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

Public Document 



No. 14 



■Qllic Olommanhjealtl] of <i9Ilaasacl|usetts 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1980 



RU67 
1980 

|c.l 




State Library of Mrssachusett; 
State House, Boston 



of This Document Approved by John Manton, Acting State Purchasing Agent 
^yl Estimated Cost Per Copy $3.80 



\m:> 



W'\:\e (^oxnmoniatnhl} of Massachusetts 



To the Honorable Senate and House of Representatives : 

I have the honor to transmit herewith the report of the Department of the 
Attorney General for the year ending June 30, 1980. 

Respectfully submitted, 

FRANCIS X. BELLOTTl 

Attorney General 



P.D. 14 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
FRANCIS X. BKLLOTTl 



First Assistant Attorney General 
Thomas R. Kiley 



Assistant Attorneys General 



Jose Alien*" 
James Aloisi 
Nicholas Arenella 
Stuan Becker' 
Annette Benedetto 
W. Channing Beucler 
Paul Bishop- 
Roben Bohn 
John Bonistalli 
Margot Botsford*' 
Susan Brand'^ 
Jonathan Brant*^ 
Michael Broad'' 
Roberta Brown 
Craig Browne* 
Laurie Burt*^ 
Gerald Caruso^ 
James Caruso 
William Carroll 
Andrew Cetlin' 
Francis Chase 
Paul Cirel 
Robert Cohan 
Garrick Cole 
Leah Crothers 
John Curran* 
Mary Dacev 
Richard Da'lton'' 
Stephen Delinsky 
Elaine Denniston'° 
Ernest DeSimone 
Maureen Dewan*^ 
Paul Donaher 
John Donahue" 
Michael Donahue** 
Elizabeth Donovan 
Robert Dewees 
Irene Emerson'^ 
Joan Entmacher 
Stephen Fauteaux*^ 
Peter Flynn 
Harriet Fordham 
Maureen Fox'^ 
Susan Frey 
Gloria Fry 
Carol Fubini 
Robert Gaines 



Frank Gaynor 
Dwight Golann 
Paula Gold 
Paul Good 
Joseph Gordon 
Steven James (jordon**^ 
John Gracefta" 
Alexander Gray Jr. 
Robert Greco*' 
Steven Greenfogei** 
Robert Griffith 
Richard Gross** 
John Grugan" 
Michael Hassett"* 
Catherine Hantzis 
Leslie Hedgebeth* 
F. Timothy Hegarty Jr. 
David Hop wood 
Marilyn Hotch'' 
Andra Hotchkiss 
William Howell 
Edward Hughes 
John Hurley*' 
Linda Irvin 
Daniel Jaffe 
Ellen Janos 
Paul Johnson 
Anne Josephson 
Paul Kaplan'" 
Thomas Keaney 
Carolyn Kelliher 
Richard Kelly" 
Sally Kelly 
James Kirk*^ 
Kevin Kirrane 
Alan Kovacs 
Steven Kramer^" 
Elizabeth Laine 
Kenneth Lenz*^^ 
Steven M. Leonard 
William Levis^' 
Stephen Limon^^ 
Maria Lopez'^^ 
William Luzier 
Alan Mandl 
Bernard Manning 
Michael Marks 



P.D. 14 



Michael McCormack 
Eugene McAuliff*'' 
Edward McLaughlin 
James McManus*^^ 
Leo McNamara***^ 
WiUiam McVey 
James Meehan''' 
John Mendiesohn 
Michael Meyer*^** 
Thomas Miller 
William Mitchell 
Anton T. Moehrke''^ 
Bruce Mohl'^ 
John T. Montgomery 
Paul Muello 
Robert Mydans 
Dean Nicastro 
Henry O'Connell Jr. 
Terence O'Malley™ 
Steven Ostrach" 
Howard Palmer 
William Pardee"'^ 
Kathleen Parker'' 
Joseph Pellegrino 
Malcom Pittman III 
Steven Platten 
Alan Posner 
Robert Potters'- 
Edward J. Quinlan 
Richard Ratferty 
T. David Raftery 
Mary J. Reedy'^ 
Frederick Riley 
Louis Rizoli''' 
Robert Rodophele'^ 
Anne Rogers^'^ 



S. Stephen Rosenfeld'^ 
James F. Ross 
Steven Rusconi 
Bemadette Sabra" 
Anthony Sager 
Stephen Schultz 
Harvey Schwartz^* 
Terry Seligmann" 
Paul W. Shaw 
Alan Sherr 
Mitchell Sikora 
Roger Singer-^ 
E. Michael Sloman 
Barbara A. Smith 
Scott Smith^" 
Elizabeth Spencer 
Donna Sorgi 
Helen Stewart'** 
Donald Stern 
Joan Stoddard" 
Kevin Suffem 
Gail Sullivan'^ 
Kevin Sullivan 
Terence Troyer 
Carl Valvo 
Edward Vena*' 
John J. Ward 
Betty Waxman 
Catherine White*' 
Estelle Wing 
Christopher Worthington 
Francis Wright 
Judith Yogman^^ 
Mark Young'" 
Andrew Zaikis'" 
Donald P. Zerendow 
Stephen Ziedman 



Assistant Attorneys General Assigned to Department of 
Public Works 

Edward Clancy^^ Allan Gottlieb*^ 

Assistant Attorneys General Assigned to Division of 

Employment Security 

Robert Lombard^^ 

George J. Mahanna John Mendelsohn 

Chief Clerk 

Edward J. White 

Assistant Chief Clerk 
Avis Patten 



APPOINTMENT DATE 



TERM IN A TION DA TE 



1/21/80 
12/19/79 
3/3/80 
1/2/80 

7/23/79 



50. 


2/8/80 


51. 


8/17/79 


52. 


12/28/79 


53. 


2/21/80 


54. 


7/12/79 



P.D. 14 



6. 12/19/79 

7. 2/25/80 

8. 8/6/79 

9. 6/2/80 

10. 4/14/80 

11. 1/28/80 

12. 2/19/80 

13. 8/20/79 

14. 12/19/79 

15. 3/10/80 

16. 2/4/80 

17. 3/3/80 

18. 2/4/80 

19. 11/1/79 

20. 3/24/80 

21. 5/12/80 

22. 3/31/80 

23. 4/7/80 

24. 6/9/80 

25. 5/19/80 

26. 10/2/79 

27. 1/28/80 

28. 7/16/80 

29. 6/30/80 

30. 9/4/79 

31. 3/3/80 

32. 5/27/80 

33. 1/2/80 

34. 11/14/79 

35. 1/29/80 

36. 5/11/80 

37. 1/21/80 



55. 


11/23/79 


56. 


1/2/80 


57. 


3/17/80 


58. 


5/15/80 


59. 


10/26/79 


60. 


5/30/80 


61. 


5/16/80 


62. 


11/23/79 


63. 


5/2/80 


64. 


11/21/79 


65. 


6/30/80 


66. 


10/9/79 


67. 


1/17/80 


68. 


10/3/79 


69. 


9/25/79 


70. 


1/2/80 


71. 


12/7/79 


72. 


9/28/79 


73. 


12/10/79 


74. 


4/25/80 


75. 


2/18/80 


76. 


8/17/79 


77. 


5/9/80 


78. 


8/16/79 


79. 


1/21/80 


80. 


6/27/80 


81. 


5/9/80 


82. 


2/28/79 


83. 


9/28/79 



P.D. 14 





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P.D. 14 13 



®l]e (CamittDntoealtl] of illaasacl]usctts 



In accordance with the provisions of section 1 1 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 document covers the period from 
July 1, 1979 to June 30. 1980 and is the sixth Annual Report I have filed as the 
Attorney General of the Commonwealth. 

Each of the five reports I have previously filed opens with a recitation of the 
administrative changes made in the Department during the relevant fiscal year 
and a brief summary of the most significant accomplishments of the four Bu- 
reaus which comprise the Department. This report is different. While the body 
of the report chronicles the activities of the Department as a whole, 1 wish to 
take this opportunity to describe individual non-delegated responsibilities I have 
as Attorney General. 

The single most time consuming of my personal responsibilities during fiscal 
year 1980 was my participation as a member of the Special Commission Con- 
cerning State and County Buildings. This Special Commission was established 
by Chapter 5 of the Resolves of 1978 to investigate and study, as a basis for 
legislative action, the existence and extent of corrupt practices and maladminis- 
tration affecting the award of contracts related to the construction of state and 
county buildings. The Resolve, as amended, makes me not only the only gov- 
ernmental figure on the Special Commission but also the only law enforcement 
official who is a Commissioner. My experience as an elected official and as an 
attorney with extensive criminal law background, both as defense counsel and a 
prosecutor, make me unique among the Commissioners, and I have therefore 
felt compelled to devote a large portion of my energies to the work of the 
Commission. 

The work of the Special Commission is a beginning rather than an ending 
point. Our primary function is to investigate and make findings to provide the 
factual basis for legislative reform of the public construction system. We have, 
in fact, conducted the required investigations and have drafted a series of bills 
in furtherance of our legislative mandate. At the close of the period covered by 
this report, it appears that the Special Commission is about to score a series of 
significant legislative successes. As this legislative session winds to a close, a 
series of bills filed by the Commission are near final enactment or are awaiting 
gubernatorial approval. Among those bills are a comprehensive campaign 
finance measure, which would create a mixed system of public and private 
funding,' an equally comprehensive bill designed to improve the system of 
public construction in the Commonwealth.- and a measure creating the office of 
Inspector General.^ Passage of any or all of these bills will make my efforts 
worthwhile. 



' After the close of the reporting penod the campaign finance bill failed to be enacted. 

^After the close of the reporting period the measure was enacted and signed into law. St. 1980. c.579. 

^After the close of the reporting period the measure was enacted and signed into law. St. 1980. c.388. 



14 P.D. 14 



Apart from the Special Commission, one of my more satisfying personal 
accomplishments was also legislative in nature and came with the passage of the 
Commonwealth's new civil rights act. St. 1979, c.80i. The act, which the 
Department of the Attorney General helped draft and for which we lobbied 
extensively, affords this office and the private citizens of the Commonwealth 
significant new opportunities to vindicate their rights in state, as opposed to 
federal, court. 

The civil rights act, like the measures proposed by the Special Commission, 
has special significance because it reflects the personal philosophy I have at- 
tempted to imbue in the individuals who staff the Department. Many of those 
individuals have been associated with the Department since I took office six 
years ago. With the passage of time it would be extremely easy for us to lose 
our initiative and to become passive in our representation of the public interest. 
In order to combat inertia, it is imperative that we constantly seek new solutions 
to the state's legal problems and new tools to accomplish those ends. 

These legislative measures are prime examples of our quest, but they are by 
no means the only examples. Many of the cases brought by this Department are 
equally illustrative of this philosophy, and a significant portion of my time is 
spent supervising attorneys in the prosecution of those cases. 

One of the hallmarks of my first term as Attorney General was our aggressive 
enforcement of environmental safeguards. This year, while we have continued 
to maintain the degree of intensity we always brought to our traditional civil 
enforcement work, we have also begun to use our new criminal tools to prose- 
cute hazardous waste cases. During the reporting period, the Criminal Bureau 
obtained more than one hundred indictments against those who have polluted 
our air, water and land by illegally disposing of hazardous waste. The coordina- 
tion of the efforts of attorneys of the Criminal Bureau with those assigned to the 
Environmental Protection Division has been time consuming, but the results 
have justified that commitment of time. 

In the Public Protection Bureau we attacked such issues as the level and cost 
of health care services and the skyrocketing costs of energy by bringing an 
imaginative series of cases under the consumer protection act. G.L. C.93A. We 
also utilized our common law powers to obtain nearly a million dollars in 
recoveries for women in the work force who had been victimized by unlawful 
maternity leave policies or by discriminatory employment practices in the pub- 
lishing industry. Each of these efforts required my personal supervision, but 
again the results attained for the citizens of the Commonwealth were startling. 

Perhaps because of my work on the Special Commission, I have been partic- 
ularly sensitive to construction-related legal cases and the constantly escalating 
costs of government. In the Civil Bureau we dealt with the first of these prob- 
lems by creating a special unit to deal with public construction cases, and in the 
Government Bureau we addressed the second by "initiating" a series of cases 
designed to insure that property owners paid fair taxes throughout the Com- 
monwealth and another series of cases against federal governmental agencies 
seeking additional funds under a wide variety of revenue-sharing programs. 

By focusing on my personal activities and on the foregoing developments 
illustrating our resistance to complacency, I by no means intend to disparage 
our more traditional efforts. Rather, the success of this administration can best 
be measured by our ability to simultaneously perform our traditional role as 



P.D. 14 ,5 

defense lawyers for the Commonwealth, its agencies and officers and to bring 
affirmative public interest litigation affecting the lives of the citizens of Massa- 
chusetts. I am confident that the accomplishments reflected in the ensuing pages 
of this Report reflect the balance we have attempted to instill in the Department. 

MONEY RECOVERED AND SAVED FOR 
THE COMMONWEALTH AND ITS CITIZENS 

I . MONEY RECOVERED FOR THE COMMONWEALTH TREASURY 

1. Antitrust Civil Penalties $ 15,000 

2. Charitable Registrations 138,530 

3. Escheats 211,930 

4. Collections, Rent 343,085 

5. Collections, General 697,589 

6. Delinquent Unemployment Compen- 
sation Claims Recovered 850,440 

7. Fraudulent Unemployment Compen- 
sation Claims Recovered 166,698 

8. Civil Penalties in Environmental 

Protection Cases 250,000 

9. Restitution and Fines in Tax 

Fraud Cases 55,000 

10. Restitution, Vocational Education 

Cases 500,000 

TOTAL $3,228,272 



II. MONEY RECOVERED AND SAVED FOR THE COMMONWEALTH'S 
CITIZENS: 

1 . Antitrust Recoveries $ 57 1 . 1 00 

2. Back Pay Recovered for Female 

Employees at Publishing Companies 450,000 

3. Judgments and Restitution in 

Consumer Protection Court Cases 1 ,265,340 

4. Consumer Recoveries- Non-Court Cases 444,314 

5. Consumer Recoveries- Springfield 

Office 68.318 

6. Consumer Savings- Springfield 

Office 24,714 

7. Donation Negotiated for Child 

Guidance Center 4.500 

8. Maternity Disability Payments 

Recovered 500.000 

9. Savings in Auto Insurance Hearings 100.000.000 
10. Savings in Utility Rate Hearings 92.682.051 

TOTAL $196,010,337 



16 P.D. 14 

I. CIVIL BUREAU 

CONTRACTS DIVISION 

The responsibility of the Contracts Division generally involves three areas: 

A. Litigation involving matters in a contractual setting; 

B. Advice and counsel to state agencies concerning contractual matters; and 

C. Contract review. 

A. LITIGATION 

The Contracts Division represents the Commonwealth, its officers and agen- 
cies in all Civil actions involving contract disputes. 

A majority of the cases handled by the Division concern state highway, 
building or public work construction claims. Other typical types of cases in the 
Division involve disputes arising from leases, employment contracts, statutes, 
rules and regulations. The Contracts Division attorneys represent the Com- 
monwealth as both a party plaintiff and defendant. 

In contract actions against the Commonwealth, G.L., c. 258, § 12, is, for the 
most part, the controlling statute. That section permits actions not arising from 
tort to be brought against the Commonwealth in the Superior Court. 

Increasingly, additional parties are becoming involved in contract actions, 
since there has been a tendency to implead consultant engineers and architects 
as third-party defendants. 

Typically, plaintiffs routinely seek temporary restraining orders and prelimi- 
nary injunctive relief against the Commonwealth, its agencies and officers at the 
commencement of actions. The granting of such relief would delay the execu- 
tion of contracts, increase contract costs, and result in additional claims for 
damages. During the fiscal year, the Division attorneys have successfully re- 
sisted all such attempts for injuctive relief. 

Discovery in contract cases is prolonged due to the shear volume of the 
documentation, especially in building construction cases. Issues in contract 
cases are usually complex, and cases are frequently referred to masters. 

Bid protests in the rapidly evolving data processing area are occurring with 
increasing frequency. Challenges relative to the propriety of the award of build- 
ing construction contracts have also increased, primarily because of more inten- 
sive scrutiny of bidders by the Bureau of Building Construction. 

Seventy-six (76) new actions were commenced during the fiscal year. Fifty- 
one (51) have been closed. As of June 30, 1980, there were 290 pending cases 
in the Division. 

B . 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, perform- 
ance of contracts, bidding procedures, bid protests, contract interpretation, and 
numerous other miscellaneous matters. 

The economy has its effect on bids and bidding procedures in the State 
Purchasing Agent's Office. All materials, supplies and equipment purchased by 
the state (except military and legislative) must be advertised, bid and awarded 
by the Purchasing Agent. We receive, on a weekly basis, new requests for 
assistance in purchasing matters. Members of the Division counsel the Purchas- 



P.D. 14 17 



ing Agent and his staff, interpret regulations, and attend informal protest hear- 
ings. We also have an equivalent relationship with the Department of Public 
Works, Metropolitan District Commission, the Secretary of Transportation, the 
Regional Community Colleges, the Data Processing Bureau, the Department of 
Mental Health, the Department of Youth Services, the Department of Water 
Resources, the State Lottery Commission, and the Department of Public Wel- 
fare. 

C. CONTRACT REVIEW 

The Division reviews all state contracts, leases and bonds submitted to us by 
state agencies. During the fiscal year, the Division approved as to form a total 
of 2,224 such contracts. In 292 cases, we rejected the documents and later 
approved them after the deficiencies were eliminated. 

All contracts are logged in and out and a detailed record is kept. 
The monthly count for the fiscal year is: 
July, 1979 183 

August 151 

September 190 

October 203 

November 162 

December 148 

January, 1980 228 

February 1 49 

March 199 

April 225 

May 208 

June LZ8 

TOTAL 2,224 

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

EMINENT DOMAIN DIVISION 

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

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. 

Informal advisory services, both written and oral, are rendered to practically 
every state agency in existence, whether it be Executive or Legislative in na- 



18 P.D. 14 



ture. Every agency which has an eminent domain or real estate question or 
problem either writes or calls this division for consultation and advice. This 
division also appears before Legislative Committees to give advice on legisla- 
tion of importance to this office as well as other state agencies. During 1979 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 Chap- 
ter 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 domain 
proceedings. Under Chapter 79, when property is taken, the taking agency 
makes an offer of settlement known as a pro tanto. which makes available to the 
owners an amount the taking agency feels is fair and reasonable but reserves to 
the prior owners the right to proceed, through the courts, to recover more 
money. In the event of a finding by the court or jury, the pro tanto payment is 
subtracted from the verdict and the taking agency pays the balance, with interest 
running at the rate of 6% from the date of the taking to the date of the judgment. 
In years past, during the road building boom of the sixties, land damage matters 
caused congestion in the civil sessions of the Superior Court. Special land 
damage sessions, including summer sessions, were set up to accommodate the 
trial of these cases and it was the practice to refer cases to auditors for their 
findings. The auditor system was not entirely satisfactory because too many 
cases previously tried to auditors were retried to juries. In 1973, the Legislature 
passed Section 22 of Chapter 79 which provides for the trial of land damage 
matters to a judge in the Superior Court, jury-waived in the first instance: a trial 
by jury may be had first only if both parties file waivers, in writing, waiving 
their right to a jury-waived trial. The statute also requires the court make subsi- 
diary findings of fact when the case is heard. If either party is aggrieved by the 
finding, they may reserve their right to a jury by so filing, within ten days of the 
finding. 

It has been the practice of our division to try the great majority of our cases 
in accord with Section 22 before a justice in a jury-waived session. We have 
found, in most instances, it is not necessary to retry the case because the 
findings usually contain a clear statement of 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 eminent domain, 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 supervi- 
sion 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 settle- 
ments, closing out uncollectables, bringing suits to enforce the payment of rent, 
as well as to evict tenants. In those cases wherein rent is owed to the Com- 
monwealth and there is a land damage case pending, the Eminent Domain 



P.D. 14 19 



Division trial attorney assigned handles both matters at the time ot trial. 

In addition, the Eminent Domain Division has the responsibility of protecting 
the Commonwealth's interests 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 interest 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 conclusion while others 
are amicably agreed upon and the rights of the Commonwealth are protected by 
stipulation. 

The Land Court involves the full-time activities of an Assistant Attorney 
General on a daily basis. Its jurisdiction covers every type of land transaction 
from foreclosure, tax takings, to determination of title absolute and all the 
equity rights arising therefrom. 

More and more, the equity is being used along with the temporary restraining 
order and injunction process. Zoning cases are now being sent to the Land 
Court from the Superior Court and also being commenced at the first impression 
in the Land Court. The Attorney General is involved in all these cases due to the 
declaratory nature and constitutional issues involved therein. 

The Attorney General's Office is involved in almost every petition to confirm 
or register titles. The involvement requires the determination of all interests in 
state highways, the preservation of the taking lines, the determination of drain- 
age and other easements and the assurance that the decree is entered subject to 
all of the above. 

In addition, the Land Court determines so-called "water rights". As indi- 
cated in last year's report, 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 respon- 
sibilities. 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 prescrip- 
tive 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 
Appeals Court after a decision of the Land Court upholding prescriptive rights 
in a beach for all purposes of bathing, swimming and recreation relating to the 
general public's use thereof. Daley v. Town ofSwainpscott, et al) 

The litigation involves Whales Beach in Swampscott and the public's eye of 
said beach. Locally, the press has been quick to emphasize the public interest 
involved and rightly so, because of the lack of 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. as emphasized in our last report. The 
other areas involved are the waterfront maritime areas which are being con- 
verted into condominiums, changing the uses provided for in the early 18th 
century statutes. The most recent example is the Boston Waterfront Develop- 
ment Corporation, otherwise known as the Lewis Wharf case and the construc- 
tion given to the statutes enacted in the early 1830's. 

During the past six months, this office has received 45 miscellaneous cases 
dealing with zoning, ejectment, trespass, and nuisance, including areas of dam- 
ages not heretofore involved in the Land Court. In addition, more claims are 



20 P.D. 14 



being made against the Insurance Fund. 

We have gone to the Appellate Courts on at least eleven cases in the last two 
years. At least six of these cases have been matters of first impression in this 
Commonwealth. 

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' department or agencies find their way to the Eminent Domain 
Division to be reviewed and approved as to form. 

This Division also was instrumental in assisting the Department of Food and 
Agriculture to expedite and carry out the mandates of Chapter 780 of the Acts 
of 1977, known as The Agricultural Preservation Restriction Act. Since 1949, 
farming acreage in the Commonwealth has declined from approximately 2 mil- 
lion acres to about 600,000 acres in the year 1975. This loss has necessitated 
Massachusetts to import some 85% of her food supply from other states as 
distant as Florida and California. Recognizing of the increased cost of transpor- 
tation and fuel, and need to encourage local agriculture, the Massachusetts 
legislature enacted The Agricultural Preservation Restriction Act. This Act of- 
fers the only real hope for preserving our remaining agricultural land, by pro- 
viding for the public purchase of agricultural preservation restrictions, com- 
monly referred to as "Developmental Rights'*. This program is completely 
voluntary. It allows the farmer to obtain the developmental value of his land 
without destroying its productive capacity as farmland. The statute provides that 
the Commonwealth will pay the farmer the difference between the agricultural 
value of the land and its appraised market value. Stated simply, the farmer 
keeps his farmland but sells his developmental rights. A deed is then filed in the 
appropriate registry wherein it is agreed that the land be restricted in perpetuity 
to farming purposes. 

The Eminent Domain Division worked very closely with the Department of 
Food and Agriculture in launching this program and is pleased to report that in 
the last few months restrictions have been purchased on three farms with an- 
other due shortly, encompassing more than 500 acres of prime Massachusetts 
farmland. 

The Eminent Domain Division consists of a Chief, seven full-time trial attor- 
neys, two special attorneys general, two investigators, one administrative assist- 
ant, one administrative trial clerk and three legal secretaries. We also enjoy the 
services of a full-time Assistant Attorney General stationed in Springfield. 

During the fiscal year July I, 1979 through June 30, 1980, the following 
statistics are indicative of the activity of this division: 

New Land Court Cases 197 

Land Court Cases Closed 132 

Land Court Cases Pending 297 

New Land Damage Complaints Received 126 

Land Damage Cases Disposed of in Superior Court 91 

Land Damage Cases Disposed of by Settlement 68 

Land Damage Cases Pending 611 

Total Cases Pending 908 



P.D. 14 21 



Cases argued before the Appeals Court 4 

Cases argued before the Supreme Judicial Court 4 

Rent Cases Closed by Special Assistant Attorney General 139 

Rent owed to the Commonwealth - Collected 

by Special Assistant Attorney General $343,085.45 

INDUSTRIAL ACCIDENT DIVISION 

The Industrial Accident 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 repre- 
sents the Commonwealth before the Industrial Accident Board and in appellate 
matters before the Superior Court and the Supreme Judicial Court. 

There were 12,664 First Reports of Injury filed during the last fiscal year for 
state employees with the Division of Industrial Accidents, an increase of 593 
over the previous fiscal year. Of the lost time disability cases, this Division 
reviewed and approved 2,046 new claims for compensation and 142 claims for 
resumption of compensation. In addition to the foregoing, the Division worked 
on and disposed of 140 claims by lump sum agreements and 17 by payments 
without prejudice. 

This Division appeared for the Commonwealth on 1 ,345 formal assignments 
before the Industrial Accident Board and before the Courts on appellate matters. 
In addition to evaluating new cases, this Division continually reviews the ac- 
cepted cases; that is, those cases which require weekly payments of compensa- 
tion, to bring them up to date medically and to determine present eligibility for 
compensation. 

Total disbursements by the Commonwealth for state employees' industrial 
accident claims, including accepted cases. Board and Court decisions and lump 
sum settlements, for the period July 1 , 1979 to June 30, 1980 were as follows: 

General Appropriation (Appropriated to the 

Division of Industrial Accidents 

Incapactiy Compensation $6,032,433.21 

Medical Payments 1,809.889.13 

TOTAL DISBURSEMENTS $7,842,32134 

Metropolitan District Commission 

(Appropriated to M.D.C.) 

Incapacity Compensation $ 578,811.99 

Medical Payments "-^-^-'^-^- '"^ 

TOTAL DISBURSEMENTS $ 692,I65J6 

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 



22 P.D. 14 



and 37 A. During the past fiscal year this Division appeared on 164 occasions to 
defend this fund against claims for reimbursement by private insurers. As of 
June 30, 1980, the financial status of this fund was: 

Unencumbered Balance $ 139,183.97 

Invested in Securities 200.000.00 

TOTAL 339,183.97 

Payments Made to Fund $ 213.885.31 

Payments Made Out of Fund 742.641.63 

Pursuant to Section llA (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 the sitting of this Board and acted on 10 claims. 

This Division also represents the Industrial Accident Rehabilitation Board. 
When an insurer refuses to pay for rehabilitative training for an injured em- 
ployee, 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 Divi- 
sion 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, CLAIMS, AND COLLECTIONS DIVISION 

The Torts Division of the Department of the Attorney General continues to 
be composed of three sections handled generally by all legal personnel in the 
division. Tort actions against the Commonwealth. Collections of accounts for 
the various state agencies, hospital and schools, the thirdly Petitions For Com- 
pensation To Victims Of Violent Crimes. The division presently has seven 
lawyers in addition to the Division Chief. There are presently four investigators 
assigned to the Division, but one is presently on sick leave and another on 
voluntary leave. However, the two remaining investigators are being ably as- 
sisted by the help of an investigator from one of the other divisions. The 
number of secretarial and clerical personnel is seven. 

We still have several cases pending which were commenced under Chapter 
12. section 3 A through 3D now repealed. We have succeeded in getting many 
old cases, which were pending against the Commonwealth, dismissed as the 
result of the passage of the new Tort Claims Act. Actions against the Com- 
monwealth are beginning to increase for incidents arising since August 16, 
1977. the retroactive date of the new Tort Claims Act. We are late in receiving 
these claims because of the requirement that they be first presented to the 
Executive Secretary responsible for the agency involved. When the central 
claims office, being set up in the Office of Administration & Finance, finally 
becomes operative it may reduce the number of small Tort actions which are 



P.D. 14 23 



presently reaching this division. We beHeve that the overall final results of Tort 
actions disposed of in the courts during this fiscal year have been favorable. 
There were 159 new Tort cases opened during the fiscal year and 204 Tort suits 
were commenced. We closed 242 Tort cases during this period. The sum of 
$81,037.95 was paid out on releases and executions. 

Violent Crime Compensation cases increased during this fiscal year when we 
opened 422 cases but we also closed 402. The Treasurer's Office paid out 
$524,690.80 in awards during this period. Although we are desirous of seeing 
that all valid petitioners receive just awards, we are equally vigorous in resisting 
unfounded and unwarranted claims. The new Rule, which this office was instru- 
mental in having promulgated, has brought about the disposition of many cases 
without the necessity of court appearance. 

The division continues to be diligent in its attempt to collect monies due to 
the various agencies. Our total collections for this fiscal year was $697,589.63. 

II. CRIMINAL BUREAU 



The Criminal Bureau, consisting of Trial, Organized Crime and Appellate 
Sections, a Medicaid Fraud Control Unit, and the Employment Security Divi- 
sion, continued to accelerate the number and increase the scope and intensity of 
investigations and prosecutions of criminal activity throughout the Com- 
monwealth during fiscal 1979-1980. The following recitation has been designed 
to reflect a representative sampling of cases the Bureau has processed in fulfill- 
ing its investigative and prosecutorial mission. 

Trial Section: The newly formed tax and insurance prosecution unit, acting 
under a mandate to prosecute crimes impacting on state regulatory agencies, 
initiated 40 tax cases involving 56 indictments, claiming a total amount in 
excess of $432,000 unlawfully withheld from the Commonwealth in violations 
of state revenue laws. More than $55,000 in fines and restitution has been 
collected from 6 individuals prosecuted thus far. For the first time in the history 
of the Commonwealth, a conviction has been obtained on indictments charging 
tax evasion. 

The recently enacted Hazardous Waste Act has provided the unit with the 
necessary enforcement powers to aggressively prosecute the unlawful transport, 
storing and disposal of substances deemed dangerous to public health and wel- 
fare. Following a multi-state investigation involving the illegal dumping of 
hazardous wastes in Suffolk, Middlesex and Plymouth Counties, more than a 
hundred indictments, each containing numerous counts were returned against 18 
individuals and four corporations. 

In a continuing effort to detect and prosecute instances of official corruption, 
the division's activities proved quite fruitful. Five individuals, including a 
Northeastern University professor, were indicted in the largest recipient welfare 
fraud case in Massachusetts history involving more than a million dollars. 

The Student Government President at Boston State College was charged with 
larceny, forgery and conspiracy to steal more than $15,000 in money and equip- 
ment from the Student Government Association. 

A Brookline Health Inspector was indicted for receiving bribes of money 
from a local restauranteur and a Building Inspector in the Town of Haverhill 



24 P.D. 14 



was convicted of taking bribes from a property owner in return for issuing 
building permits. 

A state employee was sentenced for illegally raising grades on the civil 
service firefighters' examination and a former state and MDC police detective 
was indicted when he illegally offered for sale copies of a forthcoming civil 
service police promotional examination. 

A number of cases were disposed of this fiscal year which had been initiated 
by grand jury investigation at an earlier time. Ninety-three of the 103 indict- 
ments naming 32 individuals as defendants in crimes ranging from armed rob- 
bery and receiving stolen goods, to distribution of controlled substances which 
were uncovered during "Operation Lobster" resulted in guilty findings with the 
majority of defendants sentenced to prison. A few more await trial. 

While grand jury investigations are still proceeding in a number of counties, 
trials of arson defendants have concluded with guilty findings in Suffolk 
County. Four more defendants have been convicted in the vocational educa- 
tional scandal with restitution almost reaching the half million dollar level. A 
Boston school teacher was sentenced to imprisonment for his involvement with 
child pornography. A defendant found guilty of fraudulently obtaining work- 
men's compensation also received a prison sentence. 

Prosecutorial attention to the specialized area of organized crime continued 
unabated throughout the fiscal year. Thirteen of sixteen individuals indicted for 
their participation in a state-wide illegal gambling syndicate already have been 
convicted of the charges while the remainder await trial. Ten individuals includ- 
ing two commercial printers were recently indicted in a major automobile theft 
ring whose operation involved the printing of counterfeit Massachusetts motor 
vehicle titles. The conspiracy operated throughout New England and has had an 
economic effect upon the entire Northeast Region. 

Organized Crime Section: In addition to its participation in the arson and 
hazardous waste investigations and prosecutions, the Organized Crime Section 
continues to be involved in such divers areas as gaming, bribery, cigarette 
smuggling, and theft from state agencies. 

The Unit also investigates and prosecutes all crimes that may directly or 
indirectly relate to transactions reflecting organized criminal activity. 

This Section cooperates with other agencies in combatting the activities of 
criminal organizations. It investigates cases at the request of the various district 
attorney's offices and results are then transmitted to those county officials for 
prosecution. 

In addition to the investigative, prosecutorial and technical assistance func- 
tions, the Unit also collects, analyzes and stores intelligence on organized crime 
elements. Upon proper request and for sufficient reasons, this material may be 
disseminated to other law enforcement agencies. 

The Technical Assistance Center of the Unit provides services to other law 
enforcement agencies in such areas as photograph and voice print identification, 
information retrieval and electronic investigative aids. 

Appellate Section: The case load of the Appellate Division again increased 
this fiscal year. 194 new cases were opened, an increase of 22 cases. 59 cases 
were closed. Approximately 205 active cases are presently pending. 

The vast majority of the cases involve civil litigation arising from underlying 
criminal convictions rather than direct appeals. Of the 81 cases filed in the 



P.D. 14 25 



various state courts, 53 sought relief either by way of habeas corpus, declara- 
tory judgment or civil rights damage actions. Nine (9) suits under G.L. c. 123A 
§9 (SDP) were filed since we assumed representation of the Treatment Center 
for Sexually Dangerous Patients in December. Eleven (11) suits claiming relief 
under 211 §3 were filed with the Single Justice. Eight (8) appeals were argued 
before either the Full Bench of the SJC or the Appeals Court. 

On the federal side, 82 cases were filed in the federal district court, with 68 
petitions for writ of habeas corpus and 14 civil rights actions or requests for 
declaratory and injunctive relief. 

Fifteen cases were argued in the Court of Appeals for the First Circuit. 

Twelve petitions for writ of certiorari were opposed in the Supreme Court of 
the United States. Four unsuccessful petitions for certiorari were filed. 

The one case argued in the Supreme Court. Commonwealth v. Meehan, was 
dismissed on the ground that certiorari was improvidently granted. 

One major civil rights case tried this year (Layne v. Moriarty) resulted in an 
award of substantial damages against officials of the Department of Corrections. 
The case is on appeal and cross appeal to the First Circuit and will be argued in 
the fall. The division also argued as intervenor before the SJC in defense of the 
constitutionality of capital punishment. The "protective custody cases'". Com- 
monwealth V. Blaney, are finally close to resolution. The Special Master has 
recommended acceptance of a proposed Final Judgment. 

The Appellate Division also processes rendition of fugitives from justice. 
Demands from both law enforcement officials of the Commonwealth and gover- 
nors of other states are examined and an opinion rendered as to the legal 
adequacy of each demand. Approximately 226 rendition demands were pro- 
cessed during fiscal 1979-1980 - 105 foreign requests and 121 requests from 
Massachusetts authorities. In addition, an attorney must appear in court when- 
ever a rendition warrant is challenged. 

Medicaid Fraud Control Unit: During the past fiscal year, the Unit's prosecu- 
torial efforts have again centered around investigations conducted by a Special 
Grand Jury created upon the petition of the Attorney General and empowered 
with the exclusive mandate to investigate fraud and abuse within the Medicaid 
system. 

MFCU prosecutorial efforts resulted in the return of 31 indictments against 
individuals representing virtually the entire range of the Medicaid provider in- 
dustry. Those indicted included nursing home owners, administrators, and vari- 
ous support staff; doctors, dentists; podiatrists; pharmacists; laboratories; opto- 
metrists and transportation services. Further investigations are currently pending 
involving similar providers as well as hospitals, psychiatrists and durable medi- 
cal equipment vendors. Of those cases which reached disposition during the 
year, the Unit maintained a 96% conviction rate (23 defendants convicted, only 
one acquitted.) 

These efforts, combined with investigations which identified non-criminal 
abuses (and subsequent referral to Department of Public Welfare sanctions for 
appropriate action) identified $2,838,309 taxpayer dollars for recovery. 

The Unit's legislative efforts were also particularly fruitful this year, result- 
ing in the enactment into law of two Medicaid related bills drafted by Unit 
attorneys. One bill focuses on the abuse of nursing home patients and creates a 
specific reporting system to alert immediately the Attorney General's Office and 



26 P.D. 14 



the Department of Public Health of potential instances of patient abuse, mis- 
treatment and neglect. More importantly, the bill creates a new criminal statute 
making the above mistreatment or neglect of a nursing home patient a crime. It 
also imposes criminal sanctions for the failure to report such incidents. 

The second bill entitled the Medicaid False Claims Act also creates a new 
criminal statute which makes the fihng of any false information on a claim for 
medicaid payment a five year felony. 

Finally, the Unit has also pursued a vigorous training program. In-house 
training has been instituted with regularly scheduled seminars designed to meet 
the needs of the Unit personnel. In addition. Unit staff (including attorneys, 
investigators and auditors) have given training sessions to employees of the 
other state agencies and regional seminars to other New England Medicaid 
Fraud Control Units. 

Division of Employment Security: This Division provides the Director of 
Employment Security with legal assistance and the representation necessary to 
enforce the Employment Security Law (G.L. c. 151 A, §42A). Thus, whenever 
an employer fails to comply with the statute and refuses to pay the taxes due on 
his account, the matter is referred to the Attorney General for criminal prosecu- 
tion. 

In a number of cases where extenuating circumstances are present the matter 
may be settled without the necessity of an expensive criminal trial, with the 
collection of taxes thereby expedited. 

During the fiscal year ending June 30, 1980, 1295 employer tax cases were 
processed by the Division. 1021 cases were on hand July 1, 1979 and 274 
additional cases were received during the fiscal year. 128 were closed leaving a 
balance of 11 67 employer tax cases on June 30, 1980. 156 criminal complaints 
involving 1588 counts were brought in the Boston Municipal Court charging 
117 employers with nonpayment of taxes totalling $838,508.82 owed on delin- 
quent tax accounts. $850,440.20 in overdue taxes was collected during the 
fiscal year. Monies collected were deposited in the Unemployment Compensa- 
tion Fund. 

When an individual wrongfully obtains unemployment compensation as the 
result of fraud, the criminal process is used against the offender following an 
investigation of the circumstances. Charges under the larceny statute (G.L. c. 
266, §30) are brought in a court of appropriate jurisdiction both to punish the 
offender, and assist in recovering funds stolen from the Division of Employ- 
ment Security. 

During the fiscal year ending June 30, 1980, 1013 fraudulent claims matters 
were processed by the Division. 903 cases were on hand July 1, 1979. 110 
additional cases were received during the fiscal year and 23 cases were closed 
leaving a balance of 990 cases on hand June 30, 1979. Criminal complaints 
involving 68 counts were brought in courts holding jurisdiction over the of- 
fenses, which charged 5 individuals with larceny of $5,954.00 in unemploy- 
ment benefits fraudulently collected. The amount of $166,698.55 was collected 
during the fiscal year ending June 30, 1980, and returned to the Unemployment 
Compensation Fund. 

In addition, 18 cases were argued in the Supreme Judicial Court. The Divi- 
sion is also charged with the responsibility of investigation and prosecution of 
CETA fraud and internal criminal conduct. 



P.D. 14 27 

III. EXECUTIVE BUREAU 

ELECTIONS DIVISION 

A. CAMPAIGN AND POLITICAL FINANCE 

One of the primary responsibilities of the Elections Division is to oversee the 
investigation 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 
1980, the Office of Campaign and Political Finance reported fifty-five (55) 
candidates or treasurers who had failed to file the required financial disclosure 
reports. Compliance with the statute was affected in some twenty-eight (28) 
instances by administrative action, and in eighteen ( 18) instances by the institu- 
tion of civil litigation. There are currently nine (9) such suits remaining in 
litigation. In addition, city and town clerks throughout the Commonwealth re- 
ported some ninety-three (93) individuals who had not complied with the filing 
requirements. Of that number, only three (3) are still in litigation, the rest 
having since complied. 

B. LOBBYISTS 

The Elections Division also enforces the statute requiring legislative agents 
and their employers to file financial disclosure statements with the Office of the 
Secretary of the Commonwealth. (G.L. c. 3, §§ 43. 44. 47). In fiscal year 
1980. thirty (30) violations of these sections were reported by the Secretary. As 
a result of administrative action taken by this Division, the required statements 
were filed by all reported violators. 

C. LITIGATION 

During fiscal year 1980. the Elections Division also successfully upheld the 
validity of state statutes dealing with the electoral process. In the case of 
Palermo v. McGonagle, the constitutionality of the incumbent first provision of 
G.L. 53, § 34 and G.L. 54, § 43 was once again attacked. The litigation was 
dismissed upon the defendants' motion for a directed verdict in that the plaintiff 
had failed to demonstrate that the statute lacked a rational basis. In the case of 
Harvey v. Connolly, the constitutionality of the statute requiring that candidates 
who seek election without the benefit of the nomination of either political party, 
be unenrolled from any political party for the prior ninety (90) days was upheld 
both at the Superior Court and upon appeal to the State Appeals Court. Further, 
there were several separate lawsuits brought in the Superior Court challenging 
decisions of the State Ballot Law Commission regarding candidates whose 
names are to appear on the 1980 primary and final election ballots. In each 
instance, the Elections Division was successful in upholding the challenged 
decisions. 

The Elections Division also investigated and resolved numerous complaints 
made in regard to specific election practices and procedures by various candi- 
dates. 

Another major activity of the Elections Division, during fiscal year 1980, 
was the receipt and processing of twenty-two separate initiative or referendum 
petitions. It is the obligation of this Division to review those petitions and 



28 P.D. 14 



determine whether or not they are appropriate for inclusion on the ballot, and 
whether they deal with excluded matters as defined by Article 48 of the Amend- 
ments to the Constitution of this State. In all instances when the measure is to 
appear on the ballot, it is the function of this Division to draft a fair and concise 
summary of the petition. 

The Division continued in its efforts to enforce the "Open Meeting Law" at 
the state level, both administratively and through litigation. 

VETERANS DIVISION 

The Veterans Division continues to function primarily as an informational 
agency referring private citizens to appropriate Federal and State officials and 
agencies regarding veterans' benefits. The Division also provides counsel to the 
Commissioner of Veterans' Services and Veterans' Affairs Division of the De- 
partment of the Treasury. 

During the fiscal year 1980, the Division handled several Superior Court 
suits regarding challenges to decisions of the Veterans' Administration to deny 
certain benefits to veterans or their dependents. 



IV. 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 Com- 
monwealth; 

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

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

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

DEFENSE OF STATE AGENCIES 

The Government Bureau represented the Commonwealth and its officials and 
agencies in defensive litigation in state and federal courts, and, in exceptional 
cases, before certain state and federal administrative agencies. These proceed- 
ings typically involved administrative law and constitutional issues in diverse 
areas of public law. 

During fiscal 1979-1980, the Bureau received 659 new cases. By subject 
matter and client, these new cases fell into the following categories (with mis- 
cellaneous cases omitted): 

Type of Lawsuit Number 

Automobile surcharge 161 

Civil Service 77 

Welfare 50 
Defense of cases brought against judges 

and court personnel 42 

Taxation 28 



P.D. 14 29 

Education cases 

(including 766 cases) 27 

Registry of Motor Vehicles 26 

Alcoholic Beverage Control Commission 20 

Personnel Administration 19 

1983 (Civil Rights) cases 19 

Public Health 13 

Insurance cases 1 2 

Boards of Registration cases 1 2 

Racing Commission 1 j 

Mental Health 1 1 

Lottery Commission 10 

Department of Public Utilities 10 

Retirement Board 10 

Public Safety 9 

Rate Setting Commission 8 

Housing 8 

Banking Department 4 

The relative time spent representing specific agencies cannot be measured by 
the number of cases. The representation of certain agencies involved a signifi- 
cant commitment to complex litigation, although the total number of law suits 
brought against those agencies might have been quite small. For example, as in 
the previous three fiscal years, substantial Government Bureau resources were 
devoted to overseeing implementation of consent decrees in the five cases seek- 
ing improvement in the conditions and treatment in state institutions for the 
mentally retarded. Four Bureau lawyers had responsibility for these cases. 
These decrees set forth significant capital improvements 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. 

Government Bureau lawyers argued seven cases in the Court of Appeals for 
the First Circuit. In Burns v. Sullivan, in which the Bureau represented the 
Personnel Administrator, the court held that a Cambridge police officer had no 
property interest in a promotion because his civil service examination score 
gave rise to no expectation of promotion. Thus, failure to promote him did not 
violate due process protections. The court in 15,844 Welfare Recipients v. 
King, upheld the District Court's denial of a preliminary injunction barring the 
state from implementing a computer match system for detecting welfare fraud 
by comparing welfare records to social security earner's records. 

