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Public Document

No. 12

■Qliie Comm0tt6jea!tl| of ^assacl^usetts

REPORT

OF THE

ATTORNEY GENERAL

FOR THE

Year Ending June 30, 1981

Slate ho^^-^f ^

3i;0M ^^ Publication of this Document Approved by Alfred C. Holland, State Purchasing Agent.

iRi|67 " 82-169316 E^"'"^'^*^ ^°'' ^^' ^"^^ *^^^^

®l]e CommonliTcalti] of ^a3saci|usetts

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, 1981 .

Respectfully submitted,

FRANCIS X. BELLOTTI

Attorney General

\3A

P.D. 12

DEPARTMENT OF THE ATTORNEY GENERAL

Attorney General
FRANCIS X. BELLOTTI

First Assistant Attorney General
Thomas R. Riley

Assistant Attorneys General

James Aloisi
Nicholas Arenella
Thomas Barnico'
Stuart Becker
Annette Benedetto
W. Channing Beucler
Despena F. Billings^
Paul Bishop
Robert Bohn
John Bonistalli
Kenneth Bowden IP
Susan Brand
Michael Broad
Roberta Brown
Craig Browne
Gerald Caruso
James Caruso
William Carroll
Andrew Cetlin
Francis Chase
Paul Cirel
Robert Cohen^
Garrick Cole"
Leah Crothers
John Curran
Leo Gushing''
Mary Dacey
Richard Dalton
Stephen Delinsky
Elaine Denniston
Ernest DeSimone
Robert Dewees^^
Paul Donaher'^
John Donahue
Elizabeth Donovan
Irene Emerson
Joan Entmacher
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 Gordon
John Graceffa
Alexander Gray Jr.
Robert Griffith
John Grugan
Michael Hassett
Catherine Hantzis
F. Timothy Hegarty Jr.
David Hopwood
Marilyn Hotch
Andra Hotchkiss
William Howell
Edward Hughes
Linda Irvin
Daniel Jaffe'«
Ellen Janos
Paul Johnson
Anne Josephson^"
Paul Kaplan
Linda Katz*
Thomas Keaney
Carolyn Kelliher
Richard Kelly
Sally Kelly
Kevin Kirrane
Alan Kovacs
Steven Kramer
Elizabeth Laing
Steven M. Leonard
William Levis
James Lewis*
Stephen Limon
Maxine Lipeles'
Maria Lopez
William Luzier
Alan Mandl
Bernard Manning
Michael Marks
George Matthews*
Michael McCormack^
Edward McLaughlin
William McVey
Paul Merry

P.D. 12

Thomas Miller
William Mitchell
Bruce Mohl
John T. Montgomery
Paul Muello
Robert Mydans^^
Dean Nicastro
Henry O'Connell Jr.
Steven Ostrach
A. John Pappalardo^
Howard Palmer
William Pardee
Joseph Pellegrino''"
Malcom Pittman III
Steven Platten"
Alan Posner
Edward J. Quinlan
Richard Rafferty
T. David Raftery
Frederick Riley
John Roddy
Anne Rogers
James F. Ross
Michael Roitman'"
Hilar}' Rowen"
Steven Rusconi^^
Dennis Ryan
Bemadette Sabra
Anthony Sager
Stephen Schultz

Assistant Attorneys General Assigned to Division of Employment Security
Robert Lombard
George J. Mahanna Paul Molloy''

Chief Clerk
Edward J. White

Harvey Schwartz

Paul W. Shaw

Alan Sherr

JoAnn ShotwelF"

Mitchell Sikora

Roger Singer

E. Michael Sloman

Barbara A. Smith

Scott Smith

Elizabeth Spencer^'

Donna Sorgi

Donald Stem

Joan Stoddard

Kevin Suffern

Kevin Sullivan*'

Terence Troyer

Carl Valvo

Sara Wald''

John J. Ward

Bettv Waxman

John White"

Estelle Wing*=

Carolyn Wood"

Christopher Worthington

Francis Wright"*'

Judith Yogman

Mark Young*'

Donald P. Zerendow

Stephen Ziedman

Assistant Chief Clerk

Marie Grassia''

POINTMENT DATE

3/19/81

3/2/81

3/30/81

1/17/81

2/9/81

10/14/80

9/29/80

7/14/80

5/11/81

10.

