division 
and the Department operate, I do not believe that the power to take 
"administrative, investigative or other" (42 C.F.R. § 2.53(c)) action against 
individual clients or patients of alcoholism treatment programs can be 
deemed reasonably necessary to the agencies' functions. Accordingly, I 
conclude that neither agency has authority to take such action against 
patients. Therefore, G.L. c. 11 IB furnishes the necessary proscription 
against the Division's using patient identifying information in MIS in 
contravention of the second requirement of 42 C.F.R. § 2.53(c). 

3. Patient identification in agency reports: The third requirement of 42 
C.F.R. § 2.53(c) is that the Division not identify directly or indirectly any 
individual patient in any evaluation or research report. The prohibitions 
and limitations imposed by FIPA satisfy this directive. See pp. 8-9 supra. 

Finally, it deserves mention that there is no constitutional impediment to 
the Division's collection of sensitive patient data where there is a legitimate 
management function to justify such collection and reasonable confiden- 
tiality standards are imposed. You have explained that the client code 
numbering system will permit the Division to do the following: (1) calculate 
the exact number of separate individuals being seen each year not only 
within each provider agency but within the entire provider system; (2) 
calculate the number of successful referrals from one agency to another as a 
measure of effective continuity of care; (3) assess more effectively the need 
for different types of services and facilities by virtue of knowing more 
precisely the number of individuals in different parts of the treatment 
system; and (4) conduct long-term research studies. 

These intended uses of MIS information indicate that the collection of 
patient data is a sound managment step reasonably necessary to the 
operation of the Division, and one it may lawfully take consistently with the 
constitutional rights of its clients. See Whalen v. Roe, supra, 429 U.S. at 
596-598, 600-602, 605; Planned Parenthood of Central Missouri v. 
Danforth, 428 U.S. 52, 79-81 (1976); cf Minnesota Medical Ass'n. v. 
State, Minn. , 274 N.W. 2d. 84, 91 (1978).^" 

Since the necessary confidentiality protections are provided for in the 
Management Information System, even if the MIS records do constitute 
patient identifying information, I need not provide a definitive answer to 
your first question. Assuming, as suggested in your request, that the data 
does constitute "patient identifying information", the existing restrictions 
on dissemination of that information conform with the requirements set 
forth in 42 C.F.R. § 2.53(c). 



In an analogous vein, it has been suggested that the Division does not need all the information contained in the MIS forms to 
carry out its statutory functions, and that its collection and maintenance of the information may violate G.L. c. 66A, § 2(1). 
proscribing agencies from collecting more "personal data" than necessary. As I have indicated, however, it appears that 
several important functions of the Division will be served by the MIS information. In the circumstances, 1 find no reason to 
conclude that the information called for on the MIS forms is excessive or superfluous to the Division's operations. 



P.D.12 173 



Accordingly I answer your second question in the affirmative and 
conclude that the Division can implement its proposed Management 
Information System by requiring providers to file completed MIS forms. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



174 P.D.12 

INDEX OF OPINIONS 

TOPIC OPINION PAGE 

Abortion 

1) Payment to Medicaid providers for abortions performed before 
effective date of fiscal year 1979^ appropriations statute 104 

2) Insurance coverage of state employees for abortion services. . . 146 
Airports 

1) Authority of Westover Metropolitan Development Corporation 

to operate a public airport 133 

2) Transfer of public lands under doctrine of prior public use 141 

Alcoholic Beverages 

Pledge of liquor license to secure payment o^state taxes 128 

Alcoholics 

Compliance of proposed information system with federal 
confidentiality requirements ^. . . 168 

Appointments 

1) Appointment to position of state police detective lieutenant- 
inspector 135 

2) Interim appointment to position of personnel administrator. . 139 

3) Authority of Teachers' Retirement Board to appoint its own 

staff 161 

Appropriations 

Insurance coverage of state employees for abortion services 146 

Arrest 

Authority of officers to arrest in motor vehicle violations 157 

Audit 

Authority to audit state election campaign funds 123 

Aviation 

Authority of Westover Metropolitan Development Corporation 

to operate a public airport 133 

Belle Isle Marsh 

Transfer of public lands under doctrine of prior public use 141 

Boards and Commissions 

Authority of Teachers' Retirement Board to appoint its own staff. 161 
Building Code 

Responsibility for inspection of buildings owned by state 

authorities 164 

Chapter 53, § 19 ("Public Policy") 

PubHc policy ballot questions 1 13-122 

Coastal Zone 

Transfer of public lands under doctrine of prior public use 141 

Contracts 

Insurance coverage of state employees for abortion services 146 

Criminal Offender Record Information 

Dissemination of information in sealed records 89 

Elections 

1) Public policy ballot questions 1 13-122 

2) Authority to audit state election campaign funds 123 

Employees, Public 

1) Insurance coverage of state employees for abortion services. . . 146 

2) Relation between retirement benefits and compensation paid to 
retired public employees who return to active public service 152 