A Bureau lawyer successfully defended the constitutionality of a statue estab- 
lishing criminal penalties for purchase of alcholic beverages by persons under 
the age of 20. In that case, Gahree v. King, the court found that the plaintiff 
was not a member of a suspect class, and that the state has legitimate interests in 
controlling consumption of alcoholic beverages. In other cases, the court: ( 1 ) 
upheld the District Court's dismissal under the abstention doctrine of an appeal 
of automobile rates set by the Commissioner of Insurance (Allstate Insurance 
Co. V. Sabbagh); (2) affirmed the Civil Service Commission's refusal to allow 
examinees to inspect grading of multiple choice questions (Lauash v. Kountze): 
(3) affirmed dismissal of certain claims against the Commonwealth under the 
Indian Non-Intercourse and Trade Act (Epps v. Andrus) and (4) upheld dis- 



30 P.D. 14 



missal of a suit brought by District Court employees against the Chief Adminis- 
trative Judge, in which the employees sought a higher pay schedule. {Walsh v. 
Mason). 

In fiscal 1979-80, Government Bureau lawyers also argued 19 cases before 
the Supreme Judicial Court. These included the following cases. In Kenniston 
V. Board of Assessors of Boston, the court upheld the constitutionality of statu- 
tory assessment practices, finding that the statutory approach is constitutional as 
a temporary remedy to the potential erosion of revenues. 

Globe Newspaper v. Superior Court involved a challenge to the constitu- 
tionality of a statute permitting the court to close a criminal trial to the press. 
The court held that the judge has discretion to close certain trials, but that he 
should hold a hearing where those to be excluded have an opportunity to state 
objections. In Association Industries of Mass. v. Commissioner of Revenue, 
Government Bureau lawyers successfully defended the constitutionality of the 
Act by which the legislature classified real property in four classes according to 
property use. 

Grace v. Town of Brookline concerned (which had previously been approved 
by the Attorney General) a challenge to the constitutionality of a Brookline by- 
law. That by-law regulated certificates of eviction when rental apartments are 
converted to condominiums. The court upheld the by-law. In Levy v. Board of 
Registration of Medicine, the court upheld the Board's revocation of Levy's 
license to practice medicine for conviction of criminal offenses relating to pay- 
ments the Commonwealth made to him for operation of nursing homes he 
owned. The court found that these statutes were closely related to the practice of 
medicine. 

Other cases argued by Government Bureau lawyers included the following: 
(1) defense of a statute requiring that anyone engaging in the funeral directing 
business cannot engage in any other business {Blue Hills Cemetary v. Board of 
Registration in Embalming and Funeral Directing); (2) defense of a marine 
fisheries regulation preventing permits to take a purse seine {White Dove v. 
Director of Marine Fisheries); (3) a case in which the court addressed the issue 
of whether the Department of Public Welfare has subrogation rights regarding 
property in a divorce suit. {Brady v. Brady); (4) a successful challenge to a 
zoning ordinance and decision which attempted to block residential facilities for 
the retarded {Fitchburg Housing Authority' v. Board of Zoning Appeals of Fitch- 
burg) (the Attorney General was an amicus curiae); (5) the affirmance of the 
discharge of a Revenue Department employee {Commissioner of Revenue v. 
Lawrence); (6) a decision by the court that an inheritance tax could not be 
levied on income from a pension which reverted to the widow of a judge {Nippe 
V. Commissioner of Revenue); and (7) a decision that the Revenue Department 
and State Treasurer have no statutory authority to arrange for revaluation of real 
property and deduct the cost of that process from a municipality's local aid. 
Commonwealth v. Town ofAndover. 

Bureau lawyers also argued 15 cases in the state Appeals Court. In Barkin v. 
Milk Control Commission, the court upheld the dismissal of the Director of 
Milk Control Commission finding he was not covered by veteran's tenure and 
that he served at the pleasure of the Commission. Town of Brookline v. Medical 
Area Serx'ice Corp. involved the issue of whether the Harvard Medical Area 
Power plan could be constructed without a determination of need from the state 



P.D. 14 31 



Public Health Council. The Court held that because the plant did not directly 
relate to medical care of patients, it did not require a determination of need. 

In Myers v. Town of Lee, the court held that when highways or bridges 
damaged by a natural disaster are repaired with public funds, any damages in 
tort recovered by the town from a third party should be paid to the Com- 
monwealth. In another case, the court upheld the Department of Public Wel- 
fare's interpretation of a rule limiting emergency assistance awards to once in a 
twelve-month period. In Midlaney v. Commissioner of Public Welfare, the 
court dismissed the appeal of a probation officer who had been discharged by 
the District Court (Sampson v. Committee on Probation). In Cast Iron Soil Pipe 
Inst. V. Board of State Examiners of Plumbers and Gas Fitters, the court agreed 
with the state Board of Examiners of Plumbers that no adjudicatory hearing was 
required when the Board disapproved a type of pipe coupling. 

AFFIRMATIVE LITIGATION 

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. During the fifth full year 
of existence, the Affirmative Litigation Division continued to increase the scope 
and intensity of its activities. 

Cases which the Affirmative Litigation Division brings may be divided into 
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 obli- 
gation to advance the public interest. In prior years, suits related to the imposi- 
tion of taxes by the state and federal governments and increases in postal rates 
have comprised the bulk of this litigation category, and similar matters were the 
subject of litigation during FY 80. Litigation related to grant-in-aid programs, 
most signficantly the various public assistance programs operated by the De- 
partment of Public Welfare, accounted for a substantial portion of the Affirma- 
tive Litigation Division's efforts. These cases also tend to be the most signifi- 
cant ones undertaken by the Division when financial value is the dominant 
consideration. Finally, the Division continues to perform the traditional Attor- 
ney General enforcement functions by commencing suit on behalf of state regu- 
latory and licensing agencies. The following paragraphs contain brief descrip- 
tions of representative cases drawn from each of these broad catagories. 

Advocacy Litigation 

The Attorney General continued to litigate one substantial advocacy matter 
begun several years ago during the reporting year. Brouillette v. New Hamp- 
shire, an action which the Attorney General commenced against the State of 
New Hampshire to recover tax payments made by Massachusetts residents pur- 
suant to an unconstitutional commuter tax, moved into settlement discussions 
concerning the claims remaining after the New Hampshire Superior Court in 
large part sustained the defendants' motion to dismiss. 

Grant-in-Aid Litigation 

The Affirmative Litigation Division continued to concentrate its grant-in-aid 



32 P.D. 14 



litigation efforts on the problems which the Department of Public Welfare expe- 
rienced during the reporting year with its principal federal funding agencies, the 
United States Department of Health, Education, and Welfare (which became the 
Department of Health and Human Services toward the end of the reporting year) 
and the Food and Nutrition Service of the Department of Agricuhure. Disputes 
concerning reimbursement for Medicaid expenses and food stamp grants were 
the principal controversies. 

The Attorney General filed a third-party complaint against the Secretary of 
Health and Human Services seeking federal financial participation in expendi- 
tures which the Department of Public Welfare was forced to make as a result of 
injunctive orders entered by the federal District Court and the Court of Appeals 
for the First Circuit in cases involving payment for abortions to Medicaid recipi- 
ents. On the last day of the reporting year, the Supreme Court of the United 
States decided that the so-called "Hyde Amendment" was constitutional. As a 
result of this decision, the litigation against the Department of Public Welfare 
will terminate in its favor, but the third-party actions against the Secretary will 
continue. 

The Affirmative Litigation Division continued its effort to secure restitution 
from a nursing home provider on behalf of the Welfare Department. Newfield 
House, Inc. v. The Massachusetts Department of Public Welfare, Civil Action 
No. 76-3724-G, was decided largely in the Department of Public Welfare's 
favor, but the District Court refused to order complete restitution and denied the 
defendant state officials leave to file a third-party complaint against the Secre- 
tary of Health and Human Services. 

In Commonwealth v. Goldschmidt, the Attorney General commenced in the 
federal District Court, at the request of the Commonwealth's Secretary of 
Transportation and Construction, a challenge of the decisions of the United 
States Department of Transportation intended to result in the withholding of 
millions of dollars in federal highway assistance funds from the states during the 
federal fiscal year. This suit, modeled upon similar actions filed in other states, 
was designed to assure continued federal financial support for the Com- 
monwealth's highway maintenance and improvement efforts. 

The Affirmative Litigation Division also devoted substantial time to examin- 
ing grant-in-aid problems for their 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. For example, the Division assisted the 
Department of Public Welfare in its efforts to achieve greater cooperation from 
federally-funded agencies known as "Professional Standards Review Organiza- 
tions". The increasing complexity of federal grant-in-aid programs and the 
substantial reliance which the Commonwealth places upon federal reimburse- 
ment 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 commence a 
number of significant regulatory enforcement actions during the reporting year. 



P.D. 14 33 



These cases generally sought judicial enforcement of state agency determina- 
tions or compliance with statutory requirements by private entities or units of 
local government. 

A case which was decided 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 prop- 
erty as directed by the Commissioner of Revenue, spawned further similar 
litigation against another group of recalcitrant cities and towns in the Com- 
monwealth. Based upon the remedial approach which the Supreme Judicial 
Court adopted in Andover, Agawam progressed to final judgment against a 
number of the defendant communities by the end of the reporting year. 

Another matter from a prior reporting year. Commonwealth v. Norwood 
Housing Authority, Civil Action No. 123722, Sup. Ct. Norfolk Cnty., 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, continued during the reporting year. 

The Affirmative Litigation Division commenced a similar action against the 
Boston Housing Authority, Commonwealth v. Boston Housing Authority', seek- 
ing restitution of state funds which the Authority spent to secure outside legal 
services in conjuction with its defense of tenant litigation seeking to place the 
Authority in receivership. Since the Department of Community Affairs had not 
approved the contracts for outside legal services, expenditures for these services 
violated the Authority's contractual obligations and direct orders of the Secre- 
tary of Communities and Development. At the close of the reporting year, the 
case was in the early stages of discovery proceedings. 

During the prior reporting year, the Attorney General commenced an action 
against the Town of Wellesley 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 educational and 
social organizations in the Town. Litigation was selected as a means of obtain- 
ing a final resolution of a controversy between the ABCC and the Town which 
has existed for several years. During the reporting year, the parties negotiated 
alternative approaches to placing the case in a posture appropriate for decision 
upon motion. 

Enforcement litigation on behalf of the Department of Public Health and its 
certificate of need program continued during the reporting year. Appellate pro- 
ceedings commenced in Wing Memorial Hospital v. Frechette, while a similar 
case was filed against the Hillcrest Hospital. 

The Attorney General continued litigation commenced on behalf of the Com- 
monwealth's Rate Setting Commission against the Affiliated Hospitals Center, 
Inc. This case. Commonwealth v. Affiliated Hospitals Center, Inc., seeks the 
imposition of statutorily authorized civil penalties against the hospital for its 
alleged violations of the Commonwealth's charge control statute. 

OPINIONS 

General Laws chapter 12, section 3 authorizes the Attorney General to render 
legal advice and opinions to state officers, agencies and departments on matters 
relating to their official duties. 



34 P.D. 14 



( 1 ) Standards for Issuing Opinions 

Following in large part the established practice of previous Attorneys Gen- 
eral, the Attorney General gives opinions only to state agencies, departments 
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 or organ- 
izations. 

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 ques- 
tions 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 Attorney 
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 should then request the opinion on behalf of the 
agency or send the agency's request with the secretary's approval noted on it. 

There are two reasons for this rule. The first concerns efficiency. Opinions of 
the Attorney General, because of their precedential effect, are thoroughly 
researched and prepared. 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 
workings 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 adminis- 
trative or even legal dispute between these two entities. The rule, therefore, 
helps to ensure that the agency and its executive office speak with one voice 
insofar as opinions of the Attorney General are concerned. 

If the agency or executive office requesting an opinion has a legal counsel, 
counsel should prepare a written memorandum explaining the agency's position 
on the legal question presented and the basis for it. The memorandum should 
then be sent with the request. 

When an agency request raises questions of direct concern to other agencies, 
governmental entities, or private individuals or organizations in addition to the 
requestor, this Department will solicit the views of such other agencies, individ- 
uals or organizations before the Attorney General renders an opinion. 

In this way, the Attorney General seeks to make sure that he doesn't over- 



P.D. 14 35 



look significant and relevant considerations. 

The Attorney General strongly discourages the issuance of informal opinions. 
Informal opinions are often relied on as though they are formal opinions 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 necessity. 

(3) Opinions for 1978-1979 

Approximately 163 requests for opinions 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, 17 formal opinions of the Attorney General were issued. 
Formal opinions covered a variety of subjects, ranging from narrow questions 
of statutory interpretation affecting one individual to timely public policy is- 
sues. 

Four opinions dealt with the immediate problems of state employees in their 
current positions. The Secretary of Consumer Affairs asked whether the present 
Executive Secretary to the Board of Registration in Nursing is qualified by law 
to serve in that position. The Attorney General concluded that, because the 
incumbent was not originally qualified for appointment as Executive Secretary, 
she is not now entitled to hold that office. However, the Board is not precluded 
from reappointing her at such time as she possesses the statutory prerequisites 
for appointment. 

The Chairman of the Health Facilities Appeals Board asked whether as a 
consumer member and chairman of the Board, he may perform legal services 
for physicians in matters not related to their roles as providers of health care 
services. The Attorney General concluded that the prohibition of fiduciary rela- 
tionships contained in G.L. c. 6, §166 does include the attorney-client relation- 
ship and therefore a consumer member of the Board may not render legal 
services to a physician even with respect to a matter unrelated to the physician's 
role as a provider of health care. 

The Commissioner of Labor and Industries asked whether the present Com- 
missioner of the Metropolitan District Commission (MDC) may receive pay in 
lieu of vacation time which he accrued while employed by the Department of 
Labor and Industries. The Attorney General concluded that the MDC Commis- 
sioner is not entitled to such payment because he has not separated from state 
service and if he does, the precise nature of his separation will determine the 
amount of payment to which he will be entitled. 

Finally, the District Attorney for Middlesex County asked whether G.L. c. 
12, §15, prohibits a district attorney from receiving a fee for legal services 
performed prior to his assuming this full-time position. That statute provides 
that district attorneys shall devote their entire time during ordinary business 
hours to their duties and shall neither directly nor indirectly engage in the 
practice of law. The Attorney General concluded that the acceptance of a fee for 
legal services performed prior to becoming a full-time district attorney would 
not violate G.L. c. 12, §15. 

In addition to the requests discussed above, the Attorney General issued 
opinions on a wide variety of issues. The Secretary of State asked six questions 



36 P.D. 14 



on the proper interpretation of G.L. c. 51, §1F which provides that certain 
unregistered persons may vote by absentee ballot in a presidential election. The 
Secretary of State asked whether section IF is consistent with the Federal Vot- 
ing Rights Act Amendments of 1970. The Attorney General concluded that 
G.L. c. 51, §1F provides an effective manner by which every citizen of the 
Commonwealth, who is otherwise qualified, may vote for presidential and vice- 
presidential electors and that the Commonwealth is in full compliance with the 
Federal Voting Rights Act. 

The Commissioner of Public Health asked if physicians employed under 
"03" contracts are "public employees" within the meaning of the Com- 
monwealth's Claims and Indemnity Act for purposes of liability and medical 
malpractice insurance. The Attorney General concluded that such physicians 
may not be "public employees" and are not immune from tort liability in that 
capacity. Accordingly such physicians are well advised to maintain personal 
malpractice insurance policies. 

In response to a request from the Commissioner of Administration and 
Finance, the Attorney General issued an opinion concerning the nature and 
extent of the Commissioner's authority to establish and enforce regulations 
governing the use of motor vehicles owned by the Commonwealth. The Attor- 
ney General concluded that G.L. c. 30, §36 provides the Commissioner of 
Administration and Finance with specific authority to establish regulations for 
the use of state-owned motor vehicles and he may employ all ordinary means of 
enforcing the regulations, commensurate with the seriousness of the offense and 
comporting with appropriate due process standards. 

The Commissioner of Environmental Management asked whether the Depart- 
ment's issuance of permits to property owners abutting the state-purchased Otis 
Reservoir, for exclusive use of the perimeter strip abutting their land, violates 
either the provisions of Article 97 or the public trust duties under which the 
Department holds title to the perimeter strip. The Attorney General concluded 
that the exclusive land use permits do not violate either the provisions of Article 
97 or the public trust duties. Rather, the permits are a legitimate mechanism for 
implementing the Legislative policy of protecting the recreational and conserva- 
tion uses of Otis Reservoir. 

Other significant opinions concerned the authority of the Department of Pub- 
lic Works both to issue reducible load permits, to manage real property it 
acquired for the Department of Transportation Building, and to provide reloca- 
tion services; the right of retired members of the teachers' retirement system to 
vote in the elections of the Teachers' Retirement Board; the possible conflict of 
the Commonwealth's Determination of Need statute with federal regulations 
governing the receipt of funds from the Department of Health. Education and 
Welfare; the authority of local appointing authorities to employ school adjust- 
ment counsellors on a part-time basis; and the authority of the State Lottery 
Commission to enter into a lease of premises containing escalation clauses. 

In addition to these formal opinions, the Attorney General issued several 
letters of advice pursuant to G.L. c. 12, §9, to committees of the Massachusetts 
legislature on the legal effect of proposed legislation pending before them. 

V: THE PUBLIC PROTECTION BUREAU 

The Public Protection Bureau, the largest of the four Bureaus which make up 



P.D. 14 37 

the Attorney General's Office, carries out affirmative litigation in the public 
interest in a number of significant areas. The Bureau made significant changes 
both in its staff and its activities during the 1980 fiscal year. New chiefs were 
named to several of the Bureau's divisions; work was initiated in subject areas 
such as arson and energy; and interdisciplinary efforts, involving the coopera- 
tion of various divisions within the Bureau, were expanded. 

New chiefs were appointed during fiscal 1980 to head the Consumer, Insur- 
ance, Public Charities, Anti-Trust and Utilities Divisions of the Public Protec- 
tion Bureau. The work of each of the divisions is described in the individual 
reports which follow. 

The Bureau's Investigative Section was revitalized through the appointment 
of a new Chief Investigator and the training and hiring of additional staff inves- 
tigators. 

In addition, the receipt of a grant from the Law Enforcement Assistance 
Administration allowed the Public Protection Bureau to establish an Anti-Arson 
and Housing Unit. This effort will involve work with the Attorney General's 
Criminal Bureau and with community groups, employing new techniques to 
identify arson-prone properties and to reduce the incidence of arson in Massa- 
chusetts. 

In fiscal 1980, the Bureau also named a Deputy Chief and hired a Chief 
Accountant. The Deputy Chief will train lawyers in trial skills, conduct major 
litigation projects in cooperation with attorneys from various divisions, and 
perform general administrative duties. The Chief Accountant will provide Bu- 
reau lawyers with ready access to expert financial assistance in conducting 
investigations and court actions. 

During fiscal 1980 the Bureau increased the extent of its inter-divisional 
activity. Several major cases were initiated, involving cooperation among attor- 
neys with different specialties. Examples include petitions filed with the U.S. 
Department of Energy to spur the federal government to investigate competition 
among oil refiners and recent extraordinary increases in heating oil prices, 
drafted with the participation of utilities, environmental, and consumer division 
lawyers; the Attorney General's lawsuit against the Amoco Oil Company for 
"credit redlining," prepared by attorneys specializing in civil rights and con- 
sumer affairs; and our intervention in administrative hearings to challenge pro- 
posed increases in "Medex" health insurance for the elderly, carried out by 
public charities and insurance attorneys. 

Other Bureau activities during fiscal 1980 included cooperative investigations 
in such areas as health issues, maternity disability benefits, and anti-competitive 
consumer practices, as well as the initiation of intensive training in trial skills 
for sixteen Bureau attorneys. Finally, the Bureau sponsored conferences at vari- 
ous locations throughout the Commonwealth for lawyers and citizens dealing 
with such topics as anti-trust law and the treatment of hazardous wastes. 

Reports of the Bureau's individual sections and divisions are as follows: 

INVESTIGATIVE SECTION 

A new Chief Investigator was appointed to head this section. He has 31 years 
of investigatory and administrative experience. The section underwent major 
changes in organization, in the scope of its investigations, and in its level of 
professionalism. We have continued to broaden the scope of investigation to 



38 P.D. 14 

include cases brought by all seven divisions of the Public Protection Bureau. 

The unit has enchanced its bacicground of investigative experience by hiring 
two former FBI agents and a former police officer, and by engaging the services 
of two auditors. As part of the unit's reorganization, the position of Manager- 
Investigator was created to insure efficient day-to-day operations and to facili- 
tate planning and the sharing of knowledge. Other new personnel include two 
investigators specially trained to investigate for the Anti-Arson and Housing 
Unit of the Bureau. One aspect of the new forms of investigation and organiza- 
tion is a confidential file system set up for investigations of particular impor- 
tance; this system not only will provide a clear and concise organization of 
materials involved in active investigations but also will leave accurate records 
for future reference. 
ACCOUNTING COMPONENT 

The Bureau has long recognized the need to broaden the scope of profes- 
sional expertise which can be brought to bear on complex public interest and 
consumer issues. A long step in that direction was taken late in the fiscal year 
with the establishment of an accounting component to the Bureau's cases and 
activities. A C.P.A. has been hired who, with students and bureau investiga- 
tors, has begun participating in major utility and health projects as well as 
assisting in analyzing adequacy of capitalization, ability to pay damages and 
similar issues common to consumer, anti-trust and environmental cases. As the 
fiscal year came to a close, a major effort was being planned and organized to 
evaluate the compliance by hospitals in the Commonwealth with the require- 
ment, imposed by the federal Hill-Burton Act, to provide free or reduced-cost 
services to persons unable to pay for hospital care. 

COMPLAINT SECTION 

During fiscal 1980, the complaint section opened 6,547 new cases and closed 
4,222 cases. The section recovered for consumers $444,314 in refunds, savings 
and the value of goods or services they would not have received but for our 
intervention. In addition, we referred over 4,000 written complaints to out of 
state agencies, other state agencies or departments, and local consumer groups. 

Since the local consumer groups have expanded to cover over 275 cities and 
towns in Massachusetts, the section is now handling fewer complaints of a 
consumer nature. This has enabled us to erase the backlog and to handle com- 
plaints more quickly. It also enables us to devote more resources to identifying 
case trends and to conduct more surveys and other special projects. During the 
past year we used 213 volunteers from 46 colleges, law schools and high 
schools, all of whom receive training prior to commencing work. 

Within the complaint section, we have a Citizens Intake Unit which handles 
citizens' telephone inquiries and complaints falling within the subject matter of 
any of the Bureau's seven divisions. The Unit received a total of 7,239 inquiries 
in fiscal 1980. 

Their divisional composition was as follows: 

Civil Rights 5,728 

Consumer 293 

Credit and Debt Collection 1 14 

Public Charities 603 

Insurance 19 



P.D. 14 39 

Miscellaneous 475 

Walk-ins 208 
The disposition of these calls was as follows: 

Calls referred to other state agencies 2 J 58 

Calls requesting information 3,783 

Calls requesting materials 696 

Complaint/Inquiry Forms 577 
Inquiries when action was taken by 

the Civil Rights Division 25 

The Unit recently acquired a Teletypewriter (TTY), which is a Telecommun- 
ications Device for the Deaf. This device enables the hearing and speech im- 
paired population the ability to contact the Public Protection Bureau. Although 
we have received a limited number of calls (6) on the TTY Unit, we expect that 
this number will increase as the device becomes a more common household 
appliance amongst this population. 

Our general information line staff received a total of 129,999 calls dunng the 
past year. 14,164 complaint/inquiry forms were sent to citizens, 15,486 citizens 
were given information, and 100,349 were referred to different agencies, de- 
partments or local consumer groups. 

Special projects conducted by the Complaint Section staff this year included 
a survey of housing units equipped for the handicapped; a survey of foreign car 
dealers; and a survey of the fees and services bank attorneys charge or provide 
to mortgagors. We conducted a massive investigation of the warranties offered 
by rustproofing companies, and also investigated over 100 storage companies 
which are in apparent violation of state licensing laws. In addition to the above, 
we conducted full investigations of approximately 120 individual merchants or 
manufacturers and referred approximately 65 other cases for litigation or further 
investigation. 

LOCAL CONSUMER AID FUND 

For the fiscal year 1980, the Massachusetts Legislature appropriated 
$250,000 to provide regional consumer groups throughout the Commonwealth 
with supplemental funding for consumer complaint mediation. This funding is 
distributed through the Local Consumer Aid Fund and is administered by the 
Department of the Attorney General. 

Through this program, consumer complaints from 87% of the cities and 
towns of the Commonwealth are now serviced at the local level. This continued 
increase of complaint handling at the local level, a 77% increase over FY '79, 
has proven beneficial to both consumers and businesses, in that complaints are 
handled more quickly and a more workable rapport has developed between the 
merchants and the community. Their familiarity with local merchants enables 
groups to recognize patterns of unfair and deceptive practices at an early stage 
and has proven to be an asset to the Bureau in curbing these practices. 

These funds have been distributed among twenty-five agencies in the follow- 
ing manner: 

Grant Recipient Amount Awarded 

Arlington Office of Consumer Affairs $ 5,000 

Berkshire County Consumer Advocates 15,000 



40 P.D. 14 



Boston Consumers Council 1 1 ,000 

Brockton Consumer Advisory Commission 2,500 

Cape Ann Consumer Council 2,000 

Cape Cod Consumer Assistance Council, Inc. 3,750 

Duxbury Consumer Advisors 200 

Fall River Community Development Service Center 10,250 

Hampshire - Franklin District Attorney's Office 8,800 

Haverhill Community Action Commission 1 1 ,500 

Holyoke Community College Consumer Aid Center 4,000 

Greater Lawrence Community Action Council 7,000 

Lowell Community Teamwork, Inc. 9,000 

Medford Consumers Council 9,000 

Newton Department of Human Services 7,500 

North Shore Community Action Program, Inc. II ,000 

Northern Worcester County Consumer Rights Project 10,500 

Quincy Consumers Council 1 1 ,500 

Revere Consumer Affairs Office 9,000 

So. Middlesex Consumer Protection Office 1 1 ,000 

Southeastern Massachusetts Consumer Action Center 8,000 

Somerville Multi-Service Center 8,000 

Springfield Consumer Action Center 17,000 
On the Comer Taunton Area Consumer Protection 

Program 13,000 

Worcester Consumer Protection Coalition, Inc . 15 ,000 

In addition to the above agencies, the following agencies participated in the 
1979-1980 Local Consumer Aid Fund program. These agencies were not 
funded with FY '80 monies but rather supplemented their program with excess 
FY '79 monies previously awarded their agency. 
Agawam Consumer Advisory Commission 
Consumer Action Center - Amherst 
Peabody Consumer Protection Office 



ANTITRUST DIVISION 

A. Introduction 

Through continued federal funding, and increased staff capabilities, the Anti- 
trust Division has continued in fiscal 1980 to increase its investigation and 
prosecution of past violations of the federal and state antitrust laws as well as its 
activities aimed at preventing future unreasonable restraints of trade and monop- 
olistic practices within the Commonwealth. 

B. Federal Funding 

The Antitrust Division continued to receive its operating funds from a federal 
grant authorized under the Crime Control Act of 1976. In September, 1977 
Attorney General Bellotti was awarded $320,681.00 to establish and develop 
the Antitrust Division. In March of 1979 the Attorney General was awarded an 



P.D. 14 41 

additional $305,091.00 to continue the development of an antitrust enforcement 
program in the Commonwealth of Massachusetts. Such funds were used to fund 
all of the work of the Antitrust Division in fiscal 1980. Additionally in Septem- 
ber, 1979, Attorney General Bellotti was awarded $98,614 for further develop- 
ment of the New England Bid Monitoring Project (discussed infra. Section F). 

C. Staff 

During fiscal 1980, the Antitrust Division grew to five (5) attorneys and 
approximately ten (10) support personnel. 

D. Litigation 

During fiscal 1980. the Antitrust Division had sixteen cases which were in 
various stages of litigation in both the federal and state court systems. 

1. Commonwealth of Massachusetts v. N.B.M.A., et al. 
(Northern District of Georgia) 

This is a 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. The settlement, which is in 
excess of $40 million, has been approved by the court in this global class action 
and the Commonwealth is presently awaiting a final determination of the poten- 
tial recoveries available to the Commonwealth. 

2. Commonwealth of Massachusetts v. Amstar Corp., et al. 
(Eastern District of Pennsylvania) 

This is a suit against seven refiners of sugar alleging that they conspired to 
fix prices of sugar in violation of the Federal Antitrust laws. The Com- 
monwealth is representing itself in its proprietary capacity as well as the Cities 
of Boston and Cambridge. Settlements have been reached with all defendants 
for a total recovery of $26.5 million and the Commonwealth is awaiting distri- 
bution to determine what its share of the recovery will be. 

3. Commonwealth of Massachusetts v. Medical Oxygen 
Ser\'ice Inc., et al. (District of Massachusetts) 

This is a suit against four distributors of medical oxygen in the New England 
area, charging them with conspiring to fix prices for their services and products 
as well as to divide the territories in which they do business. This case was 
brought on behalf of the consumers of the Commonwealth of Massachusetts. 
The case was settled during pretrial discovery. A consent decree was entered 
against both defendants prohibiting them from dividing territories by agreement. 

4. Commonwealth of Massachusetts v. Brinks, Inc., et al. 
(Northern District of Georgia) 

This is a suit by the Commonwealth, on behalf of itself and its political 
subdivisions in their proprietary capacity, against three major armored car carri- 
ers alleging that they conspired to fix the price of armored car services through- 
out the United States. A global 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 its share of the recov- 
ery in this case. 



42 P.D. 14 



5. Commonwealth of Massachusetts v. Ahern Corp., et al. 
(District of Massachusetts) 

This is a suit by the Commonwealth, on behalf of itself and its political 
subdivisions against seven 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 was settled with all defendants during fiscal 
1980 giving the Commonwealth a total recovery of $200,000. Additionally, 
pursuant to the terms of the Settlement Agreements with all defendants and the 
Consent Decree entered by the Federal District Court against one defendant, the 
defendants must redetermine their prices. 

6. Commonwealth of Massachusetts v. Leviton, Inc., et al. 
(Eastern District of New York) 

This is a suit by the Commonwealth, on behalf of itself and its political 
subdivisions, for injunctive relief and damages under the Federal Antitrust Laws 
alleging that the major wiring device manufacturers in the United States con- 
spired to fix prices on wiring device products sold to the Commonwealth and to 
its citizens. The governmental portion of this case was settled with all defend- 
ants for a total of $1.1 million. Massachusetts' share will be approximately 
$150,000. 

7. Commonwealth of Massachusetts v. Boise Cascade, Inc., et al. 
(Eastern District of Pennsylvania) 

This is a suit by the Commonwealth, on behalf of itself and its political 
subdivisions, against 15 major paper manufacturers charging them with conspir- 
ing to fix the prices of fine paper products throughout the United States. The 
Commonwealth has been certified as a class representative of its political subdi- 
visions in this action. Presently there are more than $30 million in settlements in 
this action. These settlements are from 6 to 15 defendants. Trial is scheduled for 
September 15, 1980 and the Commonwealth is currently assisting in preparation 
of plaintiffs case. 

8. Commonwealth of Massachusetts v. Rockwell Corp., et al. 
(Eastern District of Pennsylvania) 

The Commonwealth brought suit in fiscal 1980 on behalf of four munici- 
pally-owned gas works against three major manufacturers of gas meters in the 
United States, alleging a conspiracy to fix prices and rig bids on gas meters. 
This case has been settled for in excess of $15 million and the Commonwealth 
is presently awaiting a final resolution of the method by which the settlement 
monies will be distributed in order to determine how much will be recovered by 
four municipally-owned gas works. 

9. Commonwealth of Massachusetts v. Campbell Hardware, 
Inc., etal. (District of Massachusetts) 
This is a suit by the Commonwealth, on behalf of itself and its political 
subdivisions, 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. 
Settlement was reached with nine of the defendants for a total of $62,500.00. 



P.D. 14 43 

Settlement negotiations continue with the remaining defendants as pretrial dis- 
covery progresses. 

10. Commonwealth of Massachusetts v. D.H. Jones, et al. 
(Hampshire County Superior Court) 

This is a suit brought by the Commonwealth, on behalf of its citizens, seek- 
ing civil penalties and restitution for consumers as a result of an alleged conspir- 
acy by real estate brokers to fix and raise the rate of real estate brokerage 
commission fees in the Amherst area. This is the first suit brought under the 
state antitrust act. The case was settled with the two defendants for a total 
recovery of $60,000.00, of which $40,000.00 will be distributed to persons 
overcharged as a result of the conspiracy. Additionally, a Consent Decree was 
entered against the two defendants prohibiting them from attempting to stop 
other agencies from charging lower commission rates, advertising lower com- 
mission rates or allowing a homeowner to sell his own home and yet use the 
Multiple Listing Service. The relief obtained in this Consent Decree was 
unique. 

1 1 . Commonwealth of Massachusetts v. Massachusetts Nurses 
Association (Suffolk County Superior Court) 

This is a suit brought by the Commonwealth against the Massachusetts 
Nurses Association seeking a civil penalty, alleging that the Massachusetts 
Nurses Association has conspired with its members to promulgate minimum 
fixed fee schedules for private duty nursing services in the Commonwealth. The 
case was settled for $2500. Additionally, a Consent Decree was entered prohi- 
biting the defendant from setting minimum fee schedules for private duty nurs- 
ing services. 

12. Commonwealth of Massachusetts v. Donnegan Office 
Supplies, Inc. (Suffolk County Superior Court) 

This is a suit brought by the Commonwealth, on behalf of itself and its 
political subdivisions, against the defendant claiming it and another supplier of 
film, Joseph Merritt & Co., had conspired to allocate territories within the 
Commonwealth. The case was in pretrial discovery as of June 30, 1980. Prior 
to filing the complaint, a settlement was reached with Merritt Co., which agreed 
to pay $2650. A Consent Decree was entered prohibiting Merritt from allocat- 
ing territories in the future. 

13. Commonwealth of Massachusetts v. Bang and Ohifsen, Inc., 
(District of Massachusetts) 

The Commonwealth brought suit, in fiscal 1980. claiming that Bang and 
Olufsen, Inc., a manufacturer of stereo equipment, had been engaged in unlaw- 
ful resale price maintenance activities with its distributors. The suit brought by 
the Commonwealth on behalf of itself and, as parens patriae, on behalf of 
consumers in the Commonwealth, asks for injunctive relief and damages. The 
case is presently in pretrial discovery. 

14. Commonwealth of Massachusetts v. B.L. Makepeace, Inc., et al. 
(District of Connecticut) 

The Commonwealth, along with the five other New England states filed suit, 



44 P.D. 14 

in fiscal 1980, against three suppliers of drafting equipment, charging them 
with an unlawful conspiracy to raise prices and allocate territories in New 
England. The action, seeking damages and injunctive relief, is in pretrial dis- 
covery, with motions to dismiss pending before the Court. This case is unique 
in that the six New England states joined together in filing a single action 
against the co-conspirators. Prior to filing of the complaint, settlement was 
reached with two other companies, allegedly participants in the conspiracy, for 
a recovery of $135,000.00 

15. Commonwealth of Massachusetts v. Harbor side Liquor, Inc., 
et al. {Dukes County Superior Court, District of 
Massachusetts) 

The Commonwealth brought two antitrust actions in fiscal 1980, one in state 
court and one in federal court, charging seven liquor stores on Martha's Vine- 
yard with price-fixing for, at least, the last fifteen years. The state action seeks 
injunctive relief and a civil penalty, while the federal action, a parens patriae 
action, seeks injunctive relief and damages for consumers injured by the unlaw- 
ful conspiracy. Both suits are in pretrial discovery. Prior to the filing of the 
complaint, the Commonwealth entered into a Settlement Agreement with an 
eighth liquor store, which agreement provided for payment of $10,000 and 
entry of a Consent Decree in state court. 

16. Commonwealth of Massachusetts v. Milton Bradley Co., 
et al. (District of Massachusetts) 

The Commonwealth filed suit, in fiscal 1980, against the four major manu- 
facturers of art supplies in the United States charging them with a nationwide 
conspiracy to raise the price of art supplies and bid rigging. The suit was 
brought on behalf of the Commonwealth and its political subdivisions in their 
proprietary capacities. At the end of fiscal 1980, the Commonwealth's case was 
awaiting consolidation with other civil antitrust actions brought against the same 
defendants and transfer to another district for coordinated pretrial proceedings. 
Class action discovery and merit discovery will commence upon transfer and 
consolidation. 

E. Additional Proceedings 

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. 

1 . In the Matter of Viking Sewing Machines 

The Commonwealth accepted a Letter of Assurance from Viking prohibiting 
it from engaging in resale price maintenance with respect to sewing machines. 
In addition, the Commonwealth accepted a civil penalty of $15,000.00 

2. In the Matter ofGendel Enterprises, Inc. 

The Commonwealth accepted an Assurance of Discontinuance from Gendel 
wherein it agreed to refrain from engaging in resale price maintenance activities 
with respect to wood stoves distributed by it. Gendel Enterprises also agreed to 
pay the Commonwealth $1750.00 

3. In the Matter ofThulman Eastern Co. 

The Commonwealth accepted an Assurance of Discontinuance from Thulman 



P.D. 14 45 

wherein it agreed to refrain from engaging in resale price maintenance activities 
with respect to wood stoves distributed by it. Thulman also agreed to pay the 
Commonwealth $1700.00 

4. In the Matter of Hitachi Stereo Equipment 

The Commonwealth accepted Assurances of Discontinuance from Hitachi of 
America, Inc., SCS Inc. (Tech Hi Fi) and Irwin Lazarus wherein they agreed 
not to engage in resale price maintenance activities in the Commonwealth with 
respect to Hitachi stereo equipment. Lazarus also agreed to pay the Com- 
monwealth $37,500.00 

5. In the Matter of Lux Stereo Equipment 

The Commonwealth accepted an Assurance of Discontinuance from Lux 
Audio, Inc. wherein it agreed not to engage in resale price maintenance activi- 
ties in the Commonwealth with respect to Lux stereo equipment. The company 
also agreed to pay the Commonwealth $2500. 

6. In re Lawn and Garden Centers 

Four lawn and garden centers agreed by Assurances of Discontinuance not to 
fix the prices on lawn and garden products. 

7. In re Frost Company 

The Commonwealth accepted an Assurance of Discontinuance from Frost 
Company which agreed to refrain from engaging in resale price maintenance 
activities with respect to lawn mowers. 

8. In re Outboard Marine Corporation 

The Commonwealth accepted an Assurance of Discontinuance from Out- 
board Marine Corporation which agreed to refrain from engaging in resale price 
maintenance activities with respect to lawn mowers. 

9. In re Lawn-Boy of New England, Inc. 

The Commonwealth accepted an Assurance of Discontinuance from Lawn- 
Boy of New England, Inc. which agreed to refrain from engaging in resale price 
maintenance activities with respect to lawn mowers. 

F. Additional Activities 

1 . New England Bid Monitoring Project 

In the summer of 1978, the Commonwealth began a pilot program to deter- 
mine the feasibility of collecting and analyzing masses of bid data from munici- 
palities in order to determine whether antitrust violations were occurring in the 
sale of certain specified products. As part of the project, the Antitrust Division 
collected bid data from over 100 towns and cities in Massachusetts and com- 
menced development of computer programs for analysis of the data. 

During fiscal 1980, the project's development and growth continued. Basic 
analysis of approximately 10 products was done, showing possible antitrust 
violations with respect to several. Analysis of one product indicated a possible 
criminal price-fixing conspiracy and, accordingly, the analysis was forwarded 
to the Justice Department for its review. The Justice Department was reviewing 
our data to determine whether or not a grand jury investigation would be author- 



46 P.D. 14 

ized. Additionally, analysis of other products appears to give us a basis for 
issuance of Civil Investigative Demands in the near future. 

Additionally, this Office on behalf of all of the New England states received 
a grant of approximately $100,000 for further development and application of 
the project on a regional basis. Accordingly, collection of data on the specified 
products was expanded to cover governmental purchasers throughout New Eng- 
land. The Justice Department continues to show great interest in this project as 
it is the first of its kind to prove effective. 

2. Public Education 

In fiscal 1980, the Antitrust Division commenced a program of regional 
antitrust seminars to be held throughout the state. Two such seminars were held 
during the year, one in Worcester and the second in Springfield. At least two 
additional seminars are planned for the eastern part of the state. 

Additionally, the Division wrote a manual entitled "Antitrust Enforcement In 
Massachusetts" which describes antitrust violations, the antitrust laws, and 
enforcement by state and federal agencies within the Commonwealth. 

CIVIL RIGHTS DIVISION 

A. INTRODUCTION 

The Civil Rights and Liberties Division, established by G.L. c. 12, §11A, 
operates in broadly-defined areas to protect the civil rights and civil liberties of 
citizens in the Commonwealth. Specifically, the division initiates affirmative 
litigation on behalf of citizens, citizen groups, agencies and departments of the 
Commonwealth in matters involving constitutional protections, and defends 
government agencies in cases which raise constitutional issues. In addition, 
staff of the division advise the Attorney General of developments and issues of 
civil rights and constitutional protections, 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, pursuant to the provisions of G.L. c. 151B, §§5, and 9, 
to initiate complaints before the Massachusetts Commission Against Discrimi- 
nation (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 15 IB in the Massachusetts Superior Court. 

In FY- 1980, the division was staffed by a Chief, five assistant attorneys 
general, one of whom directed the Women's Rights Unit, and appropriate sup- 
port personnel. In addition, throughout much of FY- 1980, 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. 

B. DESCRIPTION OF ACTIVITIES 

In fiscal year 1980, two matters of extraordinary substance were concluded: 
two of the three so-called publishing company cases were resolved; and, the 
state civil rights bill was enacted by the legislature and approved by the Gover- 
nor. 

The Publishing Cases 

In October, 1976, three Title VII discrimination complaints were filed in the 



P.D. 14 47 

U.S. District Court against three publishing companies in the greater Boston 
area. The suits, filed as class actions on behalf of present and former female 
employees of the Houghton Mifflin Publishing Company, Allyn and Bacon, 
Inc., and Addison- Wesley Publishing Company, allege discrimination against 
women in hiring, pay, promotion and other terms and conditions of employ- 
ment. In addition, the complaint against the Houghton-Mifflin Company alleges 
discrimination against minority employees as a class. 

In FY-1980, the cases against Allyn and Bacon, Inc. and against Addison- 
Wesley Publishing Company were settled. The two settlements provide for the 
payment of approximately $450,000 in back pay to approximately 600 female 
employees as well as significant affirmative action and training programs. The 
cases are discussed in more detail under the heading "Employment Discrimina- 
tion", infra. 

The State Civil Rights Act 

A state civil rights bill was first filed with the state legislature in 1976. In that 
year, the bill expired in the Massachusetts House Ways and Means Committee. 

Similar legislation, filed in 1977 and in 1978, came to similar ends, either in 
the House Ways and Means Committee or in the Joint Committee on Third 
Reading. 

In FY- 1979, the proposed legislation underwent considerable redrafting. 
With the help of the Civil Liberties Union of Massachusetts, a bill was drafted 
that a) authorizes the Attorney General to seek injunctive relief to protect the 
peaceable exercise and enjoyment of rights secured by the Constitution and laws 
of the Commonwealth and of the United States; b) provides a private cause of 
action for money damages on behalf of persons whose constitutional or civil 
rights have been interfered with; and, c) establishes criminal penalties of 
$1,000, or one year imprisonment against persons found guilty of willfully 
injuring, intimidating or interfering with persons in the enjoyment or exercise of 
constitutional or civil rights. The criminal penalties are increased to a fine of 
$10,000,000 and ten years imprisonment if bodily injury results. 

The redrafted bill was enacted by the legislature on November 16, 1979, 
signed into law by the Governor shortly thereafter and became effective on 
February 14, 1980. 

Other matters in which staff of the division were involved, either through 
litigation or non-litigation activity, occurred in the following substantive areas: 

1 . Correctional/Youth Services 

2. Credit Discrimination 

3. Developmentally Disabled 

4. Equal Educational Opportunities 

5. Employment Discrimination 

6. Health 

7. Housing 

8. Minority Business Problems 

9. Privacy 

10. Public Records 

1 1 . Voting Rights 

12. Other Matters 

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



48 P.D. 14 



1 . Correctional/ Youth Services 

Bellotti V. Deignan 

This suit, filed in the Superior Court in July, 1979, seeks to enjoin the use of 
bare isolation cells in the Worcester County House of Correction and to have 
such cells declared to be in violation of Department of Public Health Regula- 
tions requiring a toilet, sink and bed in all jail cells. 

On August 16, 1979, a preliminary injunction was issued enjoining the de- 
fendant sheriff from using any more than one of the seven cells for any purpose 
other than temporarily holding inmates who had attempted suicide and then only 
until they could be medically treated. In addition, the sheriff was ordered to 
convert six of the seven cells into regular cells. 