1/81

11.

8/25/80

12.

8/27/80

13.

1/81

14.

8/4/80

15.

11/14/80

16.

12/1/80

17.

6/2/81

Avis Patten'"

TERMINATION DATE

30. 11/7/80

31. 8/29/80

32. 8/14/81

33. 4/1/81

34. 6/30/80

35. 2/2/81

36. 6/30/81

37. 8/22/80

38. 2/27/81

39. 7/24/80

40. 4/29/81

41. 8/29/80

42. 2/9/81

43. 5/29/81

44. 3/27/81

45. 3/31/81

46. 10/31/80

47. 8/19/80

48. 4/30/81

49. 2/17/81

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®l|e Cnmmonhiealtl] of ^assacl]usetts

In accordance with the provisions of section 1 1 of Chapter 1 2 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, 1980 to June 30, 1981 and is the seventh Annual Report I have
filed as the Attorney General of the Commonwealth. It chronicles a period of
unparalleled success in our efforts to combine the traditional role of the
Attorney General with the function of a public interest law firm.

The primary function of the Department of Attorney General is to appear
for the Commonwealth, its agencies and officers in all legal proceedings in
state and federal courts. Traditionally such proceedings are defensive in nature
and arise either when a legislative enactment or executive action is challenged.
The Attorney General has no control over the number of such challenges filed
in any given year, and the only goal he can set in relation to such cases is
to handle them as competently and as expeditiously as possible.

Two of the Department's four bureaus are primarily responsible for this
defensive litigation: The Civil Bureau which handles contract, land damage,
tort and workmen's compensation matters, as well as other varieties of suits
seeking monetary awards from the State; and the Government Bureau, which
is principally responsible for lawsuits raising issues of administrative or
constitutional law. Between these two bureaus more than three thousand new
matters have been opened in each of the last seven fiscal years. While many
of those cases may be described as garden variety litigation, scores of cases
every year are of the utmost importance to the Commonwealth. During the
twelve months covered by this report, lawyers from the Department of the
Attorney General successfully defended the local tax-cutting measure known
as "Proposition 2'/2", the Governor's establishment of increased automobile
inspection fees pursuant to a delegation of authority from the General Court,
and the State statute prohibiting dissemination of tax return information for
non-tax purposes.

While it is difficult to establish pragmatic goals and priorities for this type
of reactive litigation, areas likely to produce more lawsuits can be predicted.
Torts is one such area. When the Legislature abrogated the doctrine of
sovereign immunity by passing Chapter 258 of the General Laws, a "start-up"
time was built into the statute. That hiatus period has expired and a constantly
escalating number of tort cases are being filed in State court. Coincidentally,
United States Supreme Court decisions have expanded the scope of federal civil
rights actions to embrace a wide range of tort actions against State officials.
Finally, an increased awareness of the rights of victims of criminal actions has
led not only to new types of negligence cases, but also to more claims on the
State's Victims of Violent Crimes fund. These claims are investigated and
litigated by the Torts Division in the offices of the Attorney General. During
the reporting period the case load of the attorneys handling torts matters
skyrocketed and there is every reason to expect this explosion of new cases

12 P.D. 12

to continue. It is a real credit to the staff of the Department that, with no
expansion of resources, they have managed to perform the traditional role as
defense lawyers for the Commonwealth, while simultaneously bringing affir-
mative public interest litigation affecting the lives of the citizens of the State.