P.D.12 175 

TOPIC OPINION PAGE 

Employment Security 

Implementation of statutory provisions regarding storm-related 

unemployment benefits 109 

Federal Funds 

Status of transit authorities as state agencies or instrumentalities. 93 

Home Rule 

Termination of membership in regional planning district without 

specific legislative authorization 130 

Initiative and Referendum 

Public policy ballot questions 1 13-122 

Inspectors 

Responsibility for inspection of buildings owned by state 

authorities 164 

Interest 

Status of transit authorities as state agencies or instrumentalities. 93 

Licenses 

Pledge of liquor license to secure payment of state taxes 128 

Massachusetts Bay Transportation Authority 

1) Status of transit authorities as state agencies or instrumen- 
talities 93 

2) Responsibility for inspection of buildings owned by state 
authorities 1 64 

Medicaid and Medicare 

Payment to Medicaid providers for abortions performed before 
effective date of fiscal year 1979 appropriations statute 104 

Motor Vehicles 

Authority of officers to arrest in motor vehicle violations 157 

Municipal Government 

1) Termination of membership in regional planning district 
without specific legislative authorization 130 

2) Authority of Westover Metropolitan Development Corporation 

to operate a public airport 133 

Open Records: see also Public Records 

Dissemination of information in sealed CORI records 89 

Police 

Authority of officers to arrest in motor vehicle violations 157 

Privacy 

Compliance of proposed information system with federal 
confidentiality requirements 168 

Priveleged Information 

Compliance of proposed information system with federal 
confidentiality requirements 168 

PubUc Buildings 

Responsibility for inspection of buildings owned by state 
authorities 1 64 

Pubhc Funds 

Control of investment of funds of state employees' and 
teachers' retirement systems 100 

Public Lands 

Transfer of public lands under doctrine of prior public use l"*! 



176 P.D.12 

TOPIC OPINION PAGE 

"Public Policy" 

Ballot questions 1 13-122 

Public Records 

Dissemination of information in sealed CORI records 89 

Public Trust 

Transfer of public lands under doctrine of prior public use 141 

Regional Planning District 

Termination of membership without specific legislative 

authorization 130 

Retirement 

1) Control of investment of funds of state employees' and 
teachers' retirement systems 100 

2) Relation between retirement benefits and compensation paid 

to retired public employees who return to active pubUc service. . . 152 

3) Authority of Teachers' Retirement Board to appoint its 

own staff 161 

Rules and Regulations 

Postponement of statutory fihng date for regulations and 
temporary use of emergency regulations 97 

State Agencies 

1) Status of transit authorities as state agencies or instrumen- 
talities 93 

2) Postponement of statutory filing date for regulations and 
temporary use of emergency regulations 97 

State Police 

Appointment to position of state police detective lieutenant- 
inspector 135 

State Election Campaign Fund 

Authority to audit state election campaign funds 123 

Statutes - Administrative Interpretation 

Authority of officers to arrest in motor vehicle violations 157 

Statutes - Clear Legislative Intent 

1) Insurance coverage of state employees for abortion services. . . 146 

2) Authority of officers to arrest in motor vehicle violations 157 

Statutes - Construction - Reasonable Rule 

Authority of officers to arrest in motor vehicle violations 157 

Statutes - Effective Date 

Payment to Medicaid providers for abortions performed before 
effective date of fiscal year 1979 appropriations statute 104 

Statutes - Repeal by Implication 

1) Appointment to position of state police detective lieutenant- 
inspector 135 

2) Authority of officers to arrest in motor vehicle violations 157 

Statutory Construction 

1) Postponement of statutory filing date for regulations and 
temporary use of emergency regulations 97 

2) Implementation of statutory provisions regarding storm- 
related unemployment benefits 109 

3) Pledge of liquor license to secure payment of state taxes 1 28 



P.D.12 177 



TOPIC OPINION PAGE 

4) Appointment to position of state police detective lieutenant- 
inspector 135 

5) Interim appointment to position of personnel administrator. . . 139 

6) Insurance coverage of state employees for abortion services. . . 146 

7) Relation between retirement benefits and compensation paid 

to retired public employees who return to active public service. . . 152 

8) Authority of officers to arrest in motor vehicle violations 157 

Storm-related Benefits 

Implementation of statutory provisions regarding storm-related 

unemployment benefits 109 

Taxation and Revenue 

Pledge of liquor license to secure payment of state taxes 128 

Transportation, Public 

Status of transit authorities as state agencies or instrumentalities. 93 

Vacancy 

Interim appointment to position of personnel administrator 139 

Weapons 

Dissemination of information in sealed CORI records 89 

Westover Metropolitan Development Corporation 

Authority to operate a public airport 133 



178 P.D.12 

INDEX OF REQUESTING AGENCIES 

AGENCY OPINION PAGE 

Administration and Finance, Executive Office 

for 9,139 

Aeronautics Commission: see Massachusetts 

Aeronautics Commission 

Alcoholic Beverages Control Commission 128 

Auditor: see State Auditor 

Employment Security, Division of 109 

Group Insurance Commission 146 

Massachusetts Aeronautics Commission 133 

Metropolitan District Commission 141 

Motor Vehicles, Registry of 157 

Probation, Commissioner of 89 

PubUc Health, Department of ,. 168 

Public Safety, Department of 135, 164 

Public Welfare, Department of 104 

Retirement, State Board of 152 

Secretary of the Commonwealth 1 13 to 122 

State Auditor 123 

State Planning, Office of 130 

Teachers' Retirement Board 161 

Transportation and Construction, Executive 

Office of 93 

Treasurer and Receiver General 100