The Sheriff filed a countersuit challenging standing of the Attorney General 
to bring suit and challenging the applicability of the DPH regulations. A consol- 
idated trial was held in September. The Court ruled for the Sheriff. The Depart- 
ment appealed and obtained direct appellate review. Argument will be held 
before the Supreme Judicial Court in the fall of 1980. 

Inmates of the John Connolly Detention Center v. Dukakis 
Through FY-80, we continued to monitor DYS compliance with the consent 
decree in this case involving the Roslindale detention center. 

Commissioner of Correction v. Myers 

This case, argued before the Supreme Judicial Court, affirmed the authority 
of the Commissioner of Correction to compel a Department of Correction pris- 
oner to undergo dialysis treatment. 

In re Charlestown YMCA 

In this case, we represented the Department of Youth Services before the 
Boston Board of Zoning Appeals to ensure the continued operation of a program 
for delinquent girls located in the Charlestown YMCA. 

2. Credit Discrimination 

Attorney General v. Amoco Oil Company 

On July 12, 1979, suit was filed against Amoco Oil Company for discrimi- 
nating against credit card applicants by "redlining" certain Massachusetts com- 
munities. The complaint alleges Amoco penalizes all credit applications from 
residents of 36 Massachusetts zip code areas, regardless of the personal qualifi- 
cations of the applicants. This practice, we allege, has a disproportionately 
heavy impact on black residents because the penalized zip code areas include 
most of the black neighborhoods of Boston. 

Suffolk Franklin Savings Bank v. Commissioner of Banks 

In this case, we successfully represented the state banking Commissioner in a 

suit designed to prevent him from disseminating mortgage risk information on 

which studies of mortgage redlining was to be based. 

3. Problems of Developmentally Disabled Persons 

Bellotti et al. v. SandvAch School Committee et al. 

This action, filed in the single justice session of the Supreme Judicial Court 



P.D. 14 49 

in January, 1980, seeks to enforce the provisions of G.L. c. 19, §28, requiring 
school committees to pay the cost of transporting mentally retarded adults and 
children under the age of three who reside in their community to educational 
and habilitation programs. Negotiations with several other school committees 
were resolved without suit, with the towns agreeing voluntarily to provide 
required transportation. 

In re. Spear School 

Through administrative action, the Chapter 766 special education license of 
this school for emotionally disturbed children was suspended. Suspension of the 
license was based on serious health and safety conditions and on failure of the 
school to develop and implement educational plans as required by Department 
of Education regulations. 

In the Matter of Scott Surette 

In FY-80, at the request of the Select Committee to Investigate Seclusion, 
Restraint and Deaths in State Supported Facilities, we began an investigation 
into the death of a patient [while in four-point restraint] at the Solomon Mental 
Health Center in Lowell, Massachusetts. 

In the Matter of Ann Davee 

In FY-80, at the request of a state Senator, we began an investigation into the 
disappearance of a female patient at Metropolitan State Hospital, Waltham. 

Architectural Barriers Board v. Clark 

This action, filed in July, 1979, seeks to enforce decisions of the ABB 
requiring a shopping center in Bellingham, Massachusetts to comply with Board 
rules with respect to accessibility on the part of handicapped persons. 

Regulations of the Architectural Barriers Board 

In FY-80, we drafted a set of revised rules and regulations for the architec- 
tural Barriers Board to clarify the operating procedures of the board. These 
regulations will be subject to public hearing under G.L. c. 30A, §2, reviewed 
by the Commissioner of Administration pursuant to 801 CMR, §1.03(7), and 
published by the Secretary of State in accordance with G.L. c. 30A, §5. 

4. Equal Educational Opportunities 

Attorney General v. Massachusetts Interscholastic Athletic Association 
On July 2, 1979, the Supreme Judicial Court issued its decision in this case, 
declaring that MIAA rules absolutely prohibiting any boy from playing on any 
girls' interscholastic athletic team was invalid under the state equal rights 
amendment. 

Morgan v. McDonough 

Throughout FY-80, we continued to represent the State Board of Education 
in Morgan v. McDonough, the Boston school desegregation case. Issues of 
primary concern during the period beginning July 1, 1979 and ending June 30, 
1980, were the development and implementation of a long-range facility plan, 
including school closings, new construction and major renovation of existing 
buildings; and, the implementation of a unified vocational and occupational 



50 P.D. 14 



plan, including the final stages of construction and the opening, in September, 
1980, of the Hubert Humphrey Occupational Resource Center. 

School Committee ofHolyoke v. Department of Education 
In this action, we represented the Department of Education in an appeal taken 
by the Holyoke School Committee from a decision of the Department's Divi- 
sion of Special Education that it had discriminated against black and hispanic 
students in special education programs. 

The Greater Boston League 

In FY-80, through our intervention and threat of suit, the Greater Boston 
League, an interscholastic athletic league of eight North Shore cities, reversed 
an earlier decision to exclude a girls' indoor track program from their participat- 
ing schools' interscholastic athletic programs. 

5. Employment Discrimination 

Boughton V. Addison-Wesley 

On June 4, 1980, Federal Judge Joseph Tauro approved the settlement in this 
Title VII sex discrimination case negotiated for a class of 500 women presently 
and formerly employed by the Addison-Wesley Publishing Company. The set- 
tlement provides for payments of $350,000. in back pay, $10,000. in insurance 
premiums for female employees, $25,000. for tuition reimbursement, and 
$15,000. costs. The consent decree also includes a three-year affirmative action 
plan for the company, and other relief. 

Fewlass v. Allyn and Bacon; Akullian v. Allyn and Bacon 
In January, 1980, Judge Joseph Tauro denied class certification in the origi- 
nal Title VII sex discrimination suit against Allyn and Bacon. After the addition 
of new plaintiffs and a request for an interlocutory appeal were denied, a substi- 
tuted complaint was filed. Negotiations concluded in the spring of 1980 and, in 
May, 1980, a consent decree was filed. This decree provides nearly $90,000 in 
damage payments to 109 women presently or formerly employed by Allyn and 
Bacon. 

Richardson et al v. Houghton Mifflin Company 

Throughout FY-80, discovery continued in this Title VII case filed in Octo- 
ber, 1976 against a Boston publishing company. Unlike the two cases discussed 
above, this complaint alleges discrimination in employment on the basis of race 
as well as sex. 

H olden v. MCAD 

In this case, filed originally in 1973 when the role of the Civil Rights Divi- 
sion was almost exclusively to represent the MCAD, an attorney in the division 
is defending the Commission against charges of race discrimination. In June, 
1980, a federal judge granted our motion for partial summary judgment. The 
remaining issues will be tried in the fall of 1980. 

Melrose School Committee v. Sherwood 

In October, 1979, a consent judgment was entered in this appeal of a MCAD 
decision involving failure on the part of the defendant Committee to allow a 



P.D. 14 51 



teacher to use accumulated sick leave for pregnancy disability. An award of 
$3,700. in back pay was ordered by the Court. 

Pregnancy Disability Cases 

Further settlements resulting in the payment of retroactive maternity disabil- 
ity payments to female employees were concluded in FY- 1980. Between FY- 
1979 and FY-1980, approximately $500,000. were recovered. 

Regulations Regarding Reproductive Hazards 

In June, 1980, we submitted comments to the Equal Employment Opportuni- 
ties Commission concerning proposed guidelines on reproductive hazards. The 
guidelines would have allowed employers to exclude women from employment 
on the basis of alleged reproductive hazard, even though it had not been scien- 
tifically determined that the hazards affected women only. 

6. Health 

Frechette v. Ber gland 

In March, 1979, we received information indicating that the U.S. Depart- 
ment of Agriculture failed to follow published formulas in allocating money to 
the states for the Supplemental Food Program for Women, Infants and Chil- 
dren. As a result, we were informed Massachusetts had lost approximately 
$600,000. in federal funding. 

Negotiations with the federal government were not successful and in March, 
1980, we filed suit against the federal defendants for the state's correct amount 
of funds. Discovery has concluded. Cross motions for summary judgment have 
been filed, briefed, and will be argued in September, 1980. Pending disposition 
of the merits, the federal defendants have agreed to set aside the amount in 
controversy. 

Attorney General v. Dare, Inc. 

This case, filed in May, 1980, seeks to compel Dare, Inc. to correct sanitary 
code violations in its juvenile community facilties. A preliminary injunction 
requiring corrections was obtained on May 14, 1980. 

Custody of a Minor 

In May, 1980, the Supreme Judicial Court issued its second decision in the 
Chad Green matter, holding that "metabolic therapy", utilizing laetrile, is not a 
viable alternative therapy for lymphocytic leukemia and renewing its prior deci- 
sion precluding parents from asserting privacy interests on behalf of their chil- 
dren where, to do so, would lead to the death of the child. 

Hill Burton Audit of Hospitals 

In Fiscal Year 1980, with the assistance of the accounting component of the 
public protection bureau, we began to audit several hospitals in different parts 
of the state to determine whether they are in compliance with requirements of 
the federal Hill-Burton law that hospitals receiving Hill-Burton funds provide a 
reasonable amount of uncompensated services to people unable to pay and serve 
the needs of the community in which they are located. 



52 P.D. 14 



In the Matter of Sheila Cramer 

In this case, we represented the Department of Pubhc Health in matters 
concerning the appointment of a guardian for an 87 year old patient at Lemuel 
Shattuck Hospital declared incompetent to make decisions regarding her health 
care and needs. The case is one of several in which the division has raised 
questions concerning the right to treatment, the right to refuse treatment, and 
issues of substituted consent. (See e.g. Superintendent of Belchertown State 
School V. Saikewicz). 

7. Housing 

Bellotti V. Corcoran Management Co. 

In November, 1979, we reached settlement with Corcoran Management 
Company on charges that it discriminated against persons with children in the 
renting of apartments. In the settlement, Corcoran agreed to donate $4,500. to a 
child guidance center and to take other actions to protect against future discrimi- 
nation with respect to families with children. 

This case was the first of several brought against realtors for discriminating 
against families and the first in which "sandwich tests" were used to determine 
differential treatment of applicants. 

Attorney General v. Apartment Showcase 

This case involves further attempts to enforce laws prohibiting discrimination 
against families with children in the rental of housing. This case differs from 
that described above in that it involves a rental service rather than an apartment 
complex. 

Commonwealth v. Machinski; Commonwealth v. Tri-County 

Realty. Inc. 

These two cases, filed in January, 1980 under G.L. c. 93 A, the consumer 
protection law, sought to remedy DPH Sanitary Code violations in low income 
projects in Brockton. Preliminary relief was obtained. Defendant landlords have 
since taken voluntary action to remedy the deficiencies. 

Commonwealth v. Marmer 

In this case, the defendant was convicted of refusing to remove lead paint 
from his Haverhill apartment units. The conviction followed a two day jury trial 
held in August, 1979. 

8. Minority Business Enterprise 

Lincoln Industrial Supply Company, Inc. v. Carlin, et. al. 

In this case, we represent the State Office of Minority Business Assistance 
(SOMBA) in a challenge to its denial of minority business enterprise (MBE) 
certification to a particular company on the grounds of lack of control by minor- 
ity persons. 

9. Privacy 

Koloski V. Hall 
On November 1, 1979, the state defendants' motion to dismiss was allowed 
in this case brought by a former DYS resident against former DYS Commis- 



P.D. 14 53 

sioners alleging violations of her right to privacy while a resident of the Lancas- 
ter School for Girls. 

TV Monitoring of Jail Cells 
In May, 1980, we responded to an inquiry by the Chief of Police of the Town 
of Saugus regarding the privacy interests of pre-trial detainees and persons in 
protective custody who would be subjected to proposed TV monitoring of their 
cells as a means of preventing suicides. We concluded there would be no 
privacy violation as long as certain reasonable limits with respect to time, place 
and lighting were placed on the use of cameras and monitors. 

Commonwealth v. Wiseman 
In May, 1980, we sought to enjoin Frederick Wiseman from showing the 
film "Titicut Follies" to what appeared to be a general audience at the Boston 
350 Jubilee Film Festival. This showing appeared to violate a permanent injunc- 
tion issued in 1971 prohibiting showing of the film except to specialized profes- 
sionals, students and members of organizations dealing with the social problems 
of custodial care and mental infirmity. The injunction was denied. 

10. Public Records Cases 

Bellotti V. Bennett 
This public records case sought disclosure of addresses of eligible applicants 
for CETA public service jobs in Boston. The Superior Court entered judgment 
ordering disclosure. 

Bellotti V. Board of Selectmen of Dennis 
Through this public records case, we obtained abstracts of title to property 
taken by the Town of Dennis through eminent domain. 

Attorney General v. Revere Housing Authority 
On October 31, 1979, summary judgment was granted to the Attorney Gen- 
eral in this case brought to require the housing authority to reveal the names of 
landlords receiving state housing subsidies. 

Bellotti V. Assistant Commissioner of the Real Property 

Department of the City of Boston 
This case sought disclosure of the records of all long distance telephone calls 
placed to or charged from any telephone in the offices of the mayor of Boston 
during the month of February, 1977. Through a motion for summary judgment, 
we were able to obtain partial disclosure of the telephone bills. An appeal has 
been taken to the Supreme Judicial Court which has recently remanded the case 
to the Superior Court of Suffolk County for a hearing on the merits of our 
further request. 

1 1 . Voting Rights 

In October, 1979, we learned that weeks before a scheduled local election, 
the Voting Registrar of the City of Worcester had moved the voting place in a 
largely Hispanic ward of that city from a public housing project in the middle of 
the ward to an inaccessible location at the edge of the ward. Negotiations were 
successful in having the voting place returned to its original location. 



54 P.D. 14 



12. Other 

a. Superintendent ofBelchertown State School v. Civil 
Service Commission 

In FY-80, we successfully represented the Superintendent of Belchertown 
State School in a challenge to a Civil Service Commission order reinstating an 
employee of the school who had been terminated for several acts of misconduct, 
including unethical conduct. 

b. Lowell V. Kowalski 

In this case, we filed an amicus brief arguing for the constitutionality of G.L. 
c. 190, §5 and §7. The SJC, in April 1980. struck down the statute as unconsti- 
tutional in part because the statutes which prohibited illegitimate children from 
receiving share of their natural father's intestate estate except upon intermar- 
riage of the parents violated the Equal Rights Amendment to the Constitution. 

c. Enforcement of Chapter 801 of the Acts of 1979 

Since the Civil Rights Bill became effective on February 14, 1980, activities 
on the part of division attorneys to enforce the act have focused on several 
means. A manual explaining the Act, containing court interpretations of similar 
provisions and suggesting elements of the various offenses or causes of action 
was prepared. This manual may be used as a training document in explaining 
the act to city and town police departments, district attorneys, and other inter- 
ested persons. In addition, division attorneys met with several civic groups to 
discuss the Act. 

Training sessions or meetings to discuss the provisions of Chapter 801 have 
been held with ranking superintendents of the Boston Police Department, with 
administrative staff of the Somerville Police Department and with the Arlington 
Police Department. In the future, meetings and conferences will be scheduled 
with other police officials in the larger cities and towns of the Commonwealth. 

Several cases have been investigated for possible prosecution. These cases 
involved acts of racial violence in the Stonybrook Section of Hyde Park, in the 
Bowdoin area of Dorchester, in the Deitz Road section of Hyde Park, in the 
Fairmont Housing Project in Hyde Park, in the town of Arlington, in the town 
of Somerville, and in the Faneuil Street Housing Project in Brighton. 

d. In March-, 1980, the division sponsored a meeting with security personnel 
of several large shopping malls and representatives from handicapped persons' 
groups to consider enforcement of handicapped parking laws. 

e. In June, 1979, at the request of administrative personnel from the Thomp- 
son's Island Educational Center, we convened a meeting with various law en- 
forcement personnel to maximize protection and safety of visitors using the 
Island's land base at Kellys Landing in South Boston. 

f. In July, 1979, an attorney with the Civil Rights Division testified before 
the United States Senate Commerce Committee concerning geographic redlin- 
ing in the extension of credit. 

g. On November 16, 1979, personnel from the Civil Rights Division pre- 
sented a workshop on credit and housing at a conference organized by a New 
Bedford Womens' Group. 

h. Throughout FY-80, an attorney from this division acted as chairman of a 
Department of Mental Health Task Force designed to recommend policy in the 



P.D. 14 



55 



areas of human sexuality, sex education and privacy for persons residing in 
DMH facilities. 

i. In FY-80, we continued to review the application of a Massachusetts 
Interscholastic Athletic Association regulation limiting the age of students par- 
ticipating in interscholastic athletics and its possible adverse impact on handi- 
capped students. 

j. In FY-80, we investigated complaints by the U.S. Labor Party concerning 
their denial of first amendment rights to leaflet and speak on public property. 
Meetings were held with officials of the public property and the registry of 
motor vehicles, and the leafletting was permitted. 

k. In FY-80, as a result of communications from this division, the Depart- 
ment of Corporations and Taxation modified its policy of holding the domicile 
of a married women to be that of her husband. 

1. Through our intervention and coordination, the Department of Corrections 
has appointed a contact person in each correctional facility to assist veterans in 
obtaining state and federal benefits to which they are entitled. The need for such 
assistance was initially brought to our attention by a newspaper reporter. 

CONSUMER PROTECTION DIVISION 

I. INTRODUCTION 

The Consumer Protection Division has continued to expand its activities in a 
number of important and complex areas. For example, during the past fiscal 
year a number of successful lawsuits have been brought involving investment 
schemes, nursing homes, and fraud in the sale of primary energy sources. The 
Division has also placed a major emphasis on developing legal forms which will 
increase our efficiency in cases which arise with some regularity. 

Finally, the Division continues to maximize its resources through improved 
internal coordination with the investigation and complaint sections of the office, 
and effective cooperation with local, state, and federal law enforcement agen- 
cies, including the consumer protection divisions of many other states. 

II. STATISTICS 

During the past fiscal year, the Consumer Protection Division commenced 57 
lawsuits in Superior Court; obtained 49 judgments; 37 assurances of discontinu- 
ance; and initiated 9 contempt of court proceedings. In addition, the Division 
obtained $1,265,340 in judgments and restitution for Massachusetts consumers. 

III. MAJOR CASE AREAS 

A. Contempt 

The Consumer Protection Division has continued to carefully monitor judg- 
ments entered in Superior Court. Contempt of court sanctions are sought in the 
event of serious noncompliance by a defendant. A number of important con- 
tempt cases were successfully completed during the past fiscal year. 

1. Bonded Dodge of Stoughton: This case was tried in May, 1980. After 
three days of trial Bonded agreed to the entry of judgment of civil contempt of a 
previous court order. The contempt consisted of bait and switch advertising, 
misrepresenting that repairs had been made, using an unlawful warranty, and 
refusing to deliver motor vehicles at agreed upon prices. Bonded paid a fine of 
$3,000 and was permanently enjoined from further violations. 



56 P.D. 14 



2. Supreme Remodeling: A judgment was entered in this case finding the 
corporate and individual defendants guilty of civil contempt for gross and inten- 
tional failure to honor warranties on home improvement contracts. Fines totall- 
ing $60,000 were assessed, and the defendant is required to notify the Attorney 
General and post bond of $50,000 prior to performing home improvement 
services in the future in the Commonwealth. 

3. Randy Messineo: In July, 1979 the defendant was found guilty by a jury 
of criminal contempt in connection with the violation of a court order regarding 
real estate activities. The defendant was sentenced to jail for 5 months and 
ordered to pay restitution of $42,000. 

B. Healthcare 

The Consumer Protection Division has continued to devote a substantial 
amount of time to health care litigation and investigations. Nursing homes, 
hospitals, insurance companies and medical laboratories have all been subject to 
litigation or investigation in the past fiscal year. 

In the past fiscal year the Consumer Protection Division has filed seven 
patient abuse and neglect lawsuits. In each case, injunctions or judgments were 
obtained which required the nursing home owners and administrators to feed, 
clothe, and properly medicate the patients and to hire sufficient staff to manage 
the facility in compliance with state and federal regulations. In each abuse case, 
the Consumer Protection Division addressed the issue of "transfer trauma": the 
dramatic increase in morbidity among nursing home patients who are trans- 
ferred precipitously, without appropriate medical and psychological counseling, 
from one facility to another. In cooperation with the Department of Public 
Health, the Consumer Protection Division worked with patients and families to 
reduce the risk of transfer trauma in those cases where it was necessary to 
transfer patients. We were also successful in one case in obtaining a court order 
requiring the nursing home owner to comply with the Department of Public 
Welfare transfer guidelines prior to transferring any patients. 

Another major case and investigation area for the division is that of access to 
nursing home residents by community groups, legal services lawyers and para- 
legals. The Attorney General's nursing home regulations provide that commu- 
nity groups and legal workers have an unrestricted right of access to nursing 
home patients in some instances. We were successful in obtaining a preliminary 
injunction requiring an owner to abide by this regulation, with the exception 
that if visitors for a particular patient was medically contra-indicated, then 
visitors could be excluded, pending a trial on the merits. 

The Division has also continued its involvment in the area of medical labora- 
tories. In Commonwealth v. Elm Medical Laboratory, Inc., et al, the Consumer 
Protection Division obtained a temporary and preliminary injunction barring the 
defendants from continuing to perform medical tests in the areas of cytology 
(pap smears) and histopathology. The impetus for this lawsuit was the United 
States Center for Disease Control's conclusion that ELM's cytology operation 
constituted a grave risk to women because of the high probability of error in 
ELM's reading of pap smears. Throughout the litigation, we have continued to 
work closely with state and federal officials. 

C. Automobiles 

The Division has continued its traditional efforts in this area. For example, 



P.D. 14 



57 



five additional suits were commenced in the past fiscal year against automobile 
dealers who have altered odometers on used automobiles. Judgments have been 
entered for restitution for consumers in the amount of 5103,000. In addition, 6 
assurances of discontinuance were obtained from automobile dealers whose 
advertisements failed to comply with the Attorney General's Motor Vehicle 
Regulations. Finally, the Division has commenced a major investigation to 
determine whether foreign automobile distributors and/or dealers are unlawfully 
refusing to sell vehicles to consumers without numerous expensive "options" 
added to the vehicle. 

D. Investment Schemes 

The Consumer Protection Division has made a major effort to identify and 
prosecute unlawful "boiler room" operations marketing opportunities for in- 
vestment in gold, silver, or oil. Five lawsuits have been commenced in the past 
fiscal year, two of which are especially noteworthy. 

1. Ramco Petroleum, Inc.: This company marketed spot crude oil contracts 
by telephone. The Superior Court enjoined Ramco from engaging in the solici- 
tation and sale of unregistered securities. A receiver was appointed at the re- 
quest of the Consumer Protection Division to assume control of the assets of the 
Corporation. 

2. American Gold & Silver Exchange, Ltd.: In this case the Superior Court 
enjoined the defendants from selling unlawful commodity options in gold and 
silver and unregistered securities in spot market crude oil. In addition, a re- 
ceiver was appointed by the Court to take control of the company. 

E. Energy 

In the past fiscal year the Consumer Protection Division has commenced a 
major effort to stop fraud in the sale of energy saving devices and fuel. 

During the past heating season, when many consumers in New England 
turned to wood as an alternative or supplement to oil for heating their homes, 
this office began an enforcement effort to prevent unfair practices in the sale of 
wood to consumers. During 1979-80, 15 legal actions were filed by this office 
under the Consumer Protection Act. G.L. c. 93 A. against wood dealers alleging 
violations of c. 94 by providing consumers less than the full measure of wood 
which consumers had ordered and paid for. We estimate that through the judg- 
ments and assurances which we obtained last year restitution of wood worth 
approximately $6,000 was made to consumers in Massachusetts. Subsequently, 
one of the dealers against whom a Final Judgment was entered violated it's 
terms by short measuring two more consumers. We filed a contempt petition 
against this dealer. The court entered an order finding him in contempt on five 
counts, ordered him to pay a civil fine of S2.400 and to make restitution to the 
two consumers who had been short measured. 

The Consumer Protection Division also filed six legal actions and com- 
menced seven investigations relating to fraud in the sale and delivery of home 
heating oil. Working closely with the Massachusetts Division of Standards, the 
Division has discovered various unlawful practices by oil dealers which have 
resulted in excessive oil payments by consumers. The Division has sought 
injunctions, and obtained restitution in a number of cases. 



58 P.D. 14 



F. Real Estate 

1. Land and Leisure, United Resources, et al: The Division initiated a 
major lawsuit alleging misrepresentation and breach of warranty in the sale of 
land located in Florida. On behalf of approximately thirty Massachusetts con- 
sumers, the Division is seeking approximately $250,000 damages because of 
the defendant's failure to install paved roads, sewage facilities and otherwise 
comply with consumer contracts. The Division has obtained a temporary order 
barring the defendants from spending about $200,000 pending a trial on the 
merits. On December 13, 1979, at the request of the Consumer Protection 
Division, the Board of Registration of Real Estate Brokers revoked the license 
of a Massachusetts realtor as a result of the deceptive sale of land in Florida to 
Massachusetts Consumers. 

2. Trustees of Clarke - Jacob Realty Trust: An Assurance of Discontinuance 
was entered in this case concerning practices of the trust relating to rental of 
apartments in Salem, Massachusetts. The Trust had attempted to charge its 
tenants retroactively for fuel costs which were already included in their rental 
payments. As part of the Assurance the Trustees agreed to withdraw the back 
charges and refrain from issuing any such charges in the future. Additionally, 
the Assurance provides that if the Trust represents that any future rent increase 
is necessitated by increased fuel costs they will provide tenants with access to 
all appropriate documents to support any such assertion. 

G. Business Opportunity Schemes 

The Division has developed an important monitoring program of advertise- 
ments for business opportunities. Early detection of fraudulent mail order or 
franchise operations is essential. Therefore, an attorney has been specifically 
assigned to monitor advertising in major Massachusetts newspapers. 

IV. MAJOR APPELLATE DECISIONS 

A. Purity Supreme, Inc. v. Attorney General: In June, 1980, the Supreme 
Judicial Court issued its decision on Purity Supreme's challenge to the rulemak- 
ing authority of the Attorney General. The Court held that regulations issued 
under the Consumer Protection Act have the force and effect of law, and that 
the regulations may properly seek to prevent unfair and deceptive practices. 
Purity had challenged the validity of the Item Price Regulation which requires 
that retailers affix a price to each product offered for sale. 

B. CUNA Mutual Insurance Society v. Attorney General: In this case, the 
Supreme Judicial Court issued an important decision construing the Attorney 
General's investigative authority under the Consumer Protection Act. The Court 
determined that a civil investigative demand for the production of documents 
may be issued to a third party who possesses evidence relevant to the investiga- 
tion of another. In addition, the Attorney General is not required to notify the 
recipient of a C.I. D. whether it is the target of the investigation. 

C. Northampton National Bank v. Attorney General: This case considered 
the legality under Massachusetts law of the imposition by a credit card issuer of 
an annual membership fee. This case began in 1977 when the Attorney General 
took the position that such fees must be included in the calculation of the 
maximum finance charge. The Appeals Court ruled that membership fees may 
be imposed without regard to the truth in lending statutes. 



P.D. 14 



59 



D. Commonwealth v. Hale: In this case, the First Circuit Court of Appeals 
held that a default judgment entered in state court under the Consumer Protec- 
tion Act was dischargeable in bankruptcy. The Court rejected the Com- 
monwealth's argument that the policies underlying the Bankruptcy act would 
best be served by denying the bankrupt dischargeability of debts incurred in 
violation of the Consumer Protection Act. 

E. Attorney General v. Industrial National Bank of Rhode Island: The 
Supreme Judicial Court held that the Attorney General was precluded by the 
National Bank Act from enforcing a civil investigative demand issued to the 
bank in the absence of facts showing a waiver of the venue provisions of federal 
law. 

V. LEGISLATION 

A. In cooperation with the Attorney General's Medicaid Fraud Control Unit, 
the Consumer Protection Division drafted a proposed statute "An Act Relative 
To Abuse Of Patients Or Residents In Long-Term Care Facilities". Govemer 
King signed this statute into law on July 1 1, 1980. For the first time in Massa- 
chusetts, this statute defines abuse, mistreatment and neglect and empowers the 
Attorney General to bring action seeking civil penalties and fines criminal 
penalties in addition to remedies provided by c. 93 A. 

B. The venue provision of G.L. c. 93 A, §4 was amended by Chapter 1 19 of 
the Acts of 1980. Where the Attorney General files suit under the Consumer 
Protection Act against multiple defendants, he may do so in the county where 
one defendant resides, or in Suffolk County. This change was recommended to 
the legislature by the Attorney General to reduce the inconvenience under the 
former venue provision. 

CONSUMER PROTECTION CASE LIST 

A. ADVERTISING 

Defendant 

AAA Rental (T.V.'s) 

Aaron Glickman 

Amherst Radio/Electronics/Videsign 

Anderson's Furniture 

Arkey Radio/Electronics 

Aqua-King Pool Co. 

Atlantis Sound, Inc. 

Audiosonics, Inc. 

B & G Industries, Inc. 

Booth Communications 

Boston Organ and Piano 

Botolph Associates, Inc. 

Brands Mart, Inc. 

Building 19 

Castro Convertible (Rinman, Inc.) 

Columbia Research 

Comm. Builders Supply 

Crown Convertibles (Johema, Inc.) 

Discount Records 

Eardrum of New England 

Eclipse Sleep Prod, of N.E. 



Status Disposition 


Count}- Court 


Consent Judgment 


Middlesex 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 




Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Hampden 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Norfolk 


Litigation 


Essex 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 




Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 



60 



P.D. 14 



Ed's Radio 

Edward's Wayside Furniture 

Emerson Rug 

Furniture Gallery 

H.M. Fisk/Emeralds 

Hercules Trouser Co. 

Hyannis Hi-Fi 

Gentlemen Warehouse Factory Outlet 

Golub Furniture 

Goodrich, B.F. 

Graham Radio 

Hi-Fi Buys/Leisure Distr. 

Indiana Merchandising Corp/Nassi 

Jordan Marsh 

Kaplan's Furniture Co. 

Labovitz. Stanley (Andrew Fum.) 

Lafayette Radio 

Lane Pools 

Leonard, Paul 

Mass. Camera Centers 

Max Okun Furniture Co., Inc. 

Miller's Furniture Co. 

Minute Man Radio Co., Inc. 

Nantucket Sound 

National Business Directory 

New England Audio/Tweeter 

New England Group 

New England Photo 

New England Sound Svc/Tech HiFi 

Olde Colony Stereo 

Overseas Employment Research 

Paul's Furniture 

Precision Motor Rebuilders 

Professional Guild of America 

Pyramid Construction Company 

Railroad Salvage of Connecticut 

Rautio, James d/b/a Treas. Chest 

S & L Sales Corp./K&L Sound 

Saab-Scania of America 

Seiden Sound 

Seiden Sound 

Shaker's Workshops 

Sherman's 

Shuman, Stanley 

Siesta Sleep Shop 

Sound II 

Spartan Paint & Supply 

Stavis, Steve 

Stereo Component, Systems, Inc. 

Strawberries, Inc. 

Summerfield's 

Todd's World of Furniture 

Wholesale Furniture & Carpet 

Wholesale Marketing/Joanne Scheff 



Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Hampden 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Hampden 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Hampden 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 




Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Middlesex 


Assurance of Discontinuance 


Suffolk 


Litigation 


Franklin 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Hampden 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Litigation 




Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Consent Judgment 


Middlesex 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 



P.D. 14 



Wilmington Ford 

Y.D.I. Corp. (You Do It Electr.) 

AUTOMOBILES 

Defendant 

Abel Ford 

Avenue Auto Wholesalers/Brazel 

Bart Auto Ctr. (Rev-Ben Enterp.) 

Belotti (Victor). Inc. 

Big Beacon Chevrolet 

Bob Brest Buick 

Bonded Dodge 

Boston Imports/Lamb Lotus/Wasil 

Brigham-Gill Pontiac AMC 

Brockton Auto Sales 

Brockton Dodge 

Cape Motors 

Car Finders 

Carol Cars 

Chalet Motor Sales 

Chestnut Hill Motors (odometer) 

City Auto a/k/a Edward Borlen 

Clay Chevrolet 

Colonial Motor Sales/B. Milton 

Cullinan (Joe) Ford, Inc. 

Dazell Volvo 

Delaney (Kevin) Pontiac 

Desautels, William 

Desautels, William (Car Dealer) 

Dino Buick 

Don's Getty Service Station 

Eastfield Auto Sales, Inc. 

Eck's Auto 

Eck's Auto Sales 

English Chevrolet 

Excellent Car Co. 

Falmouth Datsun 

Falmouth Dodge 

Fife. Walter 

Fleischer Auto Sales 

Foreign Auto Import (Watertown) 

Granese, Joseph 

Hallman Chevrolet 

Holyoke Auto (Toyota of Holyoke) 

Howard Chevrolet 

Imported Cars of Cape Cod 

Infiorati (Owen), Inc. 

Kent (Harold) Ford 

King B's Automart/Joseph Graense 

Lakeside Auto Sales 

Lord Toyota 

Lord Toyota 

Lord Toyota 

Main Street Auto Sales & Serv. 



Consent Judgment 


Middlesex 


Assurance of Discontinuance 


Suffolk 


Status Disposition 


Count}- Court 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Worcester 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Judgment 


Norfolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Plymouth 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Consent Judgment 


Hampden 


Litigation 


Hampden 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Hampden 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Hampden 


Consent Judgment 


Middlesex 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Contempt 


Bristol 


Litigation 


Bristol 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Hampden 


Judgment 


Hampden 


Consent Judgment 


Norfolk 


Consent Judgment 


Middlesex 


Consent Judgment 




Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Middlesex 


Consent Judgment 




Consent Judgment 


Middlesex 


Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Stipulation 


Hampden 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Judgment 


Hampden 


Judgment 


Suffolk 


Litigation 


Worcester 


Complaint 


Norfolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 



62 



P.D. 14 



Mass. State Auto Dealers Ass'n 

Medeiros (William) Chevrolet 

Morris Motors, Inc. 

One Twenty Eight (128) Sales, Inc. 

One Twenty Eight - 128 Imports 

Owens Motors 

Palazini, James/Waverly Auto 

Pete's Chrysler/Plymouth 

Phillipoff, Thomas E. 

Pierce Ford World 

Plaza Oldsmobile 

Precision Motor Rebuilders 

Robichaud Auto Sales. Service 

Ryll Automotive Products 

Saab-Scania of America 

Smyly Buick 

Taunton Sales, Inc. 

Taurus Auto Sales, et al 

Topor Motor Sales 

Toyota of Falmouth 

United Auto Buyers/Gregorie 

United Auto Buyers/Gregorie 

Valley Chevrolet 

Village Chevrolet 

West & Alexander 

West Country Motors, Inc. 

West Springfield Chvy/Plymouth 

Westport Autorama 

Wilmington Ford 



Litigation Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Litigation Middlesex 

Assurance of Discontinuance Suffolk 

Consent Judgment 

Litigation Middlesex 

Assurance of Discontinuance Suffolk 

Judgment Hampden 

Litigation 

Assurance of Discontinuance Suffolk 

Consent Judgment 

Judgment Worcester 

Consent Judgment 

Consent Judgment Suffolk 

Assurance of Discontinuance Suffolk 

Consent Judgment Bristol 

Assurance of Discontinuance Suffolk 

Consent Judgment Hampden 

Assurance of Discontinuance Plymouth 

Consent Judgment Worcester 

Litigation U.S. Dist. Ct. 

Assurance of Discontinuance 

Assurance of Discontinuance Suffolk 

Judgment Hampden 

Litigation Hampden 

Consent Judgment Hampden 

Consent Judgment 

Consent Judgment Suffolk 



C. BANKING & CREDIT 

Defendant 

Allied Bond & Collection Agency 

Arthur Ind./lst Safety Natn'l Bnk 

Cambridge Trust Company 

Central Secret Service 

Chrysler Credit Corp. 

Ford Motor Credit Corp. 

General Motors Acceptance Corp. 

Hull Cooperative Bank 

Industrial Nat'l Bank of R.I. 

Leominster Savings Bank 

Merrimac Savings Bank 

Statewide Credit 

Tuck & Pozzi 

Van Ro Credit Corp. 

D. CONTRACTS 

Defendant 

American Int'l Holidays 

American Int'l Leisure/G. Paglia 

Crimson Travel Service 

Diamedic, Inc. 

Great Amer. Travel (Southwind) 



Status/Disposition 


County/Court 


Litigation 


Suffolk 


Litigation 


Suffolk 


Litigation 




Consent Judgment 


Suffolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Final Judgment 


Suffolk 


Consent Judgment 


Suffolk 


Consent Judgment 




Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 




Consent Judgment 


Suffolk 


Status/Disposition 


County/Court 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Litigation 


Middlesex 


Litigation 


Norfolk 


Consent Judgment 


Suffolk 



P.D. 14 



63 



Intem'l Magazine Services 
Kiddy Photographs 
Northeast Marketing Services 
People's Furniture 
Pereira Brothers Roofing 
Selective Singles 
Slimtique. Inc. 
Supersonic Tours 
United Marketing Corp., et al 
WAAF, A-Ok Productions 
Walo & Levine 
Zimei, Alfred 

EDUCATION 

Defendant 

Allied Construction Training Cntr 

E. Atlantic Tractor Trailor Train 

Framingham Civil Serv. School 

Graham Junior College 

LaSalle Extension Univ. 

New England Appliance Sch/Solari 

New England Sch. of Culinary Arts 

New England Trac/Trail Training 

Solari/Tech Age 

ENERGY 

Defendant 

All Star Fuel Co. /Marshall 

Atlantic Farm, Inc. 

Birch, J. T. 

C & C Oil Co. (Isaac Cohen) 

Caporale, Leonard 

Cardelli, Aenzo 

Caswell, Patrick/Pat's Fireplace 

Clene Heat/R.J. Holding 

Coy, Ron/Northern Tree 

D & P Service Co. 

D Oil Co. /Jack DePalma 

Daigle, Barry 

DePalma, Anthony 

DePalma, John 

Forbes, Richard/Dick's Landscp. 

Holding, R.J. Oil & Gas 

King's Row Fireplace Shop 

Levesque, Edward 

Marchetta, Ron/Timberline Tree 

Millian. Robert (Newton St. Gulf) 

Orleans Coal & Oil Co. 

Palingo Oil Co. 

Perry, Bill 

Potter, Seth 

Russo Oil Co. 

Simonelli Oil Co. 

Smith Farms/G. R. Smith 



Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Litigation 


Suffolk 


Consent Judgment 


Middlesex 


Litigation 


Middlesex 


Litigation 


Norfolk 


Litigation 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Judgment 


Suffolk 


Litigation 


Norfolk 


Consent Judgment 


Middlesex 


Litigation 


Worcester 


Status/Disposition 


County/Court 


Assurance of Discontinuance 


Suffolk 


Judgment 


Hampden 


Consent Judgment 


Middlesex 


Consent Judgment 


Suffolk 


Consent Judgment 




Consent Judgment 


Suffolk 


Consent Judgment 


Middlesex 


Consent Judgment 


Hampden 


Litigation 


Suffolk 


Status/Disposition 


CountylCourt 


Litigation 


Essex 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Consent Judgment 


Suffolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Consent Judgment 


Suffolk 


Litigation 




Litigation 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Litigation 


Suffolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Final Judgment 


Suffolk 


Consent Judgment 


Suffolk 


Consent Judgment 


Middlesex 


Litigation 




Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 


Suffolk 


Litigation 




Assurance of Discontinuance 


Suffolk 



64 



P.D. 14 



Smith, Mark 


Assurance of Discontinuance 


Suffolk 


Spalt Industries, Inc. 


Litigation 




Wheeler, Steve/Saddleback Farms 


Consent Judgment 


Suffolk 


Wilkensky, Julius 


Consent Judgment 


Suffolk 


Zion, Ronald 


Consent Judgment 


Suffolk 


G. HOME IMPROVEMENT/APPLIANCE REPAIR 




Defendant 


Status/Disposition 


County/Court 


A-Z Appliance/Allen Zellin 


Assurance of Discontinuance 


Suffolk 


AAA Rental/RBM Sales 


Litigation 


Middlesex 


Acme Power Vac/Ralph Rigione 


Consent Judgment 


Bristol 


Air Temp Engineering, Inc. 


Judgment 


Middlesex 


ALCO Aluminum Pool & Siding Co. 


Judgment 


Hampden 


Anderson, Ralph & Anderson Cstr. 


Consent Judgment 


Suffolk 


Associated Pools 


Consent Judgment 


Nort^olk 


Beacon Hill Roofing 


Litigation 


Suffolk 


Hale/United Vinyl 


Litigation 


U.S. Dist. Ct 


Jack's Radio & TV (John Debie) 


Consent Judgment 


Essex 


King Appliance Service 


Consent Judgment 




Luisi, Paul, et al 


Litigation 


Suffolk 


O'Connor Brothers 


Litigation 


Middlesex 


Rigione, Ralph/ Acme Power Vac 


Consent Judgment 


Suffolk 


Seamless Plumbing 


Litigation 


Suffolk 


Stott Charles/Waltham Roofing 


Litigation 


Middlesex 


Supreme Remodeling (Al Libman) 


Judgment 


IstCir. Ct. 


Ward, George/Waltham Roofing 


Litigation 


Middlesex 


Watertown Roofing/Vlahakis 


Litigation 


Middlesex 


Wonder Construction/Sesser 


Consent Judgment 


Middlesex 


H. HEALTH 






Defendant 


Status/Disposition 


County/Court 


Appelton, Lloyd O. /Kings Mount 


Assurance of Discontinuance 


Suffolk 


Beltone Hearing Aid Service 


Consent Judgment 


Hampden 


ELM Med Lab, Inc/Baez-Giangreco 


Litigation 


Suffolk 


Genesis Laboratory 


Litigation 


Norf^olk 


Inter-Church Team Ministries 


Litigation 


Bristol 


I. INSURANCE 






Defendant 


Stat us ID isposition 


County/Court 


Balfour Federal Credit Union 


Litigation 


Bristol 


Blue Cross/Blue Shield, Inc. 


Litigation 


Suffolk 


CUNA Mutual Insurance Society #2 


Litigation 


Middlesex 


Edwards, Allan G., Jr. (M.D.) 


Assurance of Discontinuance 


Suffolk 


Gallagher, Philip G. (M.D.) 


Assurance of Discontinuance 


Suffolk 


Metropolitan Life Insurance 


Litigation 


Suffolk 


Travelers Insurance Co. 


Litigation 


Suffolk 


J. MOBILE HOMES 






Defendant 


StatusI Disposition 


County/Court 


Bluebird Acres Mobile Home Park 


Consent Judgment 




Hampden Village 


Judgment 


Hampden 


Hampden Village 


Contempt 


Hampden 


Mogan's Mobile Home Park 


Consent Judgment 


Middlesex 


Suburban Estates 


Litigation 


Bristol 



P.D. 14 



65 



K. NURSING HOMES 

Defendant 

Adams Nursing Home/Alessandroni 
Algonquin RH/Whitlow, Hazel/Irv 
Almeida Lewis 
Berkshire Nursing Home 
Dranetz, Marshall/Daley, Harry 
Fleetwood Nursing Home 
Hancock House Of Beverly 
Harvard Manor Nursing Home 
Havolyn Management/Ray Monahan 
Havolyn ManagementyRay Monahan 
Heritage Hill Nursing Homes 
Jewish Nurs. Home Of West. Mass. 
Kimwell, Weston Manor Nurs. Home 
Middlesex Manor Nursing Home 
Resthaven Rest Homes 
People's Church Nursing Home 
Twin Pine Corp. /Weston Manor NH 

L. PRICING/FOOD 

Defendant 

First Nat'l Stores 

Purity Supreme 

M. REAL ESTATE/HOUSING 

Defendant 

Acres 'n Acres 

Alan Realty/Alan Zuker 

Allen Realty 

Apex Apartment Rentals 

Battlegreen Construction 

Bluebird Realty Trust 

Bluebird Realty Trust 

Cape Real Estate 

City Real Estate 

Citywide Rentals 

Clarke-Jacob Realty 

Cohen, Terry (Bulfinch Realty) 

Colonial Realty 

Commonwealth Condo Tr/Gear/Bem 

Co-Ree Real Estate 

Countryside Realty 

Delta Realty Co., Inc. 

Elmwood Park Rlty Tr/Stivaletta 

E-Z Rentals 

Gei-Ger Real Estate 

Gesner Construction Co. 

Gladestone Realty Trust 

Golden Eagle Apartments 

Gray Rental Properties 

H & F. Realty 

Harkey, John Realtor 

Harwick (William) Construction 



Status/Disposition 


County/Court 


Partial Judgment 


Suffolk 


Litigation 


Suffolk 


Judgment 


Bristol 


Judgment 


Berkshire 


Litigation 


Barnstable 


Litigation 


Berkshire 


Litigation 


Middlesex 


Judgment 


Middlesex 


Consent Judgment 


Suffolk 


Contempt 


Suffolk 


Litigation 


Suffolk 


Litigation 


Hampden 


Consent Judgment 


Suffolk 


Judgment 


Bristol 


Litigation 


Suffolk 


Judgment 


Worcester 


Judgment 


Middlesex 


Status/Disposition 


CountylCourt 


Assurance of Discontinuance 


Suffolk 


Final Judgment 


Middlesex 


Status/Disposition 


CountylCourt 


Litigation 


Essex 


Consent Judgment 


Norfolk 


Consent Judgment 


Norfolk 


Consent Judgment 


Suffolk 


Litigation 


Middlesex 


Consent Judgment 




Litigation 




Consent Judgment 




Consent Judgment 




Consent Judgment 




Assurance of Discontinuance 


Suffolk 


Litigation 


Suffolk 


Litigation 


U.S. Dist. Ct. 


Consent Judgment 


Suffolk 


Consent Judgment 




Consent Judgment 




Consent Judgment 




Assurance of Discontinuance 


Suffolk 


Consent Judgment 




Consent Judgment 




Consent Judgment 


Norfolk 


Litigation 


Middlesex 


Assurance of Discontinuance 


Suffolk 


Assurance of Discontinuance 


Suffolk 


Consent Judgment 




Consent Judgment 




Litigation 


Norfolk 



66 



P.D. 14 



Homes By Design 


Consent Judgment 


Middlesex 


Hub Realty 


Consent Judgment 




Kaufman & Broad 


Litigation 


Norfolk 


Keith (John W.) Builders 


Consent Judgment 




Land & Leisure 


Litigation 


Suffolk 


Land Auction Bureau 


Litigation 


Suffolk 


Ledgemere Farms/Davis Farm Rd. 


Consent Judgment 


Middlesex 


Liberty Hill Management Corp. 


Consent Judgment 




MacDonald Real Estate 


Consent Judgment 




Marshfield Real Estate 


Consent Judgment 


Plymouth 


Messineo, Randolph/Randy's Rty. 


Litigation 




Murphy & Murphy Drive-in R.E. 


Consent Judgment 




Murphy, Christopher/Bird, Inc. 


Litigation 


Middlesex 


Parkwood Estates Realty 


Consent Judgment 




Realty Sales Co. 


Consent Judgment 




Sergi Enterprises 


Consent Judgment 




Southbrook Real Estate 


Consent Judgment 




Weiss. Sheila 


Assurance of Discontinuance 


Suffolk 


Wish Realty Assoc, Inc. 


Consent Judgment 


Suffolk 


Woods Real Estate 


Consent Judgment 




N. SALES PRACTICES 






Defendant 


StatusI Disposition 


County/Court 


Apartment Showcase 


Judgment 


Middlesex 


Aubin, Wm. /North East Land Realty 


Judgment 




Bonnie Rigg Camping Club, et al 


Assurance of Discontinuance 


Suffolk 


BIC's 


Consent Judgment 


Middlesex 


Bi-Lo Food Warehouse 


Judgment 


Hampden 


Butcher's Pride 


Assurance of Discontinuance 


Suffolk 


Diversified Hlth Ind/Roman Spa 


Litigation 


Hampden 


Edwin R. Sage Co. 


Consent Judgment 


Suffolk 


Executive Dating Serv. (Konior) 


Final Judgment 




Farm Stand of Peabody 


Consent Judgment 


Suffolk 


Food Marts 


Judgment 


Hampden 


Foodmaster Supermarkets, Inc. 


Consent Judgment 


Suffolk 


General Investment & Devel. Co. 


Assurance of Discontinuance 


Suffolk 


General Motors Appliance Corp. 


Assurance of Discontinuance 


Suffolk 


Gloucester Dispatch, Inc. 


Consent Judgment 


Essex 


Guarino. Stephen 


Consent Judgment 


Suffolk 


Hearing Dynamics of New England 


Consent Judgment 


Norfolk 


Hill & Sons & Hill Food Service 


Litigation 




Homelike Apartments 


Assurance of Discontinuance 


Suffolk 


Hub Ticket Agency 


Consent Judgment 


Suffolk 


International Health Spa (Keene) 


Litigation 


Suffolk 


J & T Auto Repair 


Assurance of Discontinuance 


Suffolk 


Jewell Companies, Inc. 


Consent Judgment 


Middlesex 


Keene, Allen 


Litigation 




Kilgo, John (Evelyn Wood) 


Assurance of Discontinuance 


Suffolk 


Lamour, Inc. 


Assurance of Discontinuance 


Suffolk 


Leisure Distributors/Hi Fi Buys 


Assurance of Discontinuance 


Suffolk 


Liberty Park Equip. & Sales 


Consent Judgment 




Main Street Auto Sales & Serv. 


Assurance of Discontinuance 


Suffolk 


Mansfield Mattress Corp. 


Assurance of Discontinuance 


Suffolk 


Mass. Business & Prof. Directory 


Consent Judgment 





P.D. 14 



67 



Mass. Distributors, Inc. 


Assurance of Discontinuance 


Suffolk 


Maynard Market 


Consent Judgment 


Suffolk 


Middlesex Vacuum 


Litigation 


Middlesex 


Mold Specialists 


Consent Judgment 


Suffolk 


Murphy, Wayne 


Consent Judgment 




Out-of-Town Ticket Agency 


Consent Judgment 


Suffolk 


People's Furniture 


Consent Judgment 




Pieroway Electric Co., Inc. 


Assurance of Discontinuance 


Suffolk 


Pioneer Pools 


Consent Judgment 


Norfolk 


Promotional Sales Consultants 


Assurance of Discontinuance 


Suffolk 


Purity Supreme 


Final Judgment 


Middlesex 


Railroad Salvage of Conn. 


Assurance of Discontinuance 


Suffolk 


Ray's IGA Store 


Consent Judgment 


Suffolk 


Schultz Lubricants, Inc. 


Assurance of Discontinuance 


Suffolk 


Selective Singles 


Litigation 


Suffolk 


Skyline Manor 


Judgment 


Hampden 


Stereo Component Systems. Inc. 


Assurance of Discontinuance 


Suffolk 


Swim-Rite Pools, Inc. 


Litigation 


Norfolk 


Supreme Furniture Co. 


Consent Judgment 




Town & County Products/Leonard 


Judgment 


Hampden 


Tyson Ticket Agency 


Consent Judgment 


Suffolk 


Valenti Ticket Agency 


Consent Judgment 


Suffolk 


Weight Loss Medical Center 


Consent Judgment 


Suffolk 


West Springfield Chvy/Plymouth 


Litigation 


Hampden 


Wilkensky, Julius 


Consent Judgment 




Woods, Paul (Swimming Pools) 


Consent Judgment 




World of Homes 


Assurance of Discontinuance 


Suffolk 


0. TRAVEL 






Defendant 


Status/Disposition 


County/Court 


Associated Travel Serv of Boston 


Assurance of Discontinuance 


Suffolk 


G & G Travel 


Litigation 


Hampden 


Intern '1 Weekends 


Litigation 


Suffolk 


Patt, Gloria/Quality Tours 


Litigation 


Norfolk 


Quality Tours 


Litigation 


Norfolk 


Trans National Travel 


Litigation 


Suffolk 


P. WEIGHTS & MEASURES 






Defendant 


Status/Disposition 


County/Court 


Blue Ribbon Dairy 


Litigation 




Family Assoc. 


Consent Judgment 




Holding, R.J. Oil & Gas 


Consent Judgment 




Lamusta's Auto Service 


Consent Judgment 


Worcester 


Scholbro Foods d/b/a Evergood Mkt 


Litigation 





Q. MISCELLANEOUS 

Defendant 

Able Rug Cleaners, Inc 

Aetna/St. Anns Credit Union 

Allied Constr. Training Corp. 

Anchutz, Donald E. 

Andrews Paint 

Artistic Typing Headquarters 

Auer, Bob-d/b/a Bob Auer & Sons 



Status/Disposition CountylCourt 

Assurance of Discontinuance Suffolk 

Final Judgment U.S. Dist. Ct. 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 
Consent Judgment 

Assurance of Discontinuance Suffolk 
Consent Judgment 



68 



P.D. 14 



Barry, Henry 

Big-Y-Foods, Inc. 

Bragel, Shirley 

Brettman, Hy 

Brigham's Ice Cream 

Chala Foods 

Chatham Development Co. 

Chawa Tash 

Codman Co. 

Coffman, Ralph 

Comfort Comer 

Consigli, Louis 

Continental Employment Agency 

Coordinators, Inc. 

CUNA Mutual Insurance Society #1 

Datamarine International 

Daylight Dairy Products 

Dorchester Wayport Trust 

Doucette, Paul 

E & S Enterprises 

Fafco Division. VSI 

Famalette, Anthony 

Feodoroff Agency 

Ferioli, R.J., Inc. 

Framingham Housing Authority 

Global Oil 

Goldstein & Gurwite Auctioneers 

Grochmal, Richard 

Hewitt Assoc, Inc. 

laciafano, Dominic, et al 

Indiana Merchandising Corp/Nassi 

Juno, Inc. 

Katz. Raanan/Victory Realty 

Kitchen Delight 

LaFranchise, Arthur Jr. 

Lawson Hill 

Lesnow Mfg. Co. 

Liberty Hill Management Corp. 

Little & Co. 

Loring Hills Assoc. 

Mass. Rentals 

Miller, Ephram 

Millis Commodity Ltd. 

Moccasin Craft 

N.I. Associates 

Nassi Assoc. 

National Marketing Consultants 

New England Studio Co. 

Pickwick Int'l Corp. 

Quigley, Charles 

Rao (Roger), Inc. 

Rautio, James d/b/a Treas. Chest 

Ryan, Kenneth 

San-Mac Industries 



Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 
Judgment 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Assurance of Discontinuance 
Assurance of Discontinuance 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Litigation 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Litigation 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Litigation 

Assurance of Discontinuance 
Assurance of Discontinuance 
Judgment 
Consent Judgment 
Consent Judgment 
Judgment 

Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Litigation 
Consent Judgment 
Assurance of Discontinuance 
Assurance of Discontinuance 
Litigation 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 



Suffolk 

Middlesex 
Plymouth 

Suffolk 

Suffolk 
Suffolk 

Suffolk 

Suffolk 
Barnstable 

Suffolk 
Suffolk 



Suffolk 
Plymouth 

Suffolk 
Worcester 

Suffolk 
Norfolk 
Suffolk 
Suffolk 
Suffolk 
Suffolk 

Middlesex 

Suffolk 

Middlesex 



Suffolk 

Suffolk 

Middlesex 

Suffolk 

Suffolk 



Suffolk 
Suffolk 

Essex 



P.D. 14 69 



Seren's, Inc. Consent Judgment 

Stamps Infonnation Associates Consent Judgment Suffolk 

Valve Service International Consent Judgment 

Wasserman, Max Consent Judgment 

Waystack, Charles Jr. Consent Judgment 

Wholesale Marketing Consent Judgment 

Windsor Meadows Assurance of Discontinuance Suffolk 



ENVIRONMENTAL PROTECTION DIVISION 

General Laws c.l2, §1 ID establishes the Environmental Protection Division. 
The Division's responsibilities lie in two main areas. It is litigation counsel to 
all the agencies of the Commonwealth, principally those within the Executive 
Office of Environmental Affairs, that are charged with protecting the environ- 
ment. In this role the Division appears in court in matters such as air and water 
pollution, hazardous and solid waste control, wetlands protection and billboard 
control. In addition, and pursuant to its mandate under G.L. c.l2, §11D, the 
Division initiates and intervenes in judical and administrative actions for the 
purpose of protecting the environment of the Commonwealth. These cases in- 
clude hearings before federal agencies on the siting of energy generating facili- 
ties and participating in state and federal appellate courts on issues of signifi- 
cance to the environment. 

During the year the Division became increasingly involved in two issues of 
great significance to Massachusetts: acid rain and hazardous waste disposal. 
The acid rain problem is now being recognized as a serious threat to water 
quality and aquatic life and, potentially, to agriculture, forestry and human 
health. It is especially serious in the northeast because the pollutants that cause 
it are often carried long distances and deposited in this area. The Division is 
moving on this problem in several areas. We are a party in a Sixth Circuit 
Challenge to the federal government's relaxation of air pollution requirements 
in Ohio. (Much of the problem begins in the midwest). We are participating in 
administrative proceedings regarding the interstate transport of air pollutants. 
We have given testimony before a United States committee concerning the 
evnironmental effects of the coal conversion contemplated by the "oil backout" 
legislation and the need for amendments to the Clean Air Act. 

The unlawful disposal of hazardous substances has been a problem in Massa- 
chusetts for some time. It threatens water supplies and public health, and the 
Division has for five years sought to combat the problem. Recent tightening of 
enforcement in the New York-New Jersey area has forced more hazardous 
material into New England. The Division has responded in several ways. Civil 
enforcement efforts have been increased. The Criminal Bureau and the State 
Police Unit of the Department have been enlisted to aid in the effort. The 
Division has set up a committee composed of assistant attorneys general from 
the entire northeast to coordinate responses to the problem. 

As a result of its role in environmental enforcement the Division is the 
recipient of substantial grant money from the United States Environmental Pro- 
tection Agency. In fiscal year 1980, the Division received one hundred and 
seventy-five thousand dollars ($175,000.00) in such funds, which are primarily 
for staffing. 



70 P.D. 14 



The Division's enforcement policy includes seeking monetary penalties in 
appropriate cases. During the year judgments have entered totalling approxi- 
mately two hundred and twenty-five thousand dollars ($225,000.00) in such 
penalties. 

At the end of the fiscal year, the Division was staffed by a Chief, seven 
Assistant Attorneys General, a Wetlands Scientist and four secretaries. 

CATEGORIES 

AIR 

Air pollution cases are referred from the Department of Environmental Qual- 
ity Engineering, Division of Air Quality, and involve violations of the state Air 
Pollution Regulations. The statutory authority is G.L. c. 1 1 1 , §42. 

WATER 

Water pollution cases are referred from the Department of Environmental 
Quality Engineering, 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. Oth- 
ers seek to recover costs expended in cleaning up oil spills. The statutory 
authority is G.L. c.21, §§26-52. 

WETLANDS 

Wetlands cases are generally referred from the Department of Environmental 
Management, Wetlands Section, or Department of Environmental Quality Engi- 
neering, Wetlands Division. Others begin with citizen complaints. The cases 
fall into two categories: (1) those involving the permit program for altering 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.130, §105 and G.L. c.l31, §40A. 

SOLID WASTE 

Solid waste cases are referred from 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. 1 1 1, §150. 

HAZARDOUS WASTE 

Hazardous waste cases are referred by the Department of Environmental 
Quality Engineering, Division of Hazardous Waste. They involve the transport 
and disposal of hazardous substances in violation of state regulations. The 
statutory authority is G.L. c.21C. 

BILLBOARD 

Billboard cases are referred by the Outdoor Advertising Board. A majority 
are defenses to petitions for judicial review of decisions of the Outdoor Adver- 
tising Board. The statutory authority is G.L. c.93, §§29-33. 

SCENIC RIVERS 

Scenic Rivers cases are referred by the Department of Environmental Man- 
agement. They involve the defense of use restrictions made pursuant to the 



P.D. 14 



71 



Commonwealth's Scenic Rivers Act. The statutory authority is G L c 21 
§17B. ■ •• . 

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 envi- 
ronmental 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 administrative, state and fed- 
eral. 

SIGNIFICANT CASES 

There follows a description of some of the cases the Division handled d-jring 
the year. 

Pennsylvania v. EPA 

This action challenges EPA's suspension of sulfur dioxide emission limita- 
tions for two Cleveland Electric Illuminating Company power plants in Ohio. 
Sulfur dioxide emissions from midwestem sources (especially those with tall 
stacks) are believed to play a large role in the acid rain problem in the northeast. 
We have intervened as a party-petitioner and have filed a lengthy brief together 
with other northeastern states. Before the court ruled, EPA announced new 
emission limitations for the two plants and a new tall stack policy. The tall stack 
policy represents a major victory for Massachusetts. It requires case-by-case 
review of the necessity for tall stacks rather than their automatic approval in 
certain circumstances. 

Tidelands Amicus Brief 

On May 6, 1980 the Massachusetts Senate submitted six questions concern- 
ing Senate bill No. 2150 to the Supreme Judicial Court for an advisory opinion. 
The Attorney General was invited to submit a brief on the questions. The bill in 
question was an attempt to extinguish certain public rights in tidelands in Bos- 
ton Harbor. Our brief took the position that the proposed Senate bill is unconsti- 
tutional and violates the duty of the commonwealth to hold such tidelands in 
public trust for the benefit of all citizens of the commonwealth. The S.J.C. has 
not yet issued an opinion in the case. 

Warren Price v. Wesley Eaton 

In another case involving the public trust, the Division argued that a munici- 
pality could not limit access to boat-mooring permits to its residents because 
waters along the shore are held in trust by the commonwealth for all its citizens. 
The court agreed, providing an important statement of public trust law. 

Roxse Homes v. Adams, et al. 

The MBTA, DPW, and the Executive Office of Transportation and Construc- 
tion proposed a plan for major renovation in Roxbury (the Southwest Corridor 



72 P.D. 14 



Project) which included relocation of the Orange Line and construction of a new 
street (Crosstown Street) and parks in the area. The Southwest Corridor project, 
the biggest construction project ever undertaken in Boston, will create 23,000 
jobs for community residents, physically rehabilitate the area, and improve 
transportation between Boston and seven of its neighborhoods. A small group 
of plaintiffs attempted to block the project. The Division represented the de- 
fendants in Federal District Court and participated in settlement negotiations 
which removed the plaintiffs' objections. The case was dismissed in February 
1980. 

Red Line Alert v. Adams 

This case involved the MBTA and EOTC's project to extend the Red Line 
from Harvard Square to Alewife. The project, which will take approximately 
five years to complete will relieve much of the present congestion in Harvard 
Square and will provide mass transit for thousands who cannot now use it. The 
Division represented the state defendants in a federal court challenge to the 
project. The court denied the plaintiffs' motion for a preliminary injunction, and 
construction is continuing. 

Division of Water Pollution Control v. Cit}' of Leominster 

Leominster was the last remaining discharger not involved in a program to 
prevent the release of insufficiently treated or untreated wastewater into the 
North Nashua River. The City frequently discharges 5 million gallons of un- 
treated wastewater per day into the river. The Division brought suit in 1976 to 
compel construction of a wastewater treatment plant. The City entered into a 
Consent Judgment agreeing to complete construction of the 90% federally and 
state-funded plant. Thereafter, the City repeatedly asked for delays in the sched- 
ule. Governors Dukakis and King rejected the requests for delays. In January 
1980, the City refused to take the next step in the schedule: advertisement for 
bids for construction. In March 1980 the Division filed a Petition for Contempt. 
The Superior Court ordered the mayor to authorize advertisement of bids for 
construction. Construction bids have now been received by the City. 

Division of Water Pollution Control v. Garelick Farms 

Garelick Farms is a dairy in Franklin that is the source of illegal discharges 
into both the wetlands surrounding its plant and the town's sewer system. The 
Division sued the dairy. In one of the largest settlements we have negotiated, 
Garelick agreed to pay a civil penalty of $75,000 and to undertake a major 
construction program to upgrade its wastewater handling facilities and to elimi- 
nate all unpermitted discharges. 

Division of Water Pollution Control v. City ofQuincy 

In another negotiated settlement, the City of Quincy agreed to an extensive 
rehabilitation program for the numerous municipal storm drains discharging 
onto Wollaston Beach. Over the years sewage has been finding its way into 
these drainpipes, either through illegal direct connections or through leachate 
from failed septic systems in the vicinity of a break in the pipe. As a result, 
coliform counts in the water off Wollaston Beach have been consistently high, 
and the area has been periodically closed to swimming and shellfishing. Under 
the terms of the agreement, the city is using TV surveys to locate breaks in the 



P.D. 14 



73 



pipes and illegal connections, and then is inserting plastic sleeves and grouting 
to reseal them. 

The next three cases illustrate the cooperative effort underway among the 
Division, the Criminal Bureau, the State Police Unit and the Division of Haz- 
ardous Waste of the Department of Environmental Quality Engineering 
(DEQE). 

Cannons Engineering 

The defendant in these cases is one of the principal licensed handlers of 
hazardous waste in the Commonwealth. Information developed by the State 
Police Unit indicated the defendant's involvement in illegal disposal of and 
false reporting regarding some of the waste. Indictments followed, and the 
license was revoked. The Division represents DEQE in its efforts to secure 
compliance with the law and in its defense of a challenge to the license revoca- 
tion. The parties have agreed to the appointment of a receiver to run the opera- 
tion so that valuable waste disposal capacity is retained while the public is 
protected. 

Department of Environmental Quality Engineering v. Giovanella 

Information developed by the State Police Unit indicated the existence of a 
site in Kingston where substantial amounts of hazardous waste has been 
dumped. A search warrant was executed, and members of the Division and the 
Criminal Bureau and technical personnel from DEQE discovered a large dis- 
posal site. While the criminal investigation continues, the Division has filed suit 
and has attached a substantial amount of property, for use as reimbursement for 
clean up. 

Chem-Waste 

Information obtained by the State Police indicated that hazardous wastes 
were being stored illegally in a warehouse in Salem and that they were about to 
be moved to an illegal disposal site in Maine. A search warrant and a temporary 
restraining order were obtained, and the move was prevented. DEQE later 
moved the materials to a safe storage facility in Braintree, pending completion 
of analysis of their constituents. The Division has filed suit and is negotiating 
with the generators and haulers of the waste for storage and disposal costs. 

South Essex Sewerage District 

This a complicated case in which a large regional sewage treatment plant has 
been forced to discharge untreated sewage in violation of state and federal water 
laws by its lack of a legal disposal site for the ash (which has been declared a 
hazardous waste) that results from burning sludge and by the disturbance of 
local residents caused by the burning. DEQE has given the Sewerage District a 
great deal of technical assistance, and the Division, the District, and the City of 
Salem are negotiating toward resolution of the problems preventing treatment. 

Nuclear Power 

During the year the Division continued its work in cases involving the envi- 
ronmental implications of nuclear power. These cases concern specific siting 
decisions (the licensing proceedings for the Pilgrim II plant), generic safety 
issues (the Nuclear Regulatory Commissions' rulemaking on storage and dis- 



74 P.D. 14 



posal of nuclear waste) and legal issues (amicus participation in federal appel- 
late cases involving challenges to state regulatory schemes). 

American Petroleum Institute v. Knecht 

This case was filed by the oil industry trade association in the United States 
District Court for the District of Columbia to block federal approval of the 
Massachusetts Coastal Zone Management Program. The Division entered the 
case on behalf of the Executive Office of Environmental Affairs and argued that 
the plaintiff did not have standing to bring the suit. The court agreed and 
dismissed the case. The plaintiff appealed to the Circuit Court for the District of 
Columbia. After briefs were filed, the plaintiff withdrew the appeal. The pro- 
gram is in full operation, free of any doubt about its legality. 

Georges Bank 

The Division continued its efforts to secure the greatest possible protection 
for the natural resources of Georges Bank and for the fishing industry that 
depends on those resources. Those efforts included participation in the adminis- 
trative process involving designation of Georges Bank as a Marine Sanctuary, 
negotiation with federal agencies that led to a scaling-down of the oil and gas 
lease-sale held in the area, an unsuccessful attempt to secure another injunction 
against the lease sale and continued monitoring of the administrative process 
involving promulgation of safety regulations and issuance of water discharge 
permits. 

Agins V. Tiburon 

A California real estate developer challenged a municipal land use ordinance 
on the ground that it unconstitutionally interfered with the use of his property. 
The challenge was rejected in the state courts. When the United States Supreme 
Court agreed to hear the case, the Division joined in a brief urging that the 
ordinance be upheld. This was done because a contrary decision would have 
placed in question a number of environmentally significant Massachusetts stat- 
utes, including the Coastal Wetlands Restriction Act, the Inland Wetlands Re- 
striction Act and the Scenic Rivers Act. The Supreme Court rejected the chal- 
lenge, thereby removing doubt about the validity of the Massachusetts statutes. 

STATISTICS 

Cases opened in Fiscal Year 1980, by category: 

AIR 4 

BILLBOARDS 5 

HAZARDOUS WASTE 1 1 

OIL SPILL 1 

SCENIC RIVERS 7 

SOLID WASTE 14 

WATER 13 

WETLANDS ENFORCEMENT 17 

WETLANDS RESTRICTION 3 

MISCELLANEOUS _20 

TOTAL 95 



P.D. 14 75 

Cases closed in Fiscal Year 1980, by category: 

AIR 9 

BILLBOARDS 3 

HAZARDOUS WASTE 1 

OIL SPILL 2 

SOLID WASTE 10 

WATER 21 

WETLANDS ENFORCEMENT 5 

WETLANDS RESTRICTION 9 

MISCELLANEOUS 15 

TOTAL ^5 

HOUSING AND ARSON PREVENTION UNIT 

A. INTRODUCTION 

The Housing and Arson Prevention Unit operates as part of the Attorney 
General's statewide Comprehensive Arson Prevention and Enforcement System 
(CAPES). This unit, as with all other parts of the CAPES Program is funded by 
a Grant from the Law Enforcement Assistance Administration for the period 
January 1, 1980 through June 30, 1981. The unit operates to identify buildings 
and owners engaged in unfair real estate and housing practices, with a particular 
emphasis on identifying buildings which exhibit characteristics similar to those 
of buildings which have been burned or been abandoned as a result of incendi- 
ary fires. Specifically, the unit has established demonstration programs in three 
areas of the city of Boston: Jamaica Plain, the South End, and a portion of 
Dorchester. In each of these areas the unit is working closely with community 
organizations to identify real estate abuse and potential arson problems. When a 
building is identified as exhibiting arson prone characteristics, a strategy is 
developed to lessen the factors of economic stress, or building vacancy which 
may lead to arson or otherwise create a public safety hazard with respect to the 
particular property. Often this strategy involves affirmative litigation initiated 
by the unit under powers given the department under G.L. c.l2 §10, and G.L. 
C.93A §4. The resolution of problems with respect to any given building usually 
entails a cooperative and coordinated action between the community, city gov- 
ernment, and the Department of the Attorney General. In addition, staff of the 
unit have worked with the State Building Commission, State Commissioner of 
Insurance, The Massachusetts Fair Plan and the State Commissioner of Banks 
on legislation, rules and regulations, and other practices which may have a 
general impact on arson prevention and real estate activities. The unit also 
advises the Attorney General of developments and issues in the area of arson 
prevention and housing, drafts legislation, comments on agency regulations and 
carries out investigations on buildings and owners which may be involved with 
housing problems and potential fires. 

Organizational Efforts and Accomplishments 

During the period covered by this report the unit largely focused its efforts on 
establishing itself institutionally within the Department of the Attorney General 
and developing cooperative relationships with other state and City of Boston 
agencies. Specifically, the unit was staffed with a Chief Assistant Attorney 



76 P.D. 14 



General, a Staff Assistant Attorney General, a Principal Investigator, a Staff 
Investigator and an Administrative Assistant. Cooperative relationships have 
been formed between the unit and major City of Boston departments, including 
the Fire Department, Building Department, Housing Inspection Department, 
Boston Redevelopment Authority and the Collector-Treasurer. In addition the 
unit has worked closely with the Suffolk county Registry of Deeds, the State 
Fire Marshal, State Commissioner of Insurance, the Massachusetts Fair Plan 
and several community based organizations. 

The unit worked jointly with its consultant. Urban Educational Systems, Inc. 
(UES) in establishing a Community Board made up of representatives from 
across Boston. UES and the unit also recruited three neighborhood researchers 
and commenced training them in the techniques of property research. These 
techniques will enable the community groups to report housing and potential 
arson problems to the unit in a meaningful way. Periodically research data is 
reviewed by the unit with UES, and strategies for reducing the likelihood of 
arson, or the prevalence of real estate abuse, are devised and implemented. 

ADMINISTRATIVE AND RESOURCE DEVELOPMENT ACTIVITIES 

The unit pursued several objectives to facilitate the systematization of its 
arson prevention efforts. A thorough set of property research forms and step-by- 
step protocols were devised and placed in a bound manual format. These forms 
and protocols are designed for the neighborhood researchers and hopefully will 
allow property research techniques to be readily learned by persons other than 
just the researchers. These research forms and procedures will be distributed to 
any District Attorney that requests them. UES and the unit developed a property 
owner-incendiary or suspicious fire index from Boston Fire Department data for 
the years 1976 to the present. This index permits one to find out how many, 
what kind, and which fires are associated with a particular owner. The unit was 
a major participant in the development of a new fire insurance application form, 
and devised new legislation supportive of this form. 

Three target areas in the City of Boston were selected as the focal locations 
of the CAPES prevention effort. These areas comprise portions of Jamaica 
Plain, Dorchester, and the South End. The areas were selected on the basis of 
three criteria: 

1) presence of a fire problem on the basis of Boston Fire Department data 
from 1976 through early 1980; 

2) presence of a viable community organization or infrastructure with an 
ability and interest in dealing with land use and real estate problems; and 

3) an arson problem related to gentrification, disinvestment of the commu- 
nity or a combination of gentrification and disinvestment. 

In Dorchester, community arson sensitization and training was carried out at 
both the community organization and block group levels. Specifically, the 
unit's personnel worked closely with the neighborhood improvement associa- 
tion in conducting a neighborhood survey to identify buildings in great need of 
attention. As a result over 40 vacant buildings were identified and researched. 
In addition, the unit met with each of the 15 block organizations affiliated with 
the neighborhood improvement association to inform them of the CAPES pre- 
vention program and have them inform the unit of some of their block's particu- 
lar problems. 



P.D. 14 77 



INVESTIGATIVE AND LITIGATION ACTIVITIES 

The Unit is preparing litigation under Chapter 93A to correct building defi- 
ciencies creating arson hazards. 



INSURANCE DIVISION 

The Insurance Division of the Public Protection Bureau represents the inter- 
ests of Massachusetts citizens who purchase insurance. The Division has two 
areas of activity: Division attorneys intervene in administrative hearings held to 
consider insurance companies' requests for rate increases, and also bring affirm- 
ative litigation on behalf of victims of deceptive insurance sales practices, 
fraud, and other illegal insurance activities. 

ADMINISTRATIVE HEARINGS 
Automobile Insurance 

The Insurance Division intervened this year in a major case involving re- 
quested rate increases for automobile insurance. After Division attorneys raised 
questions and presented extensive evidence, the state Commissioner of Insur- 
ance issued a decision cutting the industry's requested rate increase by more 
than one hundred million dollars. 

MBTA Pass Proposal 

The Division participated in administrative hearings in the fall of 1979 to 
support a proposal for an MBTA "Pass-Discount" program. The program has 
now begun, and provides regular users of the "T" system with a 10% discount 
on portions of their private passenger automobile insurance. 

Blue Cross - Medex 

Other matters in which the Division took an active part in FY 1980 included 
hearings on proposed rate increases in Blue Cross "Medex" insurance, which 
affects the Commonwealth's elderly citizens. In cooperation with the Bureau's 
Public Charities Division, our attorneys and retained experts scrutinized the 
basis for the Blue Cross request. 

Cancer Insurance 

The Division has continued to oppose cancer and other "dreaded disease" 
insurance because the benefits typically paid are very low in relation to its cost 
and because of the tactics often employed to market cancer insurance to elderly 
citizens. In FY 1980, we actively supported a proposed regulation of the Insur-" 
ance Commissioner, now effective and printed at 21 1 CMR 47.07, which bans 
the sale of cancer insurance in the Commonwealth. 

Competition Hearings (Auto Premiums) 

Another major Division effort this year concerned a lengthy series of hear- 
ings dealing with the important question of whether automobile insurance prem- 
iums should be fixed by the Commissioner of Insurance or be set by competi- 
tion among companies. Because of the complexity of the regulations and stat- 
utes which affect the automobile insurance market in Massachusetts, and as a 
result of the poor results of an experiment in competitive rate setting in the mid 
- 1970's, the Division proposed major streamlining of these conflicting laws so 



78 P.D. 14 



that consumers could be assured that premiums resulting from competitive rate 
setting would be both affordable and reasonable. The Commissioner's decision 
is pending. 

Cost Disclosure (Life Insurance) 

The Division took part in a hearing called by the Commissioner in the spring 
of 1980 to review issues concerning the disclosure of policy and cost informa- 
tion in the sale of life insurance products. A wide variety of technical data was 
presented by many sources, including the Division, because the outcome has 
great significance within the industry and may affect various companies in 
differing ways. Because of the significance of insurance costs to Massachusetts 
residents, the Division urged the Commissioner to adopt regulations mandating 
"Easy to Read" policy disclosures as well as the "prospective" delivery of 
policy and cost information. The Commissioner's decision in this case is also 
pending. 

AFFIRMATIVE LITIGATION 

A second major area of Insurance Division activity consists of lawsuits 
brought on behalf of individual consumers injured by fraudulent insurance sales 
practices. Under G.L. c. 93A, the state Consumer Protection Act, the Division 
brought suits involving deceptive misrepresentations to elderly buyers about 
health insurance supplement plans, improper charges to motorists for dues in 
"motor clubs", sales activities of unlicensed auto insurance agents, and the 
improper collection of various "underwriting" fees. 

A list of pending cases brought by Division attorneys in this area is attached. 

LIST OF DEFENDANTS IN PENDING LITIGATION 

1 . Peter F. Scribner Insurance Agency 

2. Bruce Insurance Agency 

3. American Income Life Insurance Company 

4. Metropolitan Life Insurance Agency 

5. Kemper Insurance Company 

6. Standard Indemnity Company 

7. Motor Club of America 

8. Marquis Insurance Agency, et al 

9. Independence Insurance Agency 

10. Brighton Insurance Agency 

1 1 . Allston Finance Company 

12. Calianos 

13. American Family Insurance 

14. Miles Chrysler Plymouth 

15. Pioneer Valley Insurance Agency 

16. TKO Insurance Agency of Holyoke Incorporated 

PUBLIC CHARITIES DIVISION 

The Division of Public Charities, established by the Attorney General pursu- 
ant to G.L. c. 12, §8B, performs a number of functions which protect the public 
generally from misapplication of charitable funds and from fraudulent solicita- 
tions. 



P.D. 14 



79 



A major development in the past year was the legislative enactment of the 
Attorney General's proposal for modernizing the Division's governing statute. 
The new legislation provides administrative flexibility to the Director of the 
Division, confers upon the Division certain investigative powers, and increases 
the annual filing fee from $15 to $25. Most importantly it raises the level of 
gross support and revenue, triggering the audit requirement from $5,000 to 
$100,000 and permits the Director to exempt certain types of charities from this 
requirement by regulation. Such regulations were promulgated on an emergency 
basis so that they would be effective prior to the June 1 , 1980 billing deadline. 

1. LITIGATION 

Major enforcement efforts have been taken in the following areas: 

FAILURE TO REGISTER - CASES FILED 



Defendant Status/Disposition 

Blind Education and Rehabilitation Guild, Inc. Consent Judgment 

Cape Cod Child Development Program, Inc. Consent Judg.Tient 

Fidelity House of Cape Cod. Inc. Consent Judgment 

Mental Health Association of North Central Massachusetts, Inc. Consent Judgment 

North Central Human Services, Inc. Consent Judgment 

People's Church Home, Inc. Consent Judgment 

Retocom Projects, Inc. Consent Judgment 

The Spanish American Center of Lowell, Inc. Consent Judgment 

Taunton Area Association for Human Services, Inc. Consent Judgment 

FAILURE TO FILE AUDITED FINANCIAL STATEMENTS 

Defendant Statiisl Disposition 

Adolescent Counseling in Development, Inc. Consent Judgment 

Athol Y.M.C.A. Consent Judgment 

Deutsches Altenheim, Inc. Consent Judgment 

Downey Side Inc. Consent Judgment 

Elma Lewis School of Fine Arts Inc. Consent Judgment 

Expedition Training Institute Consent Judgment 

Kodaly Center of America. Inc. Consent Judgment 

New England Journal on Prison Law Consent Judgment 

Northampton Center for Children and Families, Inc. Consent Judgment 

Our House Inc. Consent Judgment 

Springfield Theatre Arts Assoc. Consent Judgment 

Stage West Consent Judgment 

DISSOLUTIONS 

This year final judgment was entered in Bellotti v. Aids to the Community', 
Inc. et aL, dissolving 32 charitable corporations for failure to file annual regis- 
tration statements. 

In addition, organizations may dissolve voluntarily by filing an action against 

the Attorney General. While the division assents to most dissolutions, it is 
necessary in each case to be sure that there has been a proper disposition of 
assets. During the past year the division has been involved in the following 
dissolutions: 



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Association for Better Living 
Berkshire Medical Center, Inc. 



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P.D. 14 



Beth Sail & Co., Inc. 

Chelsea Memorial Hospital 

Community Housing of Forest Park Inc. of Springfield 

Congregational Church of Chicopee Falls 

Correctional Change Group, Inc. 

Olive, Ditson Society for the Relief of Needy Musicians 

Divine Light Mission, Inc. 

Energy Conservation Research Institution, Inc. 

Eye Bank Foundation 

First Church of Christ Scientist, Leominster 

First Church of Christ Scientist, Salem, MA 

First Iron Works Assoc, Inc. 

Foundation of Total Peace 

Frederika Home, Inc. 

Groupways, Inc. 

Haemonetics Research Institution, Inc. 

Health Fair of Greater New Bedford, Inc. 

Howard Benevolent Society of Cambridge 

Laymen's League (Unitarian-Universalist) f/k/a 

Unitarian Laymen's League & Unitarian Universalist Association 

Marlborough Laboratories 

Mass Bay Federated Council, B.S.A. 

Mass Branch of the Shut-In Society, Inc. 

Merrimack Valley Council on the Arts & Humanities 

Micah Foundation, Inc. 

Morning Star Foundation, The 

Mountain Rest, Inc. 

North Seekonk Volunteer Fireman's Assoc, Inc. 

Old Colony Assoc, for Mental Health, Inc. 

Opus Christi America, Inc. 

Periwinkle Nursery School 

Resource Planning Institute 

Rogers Home for Aged Women 

Taunton Animal Welfare Workers, Inc. 

Unitarian Universalist Association 

War Chest Fund Commission 

Wellesley Hospital Fund 

Worcester Academy for Girls 

Worcester Area Drug Coalition, Inc. 



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PROBATE ACTIONS 

The Boston Athenaeum v. Attorney General. The Athenaeuin filed suit seek- 
ing permission from the probate court to sell the Gilbert Stuart portraits of 
George and Martha Washington. A compromise was approved by the court 
whereby the portraits would alternate at three-year intervals between The Mu- 
seum of Fine Arts and The Smithsonian Institute. 

Chase v. Pevear. Briefs were filed in a trustee's appeal from a Probate Court 
judgment surcharging the trustee for excessive compensation and imprudent 
investments. 

Boston Seamen's Friend Society. A decision was entered affirming judgment 
of the Probate Court and confirming the Attorney General's contentions regard- 
ing the duration of the appeal period where the Commonwealth is a party. 



P.D. 14 



81 



Robert W. Fitzgerald, et al v. Attorney General and Lambi N. Adams, et al. 
The taxpayers sought to obtain review of the probate court's decision permitting 
the Worcester Free Pubhc Library to sell a valuable collection of anatomical 
drawings. The Appeals Court ruled that the original case in which the Attorney 
General was a party could not be reopened nearly a year after judgment. 

In Re Wanda Jones. This case was heard by the Supreme Judicial Court on 
reservation and report from the probate court. The conservator sought to have 
an estate plan approved for his ward which would leave the ward's entire estate 
of over one million dollars to Massachusetts charities. The Court upheld the 
authority of the probate court to approve the plan although the ward had no 
known heirs and although the plan was equivalent in practical effect to the 
making of a will. 

Estate of Minor White. At the Probate Court's request this office arbitrated a 
dispute between competing charitable interests (Princeton University and Aper- 
ture Photographic Magazine) regarding the distribution of various photographic 
prints and other memorabilia. Final Judgment was entered by the Probate Court. 

DECEPTIVE OR UNFAIR SOLICITATIONS 

Bellotti V. Charles Manfredi and Massachusetts Jaycees Bay state Digest. A 
complaint was filed alleging unauthorized and deceptive solicitation. Prelimi- 
nary orders were obtained. 

Commonwealth of Massachusetts v. General Mass Marketing and Charles 
Ufland. A consent judgment was entered regarding use of illegal fund-raising 
methods. 

Bellotti V. Stewart et al (Scituate Police Relief Association). A complaint 
was filed against present and former officers of the Scituate Police Relief Asso- 
ciation for failure to register as a public charity, to maintain adequate financial 
records, and to file annual financial reports. The suit seeks to enjoin various 
unfair and deceptive fund raising practices. 

Bellotti V. Rabbi Marvin Antelman and the Boston Jewish Federation. A 
complaint was filed to enjoin defendants from soliciting on behalf of charities 
without authorization and to require defendants to register. Preliminary orders 
were obtained. 

Bellotti V. Richard Markiewicz and International Cavalcade of Stars. A suit 
was brought to enjoin solicitation on behalf of a charity by an unregistered 
solicitor being paid more than 15% of the proceeds who was illegally using paid 
telephone operators. 

MISCELLANEOUS 

Commonwealth v. Paine. The suit sought an injunction against individuals 
who conducted "free" seminars for the purpose of enticing customers to pay 
$1500 for information on how to set up a church in one's home and thereby 
substantially reduce income taxes. A Superior Court order required defendants 
to disclose the substantial risk that the I.R.S. would disallow any attempted 
charitable donation deduction. 

7.^.5. Freedom of Information Act Request. This was a FOIA Request seek- 
ing a listing of all charities in the Commonwealth on a fee- waived basis. I.R.S. 



82 P.D. 14 



agreed to provide the list but not on the fee-waived basis required by law for 
requests in the public interest. After preparation of a complaint and extensive 
negotiations, fees were waived. 

Bellotti v. Christian Broadcasting Network. A complaint was filed to com- 
pel defendant to file annual financial reports as a public charity. Defendant 
asserted it was exempt as a religious organization. The complaint was dismissed 
after defendant converted Massachusetts operation to a for profit non-charitable 
operation and filed financial disclosure for all years it operated in Massachusetts 
as a public charity. 

Bellotti V. Slawson. A comtempt action was brought against a public admin- 
istrator for failure to file final accounts after entry of a court order requiring him 
to do so. In response to the suit, accounts were filed but checks representing 
escheated funds were returned for insufficient funds. The Division recovered 
amounts due from the bonding company and referred the matter to the Board of 
Bar Overseers. 

Bellotti v. Paul Haskins dibia Potpourri Productions. A suit was brought to 
enjoin defendant from providing gambling events without authorization and for 
restitution to patrons of an event for which gambling had been advertised. 

Guardianship Proceeding. A petition was brought on behalf of Shattuck 
Hospital to have a guardian appointed for purpose of authorizing medical treat- 
ment. After an evidentiary hearing, a temporary guardian was appointed with 
the purpose of getting psychiatric counseling. 

Blue Cross/ Blue Shield - Mede.x Rate Hearings. The Division intervened 
with the Division of Insurance in administrative proceedings before the Com- 
missioner of Insurance concerning approval of rate increases for Medex (Medi- 
care Gap Insurance ) subscribers. The hearing officer rejected several conten- 
tions advanced by this office and the matter is currently on appeal to the Com- 
missioner. 

The Division also appeared in hearings held by the Rate Setting Commission 
to determine criteria for the approval of contracts between Blue Cross and 
Massachusetts hospitals. 

Investigations. The Division has nearly completed a number of investiga- 
tions and field audits. It is anticipated that many of these will result in litigation 
in the near future. The investigations are primarily in the areas of misuse of 
charitable funds and violations of the law authorizing charitable and other non- 
profit organizations to sponsor gambling events. 

//. ROUTINE FUNCTIONS 

The Division has numerous administrative and routine responsibilities includ- 
ing: 

1.) Receiving annual financial statements from nearly 12,000 charities oper- 
ating in Massachusetts and maintaining these as public records; 

2.) Administering the state's charitable solicitation act (G.L. c.38, §§18-33); 

3.) Registering and regulating professional solicitors and professional fund- 
raising counsel; 

4.) Representing the Attorney General in the probate of estates in which 
there is a charitable interest; and 

5.) Representing the state Treasurer in the public administration of estates 
escheating to the Commonwealth. 



P.D. 14 



83 



Annual Registrations under G.L. c.l2, §8F 

During the period from July 1, 1979 to June 30. 1980. 7435 charitable 
registrations were processed. Total fees for these registrations were $138,530. 
Review of the registrations resulted in more than 2000 individual requests for 
further information or additional fees broken down approximately as follows: 
Requests for Audits 212 

Miscellaneous Requests 

for Information 9 1 7 

Requests for Additional Fees 904 

Total 2033 

For use in these registrations, the Division has promulgated a new form PC. 
The new form is shorter and simpler to fill out. process and review. The form is 
designed to be used in conjunction with the new federal IRS 990 and the 
combination of these two forms will provide the Division and the public with 
adequate financial disclosure. 

The computerization of registration information is now complete and the 
system is operational. 

The division has also taken a number of steps to locate charitable organiza- 
tions who are not filing with the Division. For example, a tape of 501(c) (3) 
organizations has been obtained from the Internal Revenue Ser\ice and will be 
compared with our list of charitable organizations. In addition, contact has been 
made with various state agencies to obtain names of non-profit organizations 
with which they do business. These lists were checked against our records and 
filings were obtained from delinquent organizations. 

Regulation of Charitable Solicitations 

Under G.L. c.68. §19. every charitable organization soliciting funds from 
the public must apply to the Division for a Certificate of Registration. Each 
such application must be reviewed for compliance with the statutory require- 
ments. For the period from 7/1/79 to 6/30/80. 1442 applications were pro- 
cessed. Certificate fees received were $14,420. Since a number of applications 
were pending at the beginning of the fiscal year, the total number of certificates 
issued during the period was 1791 . 

Registration of Professional Solicitors and Fund-Raising Counsel 

Under G.L. c.68. §§21 and 23 all persons acting as solicitors or fund-raising 
counsel for soliciting organizations must register with the Division and file a 
bond. Each registration and each professional solicitation contract must be ap- 
proved by the Director if it meets statutor\- requirements. During the fiscal year 
ending June 30, 1980, thirty registrations were received and approved and total 
fees were $300. 

Participation in Estates With Charitable Interests 

The Attorney General is an interested party in the probate of any estate in 
which there is a charitable interest. This year 1212 new wills were received. 
Each of these wills was reviewed and it was determined that the Attorney 
General had an interest in 788 of these estates. 



84 P.D. 14 

Probate accounts were reviewed and approved as follows: 
Executor Accounts 894 

Administrator Accounts 37 

Trustee Accounts 2920 

Total 3851 

In addition, the Division approved 68 petitions for the sale of real estate and 
37 petitions for appointment of trustees and was involved in 153 miscellaneous 
probate legal actions. 

This year, the Division undertook a major effort to review and close out old 
probate matters. By June 30, 1980, 996 of these estates had been reviewed and 
closed. 

Public Administration 

The Division represents the state Treasurer in the public administration of 
intestate estates where the decedent had no heirs. Such estates escheat to the 
Commonwealth. The following table represents activity in this area. 

New Estates 155 

Estates Closed 206 

With Escheat 80 

Without Escheat 126 

Total Escheats Received $2 1 1 ,930. 1 5 

UTILITIES DIVISION 

Pursuant to Massachusetts General Laws, Chapter 12, Section HE, the At- 
torney General is "authorized to intervene in administrative and judicial pro- 
ceedings held in the Commonwealth on behalf of any group of consumers in 
connection with any matter involving the rates, charges, prices or tariffs of an 
electric, gas, telephone or telegraph company doing business in the Com- 
monwealth and subject to the jurisdiction of the Department of Public Utili- 
ties". A statutory budget of $250,000 is provided to fund this Section HE 
activity of the Attorney General under G.L. c.6A, §9A. The Utilities Division 
carries out the Attorney General's Section HE activity. Pursuant to common 
law authority vested in the Attorney General or authority conferred by other 
statutes, the Utilities Division of the Attorney General's office has participated 
in utility related matters held outside of Commonwealth. 

As of the end of fiscal year 1980, the Utilities Division consisted of five 
attorneys, two utility rate analysts, three secretaries and one administrative 
assistant. During the course of the fiscal year, there was a net loss of two 
attorneys. Because of an extensive case load and staff attrition, it was necessary 
to employ several consultants to assist in the preparation of three electric utility 
rate cases, one D.P.U. rulemaking proceeding, the Pilgrim II construction case 
and the Seabrook financing proceeding. A summary of the cases handled by the 
Utilities Division is set forth below. 

RATE CASES 

During the fiscal year, the Utilities Division intervened in each of the 16 gas 
and electric company rate cases filed with or decided by the D.P.U. during the 
fiscal year. In the 10 matters decided during the fiscal year, $139,778,773 was 



P.D. 14 



85 



requested and $47,096,723 was awarded by the D.P.U. The discovery, prepara- 
tion, adjudication and briefing for each case all takes place within a 4-5 month 
portion of the D.P.U. 's 6 month suspension period. Individual rate case hear- 
ings may take anywhere from 3 to 30 days depending upon the number or 
complexity of the issues involved. The following chart sets forth the status or 
outcome of the rates cases in which the Utilities Division was involved during 
the fiscal year: 



RATE CASE 


:5 FIL 


ED, HEARD OR DECIDED WITHIN FISCAL '80 




Date 


Rate 


Attorney General's 




Docket - Company 


Filed 


Requested 


Recommendation 


D.P.U. Decision 


D.P.U. 19830, 19980 


11/78 


$ 48,145 


no more than $21,060 


$8,552 


consolidated 


4/79 








Blackstone Gas 










D.P.U. 19841 


12/78 


$ 2,100,000 


- 


Denied increase but 


Brockton Edison 








Company appealed - upon 
reconsideration Company 
received $375,000 


D.P.U. 19920 


5/79 


$11,400,000 


— 


1 .4 million but Company 


Bay State Gas 








petitioned for recon- 
sideration and received 
$39,000 


D.P.U. 19991 


3/79 


$46,211,878 


- 


$20,000,000 


Boston Edison 










D.P.U. 20103 


6/79 


$ 2,577,084 


$1,415,701 


$ 1,879,567 


Cape Cod Gas 










D.P.U. 20104 


6/79 


$ 2,877,000 


reduction of $1,035 ,000 


$ 1,324,000 


Cambridge Electric 










D.P.U. 20105 


6/79 $ 3,948,061 


$1,559,794 


$ 2.435,301 


Lowell Gas Co. 










D.P.U. 20113 


7/79 


$ 79,605 


$ 44,879 


$ 56.303 


Manchester Electric 










D.P.U. 20132 


7/79 


elec. $11,218,000 




elec. $5,641,000 


New Bedford Gas 




gas 3,434.000 




gas 2.488,000 


and Edison Electric 




total 14,652,000 


total 3.5 million 


total $8,129,000 


D.P.U. 20279 


11/79 


$27,885,000 


$8,3768,000 


$11,450,000 


Western Mass. Electric 










D.P.U. 136 


2/80 $28,000,000 


— Dismissal 


Case dismissed 


Mass. Electric 










D.P.U. 155 


3/80 


$ 1.128,000 


Hearings in progress 




Haverhill Gas 










D.P.U. 160 


3/80 


$68,900,000 


Hearings concluded 




Boston Edison 










D.P.U. 192 


4/80 


$ 83,550 


Hearings in progress 




Blackstone Gas 










D.P.U. 200 


4/80 


$33,000,000 


Hearings in progress 




Mass. Electric 










D.P.U. 243 


5/80 $ 9,550,667 


Hearings in progress 




Eastern Edison 











FUEL CLAUSE HEARINGS 

The Utilities Division has continued to intervene in electric and gas fuel 
clause proceedings. The burden of rate cases, the short notice of fuel clause 
proceedings and the need for the D.P.U. to decide such cases expeditiously has 
limited the ability of the Utilities Division to seriously contest many of the fuel 
clause filings. We supported legislation which would have given the D.P.U. 
greater authority to review fuel adjustment charges. 



86 P.D. 14 

TELECOMMUNICATIONS 

During the fiscal year, the Utihties Division intervened in two major 
telecommunications matters. In July of 1979, the D.P.U. issued an order that 
New England Telephone and Telegraph Company provide separate rates for 
telephones and each other monthly service charge and make its telephone instal- 
lation service charges more cost based. Following the Utilities Division's rec- 
ommendations, the D.P.U. ordered the Company to (1) provide itemized billing 
of monthly charges on a semi-annual basis and (2) reduce residential monthly 
service charges to offset increases in telephone installation charges. The offset 
plan was implemented during the 1980 fiscal year. During the fiscal year, the 
Utilities Division also intervened in a petition filed by NET to increase the 
amount the deposits which it collects from new customers and to change the 
terms under which a deposit can be required. D.P.U. action on this petition is 
pending conclusion of hearings. 

ELECTRIC UTILITY RATE DESIGN MATTERS 

The Utilities Division has intervened in three adjudicatory proceedings before 
the D.P.U. which involve the question whether to adopt various ratemaking 
standards which must be considered by State regulatory agencies under the 
terms of the Public Utility Regulatory Policies Act (P.L. 78-617). These matters 
involve Boston Edison Company, Massachusetts Electric Company and West- 
em Massachusetts Electric Company. The D.P.U. has commenced similar pro- 
ceedings with three other electric companies in which the Division will be 
involved. The outcome of these proceedings will have a significant impact upon 
the cost of electricity to consumers, since electric rates in the near future may 
depend upon time of use of electricity or the way that utilities are permitted to 
allocate rate increases among residential, commercial and industrial customers. 

ENERGY FACILITIES SITING COUNCIL MATTERS 

The Division continued its intervention in E.F.S.C. proceedings reviewing 
electric utility company long range energy and demand forecasts. E.F.S.C. 
forecasts are used by electric companies to justify the need for future construc- 
tion of energy facilities such as power plants, transmission lines and the like. 

MISCELLANEOUS MATTERS 

The Division was involved in hearings before the Atomic Safety and Licens- 
ing Board of the Nuclear Regulatory Commission concerning the licensing of 
Pilgrim II nuclear power plant. It was also involved in hearings before the 
D.P.U. on the propriety of the construction of Pilgrim II and the propriety of 
purchases by Massachusetts utilities of increased shares in Seabrook I and II. 

We were also involved in a U.S. Supreme Court action with seven sister 
states against the state of Louisiana seeking to invalidate a Louisiana tax on 
Outer Continential Shelf natural gas which became effective April 1, 1979. The 
action has been referred to a Special Master. In the meantime, the tax is costing 
Massachusetts gas consumers about $8 million per year. Also at the Federal 
level the Division is participating in an S.E.C. proceeding concerning the reorg- 
anization of Colonial Gas Energy System, the holding company controlling 
Cape Cod and Lowell Gas companies. The Utilities Division has also been 
involved in the Attorney General's Chapter 93 A action against Lowell Gas 
Company and his petition before the D.P.U. to obtain a discount rate structure 



P.D. 14 87 



for residential customers of Cape Cod Gas Company. The Division has also 
intervened in miscellaneous financing proposals submitted by Utilities to the 
D.P.U. for approval. 

CONCLUSION 

During the fiscal year, the Utilities Division continued to serve as the major, 
and in most cases, only advocate of consumer interests in utility rate cases and 
related matters. 



SPRINGFIELD OFFICE 

The 1979-80 fiscal year was a period of growth and expansion for the Spring- 
field Office. During the year, the staff was increased by one attorney and one 
investigator, and the offices were moved to larger quarters. Additionally, two 
investigators from the Medicaid Fraud Control Unit were assigned to the 
Springfield Office. 

The increased staffing has enabled the office to perform more efficiently and 
to handle a greater number of matters of concern to the Attorney General in 
Hampden, Hampshire. Franklin, and Berkshire Counties. 

In fiscal year 1979-80 the office handled division references and requests for 
assistance from the following divisions: Eminent Domain, Criminal. Torts. 
Contracts, Collections, Anti-Trust, Environmental, Violent Crimes, Consumer 
Protection, and Governmental. Additionally, the office supplies personnel to the 
Board of Appeal on Motor Vehicle Liability Policies and Bonds which meets 
monthly. 

During the fiscal year, the Springfield Office was responsible for 16 eminent 
domain cases, 30 victim of violent crime compensation cases, 17 tort matters, 
13 collection cases, and a number of governmental cases. The actual number of 
matters handled for the Governmental Bureau is difficult to determine because 
many of the actions taken by this office on these cases involve the filing of a 
particular pleading, hearings motions, and the gathering of information without 
actually handling the entire case. 

The Springfield Office continued to actively pursue enforcement of the con- 
sumer protection statutes. In 1979-80 the office conducted 28 separate investi- 
gations of firms or individuals suspected of unfair and deceptive practices. The 
investigations covered a wide range of business practices including automo- 
biles, trailer parks, health spas, career schools, land sales, swimming pool 
sales, and business franchise sales. These investigations resulted in 6 consent 
judgments, 4 assurances of discontinuance, 1 contempt citation, 1 permanent 
injunction, and a recovery of $68,318.27. Additionally, the office provided 
assistance and information to the local consumer groups in the four western 
counties and aided individual consumers where no local consumer groups ex- 
isted. In 1979-80, the office handled 108 such complaints resulting in savings of 
$24,714.92. 

One of the major areas of concern for the Springfield Office in the consumer 
protection area was that of health spas. During the year, three health spas closed 
leaving more than 1500 consumers without services. All three spas went into 
bankruptcy thus minimizing the chance of obtaining refunds for the consumers. 
Through negotiations with this office, other health spas in the area agreed to 



P.D. 14 



allow the affected consumers to transfer their memberships in most instances 
and to obtain services for the money paid to the defunct spas. 

Another major case was that of a condominium developer who failed to 
honor buy-back warranties for condominiums he had sold. After lengthy court 
proceedings, the defendant entered into a consent judgment and made restitution 
to consumers in the amount of $32,000. 

The Medicaid Fraud investigators have initiated investigations of a number of 
vendors. One investigation has resulted in a guilty plea by an oral surgeon. He 
was fined $1,600, ordered to make restitution in the amount of $3,144 and 
received a one year suspended sentence. 

The staff consists of the administrator, three assistant attorneys general, five 
investigators, (two of whom are assigned to medicaid fraud) and two secretar- 
ies. 



Number 1 September 4, 1979 

Dean P. Amidon 
Commissioner 

Department of Public Works 
100 Nashua Street 
Boston, MA 02 114 

Dear Commissioner Amidon: 

As Commissioner of the Department of Public Works (Department), you 
have requested my opinion concerning certain matters involving the issuance of 
commercial motor vehicle weight permits by the Department. More specifi- 
cally, you have asked whether the Department had the authority on either July 
1, 1956 or January 4, 1975 (the dates of enactment of the Federal-Aid Highway 
Act of 1956 and the Federal-Aid Highway Amendments of 1974, respectively) 
to issue what is referred to as "reducible load"' permits for the operation of 
commerical motor vehicles on the state highway system. For the reasons set 
forth below, I am of the opinion that the Department did possess that authority 
on the dates in question and I therefore answer your question in the affirmative. 
In order to answer your questions more fully, however, it is necessary to review 
at some length the factual and legal contexts in which your questions have 
arisen. 



RELEVANT FEDERAL LAW 

Congress enacted the Federal-Aid Highway Act of 1956, (the Act), 70 Stat. 
378, revised, rennacted and codified by P. L. No. 85-767, 72 Stat. 885 (1958), 
23 U.S.C. §101 et seq., for the purpose of developing a "National System of 
Interstate and Defense Highways" (the Interstate System). The Act, as origi- 
nally enacted and as amended, imposes certain conditions on the apportionment 



'You explain in your request that a "reducible load" is one which can be increased or decreased by varying the number of units in the 
load. Examples are concrete, sand and gravel, or bulk liquid or petroleum products." In contrast, you refer to "irreducible loads" as 
consisting of a single unit load." such as a piece of machinery. 



P.D. 14 g9 



of federal funds to the states, including restrictions on the weight of vehicles 
that may use the Interstate System. 

The portion of the Act which is relevant to the present issues is codified at 23 
U.S.C. §127. Reduced to its essentials for present purposes, that section pro- 
vides a "grandfather clause" mechanism to allow vehicles to use the Interstate 
System even though the weight limits established by the section are exceeded. 
There are two components to the grandfather clause exception. First, the state 
must have established, by law or regulation, weight limits for the use of public 
highways in excess of the federal weight limits. Second, the state weight limits 
must have been in effect on or before July 1, 1956, or January 4, 1975, and the 
operation of vehicles up to the state maximum weights must have been allowed 
by the state on or before those two dates. A state which cannot avail itself of the 
grandfather clause exceptions, but which nonetheless authorizes or permits 
overweight vehicles to operate on Interstate highways within the state's borders, 
jeopardizes its right to receive apportioned federal highway funds. 



RELEVANT STATE LAW 

Two state statutes are particularly relevant to a determination of the question 
whether the Commonwealth is entitled to avail itself of the grandfather clause 
exceptions of 23 U.S.C. §127. These statutes are G.L. c. 85, §30 (hereinafter 
referred to as §30) and G.L. c. 90, §19A (hereinafter referred to as §19A), and 
must be examined in some detail. 

The provisions of §30 can be traced to the Acts of 1913, c. 803, §§1 , 3. The 
1913 statute provided that no motor vehicle having a gross weight of fourteen 
tons or more could be operated on any highway in the state without first obtain- 
ing a permit from certain specified state authorities. Id., §1. The statue stated 
that the permits could be of general or of limited duration, could authorize 
travel generally or over specific routes, and could include any special conditions 
or provisions which the permit authority deemed necessary for the protection of 
highways and bridges. Id., §3. 

The substance of the language of the 1913 statue was not changed until 1925, 
when, with regard to vehicles weighing more than fourteen tons and travelling 
over "a way determined by the department of public works to be a through 
route," the state official authorized to issue overweight permits was specified to 
be the commissioner of public works. St. 1925, c. 180, §2. See St. 1922, c. 
526; St. 1918, c. 116, §§1, 3; St. 1917, c. 344, pt. 5, §§39, 41. Subsequent 
amendments to §30 modified the weight limit of fourteen tons. See St. 1935. c. 
30; St. 1931, c. 138, §1; St. 1930, c. 353, §1; St. 1925, c. 342, §2. 

In 1946, the Legislature enacted an exception to the weight limit provisions 
of §30. Chapter 397, §1 of the Acts of 1946 amended the General Laws by 
inserting G.L. c. 90, §19A, which authorized motor vehicles to operate on 
public ways at weights in excess of those prescribed in §30 and without the 
necessity of obtaining a §30 permit. Section 19A imposed its own restrictions 
on maximum permissible weights, however. As amended through 1972, §19A 
established a maximum gross weight of 73,000 pounds for vehicles travelling 
on public ways without a §30 permit. G.L. c. 90, §19A as amended through St. 
1972, c. 126. Vehicles with a gross weight in excess of the §19A limits could 
still travel on public ways //a §30 permit had been procured. 



90 P.D. 14 



Numerous changes were made to §30 and §19A between 1946 and July 1, 
1956. At this point, it is helpful to set out in the footnote below the relevant 
provisions of the two statutes as they appeared on July 1 , 1956.^ 

For the present purposes, no further significant changes were made to §30 or 
to §19A prior to 1974. In 1974 the Legislature, acting in response to, and 
substantially in conformance with the recommendations of a Special Commis- 
sion on vehicle weights,^ enacted c. 851 of the Acts of 1974. Chapter 851 added 
four new paragraphs to §30, the principal provisions of which were as follows: 
Motor vehicle owners or operators could apply to the commissioner of public 
works for a one-year permit allowing operation of the vehicle on the public 
ways at any requested weight, up to the gross vehicle rating established by the 
manufacturer of the chassis. The statute further provided: 

Such permit may be issued to allow the operation of any motor 
vehicle or semitrailer unit having three axles which with its load 
weighs not more than seventy-three thousand pounds, or any motor 
vehicle or semitrailer unit having four axles which with its load 
weighs not more than eighty-seven thousand pounds, or any motor 
vehicle or semitrailer unit having five or more axles which with its 
load weighs not more than ninety-nine thousand pounds, but not 
above such limits, nor in any event shall any such permit allow the 
operation of any motor vehicle or semitrailer unit which with its 
load exceeds the gross vehicle weight rating as established by the 
original manufacturer of the chassis; provided, however, that the 
commissioner of public works may issue one way or round trip 
permits for the carrying of certain irreducible loads, which may 
exceed the said gross vehicle weight rating, but only under such 
conditions and limitations as the commissioner of public works may 
prescribe. 



^G.L. c. 85, §30. as amended through Si. 1951. c 568, provided that: 

Except as provided in section nineteen A of chapter ninety, no vehicle shall . . . travel or object be moved, on any public 
way, which weighs more than fourteen tons, or. in the case of a vehicle equipped with pneumatic tires, more than fifteen 
tons, without a permit from the board or officer having charge of such way, or, in case of a state highway, or a way 
determined by the department of public works to be a through route, from the commissioner of public works' provided, 
that no such permit shall be required for the operation of a vehicle havmg three axles, whether or not so equipped, which 
does not weigh more than twenty tons. . . . Such a permit may limit the time within which it shall be in force and the ways 
which may be used and may contain any provisions or conditions necessary for the protection of such ways from injury 

G.L. c. 90. SI9A. ai amended through St 1956. c. 61. provided that: 

Any provision of section thirty of chapter eighty-five to the contrary notwithstanding, a motor vehicle havmg no axles, 
which vehicle with its load weighs not more than twenty-three tons, and a semi-trailer unit or a motor vehicle having three 
or more axles, which unit or vehicle with its load weighs not more than thirty tons, may travel on a public way without a 
permit as required by said section thirty; provided, that no such motor vehicle or semi-trailer unit, the weight on any axle 
of which, measured at the ground, exceeds twenty-two thousand four hundred pounds, or. in the case of axles spaced less 
than six feet apart, eighteen thousand pounds, shall so travel without such a permit; and provided further that the gross 
weight of any such vehicle together with its load expressed in pounds shall not exceed that shown on the following table 
without such a permit. . . . 

Notwithstanding the foregoing provisions of this section, nor any contrary provision of section thirty of chapter eighty- 
five, a construction type motor vehicle having two axles, which vehicle with its load weighs not more than twenty-three 
tons, or a construction type semi-trailer unit or motor vehicle having three axles, or a semi-trailer unit or motor vehicle 
having three axles while carrying liquid petroleum products, which vehicle with its load weighs not more than thirty tons, 
may travel on a public way while engaged in hauling construction matenals or liquid petroleum products without a permit 
as required by said section thirty of chapter eighty-five; provided, that the gross weight of such vehicle as operated does 
not exceed the gross vehicle weight ratmg as established by the original manufacturer of the chassis; and provided, further, 
that the vehicle is duly registered in this commonwealth for such weight. 

''The Special Commission, consisting of three members of the Senate, five members of the House of Representatives, and three 
persons appointed by the Governor, was created in 1973 "to investigate and study the longstanding and escalating overload." 
House Rep. No. 6164, at 5 (May 1974). After holding thirty-four hearings at which over 3.700 pages of sworn testimony and 
numerous exhibits were taken in evidence, the Commission issued its Report and its suggested legislation. House Rep. No. 6164. 
supra. 



P.D. 14 91 



St. 1974, c. 851, §3 (emphasis supplied)." 

Chapter 851 was approved on August 14, 1974, and therefore its provisions 
became effective ninety days thereafter, on November 12, 1974. See Opinion of 
the Justices, 368 Mass. 889 (1975). In September, 1974, however, heavy-duty 
vehicle manufacturers notifed the Special Commission that they could not com- 
ply with certain certification and inspection procedures required by c. 851. See 
Special Commission, Second Interim Report, House Doc. No. 5350 (Dec. 
1974) at 6. Moreover, the Department of Public Works apparently decided, just 
prior to November 12, 1975, that it would not issue permits under the increased 
weight limits established by c. 851. See id. at 6, 7. Consequently, several motor 
vehicle carriers sought and obtained a temporary restraining order from the 
United States District Court ordering the relevant state officials from instituting 
any proceedings for violation of c. 851. See id. at 6.^^ 

In response to these problems with the implementation of c. 851, the House 
of Representatives revived the Special Commission, see House Doc. No. 5292, 
and the Legislature eventually enacted new legislation — c. 494 of the Acts of 
1975 — in response to the Commission's recommendations. See Appendix A to 
Special Commission, Second Interim Report, supra. 

Chapter 494 deleted from §30 the four paragraphs that had been added by c. 
851. However, Chapter 494 added a new section, §30A, to G.L. c. 85 which 
included many of the essential provisions of the earlier statute. 

ANALYSIS OF THE STATE STATUTES 

Having canvassed the relevant statutory provisions - with particular attention 
to their content on July 1, 1956 and January 4, 1975 - I now focus on your 
specific questions: 

(1) Did General Laws Chapter 85 Section 30, Chapter 90 Sections 19A and 
31 A, or any other state statute or regulation as they existed on July 1 . 1956 give 
the Department authority to issue reducible load permits on that date? 

(2) Did General Laws Chapter 85 Section 30, Chapter 90 Sections 19A and 
31 A, or any other state statute or regulation as they existed on January 4, 1975 
give the Department authority to issue reducible load permits on that date? 

As a preliminary matter, I note that your questions require an analysis of 
state law only; they do not involve the interpretation or application of the 
grandfather provisions of 23 U.S. C. §127, or of any other federal law or regula- 
tion. Your questions also focus on the authority of the Department under state 
law to issue reducible load permits; whether the Department actually issued 
such permits, and the implications, if any, under the federal grandfather provi- 
sion of the failure to exercise any such authority, are therefore considerations 
which are not directly relevant to your requests. But see 1958/1959 Op. Atty. 
Gen., Rep. A.G., Pub. Doc. No. 12 at 103, 104 (1959) ("right to issue" 



^Section 8 of c. 851 amended §I9A to provide, inter alia, that a motor vehicle weighing up to 105 percent of the maximum gross 
weight allowed by the §30 permit would not be deemed to be operating in violation of §30. 

5ln the words of the Special Commission: -The pnncipal point of the Order was that the alleged inability of thos^c carriers to secure 
certification and inspection from vehicle manufacturers prevented their obtaining the permits Accordingly the objective ol the 
Court was to suspend implementation of Chapter 851 until the problems presented could be resolved by legislative or judicial 
action." Special Commission. Second Intenm Report, supra, at 6. 



92 P.D. 14 



permits is controlling, rather than actual issuance of permits). 

1 . The laws in effect on July I , J 956. 

A close reading of G.L. c. 85, §30 and G.L. c. 90, §19A, as those sections 
appeared on July 1, 1956, fails to reveal, in clear and unambiguous terms, the 
legislative intent with regard to the authority of the Department to issue reduci- 
ble load permits. Several observations may be made, however, which shed 
substantial light on the legislative intent. 

First, it is abundantly clear that the Legislature had invested the Department 
(through its Commissioner) with the authority to issue permits for the purpose 
of allowing vehicles to operate at weights greater than those specifically desig- 
nated in the statutes. This delegation of authority was board, circumscribed only 
by the instructions that "[s]uch a permit may limit the time within which it shall 
be in force and the ways which may be used and may contain any provisions or 
conditions necessary for the protection of such ways from injury." G.L. c. 85, 
§30, as amended through, St. 1951, c. 568 [lines 16-21]. Indeed, the great 
detail with which the Legislature addressed the specific weight limits for vehi- 
cles operating without a permit accentuates the significance of the delegation of 
authority to the Department to circumvent those specific weight limits consist- 
ent only with the exercise of reasonable discretion. See 1975/1976 Op. Atty. 
Gen. No 57, Rep. A.G., Pub. Doc. No 12 at 152, 153 (1976) (issuance of 
permits committed to discretion of Commissioner, subject to constitutional and 
statutory limits). 

Second, there is no explicit distinction in either statute between reducible and 
irreducible loads; on the face of the statutes, the permit authority would appear 
to extend to any kind of load. The specificity and detail of the statutes with 
regard to such factors as weight, length, number of axles, vehicle configura- 
tions and type of tire, belie any facile conclusion that the Legislature implicity 
assumed that crucial distinctions should be made on the basis of the type of load 
being carried. See, e.g.. Consolidated Dry Goods Co. v. United States, 180 F. 
Supp. 878, 882 (D.C. Mass. 1960) ("When the statute gives no indication that 
any more restricted meaning was intended and the ordinary and accepted inter- 
pretation of the words is in accord with the purpose of the statute, that meaning 
should be given to the term used in the statute."). 

Third, the language of §19A, taken together with that of §30, provides a 
positive indication that reducible loads were not intended to be excluded from 
the statues or afforded special treatment. Cf. City of Boston v. Massachusetts 
Bay Transp. Authority, Mass. Adv. Sh. (1977) 2588, 2593 (entire statutory 
scheme should be examined as a whole). Section 19A provided that: 

Notwithstanding . . . any contrary provision of [G.L. c. 85, §30], a 
construction type motor vehicle having two axles, which vehicle 
with its load weighs not more than twenty-three tons, or a construc- 
tion type semi-trailer unit or motor vehicle having three axles, or a 
semi-trailer unit or motor vehicle having three axles while carrying 
liquid petroleum products, which vehicle with its load weighs not 
more than thirty tons, may travel on a public way while engaged in 
hauling construction materials or liquid petroleum products without 
a permit as required by [G.L. c. 85, §30] . . . [under certain 
conditions] . 



P.D. 14 93 



G.L. c. 90, §19A. as amended through St. 1956, c. 61 [lines 22-37] (emphasis 
supplied). Construction materials and liquid petroleum products are archetypical 
examples of reducible loads. The quoted provision of §19A therefore must be 
read as exempting certain reducible loads, under certain conditions, from the 
permit requirements that would otherwise be applicable. To conclude that redu- 
cible loads were not intended by the Legislature to be subject to the permit 
provisions of §30 would make the quoted provisions of §19A unintelligible, or. 
at the least, superfluous. It is well established that such a result must be 
avoided. E.g., Commonwealth v. Gove, 366 Mass. 351, 354 (1974); Com- 
monweahh v. Woods Hole, Martha's Vineyard and Nantucket S.S. Authority, 
352 Mass. 617,618(1967). 

I conclude, based on my review of the statutory language as described above, 
that §§30 and 19A, as they appeared on July 1, 1956, contemplate the issuance 
of overweight permits for reducible as well as irreducible loads. Because this 
conclusion is not grounded upon clear and unambiguous statutory language, 
however, it is appropriate to consider extrinsic statutory construction aids to 
determine whether the unexpressed intention of the Legislature was to exclude 
reducible loads from the permit provisions. See, e.g.. Department of Commu- 
nity Affairs v. Massachusetts State College Building Authority, Mass. Adv. Sh. 
(1979) 1681, 1692. Compare Burke v. Chief of Police of Newton, Mass. Adv. 
Sh. (1978)425,427. 

Unfortunately, there is scant legislative history to aid in the interpretation of 
§30 or §19A notwithstanding the relatively frequent amendment of both sec- 
tions. An opinion of one of my predecessors, issued in 1925, does, however, 
address issues closely akin to those now under consideration and thus bears 
close scrutiny. 

In the course of interpreting G.L. c. 85, §30, as amended by St. 1922, c. 
526, the Attorney General made the following observations: 

The purpose of the act was manifestly to protect the highways 
against vehicles or objects which with their loads weighed more 
than fourteen tons. The Legislature, however, recognized that it 
would be necessary at times to move over the highways objects 
weighing more than fourteen tons, which could not be taken apart, 
and authorized the issuing of permits to move such loads. In each 
case, however, the problem for the board or officer granting such 
permits is to determine whether such a permit is necessary.. This 
clearly involves a consideration of the facts in each case, and is not 
consistent with a suggestion that continuing permits may be granted 
generally for excessive loads for a period of time. The phrase 
"without //r.sr [emphasis in original] obtaining a permit" indicates 
that a permit is required for each specific load and that a general or 
continuing permit may not be given. 
7 Op. Atty. Gen. 599, 600-601 (1925) (emphasis supplied except where indi- 
cated). 

My predecessor presents no support, or basis, for his observation that the 
loads referred to by the statute are those "which could not be taken apart." 
Moreover, the remark is made in an off-hand manner, in the nature of dicta; the 
focus of his attention was the time period for which permits could be issued 



94 P.D. 14 



rather than the type of load that was subject to the permit procedures.*^ It is 
possible that the Attorney General's remark was based on his perception that it 
was the established custom of those charged with enforcing and applying the 
statute to issue permits only for irreducible loads. Indeed, he makes just such an 
"agency interpretation" argument in support of his conclusion that continuing 
permits could not be issued.^ He does not assert, however, that it had been the 
custom not to issue permits for reducible loads.* 

Having carefully reviewed the extrinsic aids to statutory interpretation avail- 
able to me, I do not perceive any reason to read the statutes in an artifically 
restrictive manner. Therefore, I conclude that the language of the statutes re- 
quires the conclusion that, on July 1, 1956, the Department had the statutory 
authority to issue reducible load permits. 

2. The laws in effect on January 4, 1975. 

As I have indicated, the Legislature in 1974 substantially revised the statutes, 
regulating weight limits on the state highways. Chapter 851 of the Acts of 1974 
added four new paragraphs to G.L. c. 85, §30, which I have already described 
in some detail. Unlike the situation with regard to the interpretation of the 1956 
version of §30 and §19A, there can be no doubt that c. 851 provides, on its 
face, clear authority to the Department to issue permits for reducible loads. It is 
unnecessary to resort to references to the legislative history of c. 851 to support 
my conclusion, for the statute itself states that: 

the commissioner of public works may issue one way or round trip 

permits for the carrying of certain irreducible loads, which may 

exceed the said gross vehicle weight rating, but only under such 

conditions and limitations as the commissioner of public works may 

prescribe. 

St. 1974, c. 851, §3. This permit authority to exceed the gross vehicle weight 

rating extended the general permit authority - applicable regardless of type of 

load - so as to allow the operation of vehicles for as long as one year at weights 



^0 the extent that my predecessor's conclusion is pertinent to the Department's authority to issue such permits for reducible loads. 1 
would express my disagreement with his conclusion The statutory phrase "without yirw obtaining "a permit, emphasized by my 
predecessor, had been amended prior to 1925 to read "without a permit." G.L. c. 85. S30. as amended by St 1922, c. 526. The 
very fact that my predecessor seized upon the word "first" as significant evidence of legislative intent belies the conclusion that its 
deletion by the Legislature can be ignored. Moreover, the plain language of the statute - as in effect in 1925 and in 1956 - establishes 
that the responsible official "may limit the lime within which [the permit] shall be in force." Based on the normal and usual 
meaning of these words, it must be concluded that a permit could be issued for two days, one week, one year, or whatever period the 
responsible official deemed advisable. 

'The principle of law relied upon by the Attorney General - that a court should give weight to any reasonable construction of a 
regulatory statute adopted by the agency charged with its enforcement - remains a firm principle of statutory construction. E.g.. 
AmherslPelham Regional School Committee v. Department of Education, Mass. Adv. Sh. ( 1978) 2673, 2687. and cases cited. 

*It would appear, however, it may indeed have been the Department's custom prior to 1925, and until recent admendments of the 
statutes, not to issue permits for reducible loads. A search of Department records does not provide evidence that such permits were 
issued, and operators of vehicles subject to the permit provisions who have submitted briefs to me on this issue have not been able to 
produce any such permits. 1 do not view these facts as conclusive of the Department's authority to issue reducible load permits in 
view of the informal nature of the fact-finding involved and in view of the statutory language discussed above. 

It is also pertinent to note that a judge of the Superior Court of the Commonwealth enjoined the Department from refusing to accept 
delivery of overweight reducible loads in the context of construction contracts. Simeone Stone Corp.. et al. v. Commonwealth of 
Mass. et al., Suffolk Superior Cl., No. 98309 (1973) That decision appears to have been grounded on the fact that the Department 
had established a longstandmg practice - substantially predating July 1, 1956 - of allowing overweight construction vehicles to 
operate without a permit within certain limits, thus creating a "constructive" or informal permit procedure for reducible loads. Clear, 
the actions or customs of officials charged with enforcing a statute cannot effectively amend the statute or "estop" attempts to 
enforce the statute according to its terms. See, e.g., Doris v. Police Commissioner of Boston. Mass. Adv. Sh. ( 1978) 416, 423-424. 
Nonetheless, the facts of the Simeone Stone case lend support to one or both of the following conclusions: that the Department 
believed that it had authority to allow overweight reducible loads to operate on the state highways; or that the court found the practice 
of the Department to be inconsistent with the notion that the statute precluded the operation of overweight reducible loads. 



P.D. 14 95 



up to the gross vehicle weight rating. The clear inference is that reducible loads 
fall within the general permit authority.^ 

Chapter 851 became effective on November 12, 1974.'° It would therefore 
inexorably follow that the Department had authority under c. 851 to issue 
reducible load permits on January 4, 1975, but for the unusual subsequent 
course of the Legislature's actions on the overload problem. 

Section 15 of c. 494 of the Acts of 1975, an emergency act approved on July 
15, 1975, suspended the operation of c. 851 until September 1, 1975. In addi- 
tion to making substantive changes to the provisions of c. 851, as 1 have 
previously noted, c. 494 proved that the suspension was effective retroactively 
as of November 12, 1974 - the effective date of c. 851. It would therefore 
appear that the intent of the Legislature was to retrace its steps and nullify the 
operation of c. 851 from the period beginning November 12, 1974, through the 
effective date of c. 494, and until September 1, 1975.'' 

These legislative events pose the difficult question whether c. 851 can be said 
to have vested "authority" in the Department to issue reducible load permits 
notwithstanding the subsequent action of the Legislature in retroactively 
suspending the effective date of c. 851. 1 need not decide this issue, however, 
in view of my conclusion that the Department had authority to issue reducible 
load permits on July 1, 1956. 1 have found no indication that the Legislature 
acted in any manner to restrict or revoke the Department's authority to issue 
permits between July 1, 1956 and January 4, 1975. It therefore follows that the 
Department had authority on January 4, 1975, as well as on July 1, 1956, to 
issue reducible load permits. 

Very truly yours, 

FRANCIS X. BELLOTTI 

ATTORNEY GENERAL 



Number 2 September 11. 1979 

Mr. Dean P. Amidon 
Commissioner 
Department of Public Works 
100 Nashua Street 
Boston, MA 021 14 

Dear Mr. Amidon: 

You' have requested my opinion on whether the Department of Public Works 
(the Department) has authority to manage real property it has acquired for the 



9lf any support for this mterpretation is necessary, il can be found in the Report of the Special Commission, House Rep No. 6164 
(May 1974) at 9 (references to various reducible loads, such as petroleum and concrete). 

lOThe act provided that the effective date of certain sections of the act would be extended beyond the normal nmcty-day period. St 
1974, c. 851. §12. These sections are not relevant to the present concerns, however. 

"The operation of portions of c. 851 , as amended by c. 494. was further suspended by St. 1975. c. 593 SI and again suspended by 
St. 1976. c. 5. §1. The portion of c. 851 relevant to the present issues went mto effect on September I, iv/s. 

'The opinion request actually originated from your predecessor. Acting Commissioner Donadio. 



96 P.D. 14 



new state Department of Transportation building, provided for in St. 1975, ch. 
859, §7A (Section 7A) as amended by St. 1977? ch. 356. §24 (Section 24), and 
whether the Department may provide relocation services for persons displaced 
when property is acquired for this purpose. As part of both of these questions, 
you have also asked whether such management and relocation services may be 
financed by funds designated for the Department of Transportation building. It 
is my conclusion, for the reasons set forth below, that the Department has 
authority to manage the property and to provide relocation services, and that 
funds authorized under Section 7 A may be used for these purposes. 

Section 7A directs the expenditure of funds for the acquisition of property 
and for the planning and design of a Department of Transportation building to 
be located in Park Square, Boston. That building is to house, to the extent 
possible, the various state agencies which administer transportation programs. 
Apparently the Department has already begun acquisitions by eminent domain 
and additional acquisitions are in process. You have, however, informed me 
that the Comptroller of the Commonwealth has questioned the authority of the 
Department to expend further funds to provide relocation assistance^ and to 
manage the property' and has aked you to seek my opinion. In order to resolve 
these legal questions.^ cf. G.L. c. 30. §5. I shall first consider whether property 
management services are authorized under Section 7A. 

Section 24 of Chapter 356 of the Acts of 1977 amended Section 7 A of 
Chapter 859 of the Acts of 1975 by adding a paragraph directing the Depart- 
ment to acquire "and to hold, lease, otherwise deal with, sell, transfer or 
otherwise dispose of" property as needed to accomplish the purposes of that 
section. It is a fundamental principle of legislative interpretation that an enact- 
ment must be construed according to the common usage of the language. Board 
of Assessors of Amherst v. State Tax Commission, 357 Mass. 505, 507 (1970). 
In order to "hold, lease or otherwise deal with" the acquired property, the 
Department must necessarily also manage it.^ It is my opinion, then, that the 
Department is authorized to manage the property acquired for the Department of 
Transportation building, and to apply the funds appropriated under Section 7 A 
to the costs of such management. 

I turn now to the question of whether relocation services may be provided 
under Section 7 A of Chapter 859 of the Acts of 1975. In my opinion the 
Department is authorized to provide relocation assistance and payments by G.L. 
c. 79A§§3, II. 

General Laws Chapter 79A, Section 3 provides: 

Any public agency, or any other person authorized to take by emi- 
nent domain, . . . shall provide relocation assistance and payments 



^See G.L. c 81 . §7J. and G.L. c. 79A, S3. 

^This "management" function is typically performed between the time property is acquired and (until business and residential 
occupants are relocated) the structures are readied for demolition. See St. 1966. ch. 427. § I 

*The Department submitted various statutory and case citations in support of its position. Although mvited to do so. the Comptroller 
did not submit a legal memorandum setting forth his position on the questions raised. 

^Moreover, the Department is authorized to perform management services for property acquired in connection with the accelerated 
highway program, by St. 1966, ch. 427. §1. The legislature must have been aware of this authority when it enacted the amendment 
adding the authorization to "hold, lease or otherwise deal with" acquired property. See Selectmen of Topsfield v. Stale Racing 
Commission. 324 Mass 309, 313 (1949). I believe this acquisition can be considered an acquisition in connection with the 
accelerated highway program for purposes of St. 1966, ch 427, §1. See note 6 infra. Indeed, the Act authonzing the taking of 
property for the Department of Transportation building. Chapter 859 of the Acts of 1975, refers to accelerated highway improvement 
and maintenance in both the title and preamble. 



.D. 14 97 



under this act upon undertaking a project which results in displace- 
ment of occupants by the acquisition of real property or by the 
issuing of a written order to vacate for purposes of rehabilitation, 
demolition or other improvement. 

Section 1 1 of the chapter provides: 

Funds appropriated or otherwise available to any public agency for 
the acquisition, rehabilitation or demolition of real property or any 
interest therein for a particular program or project shall be available 
also for obligation and expenditures to carry out the provisions of 
this act as applied to that program or project. 

Reading Sections 3 and 1 1 together, I conclude that funds designated for the 
acquisition of property for the Department of Transportation building by Section 
7 A of Chapter 859 of the Acts of 1975 may be used for relocation payments and 
services. See Department of Community Affairs v. Massachusetts State College 
Building Authority, Mass. Adv. Sh. (1979) 1681. As the Court there noted, 
[t]he Legislature's primary motive in providing relocation assistance 
to a property owner who is forced to sell or whose property is taken 
from him is probably the realization that merely paying him for his 
real estate does not fully compensate him, even if he is paid an 
amount sufficient to purchase comparable new premises .... By 
enacting G.L. c. 79A, the Legislature has decided, as a matter of 
public policy, that a person incurring relocation expenses when dis- 
placed for the construction of a program or project undertaken by a 
public agency ought to be compensated therefor. 

Id. at 1694-95. Accordingly, relocation benefits under Section 7 A are statu- 
torily authorized.^ 

In summary, it is my opinion that the Department of Public Works may use 
funds designated under Section 7 A of Chapter 859 of the Acts of 1975 for 
management and relocation services with respect to property acquired under that 
Act. 

Very truly yours. 

FRANCIS X. BELLOTTI 

ATTORNEY GENERAL 



^An alternative source of authontv is G.L. c. 81. §7J which requires the Department to provide relocation payments and services in 
connection with acquisitions -for highway puqxjses." The acquisition of property for the Department of Transportation building 
appears to fall within the concept of -highwav purpose." Supreme Judicial Court opinions have given the term 'highway 
expansive scope. In Opinion of the Justices. 530 Mass. 713 (1953). the Court explained that the modem highway 

cannot merely be constfucted and opened to the public. /( musi be operated. This involves inspections, supervision and a 

constant preparedness to remove obstructions and make necessary repairs. . . 
Id. at 722-23 (emphasis added). Observing that "Itlhis enterprise must be envisioned as a whole in its larger aspects " «/.. the court 
concluded that garages, gasoline stations and restaurants serving highway travelers are included within the tcnn ' highway. M. See 
also Opinion of the Justices. 370 Mass. 895 (1970) (bikeway is included in term •■highway") A building designed to house 
virtually all highwav administration similarly fits within the broad definition of "highway." Moreover, it appears that the Oeneral 
Court c'ontemplated'the applicability of the relocation provisions of c. 8 1 . S7J to this acquisition, for it authorized the Depanment to 
"exercise such powers as mav be' necessary under chapter|l eighty-one of the General Laws, in furtherance ol the purpose ol 
Section 7A St 1977, ch. 356.'§24. Accordingly G.C. c. 81. §7J is another source of authority for relocation payments and services. 



98 P.D. 14 



Numbers October 29. 1979 

Honorable Michael Joseph Connolly 
Secretary- of State 
State House 
Boston. MA 02133 

Dear Secretan. Connolly: 

You have requested my opinion concerning the operation and effect of G.L. 
c. 51 §1F (Section IF).' which provides that certain unregistered persons may 
vote by absentee ballot in a presidential election. Your questions arise from 
your statutory obligation to print ballots (G.L. c. 54. §40) and to prepare 
absentee voting information and instructions for the presidential election (G.L. 
c. 54, §102). 

As a general matter, your questions require me to construe Section IF and to 
determine whether it is consistent with the federal Voting Rights Act Amend- 
ments of 1970. 42 U.S.C. §1973aa-l. et seq. (1976). Specifically, you have 
posed six separate questions concerning various aspects of the statute which I 
will answer separately and in turn. Before providing those specific answers, my 
overall conclusions are as follows. 

To apply under Section IF. an individual must be absent from the city or 
town during the registration sessions or be unable to register in person for the 
presidential election, but I believe that such an applicant need not be absent or 
otherwise unable to vote in person at the election. It is my opinion that an 
application under Section IF must be received by the local clerk on or before 
ten o'clock in the evening of the twenty-eighth day preceding the presidential 
election. Those who have applied under this section should be provided with a 
"short ballot" listing only the candidates for president and vice president. The 
ballot itself may be cast either in person at the office of the clerk or by mail. 
Interpreting the statutes in this manner. I am of the opinion that Massachusetts 
is in complete compliance with 42 U.S.C. §1973aa-l(0 ( 1976). 

You first ask whether an individual who seeks to make application under 
Section IF must be absent from the city or town or otherwise unable to register 
in person prior to the time registration closes for a presidential election. The 
terms of Section IF do not expressly contain such a requirement. However, the 
election laws, as all statutes of the Commonwealth, must be viewed as a uni- 
form and consistent body of law such that no provision is viewed as surplusage. 
Commonwealth v. Mercy Hospital, 364 Mass. 515, 521, (1974); Com- 
monwealth V. Woods Hole, Martha' s Vineyard and Nantucket Steamship Au- 
thority, 352 Mass. 617, 618 (1967). Persons who are present in a city or town 
during the registration sessions preceeding a presidential election and who de- 
sire to vote at that election, may make application in accordance with the 



'Section IF provides: 

Any person, otherwise qualified to vote under the provisions of section one A but whose name is not included in the current 
annual registrar of voters of the city or lovrn where he claims the right to vote, may qualify for voting upon application to the 
registrars of voters of said city or town. Any form of wntten communication containing the name. age. citizenship, former residence 
and present residence of such person shall cause the registrars to make an investigation relative to the qualifications of such person to 
vote and. for the purpose of such investigation, the officer in charge of the police force of each city and town shall give the registrars 
such assistance as they may require. Upon determining that such person is qualified to vote under the provisions of this section, the 
registrars shall forward an absentee ballot to him and shall include his name on a list of persons registered under this section which 
shall be sent to the city or town clerk. The provisions of sections ninety-four to ninety-six. inclusive, of chapter fifty-four shall apply 
to such ballots which shall be cast in the polling places designated under the provision of section twenty-four. 



'.D. 14 99 



provisions of G.L. c 51. §1A (Section lA). It is an express requirement that 
these applicants appear in person and make an affidavit of registration before a 
registrar or assistant registrar. G.L. c. 51. §42. 

I believe Section lA. which is substantially more restrictive than Section IF, 
is the exclusive vehicle for the registration of those able to appear in person. If 
Section IF were construed to present an alternative whereby applicants who 
were able to appear need not do so. as a practical matter Section lA would be 
eviscerated. There would be no logical reasons for any individual seeking to 
register to subject himself to the more rigorous procedures of Section lA. 
Because construing Section IF as providing an alternative method of registra- 
tion to that contained in Section lA would render the latter statute ineffective. I 
conclude Section IF was meant to apply only to those individuals who are 
absent from the city or town, or unable to register in person for reason other 
than physical disability.^ at the time registration closes before a presidential 
election.^ 

You next ask whether an applicant under Section IF must be absent or 
otherwise unable to vote in person at the polls on election day. Neither the 
expressed nor the implied terms and provisions of Section IF impose such a 
requirement. As will be discussed more fully below, this section was enacted to 
allow those citizens who are absent during the registration periods to qualify to 
vote for president and vice president. Citizens who are absent during the regis- 
tration sessions, but who will be present on election day. should not be pre- 
cluded from casting a ballot. The statute sets up no such barrier. 

However, a person qualified under Section IF would only be entitled to cast 
an absentee ballot, since the statute specifically provides: 

. . . Upon determining that such person is qualified to vote under 
the provision of this section, the registrars shall forward an absentee 
ballot tohim .... G.L. c. 51. §1F. (Emphasis added.) 
I therefore conclude that an applicant under Section IF need not be absent or 
otherwise unable to vote in person at the polls on election day. but the applicant 
is only entitled to an absentee ballot which must be cast in accordance with the 
laws governing absentee ballots. 

Your third question asks if there is any deadline for applying for a presiden- 
tial ballot under Section IF. To qualify under that section, a person must be 
otherwise qualified to vote under Section lA of chapter 51, which requires a 
person to make an application as required and to otherwise comply "with the 
requirements of this chapter [G.L. c. 51]." Section 26 of that chapter governs 
the time when applications under Section lA must be received by the local 
registrars. It requires that they be received before ten o'clock in the evening on 
the twenty-eighth day preceding the election. Because this is a requirement to 
qualify under Section lA. it is incorporated by reference into Section IF. I 
therefore answer your third question in the affirmative: an application under 
Section IF must be received no later than ten o'clock in the evening of the 
twenty-eighth day preceding the presidential election. 



^ose individuals who are unable to reeister in person due lo physical disability . may register pursuant to the pro* isions of G.L. c. 
51.§42A. 

^'This conclusion is further buttressed bv the leeislauve history of Section IF. That history is more fully set forth at pp. 7-8. infra 



100 P.D. 14 



Your fourth question is whether a voter qualified under Section IF is to 
receive a regular absentee ballot or a special "short ballot" listing only electors 
of president and vice president. To answer this question, it is necessary to 
briefly review the legislative history pertaining to voter qualifications for presi- 
dential elections. 

General Laws chapter 51, §1A was enacted in 1962, and provides that per- 
sons who have resided within the Commonwealth for twenty-eight days are 
entitled to vote for presidential electors. At the time this statute was enacted. 
Massachusetts required that citizens reside within the Commonwealth for at 
least six months before they were qualifed to vote in state elections. This 
residency requirement was subsequently abolished (St. 1972, c. 587, §2) and 
the election laws currently provide that: 

Except as otherwise provided in section one A, every citizen 
eighteen years of age or older, not being a person under guardian- 
ship and not being temporarily or permanently disqualified by law 
because of corrupt practices in respect to elections, who is a resident 
in the city or town where he claims the right to vote at the time he 
registers, and who has complied with the requirements of this chap- 
ter, may have his name entered on the list of voters in such city or 
town. . . . G.L. c. 51, §1. 
Because voter registration ceases as of twenty-eight days before the election 
(G.L. c. 51, §26), there is no longer a disparity between the residency require- 
ment for state voting and for voting at presidential elections. Before the uniform 
residency requirement was effected however, statutory provision was made so 
that those qualifying under Section 1 A would receive a ballot only for presiden- 
tial and vice presidential electors. G.L. c. 54, §42, as amended by St. 1962, c. 
437, §38. This ballot is referred to as the "short ballot," as it does not contain 
the other election contests to be voted on at the election or the various questions 
that may be submitted to the voters. The questions that you have posed is 
whether this "short ballot" is to be provided to those citizens qualifying to vote 
under Section IF. 

The legislative history of Section IF makes it clear that the legislature in- 
tended the statute to apply only to presidential elections. It was enacted as St. 
1972, c. 637, §2, as a result of the Federal Voting Rights Act Amendments of 
1970, which contain a declaration that; 

[l]t is necessary (1) to completely abolish the durational resi- 
dency requirement as a precondition to voting for President and 
Vice President, and (2) to establish nationwide, uniform standards 
relative to absentee registration and absentee balloting in presiden- 
tial elections. 42 U.S. C. §1973aa-l(b)(1976). 
Massachusetts was in complete conformity with this legislation in 1970, 
having provision for absentee balloting for presidential elections (G.L. c. 54, 
§92) and having abolished its residency requirement for voting (G.L. c. 51, §1, 
as amended by St. 1972, c. 587, §1). Provision had also been made for absen- 
tee registration for disabled voters (G.L. c. 51, §42A) and for those citizens 
who were outside the territorial limits of the nation (G.L. c. 54, §103J). How- 
ever, the Massachusetts election laws made no provision for those citizens who 
were residents of Massachusetts, but who were absent or otherwise unable to 
register to vote for Presidential elections. 



V.D. 14 101 

In response, a bill was introduced which was entitled, "An Act Relative to 
Conforming the Short Presidential Ballot in Massachusetts to the Voting Rights 
Act of 1970 and to the Attorney General's Opinion Thereon."^ This bill was 
eventually enacted as St. 1972 c. 637, with the title "An Act Expediting the 
Right of Certain Persons to Vote for Presidential Electors." 

It is a well-settled principle that the legislative history of a law may be 
considered in order to ascertain its purpose and meaning, and that a statute's 
"title . . . may be considered in determing its construction." Silverman v. 
Wedge, 339 Mass. 244, 245 (1959). There can be little doubt that the legislation 
was meant to extend only to presidential elections, and I therefore conclude that 
you should provide those citizens qualifying under the provisions of Section IF 
with the special "short ballot." 

Your fifth question is whether those provisions of the absentee voting law 
concerning delivery by mail or voting in the office of the clerk apply to absentee 
ballots cast pursuant to Section IF. A voter who requests an absentee ballot 
under G.L. c. 54, §§87-92, specifies whether he will return his ballot by mail or 
will cast his ballot at the city or town clerk's office. There are separate proce- 
dures which apply to ballots cast by mail and ballots which are cast in person. 
G.L. c 54, §92. 

The terms of Section IF do not specify which method of voting is to be 
employed by persons who qualify under that section. The statute merely pro- 
vides: "... such ballots . . . shall be cast in the polling places designated under 
the provisions of section twenty-four.'"' 

This language should be contrasted with the more specific language con- 
tained in G.L. c. 54, §87, which makes specific provision for the voter to 
request that the ballot be mailed or to vote in person. Further comparison with 
the provisions of G.L. c. 54, §92, governing the method of voting by absentee 
ballots, is also instructive. That section differentiates between "a voter who has 
received by mail an official absent voting ballot" and "a voter whose ballot is 
delivered to him in person." G.L. c. 54, §92. Section IF simply provides that 
the registrars of voters "shall forward an absentee ballot" and does not specify 
the manner for delivery. 

It is the normal rule of statutory construction that the statute must be so 
construed as to provide an effective piece of legislation in harmony with com- 
mon sense and sound reasoning, Morrison v. Selectmen of Weymouth, 279 
Mass. 486, 492 (1932), and that it be interpreted in the light of pre-existing law 
and the main objective to be accomplished. A. Belanger & Sons, Inc. v. Joseph 
M. Concannon Corp., 333 Mass. 22, 25 (1955). 1 conclude, therefore, that 
Section IF contemplates casting absentee ballots, provided thereunder, either in 
person at the office of the clerk or by mail.*^ 



^The Opimon of the Attorney General referred to m the title of the bill was Issued on December 2 1970 and concerned the literacy 
and age requirements for voter registration. 1970/71 Op. Atty. Gen. No. 23. Rep. A.G. Pub. Doc. No. 12 at 70 ( 19/1 ). 

^General laws c. 54, §24 provides for the designation of polling places where ballots provided under G.L. c. 51 . §1 A are to be cast. 

SSection IF expressly provides that the provisions of G L. c 54. S§94-96, shall apply to ballots cast thereunder Those statutes deal 
with processing absentee ballots and challenges that may be made to their validity. 



102 P.D. 14 



The final question which you posed is whether the Commonweahh is in 
compliance with Section 202(0 of the Voting Rights Act Amendments of 1970, 
42 U.S.C. 1973aa-l(f) (1976). That section provides: 

No citizen of the United States who is otherw ise qualified to vote by 
absentee ballot in any State or political subdivision in any election 
for President and Vice President shall be denied the right to vote for 
the choice of electors for President and Vice President, or for Presi- 
dent and Vice President, in such election because of any require- 
ment of registration that does not include a provision for absentee 
registration. 
As I have interpreted the provisions of Section IF, it provides an effective 
manner by which every citizen of the Commonwealth, who is otherwise quali- 
fied, may vote for presidential and vice presidential electors. It is therefore my 
opinion that the Commonwealth is in full compliance with the Federal Voting 
Rights Act. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 4 November 20, 1979 

Eileen Schell 
Secretary 

Executive Office of 
Consumer Affairs 
One Ashburton Place 
Boston, MA 02108 

Dear Secretary Schell: 

You have requested my opinion whether the present executive secretary to 
the Board of Registration in Nursing is qualified by law to serve in that posi- 
tion. In order to answer your question, 1 have considered whether the executive 
secretary was qualified to be so appointed when she was named and whether she 
is now eligible to serve in that position. I conclude that the incumbent was not 
originally qualified for appointment as executive secretary and is not currently 
eligible to continue serving in that capacity. 

General Laws chapter 13, §14 provides in relevant part: 

The board [of registration in nursing] shall appoint an executive 
secretary who at the time of appointment shall hold a bachelor's 
degree, shall have been registered to practice as a registered nurse in 
the Commonwealth for at least eight years, shall have been actively 
engaged in such practice for at least eight years, during at least five 
years of which he shall have served on the teaching or administra- 
tive staff of a school of nurses duly approved in accordance with 
chapter one hundred and twelve, and who shall continue to be so 
registered so long as he shall hold the said office. He shall not be a 
member of the board, shall not be subject to chapter thirty-one, 
shall perform under the direct supervision, of the board such duties 



P.D. 14 ' 103 



as the board shall from time to time designate, and shall receive 
such salary as may be fixed in accordance with chapter thirty. (Em- 
phasis added.) 

From the materials which you have forwarded, I have gleaned the following 
T relevant facts. Marguerine Ginty, the present executive secretary, was ap- 
pointed by the Board of Registration in Nursing [hereinafter, "the Board"] on 
October 2, 1977. Mrs. Ginty was registered as a nurse in the Commonwealth by 
certificate issued November 23, 1971.^ At the time of her appointment, Mrs. 
Ginty had been registered to practice as a nurse in the Commonwealth for less 
than six years and not for the minimum of eight years as required by G.L. c. 13, 
§14. She was, therefore, not qualified to be appointed at that time and would 
not be so qualified until at least November 23, 1979.'^ 

Because Mrs. Ginty does not meet the statutory requirements for appoint- 
ment, her appointment as Executive Secretary to the Board is void. Moreover, 
she is not lawfully eligible to continue serving until such time as she meets 
those requirements and is thereafter appointed in accordance with G.L. c. 13, 
§14. See, e.g., Phelon v. Inhabitiants of Granville, 140 Mass. 386, 389 (1886); 
Commonwealth v. Allen, 128 Mass. 308, 311 (1880). The fact that Mrs. Ginty 
at some point in the future may meet the statutory qualifications for appointment 
does not cure the deficiency of the original appointment. See Commonwealth v. 
Swasey, 133 Mass. 538 (1882). Until such time as she is validly appointed, her 
service as Executive Secretary is in a de facto, as opposed to a de jure capacity. 
Ibid. 

The proper remedy in such circumstances is an action in the nature of quo 
warranto against Mrs. Ginty to seek her removal. Such action may be brought 
only by the Attorney General pursuant to G.L. c. 249, §9,^ and filing such an 
action is a discretionary act. Boston Edison Co. v. Boston Redevelopment Au- 
thority, 1977 Mass. Adv. Sh. 2676, 2720. If you or the Board are desirous of 
causing such an action to be filed, you should formally communicate your 
desires to me. 

Because Mrs. Ginty 's title to the office of Executive Secretary to the Board 
derives from an invalid appointment, 1 conclude that she is not now entitled to 
hold that office. The Board is not, however, precluded from reappointing Mrs. 
Ginty to the position of executive secretary at such time as she possesses the 
statutory prerequisites for appointment. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



'The malenals submitted to me also md.cate that Mrs. Gmty was orgmally registered as a nurse by the Connecticut Board of 
Registration in 1947. 

2The matenals submitted to me do not rertect whether Mrs. Ginty has satisfied the other ^"f f"'""°"'|, f°^^ ^Pf"'"'™"' J*];'^,;^" 
statute requires, including a bachelor's degree, eight years of active practice, and five Jj^ars of servjce on *e >eaching or adm n^^^ 
live staff of a duly approved school for nurses. G L. c. 13, §14. Having concluded that ^1^^ ^'"'y ^''^ ""' ^<=«^'^^«„'^.™ 'J^^ 
required eight year period. I need not consider these other factors. They make it impossible however, for me to consider the 
hypothetical question whether Mrs. Ginty would be qualified to be appointed on November -i. iv /v. 

3An action in the nature of quo warranto by the Attorney General is one of two proper methods to <;>;;" '";|^;;id"«'rs n|ht and title «, 
public office. Where a petitioner claims the public office, mandamus, and not quo warran o '^ ^e f oper ^;"""- ^"^^^^^^^^ 
Ru'isell ^60 Mass ■»)4 ->9'; (19^71 It is clear, however, that a public officer's right and title cannot be attacked collaterally, but 
only dire'ctly in a proceeding to determine the validity of that title. Bos.on Edison Co. v. Boswn Rede.elopmen, Au.honn: 1977 

Mass, Adv. Sh. 2676, 2720. 



104 P.D. 14 



Number 5 November 21, 1979 

Joel H. Goober. Esq. 

Election Ojficer 

Commonwealth of Massachusetts 

Teachers' Retirement Board 

One Ashburton Place 

Boston. MA 02108 

Dear Mr. Goober: 

You have requested my opinion whether Chapter 523 of the Acts of 1978 
grants to retired members of the Teachers' Retirement System the right to vote 
in Teachers' Retirement Board elections. 1 am of the opinion that Chapter 523 
does not grant them that right. 

Chapter 523 of the Acts of 1978 is entitled "An Act Providing Voting Rights 
for Retired Members of the Retirement System for Public Employees." Section 
1 reads as follows: 

Clause (//') of paragraph ia) of subdivision (1) of section 3 of chap- 
ter 32 of the General Laws as appearing in section 1 of chapter 658 
of the acts of 1945. is hereby amended by striking out the last 
sentence and inserting in place thereof the following sentence: - Any 
member in active in senice shall have full voting powers in the 
system as provided in section twenty. (Emphasis added.).' 
It is evident from the Act's title and provisions that its purpose is to extend 
the right to vote in retirement board elections to retired members of many of the 
municipal and state retirement systems in the Commonwealth.^ 1 am of the 
opinion, however, that Chapter 523 of the Acts of 1978 does not succeed in 
extending the right to vote to retired members of the Teachers' Retirement 
System. The last sentence of this section contains an obvious error. ^ The phrase 
"in active in service" contained in that sentence makes no sense. The sentence 
"Any member in active in service shall have full voting rights as provided in 
section twenty." is therefore so ambiguous that, even with the aid of all avail- 
able tools of statutory construction. I am unable to determine an effectuate the 
Legislature's intent. In addition. Chapter 523 does not explicitly amend the 
statute covering the election of the board. 

Teachers" Retirement Board Elections are currently governed by G.L. c. 15. 
§16. That statute provides that of the five member board, "two members . . . 
shall be elected by the members in service of such system. . . .''Id. Chapter 
523 of the Acts of 1978 makes no reference to, and does not expressly amend 
that statute. 



'This language comes from the official version of the statute, as printed by the Secretary of State and signed by the Governor. The 
statute as primed in the Massachusetts Legislature Service and the 1979 pocket part of G.L. c. 32. §3. pubHshed by the West 
Publishing Company reads: Any member in active service shall have full voting powers in the system as provided in section twenty. 

^The remainder of Chapter 523 of the Acts of 1978 makes changes in the votmg rights in the various municipal and state retirement 
systems, primarily by extending voting rights to retired members Section 3 of Chapter 523 extends voting rights to inactive 
members of city and town retirement systems: Section 4 extends voting rights to inactive members of the Massachusetts Housing 
Finance Agency retirement system; Section 5 accomplishes this result for the Massachusetts Turnpike Authority System; and Section 
6 does so for the Massachusetts Bay Transportation Authority police retirement system. Section 2 of Chapter 523 permits retired 
members of county retirement systems to receive candidate nomination papers; these retired members had been granted the right to 
vote by Section 3 of Chapter 890 of the Acts of 1977. 

■'a bill to revise this language was filed in the Senate but was not enacted This opinion was delayed in order that the Legislature 
might consider and act upon that bill. 



P.D. 14 105 



Nor does the Act. in my opinion, impliedly amend G.L. c. 15. §16. Three 
possible sources of an implied amendment of G.L. c. 15. §16 sussest them- 
selves. One is the change in G.L. c. 32. §3 (a) (ii). worked by Section 1 of 
Chapter 523. Another is the title of the Act. The third is the manifest legislative 
intent to extend voting rights to retired members of retirement systems. I find 
that none of these aspects of Chapter 523 impliedly amends the election proce- 
dures of G.L. c 15. §16. 

Section 1 of Chapter 523 deletes the sentence ■"No member inactive shall 
have any voting rights in the system." from G.L. c. 32. §3 (1) (a) (ii) and 
purports to substitute therefor the confusing language underscored above. The 
deletion of this prohibitory language does not by itself constitute a grant of 
voting rights to retired persons. The deletion merely avoids the inconsistency 
that would otherwise result between the deleted sentence's prohibition of voting 
rights for retired persons and the grant of such rights to retired members of 
various retirement systems accomplished by Sections 3 through 6 of the Act. 
Nor does the substitute language presented by Section 1 of the Act supply an 
aftlrmative grant of voting rights to retired members of the Teachers* Retire- 
ment System. Whatever its meaning.* that substitute language addresses only 
"voting powers in the system as provided in section twenty."" Noting powers 
with respect to Teachers" Retirement Board Elections, however, are provided in 
G.L. c. 15. §16. not in G.L. c. 32. §20." Neither the deletion nor the substitu- 
tion of language in Section 1 of Chapter 523 impliedly amends G.L. c. 15. §16. 

The title of Chapter 523. although arguably broader than the .Act"s provi- 
sions, does not enlarge their scope. The title to an act cannot control the plain 
provisions of the statute, although it may be a guide to resolving an ambiguity. 
Breault v. Ford Motor Co.. 364 Mass. 352. 353 n. 2 (1973). While Section' 1 
of Chapter 523 contains some ambiguous language, there is no ambiguit>- with 
respect to the Teachers" Retirement Board Elections. .As previously obser\ed. 
whatever the meaning of the confusing language of Section 1. it does not 
purport to effect voting rights under G.L. c. 15. §16. .Accordingly, the .Act's 
title may not be relied upon to clarify the effect of the Act"s provision upon 
Teachers" Retirement Board elections, and therefore, does not effect an implied 
amendment of G.L. c. 15. §16. 

Finally, the legislative intent to extend voting rights to retired members of 
various retirement systems does not impliedly amend G.L. c. 15. §16. The 
legislative intent, as expressed in the Act. is to increase the rights of retired 
members of the county, city and town. Massachusens Housing Finance 
Agency. Massachusetts Turnpike .Authority, and Massachusetts Bay Transpor- 
tation .Authority police retirement systems, with respect to board elections 
within those systems. Although it might seem reasonable to extend the same 
rights to retired members of the Teachers" Retirement System, the language of 
the .Act does not manifest an intent to do so. The statutor>- language itself is the 
principal source of insight into the legislative purpose. Hoffman v. Howmedica. 



^Moreover, the phrase ■in active in senice." used in the substitute, is nowhere defined. "Member in semce is defined in G^L. c 
32. §3 (O (at (il and ■member inactive- is defined in G L. c. 32. §3 (DO) (ii). The phrase used m Chapter 523. in contrast has no 
apparent meanma. Thus, it Chapter 523 had used the phrase ■member in acuvt". mv task would be somewhat easier and 1 might 
have intepieted the space between ■in" and -acuve'^ to be a t\ pographical error, .^s it is. however. 1 am unable to determine wHat. 
if anything, the additional phrase '"in service" means in this context. 

'■Mthough G.L. c. 32. $20 does make reference to G.L. c. 15. §16 I decline to relv upon such reference to find an implied 
amendment of that latter provision. 



106 P.D. 14 



Inc., Mass. Adv. Sh. (1977) 1488, 1493; Commonwealth v. Gove, 366 Mass. 
351 , 354 (1974). The General Court took care in sections 2 through 6 of the Act 
to amend several individual statutory provisions relating to board elections 
within various different retirement systems, yet left G.L. c. 15, §16 untouched. 
I must, therefore, conclude that the statutory purpose did not include extending 
voting rights to retired members of the Teachers' Retirement System. Even if I 
were to conclude that the General Court intended to accomplish that result, the 
intent would be insufficient to alter the actual text of the law. 

In summary, it is my opinion that Chapter 523 of the Acts of 1977 simply 
does not extend the right to vote in Teachers' Retirement Board elections to 
retired members of the Teachers' Retirement System. 

Very truly yours. 

FRANCIS X. BELLOTTl 

Attorney General 

Number 6 December 3, 1979 

Alfred E. Frechette, M.D. 
Commissioner of Public Health 
600 Washington Street 
Boston, Massachusetts 021 1 1 

Dear Dr. Frechette: 

You have asked whether physicians who provide medical services at Depart- 
ment of Public Health facilities on a contractual basis and who are paid from a 
subsidiary account coded "03" in the expenditure code manual are "public 
employees' within the meaning of the Commonwealth's Claims and Indemnity 
Act. G.L. c. 258, §§1, et. seq., inserted by St. 1978, c. 512, §15. The purpose 
of your question is to determine whether it is necessary for such physicians to 
maintain their own medical malpractice insurance, in light of statutory language 
in G.L. c. 258, §2, which directs that, under certain circumstances, a public 
employer may be held liable for the tortious conduct of an employee. 

As discussed more fully below, I have concluded that, as a general matter, 
physicians providing services to the Department of Public Health under "03" 
(consultant) contracts are not immune from tort liability as a matter of law by 
virtue of their association with the Commonwealth. Although there may be 
certain instances where an "03" physician is covered by G.L. c. 258, §§1, et. 
seq., as one whose role and function is identical to that of a physician hired 
under a traditional employment contract, this is not the general rule. See, 1976- 
77 Op. Atty. Gen., p. 2 (March 31, 1977); 1966-67 Op. Atty. Gen. p. 70, 71 
(August 30, 1966). Thus, for the reasons discussed below, it would be advis- 
able for physicians hired as consultants under "03" contracts to maintain their 
own personal malpractice insurance. My answer to your question is based both 
on the language of G.L. c. 258, §§1, et. seq., and on the statute's common law 
context. 

General Laws c. 258, §2 provides that "public employers" may be held 
liable for 

. . . injury or loss of property or personal injury or death caused by 
the negligent or wrongful act or omission of any public employee 



D. 14 



107 



while acting within the scope of his office or employment, in the 
same manner and to the same extent as a private individual under 
like circumstances. 

It further provides that where a "public employee" offers 

. . . reasonable cooperation to the public employer in the defense of 
any action brought under this Chapter, no such public employee or 
the estate of such public employee shall be liable for any injury or 
loss of property or personal injury or death caused by his negligent 
or wrongful act or omission while acting within the scope of his 
office or employment. 

Although the terms "public employer" and "public employee" are expli- 
:itly defined in G.L. c. 258, §1,' that provision leaves unspecified the generic 
meaning of the term "employee." Under these circumstances, rules of statutory 
;onstruction dictate that the "usual and accepted meaning" of the word shall 
apply, as long as that meaning is consistent with the statute's purposes. Com- 
monwealth V. Zone Book, Inc., 372 Mass. 366, 369 (1977). Pursuant to this 
approach, the term's "usual and accepted meaning" may be derived from 
sources presumably known to the enactors of the statute, such as its use in other 
legal contexts, including common law. See e.g., Commonwealth v. Zone Book, 
Inc., supra; Everett v. Revere, 344 Mass. 585, 589 (1962), quoting from 
Brooks V. Fitchburg <&. Leominster Street Railway, 200 Mass. 8, 17 (1908). 

At common law, "the test used in this Commonwealth to determine whether 
an individual is ... a servant or employee ... is the control which may be 
exercised over the individual in the performance of his work." Brigham's Case, 
348 Mass. 140, 141 (1974) 1964. An individual is considered a servant or 
employee if, in the performance of his duties, that individual is at all times 
bound to obedience and subject to direction and supervision as to details, as 
distinguished from a responsibility merely to accomplish an agreed result in an 
agreed manner. Brigham's Case, supra at 142; Bell v. Sawyer, 313 Mass. 250, 
251 (1943); McDermott' s Case, 283 Mass. 74, 76(1933). 

Courts have recognized that "one may be a servant though far away from the 
master, or so much more skilled than the master that actual direction and control 
would be folly." Bell v. Sawyer, supra, at 251-252. This holds true because the 
existence of the master-servant relationship depends primarily upon the right of 
the principal to control the manner in which the work is performed, rather than 
the actual exercise of that right. Marino v. Trawler Emil C, Inc., 350 Mass. 88, 
96 (1966); Bell v. Sawyer, supra at 252. To determine whether such a relation- 
ship exists in any particular case, courts have looked to factors which include: 
the method of payment, if any; the intended duration of employment; the degree 
of supervision required or exercised; the place of employment; and the owner- 
ship of equipment used. See, e.g., Marino, supra at 95; Galloway's Case, 354 
Mass. 427, 430 (1968); Bell v. Sawxer, supra at 252; McDermott's case, supra 
at 76-78 

Pursuant to this judicial analysis, consultants have typically been viewed by 
the Attorney General as operating without the type of supervision and control 



'G L c 258. SI. defines the term 'public employee" as ■■eletled or appointed officers or employees o( any public employer, 
whether serving full or part-time, temporary or permanent, compensated or uncompensated." In turn. G.L. c. 258. §1 delincs the 
term "public employer" as "the Commonwealth. . . and any department, office, commission. . . . institution or agency thcreol 
(which] exercises direction and control over the public employee." 



108 P.D. 14 



which would accord such individuals the status of "employee." 1976-77 Op. 
Atty. Gen. p. 2 (March 25, 1977). Indeed, one Attorney General Opinion has 
characterized the relationship between a consultant and an agency of the Com- 
monwealth as one in which the agency would be the consultant's client rather 
than employer. 1966-67 Op. Atty. Gen. p. 70, 71 (August 30, 1966). Accord, 
1976-77 Op. Atty. Gen., p. 2 (March 31, 1977). Accordingly I believe that 
where a traditional consultant relationship exists between an individual physi- 
cian and the Commonwealth, the physician would not be considered a "public 
employee" for the purposes of the Claims and Indemnity Act.^ 

The inquiry, however, cannot end with a conclusion pertaining only to the 
traditional consultant, since you have stated that the terms under which "03" 
physicians provide services to the Commonwealth differ significantly from con- 
tract to contract. For example, some physicians provide services to the Com- 
monwealth by means of a "blanket service authorization," under which (1) 
particular Public Health facilities have discretion to hire medical staff necessary 
for their operation; (2) individual physicians contract directly with the Depart- 
ment; and (3) certain physicians provide services to the Department by way of 
an "03" agreement between the Department and an institution with which the 
physician is affiliated. Further, you suggest that, while some physicians hired 
under "03" contracts genuinely play a consultant role, others are functionally 
indistinguishable from physicians providing services under traditional employ- 
ment contracts. In the latter circumstance, you state that the only difference 
between the "consultant" and "employee" is the fund from which compensa- 
tion is derived. 

These facts are particularly relevant since the common law suggests that it is 
the substance of the relationship rather than the formal label attached to it which 
controls the determination of one's status as an employee. For example, approx- 
imately one year before the Legislature enacted G.L. c. 258, §§1, et. seq. in its 
present form, the Supreme Judicial Court decided Whitney v. City of Worcester, 
Mass. Adv. Sh. (1977) 1713. In that case, the Court expressed an intention to 
abolish governmental immunity, within limits, in the first appropriate case de- 
cided after the 1978 legislative session, if the legisature itself had not acted 
definitively by that time. Whitney, supra, at 1715. The court voiced its conclu- 
sion that "the governmental immunity doctrine and the convoluted scheme of 
rules and exceptions which have developed over the years are unjust and inde- 
fensible as a matter of logic and sound public policy." Id. at 1714. It observed 
that "rigid classifications. . . have served only to obscure the issue of whether a 
particular plaintiff should recover from a governmental entity for his injuries 
and to prevent the systematic and straightforward development of a rational 
scheme of governmental liability that is consistent with accepted tort principles 
and the reasonable expectations of the citizenry with respect to its govern- 
ment." Id. at 1721. To inject what it considered the necessary rationality into 



^It should be noted that this conclusion necessarily rests upon the nature of the physician's employment relationship with the 
Commonwealth, rather than the nature of the medical profession itself. Although the highly skilled and discretionary nature of 
medical practice has been recognized, see. e.g.. McMurdo v. Getter. 298 Mass. 363, 368 (1937) ("the position of a physician is 
normally not a servant of anyone"), courts have not hesitated to view physicians as "employees" of hospitals or corporations for 
purposes of tort liability. See e.g.. Aurelio v. Laird. 352 Mass. I (1967); McMurdo v. Getter. 298 Mass. 363. 364 (1937) cf. 
McCarthy v. Boston City Hospital. 358 Mass. 639, 643 (1971) This approach is consistent with cases decided under the Federal 
Tort Claims Act. 28 U.S.C. §§2671. et seq., in which courts applying language similar to that found in G.L. c. 258 have held the 
United States answerable to malpractice of physicians providing medical services in federal facilities. See. e.g.. Ahern v. \'eterar\s 
Administration. 537 F.2d 1098, ( lOlh Cir. 1976); Caron v. United States. 410 F. Supp. 378, 391 (D.R.I. 1975), affd 548 F.2d 366 
(IstCir. i91(>):Grigalauskas \. United States. 103 F. Supp. 543 (D. Mass. \95i). affd. 195 F. 2d 494 ( 1st Cir. 1952). 



P.D. 14 109 



this field, the Court approved the use of a functional analysis "guided by a 
principle of governmental liability within limits". Id. at 1723. 

In light of these considerations, when determining whether an "03" physi- 
cian is a "public employee" within the meaning of G.L. c. 258, §§1 et seq., 
the individual's legal status as a consultant cannot, in all circumstances, be 
conclusive. To do so would create the pitfalls of "rigid categorization" which 
the Court in Whitney sought to avoid. It would, in some cases, render govern- 
mental liability dependent solely upon the fortuity of the physician's funding 
arrangement with the state. 

Rather than viewing the "03" physicians as a consultant in all circum- 
stances, the teaching of Whitney militates in favor of a case by case approach. 
Although the fact that a physician is hired as a consultant may be highly proba- 
tive on the issue of that individual's relationship with the Commonwealth, the 
parties must be allowed to explore the issue of "direction and control." 

This result recognizes the principle that, in order to maintain a rational 
scheme of government liability under G.L. c. 258. §§1 et seq., coverage must 
be determined not only by the individual's technical legal status, but also by the 
individual's functional role. In cases where the "03" physician is in fact func- 
tionally indistinguishable from physicians hired under traditional employment 
contracts, coverage under G.L. c. 258, §§1 et seq., should be the same. 

Finally, assuming under the analysis prescribed above that a particular "03" 
physician is a "public employee" within the meaning of G.L. c. 258, §1, the 
individual must still be aware that he or she faces individual liability for tortious 
conduct not covered by the Claims and Indemnity Act. Under G.L. c. 258, §10, 
the provisions of the Act do not extend to: 

(a) any claim based upon an act or omission of a public employee 
when such employee is exercising due care in the execution of any 
statute or any regulation of a public employer, . . . whether or not 
such statute, [or] regulation, ... is valid; 

(b) any claim based upon the exercise or performance or the 
failure to exercise or perform a discretionary function or duty on the 
part of the public employer or public employee, acting within the 
scope of his office or employment, whether or not the discretion 
involved is abused; [or] 

(c) any claim arising out of an intentional tort. 

As to these types of actions, the Commonwealth has not waived its immu- 
nity. Rather, in these situations physicians and other public employees may still 
be held personally responsible for their tortious conduct, subject to limited 
indemnification procedures set forth in G.L. c. 258, §9. 

In light of these considerations, as well as the fact that in any given situation 
an "03" physician may not be a "public employee" for purposes of the Claims 
and Indemnity Act, an "03" physician cannot securely rely upon that statute as 
a shield from personal liability for malpractice. Accordingly, physicians provid- 
ing services to the Department of Public Health under "03" contracts are well 
advised to maintain personal malpractice insurance policies. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



no P.D. 14 

Number? December 10. 1979 

Honorable Barry M. Locke 
Secretary of Transportation and 

Construction 
One Ashburton Place 
Boston, MA 02108 

Dear Secretary Locke: 

You have requested my opinion relative to the interpretation of G.L. c. 90, 
§19A. Specifically, you ask whether the first paragraph of §19A, as amended 
by St. 1975, c. 494, allows a motor vehicle' to travel on public ways without a 
permit as prescribed by G.L. c. 85. §§30 and 30A. if the motor vehicle satisfies 
the bridge formula test described in the second proviso of §19A, even though it 
may not satisfy the axle-loading test set forth in the first proviso of §19A. The 
attachments to your request indicate that in recent months the District Court 
Department has dismissed several complaints brought by the Registry of Motor 
Vehicles for violations of the axle-loading weight limit. The Courts in these 
cases have interpreted §19A. as amended, to mean that a motor vehicle need 
only comply with either the bridge formula or the axle-loading test. 

For the reasons stated below, it is my opinion that the statute does allow a 
motor vehicle to travel on public ways without a permit if it satisfies the bridge 
formula test only. 

General Laws c. 90, §19A, Hi provides in pertinent part: 

Any provision of sections thirty and thirty A of chapter eighty- 
five to the contrary notwithstanding, a motor vehicle having two 
axles, which vehicle with its load weighs not more than forty-six 
thousand pounds, and a motor vehicle, trailer, semi-trailer or semi- 
trailer unit having three or more axles, which unit or vehicle with its 
load weighs not more than eighty thousand pounds, may travel on a 
public way without a permit as required by sections thirty and thirty 
A of chapter eighty-five; provided,'^ that no such motor vehicle, 
trailer, semi-trailer or semi-trailer unit, the weight on any axle of 
which, measured at the ground, exceeds twenty-two thousand four 
hundred pounds, or, in the case of axles spaced less than six feet 
apart, eighteen thousand pounds, shall so travel without such a 
permit; provided further* that in any event such a motor vehicle, 
trailer, semi-trailer or semi-trailer unit may travel on a public way 
without such a permit if the overall gross weight on a group of two 
or more consecutive axles thereof does not exceed the gross weight 
produced by application of the following formula: 

W = 500 (^^^ + 12N + 36) 

N-1 . . . .^ 



'in the context of this opinion, the lemi "motor vehicle, ' includes motor vehicles having two axles, and motor vehicles, trailers, 
semi-trailers, and semi-trailer units having three or more axles. 

•^This proviso contains what is referred to as the "axle loading" lest. 
^The second proviso sets forth the "bridge formula" test. 

■'The statute goes on to define the variables contained in the above equation: ". . W = overall gross weight on any group of two or 
more consecutive axles to the nearest 500 pounds, L= distance in feet between the extreme of any group of two or more 
consecutive axles, and N = number of axles in group under consideration except that two consecutive sets of tandem axles may 
carry a gross load of 34,000 pounds each providing the overall distance between the first and last axles of such consecutive sets of 
tandem axles is thirty-six feet or more: Provided, that such overall gross weight may not exceed eighty thousand pounds. 



D. 14 



111 



The first paragraph of §19A is divided into three main clauses. The first 
'clause sets forth unqualified gross weight allowances for certain motor vehicles. 
The second clause is a proviso which modifies the first clause by imposing 
several single axle weight allowances (the "axle-loading" test). The third 
clause, which is the focus of your question, is a second proviso which permits 
motor vehicles "in any event" to travel on public ways without a permit if they 
satisfy the so-called "bridge-formula" test. 

The phrase introducing the third clause, "provided further that in any 
event," clearly means that regardless of the application of the axle-loading test 
set forth in the immediately preceding clause, a motor vehicle needs no permit 
to travel the public ways if it meets the requirements of the formula provided in 
the third clause. The result is a motor vehicle weight scheme which employs 
alternative tests, either of which, if satisfied, would allow the use of the road 
without a permit. 

That the Legislature intended to incorporate alternative tests is demonstrated 
by comparing the language of St. 1975, c. 494, with the statutory language it 
replaced.^ There, in the phrase which introduces a weight-axle distance ^hart 
(which the amendments replaced with the bridge formula) the words "in any 
event" are not used. Moreover, the clause was phrased as an additional restric- 
tion ("provided further that the gross weight . . . shall not exceed that shown on 
the . . . table. . ."), not as a permissive exemption as the statute now reads (" . 
. . provided further that in any event . . .a motor vehicle . . . may travel . . . 
without such a permit if [it satisfies the bridge formula test] . . ."). Such a 
presumably intentional change in the statutory language cannot be ignored. 

Further support for the view that the statute creates alternative tests comes 
from the elementary canon of statutory interpretation which requires that all 
words of a statute be given effect, if possible. See Commonwealth v. Intoxicat- 
ing Liquors, 108 Mass. 18, 21 (1871); Commonwealth v. Woods Hole, Mar- 
tha's Vineyard & Nantucket S.S. Auth'y, 352 Mass. 617, 618 (1967). See also 
2A CD. Sands, Sutherland Statutory Interpretation, ^46. 06 (4th ed. 1973). An 
interpretation of the statute which finds both tests to be required would render 
the words "in any event" meaningless and superfluous and must be rejected for 
that reason. 

While I am sensitive to the possible consequence of construing the statute as 
I have, I am also mindful of the teaching of the Supreme Judicial Court that 
where the statute is unambiguous, the statute must be interpreted according to 
the usual and natural meaning of its language, even if injustice or hardship 
results. Rosebloom v. Kokofsky, Mass. Adv. Sh. (1977) 2534, 2538; Milton v. 
Metropolitan Dist. Comm'n, 342 Mass. 222, 227 (1961). Accordingly, I con- 
clude that motor vehicles may lawfully operate on the public ways if they 
satisfy either the axle-loading or bridge formula tests set forth in G.L. c. 90, 
§19A. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



^Chapter 494 of the Ads of 1975, inter alia, substituted the bridge-formula test for the following language: 

... and provided further that the gross weight of any such vehicle together with its load expressed in pounds shall not 
exceed that shown on the following table without such a permit: [table omitted] 



112 P.D. 14 



Numbers December 19. 1979 

Charles E. Memusi Johnson, Secretary 
Executive Office of Educational Affairs 
One Ashburton Place. 6th Floor 
Boston, MA 02108 

Dear Secretary Johnson: 

You have requested my opinion on behalf of the Board of Library Commis- 
sioners (the Board) concerning the Board's authority to refer to its employees as 
the "Massachusetts Board of Library Commissioners' Office for the Develop- 
ment of Library Services." It is my opinion that the Board has the authority to 
so designate its employees. 

Until the enactment of Chapter 565 of the Acts of 1977, the Board was 
within the Department of Education and was augmented by an administrative 
agency named the Bureau of Library Extension. Chapter 565 removed the 
Board from the Department of Education, modified its structure and deleted the 
section providing that the Bureau of Library Extension would be the administra- 
tive agency of the Board.' The Board, however, was granted the authority to 
appoint a director and deputy director and "such professional and sub-profes- 
sional staff as the functions, powers and duties of the board shall require". St. 
1977 c. 565, §4, amending G.L. c. 78, §14. 

The materials which have accompanied your request indicate that members 
of the Board believe that the term "Board of Library Commissioners" refers 
exclusively to the nine members appointed by the Governor and does not refer 
to the Board's employees. The Board has chosen to refer to its employees as the 
"Office for the Development of Library Services" and seeks my opinion, 
through you, as to its authority to do so. 

While there is no express statutory grant of authority to the Board to select a 
name for its employees,^ there is no prohibition against such an action. The 
name the Board has selected to refer to its employees fairly describes the duties 
and functions which they perform. The Board's action in selecting the name to 
refer to its employees is nothing more than an administrative convenience de- 
signed to reduce confusion and make a distinction between the Commissioners 
and their staff. 

It is a well-settled principle of law in this jurisdiction that administrative 
agencies have not only those powers conferred upon them by statute, but also 
such other powers as are reasonably necessary for their proper functioning. 
1977/78 Op. Att}-. Gen. No. 31. Rep. A.G.. Pub. Doc. No. 12 at (1978). 
See also, Levy v. Board of Registration and Discipline in Medicine, Mass. Adv. 
Sh. (1979) 1857. 1865. It is also clear that the legislature may delegate to an 
administrative agency the authority to work out the details of a legislative 
policy. See Commonwealth v. Diaz, 326 Mass. 525, 527 (1950). 



'While the provision for the administrative agency was deleted, the statute specifically provided that the funds appropriated to the 
Bureau of Library Extension and its employees were to be transferred to the service of the Board of Library Commissioners. St 
1977. c. 565, §8. 

■^The Board is responsible for advising "the librarian or Trustee of any free public library, and may on request advise the librarian or 
other person in charge of the library of any slate or county institution relative to the selection or cataloguing of books and any other 
matter pertaining to the maintenance or administration of such library." G.L. c. 78, §15. The Board is further empowered to 
"expend such sums as may be appropriated for the extension and encouragement of library services within the Commonwealth." 
G.L. c. 78, §19. 



P.D. 14 ,13 

The designation of the Board's staff by a particular name is simply * 'working 
out of the details'" of a legislative policy, and does not affect the structure, 
duties or responsibilities of the Board or its personnel. It is, therefore, my 
opinion that the Board has the inherent power to adopt such a name for its 
employees pursuant to its express grant of authority as contained in G L c 78 
^S14-19. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 9 January 3, 1980 

Paul D. Gitlin, Esq. 

Chairman 

Health Facilities Appeals Board 

60 State Street 

Suite 2750 

Boston, MA 02109 

Dear Mr. Gitlin: 

You have asked my opinion whether as a consumer member and chairman of 
the Health Facilities Appeals Board (hereafter, "the Board"),' you may per- 
form legal services for physicians in matters not related to their role as providers 
of health care services. 

Your question arises because General Laws Chapter 6, section 166, which 
establishes the Board, provides in part: 

. . . The board shall consist of five persons to be appointed for 
terms of three years by the governor, at least three of whom shall be 
consumers of health care services who are not officers or employees 
of, and do not bear any fiduciary relationship to a person or institu- 
tion providing health care services. One such consumer member 
shall be a member of the bar of the commonwealth and shall be 
designated by the governor to serve as chairman of the board. (Em- 
phasis supplied.) 
Your questions relate to the statutory prohibition against fiduciary relationships 
with health care providers by consumer members of the Board. Specifically, 
you have asked whether this prohibition extends to the attorney-client relation- 
ship, if that relationship is unrelated to the client's provision of health care 
services. Assuming that the prohibition against fiduciary relationships does not 
extend to the attorney-client relationship, you then ask: 

(1) does the prohibition extend to all providers of health care services; 

(2) does the prohibition extend beyond the date of one's appointment to the 
Board; 

(3) does the prohibition extend to other members of one's law firm; and 



'The Health Facilities Appeals Board determines appeals of decisions of the Department of Public Health regarding the need for 
proposed construction of health care facilities and proposed substantial changes in services of such facilities. G.L. c. 6. §166; c. 
1 II . §§25E and 25C. 



114 P.D. 14 

(4) may the intent of the Legislature be satisfied by disqualifying oneself in 
matters before the Board involving present or former clients. 

For the reasons stated below, 1 conclude that the prohibition against fiduciary 
relationships contained in G.L. c. 6, §166, does include the attorney-client 
relationship and that a consumer member of the Board may not render legal 
services to a physician, even when those services are unrelated to the provision 
of health care services. Moreover, this prohibition does continue throughout the 
tenure of the Board member and may not be avoided by disqualification in 
matters before the Board involving the member's present or former clients.^ 

In interpreting this statutory prohibition against fiduciary relationships, 1 am 
guided by the principle that where the language of a statute is clear and unambi- 
gious, that language must be interpreted according to its "usual and natural 
meaning." Rosenbloom v. Kokofsky, Mass. Adv. Sh. (1977) 2534, 2537-2538; 
Commonwealth v. Gove, 366 Mass. 351, 354 (1974). General Laws c. 6, §166, 
forbids consumer members from bearing "'any fiduciary relationships to a per- 
son . . . providing health care services." (Emphasis added.) The fiduciary 
nature of the relationship between attorney and client is well established. Hen- 
drickson v. Sears, 365 Mass. 83, 90 (1974); Tarr v. Vivian, 111 Mass. 150, 
153 (1930). It is equally clear that a physician is a "person . . . providing health 
care services." It follows ineluctably that one who acts as attorney for a physi- 
cian bears a fiduciary relationship to a person providing health care services. 
Thus, giving the statutory language its full effect, see Rosenbloom, supra, 
Mass. Adv. Sh. (1977) at 2537-2538, I conclude that a consumer member of 
the Health Facilities Appeals Boards may not provide legal services to a physi- 
cian without violating G.L. c. 6, §166. 

This conclusion is supported by the legislative history of the statute. The 
Report of the Joint Special Committee on Health Benefits and Health Services, 
House Document No. 5968 (June, 1972) emphasized the "central importance" 
of the consumer in the determination of need process. "It is for the consumer of 
service that the entire system should exist." Id. at 40. "For this reason," the 
Committee explained, "the consumer has been written into the majority posi- 
tion on the Health Facilities Appeals Boards." Id. To preserve the intended role 
of the Board's consumer members, the Joint Committee advised that three of 
the five members of the Board "must be consumers not associated with any 
provided of health care services." Id. at 39 (emphasis supplied). By its use of 
the phrase "associated with," the Report supports my conclusion that the Leg- 
islature intended a broad prohibition of fiduciary relationships with health care 
providers. 

This conclusion is also buttressed by the fact that in addressing the same 
mischief of potential conflicts of interest, the General Court has at other times 
employed a more precisely tailored remedy. Indeed, in the very act which added 
G.L. c. 6, §166, the Legislature chose a narrower approach to deal with poten- 
tial conflicts of interest involving members of the Public Health Council. St. 
1972, c. 776, Section 2A, amending G.L. c. 17, §3.' 



^Because of the clearly hypothetical nature of the questions identified above as subsidiary questions ( 1 ) & (3). I specifically decline to 
answer those questions See 1966/67 Op. Atty Gen. No. 112. Rep A.G; Pub Doc No. 12 at 223 (1967); I Op. Atty. Gen. at 273 
(1895). 

^The Public Health Council, along with the Commissioner of I'ublic Health, makes the initial determination of the need for 
construction of health care facilities or for substantial changes in service of such facilities. See G.L. c. 111. §25 C. The Department 
of Public Health consists of the Commissioner and the Public Health Council. G.L. c. 17, §1. 



P.D. 14 1,5 

Similarly to the Health Facilities Appeals Board, the Public Health Council 
consists of providers of health care services and "nonproviders", that is, mem- 
bers who represent the public interest. G.L. c. 17. §3. The Legislature has 
chosen to prevent conflicts of interest involving non-provider members by 
precise restrictions: 

For the purposes of this section "nonprovider" shall mean a 
person whose background and experience indicate that he is quali- 
fied to act in the broad public interest, who, and whose spouse, 
parents, siblings or children, has no financial interest in a health 
care facility, who, and whose spouse, has no employment relation- 
ship to a health care facility, to a nonprofit service corporation 
established in accordance with chapters one hundred and seventy- 
six A to one hundred and seventy-six E, inclusive, nor to a corpora- 
tion authorized to insure the health of individuals, and who, and 
whose spouse, is not licensed to practice medicine. St. 1972 c. 776 
§2A. 

Further assurance against conflicting loyalties was afforded by section 3 of 
the 1972 Act, which added G.L. c. Ill, §§25B-25G. The Legislature there 
provided, inter alia, that 

... no member of the public health council who is an owner, in 
whole or in part, an officer or an employee of a health care facility, 
or who bears any other fiduciary relationship to such a facility, shall 
participate in any decision which would substantially affect the fa- 
cility to which he is related. St. 1972, c. 776, §3. 
Within one act, therefore, the Legislature has fashioned two very different 
statutory methods to protect against essentially the same evil. Potential conflicts 
of interests involving consumer members of the Health Facilities Appeals Board 
are addressed by a broad prohibition of fiduciary relationships with health care 
providers. This broad prohibition contrasts with the approach adopted concern- 
ing nonprovider members of the Public Health Council, whose conflicts are 
prevented primarily through a detailed list of forbidden relationships. Where the 
Legislature has chosen in a comprehensive statutory scheme to employ to such 
different approaches to a similar problem, I must conclude that the distinction 
was fully intended. See, Marshal House, Inc. v. Rent Control Board of Brook- 
line, 358 Mass. 686, 698-699 (1971).^ 

Similarly, the Legislature's intent in prohibiting fiduciary relationships would 
be defeated if that prohibition did not extend beyond the date of the Board 
member's appointment. The statute provides that "the board shall consists of 
five persons," at least three of whom "do not bear any fiduciary relationships" 
to a health care provider. Because this language is phrased in the present tense, 
the proscription is a continuing one. The words of a statute must be given their 
ordinary meaning, considered in light of the aim the Legislature sought to 
accomplish. Prudential Insurance Co. of America v. City of Boston, 369 Mass. 



■•The Legislature has chosen yet another approach to potential conflicts of interest involving members ol the Rale Setting Commis- 
sion. Members of the Rate Setting Commission are forbidden to pailicipate in activities "that would conflict with the fair, impartial, 
prudent and efficient full-time conduct of [their] office." G.L. c. 6A. §32. Instead of a broad prohibition of fiduciary relationships, 
cf. G L c 6, §166, or a detailed list of forbidden relationships, cf. G.L. c. 17, §3. the Rate Setting Commission statute establishes 
merely a general standard of conduct, leaving the identification of conflicting activities for Commission members themselves. The 
Legislatures 's choice of varying approaches to similar problems within those agencies regulating health care services should not be 
defeated through statutory construction. 



116 P.D. 14 



542, 546 (1976). Accordingly I conclude that consumer members may not bear 
fiduciary relationships to health care providers at any time during their period of 
service on the Board. 

I further conclude that the consumer member may not avoid the prohibition 
simply by disqualification in Board cases which involve present or former cli- 
ents. The Legislature provided such a curative measure in dealing with potential 
conflicts involving members of the Public Health Council. St. 1972, c. 766, §3, 
adding G.L. c. Ill, §25B. The language of G.L. c. 6, §166, prohibiting 
fiduciary relationships with health care providers, however, is plain and unam- 
bigious and contains no exceptions or qualifications. For the reasons discussed 
above, I must conclude that this distinction in treatment was fully intended. 

I am mindful of the fact that the broad language of G.L. c. 6, §166, prohibits 
some relationships which arguably may pose no threat to consumer loyalty. 
Where the language of a statute is unambiguous, however, it is not susceptible 
to a narrowing construction designed to avoid a hardship. See Rosenbloom 
supra, Mass. Ad. Sh. (1977) at 2537-2538; Milton v. Metropolitan District 
Comm'n, 342 Mass. 222, 227 (1961). 

Accordingly, I am of the opinion that General Laws Chapter 6, section 166 
prevents you from serving as attorney to a physician, even with respect to a 
matter unrelated to the physician's role as a provider of health care. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Number 10 March 7, 1980 

Alfred L. Frechette, M.D. 

Commissioner 

Department of Public Health 

600 Washington Street 

Boston, MA 021 11 

Dear Dr. Frechette: 

You have requested my opinion whether certain provisions of the Com- 
monwealth's determination of need ("DoN") statute, G.L. c. Ill, §§25B-25H, 
are in conflict with federal regulations promulgated pursuant to the National 
Health Planning and Resources Development Act of 1974, P.L. 93-641 (the 
"Act"), governing receipt of funds from the Department of Health, Education 
and Welfare ("H.E.W."). 

Specifically, you have asked whether section 25H of the DoN statute renders 
certain other provisions of that statute null and void because they conflict with 
federal law. The DoN provisions that you believe may conflict with federal 
regulations, and as to which you have requested my opinion, are: (1) that 
portion of G.L. c. Ill, §25C which exempts from determination of need review 
certain research and training projects undertaken by a health care facility and (2) 
the provisions of section 25C which deems an application for determination of 
need approved if not acted upon within specified time limits. 



P.D. 14 117 



For reasons set forth below, I have concluded that section 25H will render 
the cited provisions null and void if they conflict with federal regulations and if 
certain factual conditions are met. Since factual determinations are not within 
the scope of my authority to render legal opinions, I must respectfully decline to 
reach that issue. I find that the research and training exemption is not in conflict 
with the express provisions of the federal regulations, and, as noted below, I 
decline to undertake an interpretation of federal law which is required in order 
to fully review the question which you have posed. Finally, I conclude that the 
provision of the Massachusetts statute which requires that an application be 
deemed approved if not acted upon within specific time limits does conflict with 
express language of the federal regulations. 

In general, the Act provides grants for health planning and development to 
state agencies designated under agreements with the Secretary of H.E.W. See, 
e.g., 42 U.S.C. §300M-4 (1976). To receive such a designation, the state must 
administer a certificate of need program which conforms to federal require- 
ments.^ 42 U.S. C. §§30m(b) (1) and 300m-2(a) (4) (1976). The penalty for 
lack of compliance is loss of certain federal funds. ^ 

The state is not required, therefore, to adopt the federal DoN standards; 
federal standards are binding only if the state wishes to receive federal funding. 
See Townsend v. Swank, 404 U.S. 282. 292 (1971) (Burger, C.J. concurring). 
Accordingly, there are two ways to resolve a conflict between state and federal 
rules under the Act. First, the state may withdraw (or be removed) from the 
federal health planning program and continue to apply the conflicting law. In 
the alternative, the state statute might be construed to avoid or eliminate the 
conflict in order that the state may remain in the program. 

Determination of the appropriate resolution of such conflict will depend in 
each case on an analysis of legislative intent. 1978/79 Op. Atty. Gen. No. 6, 
Rep. A. G., Pub. Doc. No. 12 at (1979). In the absence of express lan- 

guage, there may be no indication that the legislature in enacting the statute had 
ever considered the steps to be taken in case of conflict. 1976/77 Op. Atty. 
Gen. No. 20, Rep. A. G., Pub. Doc. No. 12 at 126 (1977).^ 

The Massachusetts DoN statute, however, contains an express indication of 
legislative intent. General Laws c. Ill, §25H states: 

The provisions of sections twenty-five B to twenty-five G, inclu- 
sive, are severable and if any provision shall be in violation of any 
federal rule or regulation established by the Department of Health, 
Education and Welfare as a condition for receiving federal funds in 
connection with any program administered by said department, such 



M understand that Massachusetts has entered into a full designation agreement with the Secretary of H.E.W. on July I. 1979. As 
noted in your request, the designation agreement designates an agency of slate government to serve as the "stale health plannmg and 
development agency". 42 U.S.C §300m (1976) As a condition of that agreement, the Department was to obtam "an acceptable 
authoritative assurance (preferably from the State Attorney General)" regardmg the issues considered herein. 1 was not consulted 
regarding this condition before the agreement was signed, nor did your request inform me of it. 

Since your reqeust for an opinion. Congress has passed P.L 96-79. amending the Act. In this opinion, I consider the Act and 
regulations as they existed at the time of execution of the designation agreement, because that is the time at which you were 
requested by H.E.W. to obtain an assurance of compliance. 

^The Act provides that if by certain specific time limits a designation agreement with a state is not in effect, the Secretary shall not 
make any grant to the state under this Act, the Community Mental Health Centers Act. and the Comprehensive Alcohol Abuse and 
Alcoholism Prevention, Treatment and Rehabilitation Act of 1970. 42 U.S.C. §300m (d) (1976). 

^When the state statute involves participation in a federally funded program, there may well be a presumption iha' "'he slate docs not 
intend its entire participation . . to cease simply because of one element of noncompliance" or conflict. ABCD. Inc. v. Commis- 
sioner of Public Welfare. Mass. Adv. Sh. (1979) 1566, 1577. 



— ....^ -....^^.....^^aMJ 



118 P.D. 14 



provision shall be null and void and such violation shall not affect 
or impair any of the remaining provisions. 
This section clearly demonstrates an overriding legislative intent that the 
Commonwealth remain in conformity with federal law so that the state will not 
lose federal funding. Application of this section depends on a two-fold finding: 
(1) that a provision of the statute conflicts with H.E.W. rules or regulations, 
and (2) that compliance with the federal provision is a condition for receipt of 
federal funds. The likelihood of loss of federal funds is a factual determination 
within the ambit of your Department. As Commissioner, you are involved in 
funding procedures for the Department and are in a position to determine the 
relationship between various federal requirements and the continued receipt of 
federal funds. ^ Determination of this issue is therefore more appropriately made 
by you, and accordingly, I offer no opinion. Cf. 2 Op. Atty. Gen. at 570, 572, 
575-76 (1905) (noting limitations on scope of an opinion of the Attorney Gen- 
eral). 

In order to determine whether the statute conflicts with H.E.W. rules or 
regulations, I must analyze each of the statutory provisions cited in your re- 
quest. The first provision exempts from the general DoN requirements certain 
expenditures and changes in services connected with health care research or 
training.^ G.L. c. Ill, §25C, H 1 . That section provides in relevant part that: 
Notwithstanding any contrary provision of law, no person or 
agency of the commonwealth or any political subdivision thereof 
shall make substantial capital expenditures for construction of a 
health care facility or substantially change the services of such a 
facility unless there is a determination by the department that there 
is need therefore; provided however, that no such determination 
shall be required whenever any such expenditure in excess of one 
hundred and fifty thousand dollars or any change in service (1) shall 
be essential to the conduct of research in the basic biomedical or 
health care delivery areas or to the training of health care personnel, 
(2) shall at no time result in any increase in the clinical bed capacity 
or out patient load capacity of the facility, and (3) the cost of such 
expenditure or change shall cause no increase in the total patient 
care charges of the facility to the public for health care services, 
supplies and accommodations. . . . 
The Act requires as a condition of federal funding that states establish and 
maintain a "certificate of need program which applies to new institutional 
health services proposed to be offered or developed." 42 U.S.C. §300m-2 (a) 
(4) (B) (1976). As defined in regulations issued pursuant to the Act, "new 
institutional health services" proposed to be offered or developed and. there- 
fore, subject to review include any capital expenditure in excess of $150,000, 
by or on behalf of a heaUh care facility or HMO. 42 C.F.R. §123.404 (a) (2). 
Only those new institutional health services which are granted certificates of 
need shall be offered or developed. 42 C.F.R. §123.405 (a). 



*C). note 1 . supra 



^In the absence of such exemption, health care research and training projects would be subject to the same state approval procedures 
as all other health care projects: That is. the Department of Public Health must determine that there is a need for any such projeci 
involving capital expenditures in excess of $150,000 or creating substantial changes in the services of a health care facilitv See G L 
c. 111. S25C, 



P.D. 14 119 



Neither the federal Act nor the regulations promulgated thereunder expressN 
include research and training projects as new institutional health services which 
must be reviewed by a state certificate of need program. I must respectfully 
decline to undertake an interpretation of federal law which is more appropriately 
made by federal authorities. Accordingly. I confine myself to noting the ab- 
sence of conflict on the face of the Act and regulations. Cf. 1965/66 Op. Atty. 
Gen., Rep. A. G.. Pub. Doc. No. 12 at 370, 373 (1966) (declining to interpret 
federal constitution in order to determine whether state statute was in conflict).^ 
I conclude, therefore, that there is presently no express conflict with the state 
exemption for such undertakings. ^S'cv 1978/79 Op. Atty. Gen. No. 6. Rep. A. 
G., Pub. Doc. No. 12 at (1979). 

The second provision cited in your request concerns that portion of the DoN 
statute which provides that "[a]ny application which has not been acted upon by 
the department within such [stated] time limits shall be deemed to have been 
approved." G.L. c. Ill, §25C,11 5. The federal Act and regulations expressly 
provide that only those new institutional health services which are found to be 
needed and which are granted certificates of need may be offered or developed 
within the state. 42 U.S.C. §300m-2 (a) (4) (B) (1976); 42 C.F.R. §123.405 (a) 
(2). If a determination of need is not made within the specified time period, a 
certificate of need is not to be issued. 42 C.F.R. §123.407 (a) (IS)."* Because 
G.L. c. Ill, §25C,11 5 allows applications to be deemed approved in certain 
instances without an actual determination of need, that provision of the DoN 
statute conflicts with an express provision of federal law. 

In summary, I find a conflict between federal regulations and the Massachu- 
setts provision which deems an application for determination of need approved 
if not acted upon within specified time limits. I conclude that the Massachusetts 
research and training exemption does not conflict with the Act and regulations 
on their face. I decline to undertake the interpretation of federal law and the 
factual determinations necessary to answer the remainder of your request. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



^Until a conflici is found to exist, vou have an obligation to carry out the procedures set forth in the state statute. See Opinion nf the 
Justices. Mass. Adv. Sh. (1978)1412, 1421-23; Dw\er v. Commissioner of Insurance. Mass. Adv. Sh. (1978) 1274. 1285-86; 
1978/79 Op. Ally. Gen. No. 6 Rep. A. G.. Pub. Doc. No. 12 at ( 1979). 

^The statement of the Secretary of H.E.W that he believes that research and training projects fall within the scope of the federal 
determination of need provisions. 44 Fed Reg 19306, 19312 (Apr 2, 1979). clearly lacks the tormality and nnalily ol a final 
interpretation by H E W See Pari o/ Boston Marine Terminal Assn v. ReJeriakiiebolaiiei Transallaniic. 400 US 6.. 71 (1970); 
1978/79 Op Atty. Gen. No. 6 Rep. A, G.. Pub. Doc. No. 12 at (1979). While the statement suggests the possibility that future 
interpretation or rtile-making by H.E.W. may crystallize a conllicl {see note 7. infra). I cannot say that such a conflict is now 
presented , 

Further legislation by Congress might also crvstalli/.e a conflict. I note, however, that recent amendments to inc Act <Jf <■ no'<- '• 
supra) have changed the relevant language, but still have not addressed directly research and training projects. See P.L. 96-79 SI 17 
(a). (Oct. 4. 1979). 

^Federal regulations require that a slates procedures for reviewing DoN requests include •■|plrovisions that if the State Agency docs 
not make a decision regarding a proposed new institutional health service within the period of time specified for State Agency 
review, a certificate of need shall not be issued." 42 C.F.R. SI 23.407 (a) (15). 



120 P.D. 14 

Number 11 May 2, 1980 

Gregory R. Anrig, Commissioner 
Department of Education 
182 Tremont Street 
Boston, MA 02108 

Edward M. Murphy, Commissioner 
Deptartment of Youth Services 
294 Washington Street 
Boston, MA 02108 

Dear Commissioner Anrig and Commissioner Murphy: 

You have requested my opinion whether General Laws Chapter 71, Section 
46G prohibits local appointing authorities from employing school adjustment 
counsellors on a part time basis. G.L. c. 71, §46G permits local school commit- 
tees and regional school districts (hereafter, "local appointing authorities") to 
employ school adjustment counsellors ("counsellors") in order to detect and 
prevent juvenile delinquency among school children.' Your request is made in 
light of the opinion of one of my predecessors in office that Section 46G 
prohibits local appointing authorities from hiring counsellors on a part time 
basis. See 1957 Op. Atty. Gen., Rep. A. G., Pub. Doc. No. 12 at 18(1957). 

That opinion was issued in response to a request by the then Director of the 
Division of Youth Service, who posed to my predecessor essentially the same 
question you now ask of me. The issued opinion relied heavily upon an infer- 
ence created by that portion of Section 46G which allows local appointing 
authorities "not requring the services of a school adjustment counsellor on a full 
time basis" to join with one or more other local appointing authorities to em- 
ploy a full time counsellor. My predecessor considered this language, together 
with the stated purpose of Section 46G, and concluded that the General Court 
was reluctant "to permit the delicate problems confronting the counsellors to be 
handled by part-time personnel, perhaps on a more or less haphazard basis . . . 
r' Id. 

While I might reach a different conclusion if yours were a question of first 
impression, for the reasons set forth below, I decline to reverse the opinion of 
my predecessor. I believe that an opinion of the Attorney General is entitled to 
great weight and is subject to reversal only if there has been a substantive 
change in the law, or if the original interpretation was clearly erroneous. Nei- 
ther situation obtains in this case. 

The prior opinion presents a paradigmatic example of an opinion which 
resists reversal. First, the interpretation by my predecessor was a virtually con- 
temporaneous construction of a newly enacted statute.^ Second, I have been 



^G.L. c. 71, S46G provides in relevant part; 

To facilitate the early detection of children manifesting traits tending toward juvenile delinquency and to assist in the prevention of 
such children becoming juvenile delinquents, any city or town acting by its school committee and out of funds appropriated for 
general school purposes, and any regional school district, may employ such number of school adjustment counsellors as the school 
committee, with the wntten approval of the commissioner of youth services, shall deem necessary .. , No person shall be employed 
under this section unless his professional and personal qualifications have been approved by the commissioner of education and the 
commissioner of youth services. If said commissioner of education or said commissioner of youth services disapproves the qualifica- 
tions of such person, he shall state in wnting his reasons. Any town or regional school dislnct not requinng the services of a school 
adjustment counsellor on a full time basis may join with one or more other towns or regional school distncts in employing a school 
adjustment counsellor under the limitations of this section. 

^G.L. c. 71, §46G was inserted by St. 1955, c. 696, and became effective on August 22, 1955. 



P.D. 14 121 



informed that in the twenty-three years since it was issued, my predecessor's 
opinion has been consistently applied by the state agencies empowered to act 
pursuant to G.L. c. 71, §46G. Third, although the legislature has been 
presumptively aware of this contemporaneous construction over this period of 
time, the only changes it has made in the statute have been cosmetic in nature.^ 

A long standing and consistently applied opinion should not be overturned by 
me on the sole basis that I, taking a fresh look at the subject under changed 
circumstances twenty-three years later, might decide the question differently. It 
is well settled that great weight must be given to a "consistent, long continued 
administrative application of an ambiguous statute, . . . especially if the inter- 
pretation is contemporaneous with the anactment." Cleary v. Cardullo's, Inc., 
347 Mass. 337, 343 (1964) and cases cited. See also Devlin v. Commissioner of 
Correction, 364 Mass. 435, 439 (1973); Board of Assessors ofHolxoke v. State 
Tax Commission, 355 Mass. 223, 243-44 (1969). 

In those instances where state agencies or officials determine that a long 
standing administrative interpretation of a statute merits reversal or change, the 
first and primary course of action is to achieve amendment of the law through 
legislative action. See, e.g.. Commonwealth v. Town of Andover, Mass. Adv. 
Sh. (1979) 1619, 1630-31; Whitney v. C/A' of Worcester, 373 Mass. 208, 212- 
13 (1977); Morash & Sons v. Commonwealth, 363 Mass. 612, 623 (1973). 

In summary, I therefore decline to overturn the earier opinion. I respectfully 
suggest that should you desire to alter the law as it has been consistently applied 
since its enactment, you attempt to seek such change by presenting your con- 
cerns and views to the General Court. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

Number 12 May 9, 1980 

William M. Shipps, Commissioner 

Department of Labor and Industries 

Saltonstall Building 

100 Cambridge Street 

Boston, MA 02202 

Dear Commissioner Shipps: 

You have requested my opinion whether Guy Carbone, the present Commis- 
sioner of the Metropolitan District Commission (MDC). may receive pay in lieu 
of vacation time which he accrued while employed by the Department of Labor 
and Industries (the Department).^ 1 begin this opinion with a brief recitation of 
the pertinent facts. 

^See. e.g. Si. 1970. c. 426. which made corrective changes in Ihis one stalulc by subsliluting '■commissioner of youlh services" for 
•director of the division of youlh service m the department of education" The only significanl change in the law respecting school 
adjustment counsellors came with G.L c. 71. §38J, added by Si 1970. c. .1.V That provision, while indicating a presenllcgis alive 
desire to treat teachers and school adjustment counsellors equally with respect to the acquisition of tenure, docs not directly address, 
and is not dispositive of, the question answered by my predecessor and raised by your current opinion request. 

M have received from the Department and from the Division of Personnel Administration memoranda addressing the legal issues 
rasied by your request. 



122 P.D. 14 



The Governor appointed Mr. Carbone to the position of MDC Commissioner 
on May 3, 1979. Prior to that appointment, Mr. Carbone was employed by the 
Department as a Senior Attorney and as General Counsel. Mr. Carbone took a 
leave of absence from his position with the Department on May 3, 1979, and 
terminated from that position on June 1, 1979. At issue here are some 9y4 
vacation days accrued by Mr. Carbone during fiscal year 1978 and a undeter- 
mined amount of vacation time accrued during the ten months he was employed 
by the Department during fiscal year 1979. For the reasons set forth below, I 
conclude that Mr. Carbone is not currently entitled to receive a payment in lieu 
of accrued vacation time. 

Vacation rights and procedures applicable to individuals employed by the 
Commonwealth are governed by the official rules and regulations of the Direc- 
tor of Personnel, pursuant to G.L. c. 7, §28,112, with exceptions not relevant 
here.^ Those rules and regulations are compiled for reference in the so-called 
"Red Book". See 1975/76 Op. Atty. Gen. No. 36, Rep. A.G., Pub. Doc. No. 
12 at 120 (1975). Red Book Rule LV-1 permits state employees to accrue 
vacation time, and Rules LV-7 through LV-9 provide for payment in lieu of 
accrued vacation time in a manner consistent with guidelines set forth in G.L. c. 
29, §31A.^ Read together, those provisions provide for payment in lieu of 
accumulated vacation days only to an individual who has "separated" from 
state service. Separation may be achieved by death, retirement, dismissal (with- 
out fault of the employee) or other reasons. See G.L. c. 29, §31 A; Red Book 
Rules LV-7 through LV-9. Mr. Carbone is presently eligible for payments in 
lieu of accrued vacation credits only if he has separated from state service. 

Any argument that Mr. Carbone is entitled to a payment in lieu of his accrued 
vacation credits hinges upon the proposition that by accepting his position as 
MDC Commissioner, Mr. Carbone has separated from state service. That un- 
derlying proposition is not tenable. As MDC Commissioner, Mr. Carbone is a 
"person who is in charge of or, in fact, the head of a department, division, 
commission or committee established by statute . . . whose appointment must 
have Governor and Council approval. ..." Red Book Rule G-6; see also G.L. 
c. 28, §§I, 3. Mr. Carbone is thus presently an officer of the Commonwealth 
who is exempt from the vacation rules. This exemption does not mean, how- 
ever, that he may be considered to be separated from state service on the sole 
basis that his position is not presently covered by the vacation rules. Movement 
from a position as a state employee to one as an officer of the Commonwealth 
does not constitute separation from state service. See 1962 Op. Atty. Gen., 
Rep. A.G. Pub. Doc. No. 12 at 153 (1962); Mitchell v. Metropolitan District 
Commission, 4 Mass. App. Ct. 484, 487-488 (1976) (MDC is a department of 



See. e.g.. St. 1975. c. 689, exempting the Department of the Attorney General and the offices of the State Treasiirer, State Secretary 
and State Auditor from the Red Book rules and allowing each constitutional officer to establish the salaries, duties and personnel 
regulations of all officers and employees within their respective offices. 

^Rules LV-7, 8 and 9 track the language of G.L, c. 29, §31 A, which provides in relevant part: 

(b) Employees who are eligible for vacation under the rules of said personnel administrator and whose services are 
terminated by dismissal through no fault or delinquency of their own, or by retirement, shall be paid an amount equal to the 
vacation allowance as earned in the vacation year prior to such dismissal or retirement which had not been granted, and. in 
addition, that portion of the vacation allowance earned in the vacation year during which such dismissal or retirement 
occurred, up to the time of separation, provided, that no monetary or other allowance has already been made therefor. 

(c) Employees who are eligible for vacation under the rules of said administrator and whose services were terminated for 
reasons other than those defined in paragraphs (a) or (b) shall be paid an amount equal to the vacation allowance credited 
but not granted to them as of the final date of the next preceding vacation year; provided, that no monetary or other 
allowance has already been made therefor. 



P.D. 14 123 



the Commonwealth which "has at all times remained subject to the laws regu- 
lating the administration of Commonwealth agencies'"). Mr. Carbone's current 
status simply makes him ineligible to accrue vacation credits until he returns to 
a non-exempt position. See Rules G-5 and G-6; G.L. c. 29, §31A; see also 
1962 Op. Atty. Gen., Rep. A.G. Pub. Doc. No. 12 at 153 (1962). 

Thus, for example, if Mr. Carbone were to return to his former position 
within the Department, he would be entitled to "the vacation credits he had 
earned and which had accrued to him and which he had not been granted at the 
time he left a position subject to the vacation rules and began service in an 
exempt position." 1962 Op. Atty. Gen., Rep. A.G. Pub. Doc. No. 12 at 153, 
154 (1962).^ Moreover, Mr. Carbone's tenure of state service was not in- 
terupted by his movement from the Department to the MDC. It was determined 
by one of my predecessors that an individual whose service with the Com- 
monwealth is uninterrupted is entitled, upon return to a position subject to 
vacation rules and procedures, to vacation benefits accrued in the former posi- 
tion at the time the individual accepted appointment to a position not subject to 
vacation rules. 1962 Op. Atty. Gen., Rep. A.G. Pub. Doc. No. 12 at 153 
(1962). I note, as did my predecessor, that Red Book Rule LV-20 explicitly 
provides for such a situation by holding that "laj person whose employment by 
the Commonwealth is uninterrupted shall retain all accrued vacation credits." 

The precise nature of vacation benefits to which Mr. Carbone would be 
entitled depends not only upon whether he continues in or separates from state 
service, but also on the manner in which he does so.'^ The payments to which he 
may be entitled*^ and the question whether he may receive payment in lieu of 
vacation credits should he separate from state service while an officer of the 
Commonwealth, are hypothetical questions which 1 must decline to answer. It is 
a long settled policy that the Attorney General should offer a formal legal 
opinion only in those circumstances which pose extant case or controversy or 
which concern some immediate duty. See, e.g.: 1 Op. Atty. Gen. at 269, 273 
(1895); 1966/67 Op. Atty. Gen. No. 112 Rep. A.G., Pub. Doc. No. 12 at 223, 
224(1967). 

In summary, I have concluded that Mr. Carbone is not presently entitled to 
payment in lieu of accrued vacation credits because he has not separated from 
state services. He may be eligible for such payment upon separation from state 
service, and the precise nature of his separation will determine the amount of 
payment to which he will be entitled. 

Ver>' truly yours, 

FRANCIS X. BELLOTTl 

Attornex General 



■•Under the Red Book rules. Mr. Carbone would nol benefu from any vacation allowances for the time he served as MDC Commis- 
sioner since that position is exempt from those vacation rules See 1962 Op. Atty. Gen.. Rep. A.G. Pub Doc. No. 12 at ISS (1962). 

^For example, if Mr. Carbone were to return to the department and then retire, he would be •entitled to payment for the unused 
vacation credits earned in the year of retirement and the unused vacation credits held m escrow from the year pnor to rctircmcm. 
which is construed as the vacation year during which the employee took the leave ot absence. 1975/76 Op. Atty. Ocn.. No. 5-. 
Rep. AG. Pub. Doc. No. 12 at 144(1976). 

«! note, however, that rule LV-5 prohibits any payment for vacation credits carried over an additional year to an employee who 
separates from stale service even though credits were held in escrow during the time the employee worked m the position exempt 
from vacation rules. Such credits are available for use as vacation days prior to retirement, but not for payment in lieu ol vacation. 
1975/76 Op. Atty Gen. No. 52. Rep AG Pub. Doc. No. 12 at 144 ( 1976). 



124 P.D. 14 

Number 13 May 9, 1980 

Richard Cronin, Director 
Division of Fisheries & Wildlife 
100 Cambridge Street 
Boston, MA 02202 

Dear Mr. Cronin: 

As Director of the Division of Fisheries and Wildlife (the "Division"), you 
have asked my opinion whether the Division may offer for sale various publica- 
tions which are presently distributed free and whether the Division may deposit 
the income from any such sales in the Inland Fish and Game Fund (the 
"Fund"). 

For the reasons discussed below, 1 must respectfully decline to answer 
whether the publications may be sold, since the authority to make that decision 
is committed by law to the state purchasing agent. 1 am of the opinion, how- 
ever, that if the publications in question may be sold, the income from such 
sales is to be deposited into the Treasury of the Commonwealth and credited to 
the Fund. 

All state printing is supervised by the state purchasing agent, and unless 
otherwise provided, distribution of all state publications is under the direction of 
the state secretary. See G.L. c. 5, §1. Sale of state publications is governed by 
G.L. c. 5, §8, which provides in relevant part: 

When in the opinion of the state purchasing agent, a state publi- 
cation is not of sufficent public benefit to be distributed free of 
charge, he may declare such publication to be an official text book, 
case book or technical report; provided, that the status of such pub- 
lication has not already been determined by the general court. An 
appeal from the decision of the state purchasing agent shall lie to the 
committee of the executive council appointed to consider matters of 
finance, whose decision shall be final. Text books, case books or 
technical reports shall be distributed exclusively by the state secre- 
tary. . . . They may be delivered to other perons only upon receipt 
of a sum equal at least to the estimated cost thereof, as determined 
by the comptroller. 
G.L. c. 5, §8 has been virtually unchanged since its adoption in 1918 (St. 
1918, c. 175) and has not been extensively analyzed or discussed by the courts 
or by my predecessors. Its application to your questions, however, seems rela- 
tively straightforward. If you wish to sell certain publications, you must first 
present them to the state purchasing agent for a determination whether they 
meet the statutory criteria and may, therefore, properly be sold. If the purchas- 
ing agent determines that they may be sold, it is then the comptroller's responsi- 
bility to fix the price. ^ 

Distribution of publications for sale is the exclusive responsibility of the state 
secretary. G.L. c. 5, §8. There do not appear to be any provisions of law which 
explicitly provide the manner in which the state secretary is to carry out this 
responsibility. While the state secretary cannot delegate his duties to another 



'in so doing, the comptroller is, of course, free to consult with the Division and with the State Book Store as to the costs of producing 
and distributing the particular documents in question. 



P.D. 14 



25 



officer without express authority, see 1976/77 Op. Atty. Gen. No. 22, Rep 
A.G., Pub. Doc. No. 12 at 132, n.l (1977); 1974/75 Op. Atty. Gen. No. 71^ 
Rep. A.G., Pub. Doc. No. 12 at 168, 169. (1975): 5 Op. Atty. Gen. at 628 
(1920), he may nevertheless consuh with the Division on the subject of distribu- 
tion of Division publications.^ 

Assuming that sale of Division pubhcations is proper, you then ask whether 
the income derived from such sales may be deposited in the Fund. 1 conclude 
that the income derived from such sales must be deposited in the Treasury, as 
required by Article 63 of the Amendments to the Constitution, and then must be 
credited to the Fund, in accordance with G.L. c. 131, §2, which provides in 
part: 

Monies received by the commonwealth . . . from any and all 
sources pertaining to inland fishing, hunting and trapping ... or 
other receipts on account of activities of the division, shall be cred- 
ited on the books of the commonwealth to a fund to be known as the 
Inland Fisheries and Game Fund. 
See Opinion of the Justices, 334 Mass. 716 (1956).^ The sole question then is 
whether income received from the sale of Division publications comes within 
the purview of the statute. 

The publications which the Division wishes to sell are printed pursuant to the 
Director's authority to "conduct statewide information and promotion programs 
in wildlife conservation, including the utilization of wildlife compatible with 
good conservation principles. ..." G.L. c. 131, §4(13). This language is 
sufficiently broad to permit the Director to prepare publications espousing those 
programs on behalf of the Division. See Grocerx Mfg. Ass'n v. Department of 
Public Health, Mass. Adv. Sh. (1979) 2291, 2296: cf. 1966 Op. Atty. Gen., 
Rep. A.G., Pub. Doc. No. 12 at 144 (1966) (Registrar of Motor Vehicles has 
implied authority to charge a fee for providing a written reply to requests for 
information when preparation of the reply required examination and analysis of 
Registry records). Because the issuance of the publications is an appropriate 
activity to be undertaken by the Division, income received from sale of the 
publications would be "receipts on account of activities of the Division"^ and, 
therefore, must be credited to the Fund, as provided by G.L. c. 131 , §2.^ 

In summary, monies derived from the sale of Division publications must be 
credited to the Fund. The determination whether these publications may be 
sold, however, is a matter committed to the state purchasing agent and is 
therefore not appropriately answered in an Opinion of the Attorney General. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



^The secretary could, for example, arrange lo use any mailing lists the Division currently uses to distnbute its publications. 

'The Division's use ol monies so credited to the Fund is restricted to the eleven purposes enumerated in G.L. c. 131. !i2 and cannot 
be made without appropriation by the Legislature. See Opinion of ihe Justices. 334 Mass. 716 ( 1956). 

"•in addition, the sale of these publications may produce income from a source 'pertaining to inland fishing, hunting and trappmg" 
and. therefore, within G.L c 131 , S2 Such a determination, however, involves a question of fact, which I must dcclmc to answer 
See. e.g.. 1962 Op. Atty. Gen., Rep. AG.. Pub. Doc. No I2al 199. 200(1962). 

^is result is similar to the procedure which. I have been informed, ha.s previously been employed by the stale secretary m 
connection with the sale through the State Book Store of a publication compiled by the Massachusetts Histoncal Commission. 
General Laws chapter 9, section 26 provides that the state secretao may assist the Commission by publishing and disseminating 
information of an historic nature and that all moneys received thereunder are lo be administered as a separate trust fund. Assuming 
that the purchasing agent determines that sale of the publications in question is proper. G.L. c. 131 . «i!l2 and 4 (13). together with 
G.L. c. 5. §8, are analagous to G.L. c. 9. S26 As in that provision, it would be the responsibility of the state secretary, who 
supervises all state publications, to ensure that income from sale of Division publications is credited to the Fund. 



126 P.D. 14 

Number 14 ^ May 9, 1980 

Edward T. Hanley 
Commissioner of 

Administration and Finance 
Exeuctive Office of 

Administration and Finance 
373 State House 
Boston, MA 02133 

Dear Commissioner Hanley: 

You have requested an opinion regarding the nature and extent of your au- 
thority under G.L. c. 30, §36 (hereinafter "Section 36") to establish and en- 
force regulations governing the use of motor vehicles owned by the Com- 
monwealth. More specifically, in seeking an interpretation of Section 36, you 
have asked two questions: (1) whether Section 36 invests you with the power to 
promulgate regulations and standards governing the use of state-owned motor 
vehicles in all state offices, departments, boards, commissions and institutions 
and whether any state governmental department is to be excused from compli- 
ance with these regulations; and (2) whether the provision of Section 36 calling 
for enforcement of the regulations governing the use of state-owned motor 
vehicles empowers you to establish sanctions for violation of the regulations, 
and if so, what types of sanctions are legally permissible. 

For the reasons discussed below, I have concluded that Section 36 provides 
you with specific authority to establish regulations for the use of state-owned 
motor vehicles. Moreover, you may employ any reasonable means to enforce 
such regulations consistent with the limitations described below. 

The first sentence of Section 36 provides you with full authority to establish 
regulations governing the use of state-owned motor vehicles. "The commis- 
sioner of administration shall establish and enforce regulations governing the 
use and marking of motor vehicles owned by the commonwealth." The word 
"shall" is commonly employed as a term of imperative obligation. Clark v. 
Board of Water and Sewer Commissioners of Norwood, 353 Mass. 708, 710 
(1968); Johnson v. District Attorney for the Northern District, 342 Mass. 212, 
215 (1961). The statute grants you plenary power, therefore, to establish regula- 
tions for use of state-owned motor vehicles. 

While the Legislature has expressed a firm intention that regulations govern- 
ing the use of state-owned motor vehicles be established, it has not given clear 
guidance for determining the scope of the application of the regulations. Several 
factors preclude an affirmative response to your question asking whether all 
state government units must comply with the regulations. 

Section 36 does not provide that the use of state-owned motor vehicles by all 
units of state government should be in accordance with the regulations you 
promulgate. It merely directs that every state office or department keep a record 
of the use of state-owned motor vehicles and make reports relating to the use of 
these vehicles, as may be required by the regulations. This language falls far 
short of a blanket requirement that the use of state-owned motor vehicles by all 
state government units must conform to the regulations you establish, which 
regulations will govern matters other than keeping records and making reports. 

This conclusion is supported by the legislative history of Section 36, which 



P.D. 14 127 



the Legislature substantially altered in 1973. St. 1973, c. 1230, §14. For the 
twelve years preceding this revision, each of the annual appropriations acts 
adopted by the Legislature contained a provision directing that "|a|ll use of 
state-owned motor vehicles shall be subject to regulations to be promulgated 
and enforced by the commissioner of administration." See, e.^., St. 1962 c 
591, §5; St. 1964, c. 337, §5; St. 1968, c. 380, §5; St. 1972. c' 514. §5. When 
the Legislature decided to give this provision a permanent location in the Gen- 
eral Laws, however, it discarded the term "all use" and chose to employ the 
language now appearing in Section 36. Rather than indicating an intention that 
the motor vehicle use regulations have a comprehensive application to all state 
government units, the Legislature retreated from its earlier, more strongly 
worded directive when it created Section 36.' 

Further evidence that the state-owned motor vehicle use regulations will not 
govern the use of state vehicles by all state government units may be found in 
St. 1973, c. 1230. §31. which expressly excludes all public institutions of 
higher learning from compliance with the provisions of Section 36. 

The organic statutes of other state agencies or departments may conceivably 
contain similar provisions governing the use of state-owned motor vehicles by 
those agencies. A determination of the full extent of your statutory authority 
would, therefore, require an exhaustive search of the General Laws, which 1 
must respectfully decline to undertake.'^ Section 36 contains no language that 
would permit the regulations you promulgate to supersede authority that may 
exist in other offices or departments of the Commonwealth. 

I conclude, therefore, that your authority to require all state government 
units, except public institutions of higher learning, to comply with the regula- 
tions is not clearly established. Although Section 36 empowers you to promul- 
gate regulations for the use of state-owned motor vehicles, the scope of the 
application of these regulations to state agencies is beyond any firm determina- 
tion. Therefore, the motor vehicle use regulations which you promulgate will 
not be applicable to public institutions of higher learning and may also not be 
enforceable against offices or departments whose organic statutes contain provi- 
sions governing the use of state-owned motor vehicles. 

Your second question asks whether you may enforce the regulations you 
issue pursuant to G.L. c. 30, §36, by imposing sanctions upon state employees 
for non-complying use of state-owned motor vehicles. To resolve this issue, one 
need go no further than the statute itself. Section 36 provides in relevant part: 
The commissioner of administration shall establish and enforce 
regulations governing the use and marking of motor vehicles owned 
by the Commonwealth. (Emphasis added.) 
Section 36 goes on to expressly prohibit the use of state-owned vehicles for 
transportation between an employee's domicile and place of employment and 
the incurring of any garaging expense without prior approval and in accordance 
with the regulations. 

Clearly, the Legislature sought to preclude the use of state-owned vehicles 
except where necessary for the conduct of state business. Instead of describing 



'a careful review of the early legislative history pertaining to Section ib affords no assistance for detcnnining the legislative rationale 
for employing the language used therein. See the original bill and accompanying documents. State Archives. Room .SO. Slate House. 

'^If conflicting authority does exist. G.L. c. 30. §5. provides an appropriate mechanism for resolving any dispute which may arise. 



128 P.D. 14 



the conditions under which state vehicles might be used and providing for the 
enforcement of those conditions, the Legislature imposed a dual duty upon the 
Commissioner to both fill in the details of the legislative policy by appropriate 
regulations and enforce such regulations. The ordinary meaning of "enforce" is 
"to compel obedience to." Sisters of the Holy Cross of Massachusetts v. 
Brookline, 347 Mass. 486, 491 (1964); Commissioner of Public Health v. 
Board of Health of Tewksbury, 350 Mass. 507, 509 (1966). Thus, under Sec- 
tion 36, you have a duty to compel obedience to or compliance with any 
regulations you may issue relative to the use of state-owned vehicles. 

In general, where such a specific duty is imposed upon an administrative 
officer, he "in the absence of some statutory limitation [has] authority to em- 
ploy all ordinary means reasonably necessary ... for the faithful performance 
of the duty." Bureau of Old Age Assistance of Natick v. Commissioner of 
Public Welfare, 326 Mass. 121, 124 (1950). Because the imposition of sanc- 
tions is an ordinary and usual means of compelling compliance with regula- 
tions, 1 conclude that you do have authority under Section 36 to impose reason- 
able sanctions upon state employees for use of motor vehicles not in compliance 
with duly promulgated and reasonable regulations. 

The only limitations on your ability to impose sanctions are those expressed 
or implied in the statute itself. Id. Thus the seriousness of the penalty must be 
commensurate with the seriousness of the violation, Commonwealth v. Racine, 
372 Mass. 631, 635-39 (1977), and the sanction itself must be "reasonably 
related to the purposes of the enabling legislation." Consolidated Cigar Corp. 
V. Department of Public Health, 372 Mass. 844, 855 (1977). Moreover, Mass- 
achusetts courts have generally been reluctant to infer from an administrator's 
rulemaking authority an ability to impose criminal sanctions. Such a power is 
not lightly held to be delegated by the Legislature to an administrative body, 
although the Supreme Judicial Court has upheld such delegations where the 
enabling statute defines the limits of the agency's discretion to impose such 
penalties. Cf., e.g.. Commonwealth v. Diaz, 326 Mass. 525, 529 (1950) (stat- 
ute empowered commissioner to provide penalties for violation of regulations 
"not exceeding five hundred dollars for any one offence"); Commonwealth v. 
Plaisted, 148 Mass. 375, 380 (1889) (authorization to prescribe penalties "not 
exceeding twenty dollars for each offence" upheld); Commonwealth v. Rice, 
Ibl Mass. 340, 344 (1927) (statute authorizing cities and towns to prescribe 
penalties not exceeding $20 for the violation of ordinances regulating carriages 
and vehicles). Because Section 36 does not specifically delegate such a tightly 
circumscribed authority to impose punitive sanctions, I conclude that criminal 
penalties are beyond your rulemaking authority. 

1 turn now to the specific types of sanctions about which you have inquired. 
Your first suggestion, a charge to the employee for each unauthorized mile 
travelled, may be justified under analogous principles of conversion. If a state 
employee diverts to his personal use a state-owned motor vehicle without author- 
ization, he is liable to the Commonwealth for the value of the use of that motor 
vehicle as he would be to any owner whose automobile he converted and then 
returned. See George v. Coolidge Bank and Trust Co., 360 Mass. 635, 641 
(1971) (if owner accepts converted property "he may recover as damages the 
difference between the value of the property when converted and when returned, 
plus damages for loss of use during the period of wrongful detention"). 



P.D. 14 129 



Your second suggestion would add to a charge for each unauthorized mile 
travelled, a "reasonable fine." The imposition of a fine, which is punitive in 
nature, may amount to a criminal sanction which, because Section 36 does not 
provide adequte guidelines, could not be upheld. If the "fine" were more in the 
nature of a "fee" factually related to some legitimate administrative expense 
incurred as a result of the unauthorized use. it would fall within the ambit of 
your Section 36 rulemaking authority. 

Your third suggestion, imposition of disciplinary action on the employee, 
amounts to nothing more than deeming unauthorized use of a motor vehicle to 
be "just cause" for discipline under G.L. c. 31. §41 (for employees holding 
permanent civil service status) or a ground for discipline under the lesser stan- 
dard applicable to non-tenured employees. Clearly, violation of a duly promul- 
gated and constitutionally valid regulation governing behavior and conduct of 
public employees may be sufficient cause for discipline. Board of Selectmen of 
Framingham v. Civil Service Commission, Mass. App. Ct. Adv. Sh. (1979) 
704, 715 Disciplinary action, however, must be initiated by the employee's 
appointing authority, and, as with the other sanctions discussed above, must be 
imposed in accordance with applicable statutory procedures and constitutional 
standards due of process. 

In summary, I conclude that you may employ all ordinary means of enforcing 
the vehicle use regulations, including the imposition of non-criminal sanction, 
commensurate with the seriousness of the offense, and applied under procedures 
comporting with appropriate due process standards. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 15 May 16, 1980 

Richard E. Kendall, Commissioner 
Department of Environmental Management 
Leverett Saltonstall Building 
Government Center 
100 Cambridge Street 
Boston, MA 02202 

Dear Commissioner Kendall: 

In September, 1966, the Department of Natural Resources, the predecessor 
agency to the Department of Environmental Management (the Department), 
purchased the Otis Reservoir from the Farmington River Water Power Com- 
pany. The Department made the purchase pursuant to chapter 457 of the Acts of 
1966, which authorized the purchase for water conservation and recreational 
purposes. The Department took title to the reservoir and the immediate shore- 
line (the perimeter strip), a piece of land ranging in width from five to twenty 
feet.' Since taking title, the Department has issued permits to the abutting 

'The Department's title to this penmelcr strip was not ccimpletely free and clear, but was taken subject to a pre-existing •casement in 
gross" held by several abutting property owners The easements were granted by the Farmington River VValer Power Company in 
1935 and gave the abutting owners the right to 'pass and repass over the pcnmetcr slnp on foot or in vehicles and lo erect thereon 
temporary structures, boathouses. and docks, and to use the land in a general way. 



130 P.D. 14 



property owners for the exclusive use of the perimeter strip abutting their land. 
The permits allow the abutting property owner to use the perimeter strip in a 
manner defined by the Department's regulation set forth at 304 C.M.R. 5.03. 
The permits are issued on an annual basis upon payment of a fee, as set forth in 
304 C.M.R. 5.03 (1) and (2); are not transferrable without the prior approval of 
the Department, 304 C.M.R. 5.03 (3); and are revocable, 304 C.M.R. 5.03 (1), 
(8). 

You have asked my opinion as to the effect of Article 97 of the Amendments 
to the Massachusetts Constitution on the issuance of these permits. Specifically, 
you have asked the following four questions: 

1. Is the issuance of exclusive land use permits which preclude 
access by the general public an "other purpose" under Article 
97, different from the public purpose for which the land was 
acquired? 

2. Does the issuance of exclusive land use permits violate the pub- 
lic trust duties under which the Department of Environmental 
Management holds title to the land? 

3. Are the exclusive land use permits, under their present condi- 
tions of revocability, a disposition within the meaning of Article 
97? 

4. Do the answers to these questions depend upon whether there 
were prior easements, or can the Department issue permits, ir- 
respective of whether there were prior easements? 

For the reasons set forth in the ensuing pages, I answer your questions as 
follows: (1) the permits are not an "other purpose" under Article 97, different 
from the public purpose for which the land was acquired; (2) the permits do not 
violate the public trust duties under which the Department holds title to the land; 
(3) the permits are not a disposition within the meaning of Article 97; and (4) 
the abutters with pre-existing easements need not be required to purchase the 
permits, in order to use the strip. If they do not purchase the permits, however, 
they may use the strip only in a manner consistent with the "pre-existing" 
easement. If they wish the exclusive use of the strip, they must purchase the 
permits. 

Article 97 of the Amendments to the Constitution of Massachusetts provides: 
The people shall have the right to clean air and water, freedom 
from excessive and unnecessary noise, and the natural, scenic, his- 
toric, and esthetic qualities of their environment; and the protection 
of the people in their right to the conservation, development and 
utilization of the agricultural, mineral, forest, water, air and other 
natural resources is hereby declared to be a public purpose. 

The general court shall have the power to enact legislation neces- 
sary or expedient to protect such rights. 

In the furtherance of the foregoing powers, the general court shall 
have the power to provide for the taking, upon payment of just 
compensation therefor, or for the acquisition by purchase or other- 
wise, of lands and easements or such other interests therein as may 
be deemed necessary to accomplish these purposes. 

Lands and easements taken or acquired for such purposes shall 
not be used for other purposes or otherwise disposed of except by 



P.D. 14 ,3, 



laws enacted by a two thirds vote, taken by yeas and na\s, of each 
branch of the general court. (Emphasis supplied. ) 

Chapter 457 of the Acts of 1966 authorized the Department to purchase Otis 
Reservoir and the perimeter strip ''for the protection of water supply, and for 
conservation and recreation as described in chapter one hundred and thirty-two 
A of the General Laws . . . ." The land was therefore acquired for the conser- 
vation-related purposes enumerated in Article 9T and any further dispostion or 
alteration in its use will require a two-thirds vote of each branch of the Legisla- 
ture.'^ 

You have asked first whether the issuance of the permits constitutes an 
"other purpose," different from that for which the land was acquired. In order 
to properly analyze what are "other purposes," the language of Article 97 must 
be read in conjunction with the judicially developed doctrine of "prior public 
use," whereby public lands devoted to one public use cannot be diverted to 
another inconsistent public use without plain and explicit legislation to that 
effect. Brookline v. Metropolitan District Commission, 357 Mass. 435, 440 
(1970); Robbins v. Department of Public Works, 355 Mass. 328, 330 (1969), 
and cases cited therein; Op. Atty. Gen., No. 45, Rep. A.G., Pub. Doc. No. 12 
at 139, 144-147 (1973). The relevant inquiry is whether the permits effect a 
change in the use of the land, which use is inconsistent with conservation and 
recreation. 

You have indicated to me that the Department believes that there is adequate 
justification for granting exclusive use permits. The Department has determined 
that public safety requires that access to the reservoir be limited and that conser- 
vation would be enhanced if the use of the perimeter strip were exclusive.^ The 
Department has also concluded that the small and irregular size of the perimeter 
strip renders impractical any development of this land for recreational purposes 
which would be available to the general public. Moreover, the Department's 
regulation is designed to ensure that the use of this land does not lower the 
environmental quality of the reservoir and the sourrounding area. See 304 
C.M.R. 5.03(1), (5), (8). 

For these reasons, I am unable to conclude that the Department, by issuing 
exclusive permits to abutting property owners, has diverted the perimeter strip 
to a use inconsistent with that for which it was acquired. 

You have next asked whether issuance of the permits violates the Depart- 
ment's public trust obligations. The answer to this question depends in part 
upon whether their issuance violates the Department's obligations under c. 
132A.^ G.L. 132A, §2B, provides that all lands acquired by the Department for 
conservation and recreation purposes "shall in so far as practicable" be pre- 



^In a prior opinion, the Attorney General has concluded that Article 97 applied to public lands acquired prior to ihc Amendmcni's 
effective date. Op. Atty Gen.. No. 45. Rep AG., Pub Doc. No. 12 at 139, 140 (1973). Thus, the fact that this land was 
purchased in September, 1966, prior to the Amendment's passage, is irrelevant. 

^e fact thai the land vtas acquired for recreational, as well as conservation purposes, does not affect the applicability of Anicle 97. 
Article 97 applies to recreation park land, as well as land acquired for purely conservalional purposes See Op. Ally. Gen., No 45, 
Rep. AG., Pub. Doc. No. 12 at 139. 142 (1973). Since the land is to be used for both recreational and conservation purposes, 
however, the Department will be required to mediate the conflicts between what may be inconsistent goals. 

■•You have informed me of several reasons for your determination that the general public must be excluded from the land. For 
example, you have determined that it would be prohibitively expensive to post lifeguards along the entire strip and that exclusive 
permits relieve the Commonwealth of the burden of enforcing a ban against public access for safety reasons. It is clear that the 
Commonwealth may exercise the police power over property held in trust for the public, for the good of the public Home for Aged 
Women v. Commonwealth. 202 Mass. 422, 435 ( 1909). 

^Because the Department was authorized to buy the Otis Reservoir property "for the purposes of conservation and recreation as 
described in chapter one hundred and thirty-two A of the General Laws," see St. 1966. c. 457. the Department holds title to the land 
under G.L. c. I32A. 



132 P.D. 14 



served in their natural state." Thus, the Department's primary obligation is to 
preserve such land in its natural state or to effectuate the policy of conservation 
set forth in c. 132A. When land is acquired for both conservation and recre- 
ational purposes, however, the Commissioner must reconcile the conflicts 
which may arise between these two goals. He is responsible for the planning, 
maintenance, and development of whatever land he is authorized to acquire. 
G.L. c. 132A, §§2C and 2D. When implementing this mandate the Commis- 
sioner may utilize the assistance of private individuals. Op. Atty. Gen., Rep. 
A.G., Pub. Doc. No. 12 at 335, 338 (1966). The Department may, consistent 
with its obligations under c. I32A, solicit aid from the perimeter strip abutters 
when implementing its duty to protect the water supply in the Reservoir and to 
establish a recreational area for the public enjoyment. The issuance of permits is 
a permissible means of soliciting this assistance.^ Thus, the issuance of the 
permits has not violated the public trust obligations of the Department insofar as 
they are set out in G.L. c. 132A. 

It is within the sound discretion of the Department to determine the role 
which the abutters play and whether or not the permits should be exclusive. The 
Department may "evaluate the situations presented it on the basis of its own 
expertise, and . . . make appropriate decisions in conformity to the legislative 
policy and purpose." Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 335, 
337 (1966). Using its experience and knowledge, the Department may deterime 
which type of permit most effectuates the legislative policy. It "must - in the 
first instance - make a factual determination whether [an activity] may be car- 
ried on consistently with the Commonwealth's policy of conservation and recre- 
ation." Id. Because the Department has determined that the exclusive use per- 
mits effectuate the legislative policy of conservation and recreation at Otis 
Reservoir, their issuance does not violate the Department's public trust duties. 

This conclusion, however, is made subject to two qualifications. If the De- 
partment fails to enforce its regulations or take action when the permittees abuse 
their rights, the Department will violate its statutory duty to hold land in the 
public trust. G.L. c. 132 A. See, e.g., Blaney v. Commissioner of Corrections, 
Mass. Adv. Sh. (1978) 278, 283. Second, restricting the issuance of permits to 
abutters alone may be necessitated by the inability of the general public to 
obtain easy access to the strip. 1 must note my concern, however, about any 
policy which may discriminate among citizens of the Commonwealth, that is, 
between abutters and non-abutters, in the issuance of the exclusive permits. 
See, e.g., Neptune City v. Avon-By-The-Sea, 61 N.J. 296 (1972). 

Your third question turns on the meaning of the word "disposition" as it is 
used in Article 97. That issue was addressed in a prior opinion of the Attorney 
General. Op. Atty. Gen., No. 45, Rep. A.G., Pub. Doc. No. 12 at 139 (1973). 
That opinion concluded that a ". . . 'disposition' includes any change of legal 
or physical control, including but not limited to outright conveyance, em.inent 
domain takings, long and short-term leases of whatever length and the granting 
of taking of easements." Id. at 147, Thus, a disposition occurs, for purposes of 
Article 97, whenever there is any transfer, without limitation, of either the legal 
interest in the acquired land or physical control over it. The permits under 



®The Commissioner may not, without legislative authority, however, retain this aid by transfeiring any legal interest in the land. See 
Op. Atty. Gen, Rep. A.G., Pub. Doc. No. 12 at 45, 46 (1939); Op. Atty. Gen, Rep. AG, Pub. Doc. No. 12 at 335, 338 (1966). 



P.D. 14 ,33 



discussion here do not effect such a transfer and hence do not rise to the level of 
a "disposition." 

A permit is a written license or grant of authority to do a thing which 
otherwise would not be allowed. Black's LAW DICTIONARY 1026 (5th Hd. 
1979). A permit to use public land, like a license to use such land, is not an 
interest in land and grants to the person(s) holding it only conditional use of the 
land. Woodbury v. Municipal Council of Gloucester, 318 Mass. 385, 388 
(1945). See City of Boston v. A. W. Perry, Inc. 304 Mass. 18, 21 (1939); 
Baseball Publishing Co. v. Bruton, 302 Mass. 54, 56 (1938). Thus, the permits 
granted by the Department to the abutting landowners surrounding Otis Reser- 
voir do not transfer any interest in the perimeter strip. All legal interest in the 
land remains in the Department. The pennits, are by definition, revocable at 
any time. Woodbury v. Municipal Council of Gloucester, supra, 318 Mass. at 
388. Since they transfer no legal control or interest to the person(s) holding the 
permits, their issuance, per se, does not violate Article 97. 

A permit, however, may violate the disposition provision of Article 97 if it 
transfers physical control over the land to the person(s) holding it. See Op. 
Atty. Gen., No. 45, Rep. A.G., Pub. Doc. No. 12 at 139, 144 (1973). Any 
relinquishment of physical control over the land would be a disposition and 
would require a vote of two-thirds of both Legislative branches. The Depart- 
ment cannot, therefore, through these permits, surrender its duty to police, 
conserve, preserve, and care for the reservoir and the perimeter strip. Whether 
or not these exclusive land use permits transfer such control depends upon their 
scope. 

The scope of the permits granted by the Department is found in the Depart- 
ment's regulation, 304 C.M.R. 5.03. The regulation prohibits any activity 
"which contributes to water or air pollution or to a general lowering of the 
environmental quality". 304 C.M.R. 5.03 (5).' The permits are issued subject 
to the provision that "should further investigation by the Department of Envi- 
ronmental Management and other appropriate agencies, reveal the presence of a 
source of water pollution, on or adjacent to the permit area, that the permit may 
be terminated immediately, if there are not satisfactory corrective measures 
taken." 304 C.M.R. 5.03 (1). Violations of any Departmental regulation result 
in the immediate cancellation of the permit. See 304 C.M.R. 5.03 (8). Thus, 
the Department controls the land by regulating its uses and does not, through 
the issuance of the permits, relinquish control over it. You have brought to my 
attention® the fact that some person(s) holding permits have attempted to expand 
the permits' scope and use the land as if it were their own. Acquiescence in 
such use of the land by the Department would constitute a relinquishment of 
physical control over the land in violation of Article 97. The Department must 
assure, through its power of revocation and through the enforcement of its 
regulations, that the abutters limit the scope of their activities. 

Finally, you have asked what effect, if any, the prior easements have on the 
issuance of these exclusive use permits. You have indicated that the Department 



'Under proposed regulations, the Director of the Deparlmenl will determine what activities are detrimental to the public interest and, 
therefore, prohibited. 

*In your request for an opinion, you have indicated that some permittees have built permanent structures on the land, have Tilled in the 
reservoir in order to build on the land, and have altered the shoreline to accommixJate their needs Such use may violate 304 C MR 
5.03. You have referred to this office for enforcement two related matters. It is appropriate thai you continue to refer for enforcement 
action such instances of misuse of the exclusive use permits. 



134 P.D. 14 



took title to the perimeter strip subject to a prior easement in gross granted to 
certain land owners by the Farmington River Water Power Company.^ 

The easement holders have the right to use the perimeter strip in a manner 
consistent with their easement. They may pass and repass over the land, erect 
temporary structures, and use the land in a general way. The Department cannot 
interfere with or impair these rights. See Metropolitan District Commission v. 
Plotnick, 354 Mass. 1, 3 (1968); Lizzo v. Drukas, 333 Mass. 242, 243 (1955). 
Thus, the Department may not issue permits which extinguish the rights of the 
easement holders, nor can it require the easement holders to purchase permits to 
use the land.^° 

In order to assure the exclusive use of the strip, however, the abutter may 
choose to purchase a permit. The permit would grant the land owner no greater 
use of the land than that enjoyed under his easement and would not, therefore, 
violate Article 97. It would only grant to the abutter the exclusive use of the 
strip for a one year period.^' In this context, the permit acts as a contract 
between the easement holder and the Department. In consideration of the fee 
paid by the owner, the Department promises not to grant a permit to other 
individuals.'^ In these circumstances, there is no dispostion or other use prohi- 
bited by Article 97. 

Thus, the existence of these easements has no effect on whether the permits 
violate the provision of Article 97, and the permits in this context would not be 
a "disposition" or "other use" prohibited by Article 97.'^ 

In sum, it is my opinion that the exclusive land use permits do not violate 
either the provisions of Article 97 or the public trust duties under which the 
Department holds title to the perimeter strip. Rather, the permits are a legitimate 
mechanism for implementing the legislative policy of protecting the recreational 
and conservation uses of Otis Reservoir. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



See n, 1 , supra. 



^"Of course, if any of the easements have terminated, the Department may require the land owner to purchase a permit as a 
precondition to use of the perimeter strip. Easements in gross are normally personal in nature and are not incidental to the land; thus 
they terminate with the death of, or a transfer by, the easement holder. See Restatement (First) of Property §454 ( 1944). However, 
the easements may run with the land if the facts demonstrate that the parties intended them so to run. See Restatement (First) of 
Property §492(1944). 

^'As discussed above, the exclusivity of the permit would not violate Article 97. 

'^As a practical matter, of course, the easement holder may already have exclusive use of the land which abuts his property, since the 
Department has indicated that it would not allow the general public access in any event. 

'^The Department may prohibit the easement holders from using the strip in a manner that is inconsistent with the scope of the 
easements. See Brassard v. Flynn. 352 Mass. 185, 190 ( 1967); Nanluckel Consen'alion Foundtion. Inc. v. Russell Management. 
Inc.. 2 Mass. App. Ct. 868 ( 1974). The Department may also seek to enjoin any easement holder who abuses his easement rights by 
filling in the reservoir or building permanent structures on the perimeter strip. See. e.g.. Doodv v. Spurr. 315 Mass. 129, 133 
(1944); Swenson v. Marino. 306 Mass. 582, 585-586 (1940); Michaelson v. Nemetz, 4 Mass. App. Ct. 806, 807 (1976). 



P.D. 14 ,35 



Number 16 j^^^ 6 ,9gQ 

John J. Droney 

District Attorney for Middlesex Counts' 

Middlesex County Courthouse 

East Cambridge, Massachusetts 02141 

Dear District Attorney Droney: 

You have requested my opinion^ whether General Laws chapter 12, section 
15, prohibits you from receiving a fee for legal services performed prior to your 
becoming a full-time district attorney.^ 

The facts as you have informed me are as follows: In 1973, you represented a 
client in a civil case involving a motor vehicle accident. At that time you 
referred the case to a trial attorney for immediate attention and investigation, 
but you continued to act as co-counsel until February 6, 1976, when you relin- 
quished your private practice and became a full-time district attorney. From 
February 6, 1976, until after the case was settled on or about April, 1980, you 
had no contact with your client or the attorney concerning this case. After the 
case was settled, the attorney proposed to pay you a fee for your services as co- 
counsel from 1973 until February 6, 1976. You have asked whether G.L. c. 12, 
§15, prohibits you from accepting such payment. 

For the reasons discussed below, it is my opinion that your receipt of a fee 
for legal services performed prior to your becoming a full-time district attorney 
would not violate G.L. c. 12, §15. 

Your request raises two questions of statutory interpretation and application: 

(1) whether the receipt of compensation for legal services consti- 
tutes "the practice of law" within the meaning of G.L. c. 12, §15; 
and 

(2) whether G.L. c. 12, §15 should be applied retrospectively or 
prospectively. 

It is my opinion that "the practice of law" prohibited by G.L. c. 12, §15, 
does not include the receipt of compensation for legal services previously per- 
formed. This opinion is based, first, upon the common and approved meaning 
of the phrase "practice of law," since statutory words and phrases should be 
construed primarily according to their plain meaning. G.L. c. 4, §6; Burke v. 
Chief of Police of Newton, Mass. Adv. Sh. (1978) 425, 427. 

The usual and accepted meaning of this phrase can be derived from diction- 
ary definitions and from its use in other legal contexts. Commonwealth v. Zone 
Book, Inc., 372 Mass. 366, 369 (1977). The phrase "to practice [law]" is 
defined in Webster's Third New International Dictionary (1964) as "to exercise 
or pursue an employment or profession (as medicine or law) actively." (Empha- 
sis added). Black's Law Dictionary 1055 (5th ed. 1979) defines "practice of 
law" as "[t]he rendition of senices requiring the knowledge and the applica- 
tion of legal principles and technique to serve the interests of another with his 



'Your opinion request is made pursuant to G.L. c. 12. §6. 

^G.L. c. 12, §15, as amended by St. 1975 c. 632, §1, provides in relevant part: 

District attorneys shall devote their entire time during ordinary business hours to their duties, shall neither directly nor 

indirectly engage in the practice of law . . . 
The effective date of this provision was January 1 , 1979. 



136 PD. 14 



consent." (Emphasis added). The Supreme Judicial Court, construing the 
phrase "practice of law" in other statutory contexts, has defined it to include 
"maintain[ing] a legal [office] and fumish[ing] and render[ing] services requir- 
ing legal knowledge and skill," Matter of Lyon, 301 Mass. 30, 33 (1938), and 
"giving of legal advice and office practice in general." Collins v. Godfrey, 324 
Mass. 574, 580(1949). 

For the foregoing reasons, I conclude that the commonly accepted meaning 
of the phrase "practice of law" would not include the mere receipt of compen- 
sation previously earned, without the current maintenance of a law office and 
the active rendering of legal services. 

This construction of G.L. c. 12, §15, is also supported by its legislative 
history, another recognized guide to statutory interpretation. See, e.g.. Murphy 
v. Bohn, Mass. Adv. Sh. (1979) 699, 703. Another bill, S.940 (1975), which 
was considered by the legislature along with the present statute, would have 
expressly prohibited district attorneys from receiving compensation from any 
source other than the Commonwealth. This provision was not enacted. The fact 
that such a provision was considered but not enacted indicates that the legisla- 
ture did not intend to prohibit the receipt of compensation per se. See Rea v. 
Alderman of Everett, 217 Mass. 427, 431 (1914). ^ 

The second question raised by your request is whether G.L. c. 12, §15 
should be applied retrospectively to prohibit the practice of law. If it is so 
applied, your practice of law prior to February 6, 1976, and your receipt of 
compensation therefor, would be in violation of the statute. It is my opinion that 
this statute should not be applied retrospectively. Statutes which deal with 
substantive rights are to be construed as operating prospectively unless the 
legislature clearly intended otherwise. Hanscom v. Maiden and Melrose Gas 
Light Co., 220 Mass. 1, 3 (1914); Austin v. Boston University Hospital, 372 
Mass. 654, 657 (1977). By prohibiting district attorneys from engaging in the 
private practice of law, this statute changed the then prevalent practice of such 
officers and clearly altered their substantive rights. 

Furthermore, section 2 of St. 1975, c. 632, clearly indicates that the Legisla- 
ture intended this statute to be prospective. That section provides that the act 
would not take effect until January 1, 1979, three years after its enactment. 
Given this provision, it is clear that the legislature intended to allow district 
attorneys sufficient time to wind down their practice of law. Retrospective 
application of the statute would be in conflict with that intent. Furthermore, 
serious constitutional questions, concerning interference with the obligations of 
contract, would arise if the statute were construed to prohibit the acceptance of 
fees previously earned. 

In sum, for the reasons discussed above, it is my opinion that your accept- 
ance of a fee for legal services performed prior to your becoming a full-time 
district attorney would not violate G.L. c. 12, §15. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

H note further that Section 5.2 of the Personnel Manual for the Department of the Attorney General, prohibiting assistant attorneys 
general from privately practicing law. served as a prototype for G.L. c. 12, §15. I have not applied that provision to prohibit the 
receipt of fees previously earned. 



P.D. 14 137 

Number 17 june 19, 1980 

The Honorable Robert Q. Crane 
Treasurer and Receiver General 
State House, Room 227 
Boston, Massachusetts 02033 

Dear Treasurer Crane: 

You have requested on behalf of the Massachusetts State Lottery Commis- 
sion an opinion whether General Laws, chapter 8, section lOA precludes the 
Commonwealth from entering into a lease of premises for a term not exceeding 
five years when said lease contains so-called escalation clauses. Your request is 
precipitated by the refusal of the Commissioner of Administration and Finance 
to give his approval to a particular lease' obtained by the Massachusetts State 
Lottery Commission.^ That refusal, you inform me, was caused by his self- 
imposed determination not to approve leases containing escalation clauses. You 
further state that the Commissioner's position is based on his belief that the use 
of an escalation clause violates the intent of G.L. c. 8, §10A, in that the lease 
would not be for a sum certain at the time the lease is executed. 

For the reasons set forth below, it is my opinion that the provisions of G.L. 
c. 8, §10A, do not preclude the Commonwealth from entering into leases con- 
taining escalation clauses. It is also my opinion, however, that the General 
Court has conferred discretionary power to approve or disapprove leases on 
several officers of the Commonwealth, including the Commissioner of Admin- 
istration and Finance; that it is within the prerogative of the Commissioner to 
disapprove leases containing escalation clauses; and that without the express 
approval of the Commissioner, any lease executed by the Commonwealth is 
invalid.^ 

The starting point of my analysis is the literal language of the statute, since 
the words of the statute provide the primary source of insight into the purpose of 
the legislature. Hoffman v. Howmedica. Inc., 373 Mass. 32, 37 (1977). There 
is nothing in G.L. c. 8, §10A, which prohibits the use of escalation clauses in 
leases with the Commonwealth.'* Furthermore, there is no explicit requirement 
in the statute that every lease "be for a sum certain at the time of the execu- 
tion." the phrase you attribute to counsel to the Secretary of Administration and 
Finance. The statute does contain language which requires an appropriation 
"for so much of the lease as falls within the then current fiscal year." The 
requirement of an appropriation, however, does not necessarily carry with it the 



'The lease in question contains an escalation clause for eleclncity charges and a clause providing for a fixed monthly payment for 
operating expenses based upon operating expenses for the previous years. Although these provisions are different, their impact is the 
same in that they present variable cost factors Throughout (his opinion the term "escalation clause" is utilized to descnbe all lease 
clauses which permit future variable cost increases. 

^The Attorney General renders legal advice and opinions to slate officers on matters pertaining to their official duties. This opinion is 
issued to you in your capacilv as chairman of the State Lottery Commission who is charged with the responsibility to negotiate leases 
on its behalf. G.L. c. 10, §22; G.L. c. 8. §IOA. 

'G.L. c. 8. §IOA, as recently amended, requires that each lease of the Commonwealth be approved by the Superintendent of Stale 
Buildings, the Governor and Council, the Commissioner of Administration and Finance, and the Budget Director of the House and 
Senate Committee on Wavs and Means. No lease is valid without all of these approvals. 1953 Op Ally. Gen,. Rep AG., Pub. 
Doc. No. 12 at 41 ( 1953); see also Opinion of ihe Justices. 363 Mass. 889, 893 ( 1973). 
^The statute provides, in relevant pan; 

The commonwealth, acting through the executive or administrative head of a stale department, commission or board and 
with the approval of the superintendent and of the governor and council and of the commissioner of administration, may 
lease for the use of such department, commission or board, for a term not exceeding five years, premises outside of the 
state house or other building owned by the commonwealth, if provision for rem of such premises for so much of the term 
of the lease as falls within the then current fiscal year has been made by appropriation 



138 P.D. 14 



requirement that a lease be for a sum certain; an appropriation may well be 
sufficiently large to cover not only the fixed cost of any lease, but also the 
variable costs associated with that lease. ^ For the purpose of G.L. c. 8, §10A, 
then, it is not necessary that the lease be for a sum certain, so long as there 
exists an appropriation covering the lease. G.L. c. 8, §10A, does not by its 
literal terms, therefore, preclude the use of escalation clauses in leases involv- 
ing the Commonwealth. 

This answer, of course, is only tentative because statutes are to be interpreted 
not solely according to their simple, literal or strict verbal meaning. One must 
also look at the words of the statute in connection with their development, their 
progression through the General Court, the history of the times and the entire 
body of law of which they are a part. Murphy v. Bohn, Mass. Adv. Sh. (1979) 
703; Tilton v. City of Haverhill, 311 Mass.' 572, 577 (1942). The purpose of 
this broad inquiry is to ensure that the interpretation given the statute fairly 
covers all "the subjects presumably within the vision of the Legislature," with- 
out being unduly constricted or expanded. Tilton v. City of Haverhill, supra, 
311 Mass. at 577; Commonwealth v. Welosky, 276 Mass. 398, 402 (1931). 

You argue that a prohibition against executing leases containing escalation 
clauses is inconsistent with the basic intent of G.L. c. 8, §10A, which you 
identify as the desire to save rental costs. See, United States Trust Co. v. 
Commonwealth, 348 Mass. 378, 382 (1965). A fair reading of the legislative 
history does suggest that saving Commonwealth funds was a prime factor lead- 
ing to the enactment and subsequent admendment of the section.*^ This end has 
been served by expanding the permissible scope of leases involving the Com- 
monwealth and, as demonstrated below, by vesting approval power in the fiscal 
officials of the state. One cannot infer from this basic legislative scheme, how- 
ever, that the statute was intended to flatly prohibit the execution of leases 
containing escalation clauses. 

By concluding that G.L. c. 8, §10A, does not preclude escalation clauses in 
leases involving the Commonwealth, I recognize that I have not resolved the 
real question at hand, which is whether the Commissioner of Administration has 
the discretionary authority to refuse to give his approval to leases in which 
escalation clauses appear. On its face, the statute simply requires that any lease 
executed on behalf of the Commonwealth be "with the approval ... of the 
Commissioner of Administration". 

The word "approval" has different meanings depending upon the context in 
which it is used and the subject matter to which it is applied. Springfield v. 
Commonwealth, 349 Mass. 267, 271 (1965); Brown v. Newburyport, 209 
Mass. 259, 265-266 (1911). In some instances, the word is read to imply a 
discretionary action^ on the part of the approving authority, while in others it is 



^e very lease which gave rise lo your request illustrates the point. In your request you specifically note that the Lottery "has 
adequate appropriated funds for so much of the lease as falls within the current fiscal year." 

*ln 1932, for instance, the Attorney General recommended to the Legislature that it give statutory authorization for the Com- 
monwealth to enter into leases for a term, as opposed to tenancies at will, because in his opinion, it would "result in a saving to the 
Commonwealth of rental costs." Report of the Attorney General, Pub. Doc. No. 12 at 22 (1932). That report was followed almost 
immediately by passage of an emergency statute amending the section to permit leases for a term not to exceed five years. St. 1933. 
c. 170. 

'^See. e.g., Chicopee Co-op Bank v. Board of Bank Incorporation. 347 Mass. 744 (1964); Coyne v. Alcoholic Beverages Control 
Commission. 312 Mass. 224, 229 (1942); Roonev v. County of Essex. 292 Mass. 473. 476 (\935): McLean v. Mayor of Holyoke. 
216Mass. 62, 64-65(1913). 



P.D. 14 139 

viewed as requiring no more than a ministerial act.^ I have reviewed the legisla- 
tive history of G.L. c. 8, §10A, concerning the role of the Commissioner of 
Administration in the lease approval process. Based upon that legislative his- 
tory, I conclude that he does in fact have discretionary approval powers. Conse- 
quently, he is authorized to withhold his approval because a lease contains an 
escalation clause. 

It was not until 1943, that the Commissioner of Administration was added to 
the list of officials required to approve leases of the Commonwealth. St. 1943, 
c. 440, §2. That act was the result of a Report of Financial Matters pertaining to 
the Commonwealth, House No. 1295, January, 1943, pp. 16-17, which con- 
cluded that: 

The procuring of outside office space and the amount of space 
allotted to departments in the State House is mainly a question of 
finance. The requirements of the various state departments are bet- 
ter known to the chairman of Administration & Finance and should 
be under his control . . . This is a budgetary^ matter and should be 
handled entirely by the Commission on Administration & Finance . 
..." (Emphasis added). 
This legislative history makes it clear that the General Court viewed the leasing 
of facilities as a budgetary matter and delegated the responsibility and control of 
this aspect of state leasing to the fiscal officers of the Commonwealth. If the 
Commissioner was expected to "handle" this budgetary matter, his approval 
power obviously had to be substantive rather than ministerial. 

As a final point, 1 note that in 1972, the General Court was fully apprised of 
the policy of the Commissioner not to approve leases containing escalation 
clauses. Report of the Legislative Research Council, House No. 5563: Leasing 
of Facilities for Governmental Purpose, April, 1972, p. 9. Despite the fact that 
the report outlined the prohibition against escalation clauses and the theoreti- 
cally adverse consequences of the policy, no remedial legislation was enacted.^ 

If you or the General Court believe that policy to be inappropriate, your 
recourse is to seek enactment of legislation to restrict the approval authority of 
the Commissioner. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



»See Springfield v. Commonweallh. 349 Mass. 267. 272 (1965); Weiner v. Boston. 342 Mass. ^J^ ^^■™ Ini^,"' '^''"" " 
Massachusetts Bonding & Ins Co.. 313 Mass. 257, 271 (1943); Da/.v v. Mayor of Medford. 241 Mass 336. 340(1922). 

^I do not base my opinion of this fact since legislative inaction is generally the most dubious of foundations for drawing positive 
inferences concerning legislative intent. United Stales v. Price. 361 U.S. 304. 310-11 (I960) 



140 PD. 14 

INDEX OF OPINIONS 

TOPICS OPINION PAGE 

Attorneys 

1) Fiduciary relationships with health care providers by con- 
sumer members of Health Facilities Appeals Board 9 113 

2) Receipt of fee for legal services performed prior to becoming 

full-time district attorney 16 135 

Boards and Commissions 

1) Designation of employees of Board of Library Commission- 
ers 8 112 

2) Fiduciary relationships with health care providers by con- 
sumer members of Health Facilities Appeals Board 9 113 

Book and Magazine 

Sale of publications previously distributed free and disposition 

of proceeds 13 124 

Certificate of Need 

Conflict of state statute with federal regulations 10 116 

Conflict of Interest 

Fiduciary relationships with health care providers by consumer 

members of Health Facilities Appeals Board 9 113 

District Attorneys 

Receipt of fee for legal services performed prior to becoming 

full-time district attorney 16 135 

Elections 

Questions concerning voting by absentee ballot 3 98 

Employees, Public 

1) Eligibility of executive secretary to Board of Registration in 

Nursing to serve in that position 4 102 

2) Status of physicians under "03" (consultant) contracts as 

"public employees" for liability purposes 6 106 

Fees 

Sale of publications previously distributed free and disposition 

of proceeds 13 124 

Game and Fish 

Sale of publications previously distributed free and disposition 

of proceeds 13 124 

Health Care 

Fiduciary relationships with health care providers by consumer 

members of Health Facilities Appeals Board 9 113 

Highways 

1) Statutory authority to issue reducible load weight permits ... 1 88 

2) Violations of axle-loading weight limit on public ways .... 7 110 

Juvenile Delinquency 

Employment of part-time school adjustment counsellors 11 120 

Land Use 

Issuance of exclusive land use permits 15 129 

Lease and Contract Terms 

Approval of leases containing escalation clauses 17 137 



P.D. 14 141 

INDEX OF OPINIONS (Cont.) 

TOPICS OPINION PAGE 

Liability 

Status of physicians under "03" (consultant) contracts as "pub- 
lic employees" for liability purposes 6 106 

Libraries 

Designation of employees of Board of Library Commissioners .8 112 

Lottery Commission 

Approval of leases containing escalation clauses 17 137 

Motor Carriers 

1) Statutory authority to issue reducible load weight permits ... 1 88 

2) Violations of axle-loading weight limit on public ways .... 7 110 
Motor Vehicles 

Authority to establish and enforce regulations governing use of 

state-owned motor vehicles 14 126 

Part-time Employment 

Employment of part-time school adjustment counsellors II 1 20 

Property, Real 

Property management and relocation functions for new Depart- 
ment of Transportation building 2 95 

Property. State 

Property management and relocation functions for new Depart- 
ment of Transportation building 2 95 

Public Buildings 

Approval of leases containing escalation clauses 17 137 

Public Funds 

Property management and relocation functions for new Depart- 
ment of Transportation building 2 95 

Public Lands 

Issuance of exclusive land use permits 15 129 

Public Officers 

Payment in lieu of vacation time 12 121 

Qualifications 

Eligibility of executive secretary to Board of Registration in 

Nursing to serve in that position 4 102 

Relocation 

Property management and relocation functions for new Depart- 
ment of Transportation building 2 95 

Residence 

Questions concerning voting by absentee ballot 3 98 

Retirement 

Voting eligibility of retired members of Teachers' Retirement 

System 5 104 

Rulemaking Power 

Authority to establish and enforce regulations governing use of 

state-owned motor vehicles 14 126 

Salaries 

Payment in lieu of vacation time 12 121 



142 P.D. 14 



INDEX OF OPINIONS (Cont.) 

TOPICS OPINION PAGI 

Sovereign Immunity 

Status of physicians under "03" (consultant) contracts as "pub- 
lic employees" for liability purposes 6 106 

Statutes - Administrative Interpretation 

Statutory authority to issue reducible load weight permits 1 88 

Statutes - Changed Conditions, Valid Statute (Becoming Invalid) 

Conflict of state statute with federal regulations 10 116 

Statutes - Clear Legislative Intent 

Voting eligibility of retired members of Teachers' Retirement 

System 5 104 

Statutes - Custom and Usage Aiding Construction 

1) Statutory authority to issue reducible load weight permits ... 1 88 

2) Property management and relocation functions for new De- 
partment of Transportation building 2 95 

Statutory Construction 

1) Questions concerning voting by absentee ballot 3 98 

2) Eligibility of executive secretary to Board of Registration in 

Nursing to serve in that position 4 102 

3) Status of physicians under "03" (consultant) contracts as 

"public employees" for liability purposes 6 106 

4) Designation of employees of Board of Library Commission- 
ers 8 112 

5) Fiduciary relationships with health care providers by con- 
sumer members of Health Facilities Appeals Board 9 113 

6) Payment in lieu of vacation time 12 121 

7) Authority to establish and enforce regulations governing use 

of state-owned motor vehicles 14 126 

8) Issuance of exclusive land use permits 15 129 

Statutory Revision 

Violations of axle-loading weight limit on public ways 7 110 

Vacation Rights 

Payment in lieu of vacation time 12 121 

Weights and Measures 

1) Statutory authority to issue reducible load weight permits ... 1 88 

2) Violations of axle-loading weight limit on public ways .... 7 110 



P.D. 14 143 

INDEX OF REQUESTING AGENCIES 

AGENCY OPINION PAGE 

Administration and Finance, Executive 

Office for 
Consumer Affairs, Executive Office of 
District Attorney for Middlesex County 
Education, Department of 
Educational Affairs, Executive Office of 
Environmental Management, Department of 
Fisheries and Wildlife, Division of 
Health Facilities Appeals Board, Chairman 
Labor and Industries, Department of 
Public Health, Department of 
Public Works, Department of 
Secretary of State 
Teachers' Retirement Board 
Transportation and Construction, Executive 

Office of 
Treasurer and Receiver General 



14 


126 


4 


102 


16 


135 


11 


120 


8 


112 


15 


129 


13 


124 


9 


113 


12 


121 


6,10 


106,116 


1,2 


88,95 


3 


98 


5 


104 


7 


110 


17 


137