The Criminal Bureau and the Public Protection Bureau are the two
components of this Department which essentially handle affirmative cases. In
the criminal area, the Attorney General's jurisdiction is co-extensive with that
of the several District Attorneys. As a consequence, the Department is able
to target particular types of crimes in a manner other prosecutors cannot. My
personal philosophy has always led me to attempt to single out crimes which
are capable of deterrence and which impact the greatest possible number of
people. Last year, for instance, sixteen individuals and five corporations were
prosecuted for unlawfully disposing of toxic wastes. Hazardous wastes pose
a threat to all residents of the Commonwealth, but dumping hazardous waste
is often a business decision made without regard to public health consequences.
By prosecuting such cases, we hope to make unlawful business decisions too
costly and therefore prevent future unlawful disposal.

Similarly, prosecution of arson for profit cases, large welfare fraud matters
and political corruption cases, are a continuing priority for the office because
of the real possibility of deterrence in these areas. Last year we continued our
relentless pursuit of those who burned dwelling houses in Suffolk County and
maintained our high incidence of conviction. As a result, the incidence of
suspicous fires remains low. We also cracked one of the largest welfare fraud
schemes ever uncovered in the country, which was headed by a college
professor and which diverted hundreds of thousands of dollars from worthy
welfare recipients. Finally, as a follow-up to the Special Commission
concerning State and County Buildings, I created a Governmental Integrity Unit
in the Criminal Bureau. Even in the few short months it was in existence during
the past fiscal year, the unit commenced an investigation leading to the
indictment of a cabinet secretary and nearly a score of other individuals and
corporations in conjunction with an investigation of contractual practices of the
MBTA. Again, the goal of all such prosecutions is to deter future conduct
which violates the public trust by making the cost to those convicted of prior
corrupt activities high.

The same basic philosophy underlies the work of the Public Protection
Bureau. Every resident of the Commonwealth has been adversely affected by
skyrocketing energy costs over the past few years. We have therefore focused
on energy costs as a priority item for the Public Protection Bureau. The most
obvious result is the involvement of the Utilities Division of the Department
in every significant Federal or State ratemaking proceeding. The Consumer
Protection Division has also been utilized effectively to prosecute dealers who
were diverting fuel oil from their customers' tanks or delivering short measures
of coal and wood. The Civil Rights Division has prevented major fuel
companies from denying credit to residents of minority neighborhoods, and
Bureau personnel participated in a United States Supreme Court case setting
aside a first-use tax imposed on gas by the state of Louisiana, a tax which

P.D. 12 13

would have cost Massachusetts users of natural gas tens of millions of dollars
a year.

In fiscal 1981, we also targeted "health" as an area for Public Protection
Bureau activity. We began a bureauwide effort to monitor the performance of
Massachusetts health care providers under the "Federal 'Hill-Burton' Act",
which guarantees medical services to low income individuals, we repeatedly
contested increases in health insurance rates, and filed an action seeking to force
insurers to comply with a state law guaranteeing certain minimal mental health
coverage to Massachusetts policy holders.

Energy and health were by no means the exclusive targets of the Bureau.
We also diverted significant resources to civil rights enforcement, housing and
public transportation issues and to the routine consumer activities that are the
hallmark of this agency. I single out energy and health, however, because they
are illustrative of our unceasing attempt to bring cases which improve the
quality of life for Massachusetts citizens.

As in years past, I close this introduction with the caveat that the activities
described above are only partial highlights of the accomplishments of the
Department. Hopefully the following pages will give the reader a more accurate
picture of the many ways we have served the Commonwealth and its citizens
over the past twelve months.

MONEY RECOVERED AND SAVED FOR
THE COMMONWEALTH AND ITS CITIZENS

I. MONEY RECOVERED FOR THE COMMONWEALTH TREASURY

1 . Antitrust Civil Penalties $ 8,650

2. Charitable Registrations & Certificate Fees 1 68 , 1 35

3. Escheats 364,450

4. Collections, Rent 131,412

5. Collections, General 328,593

6. Delinquent Unemployment Compen-
sation Claims Recovered 1 ,393,024

7. Fraudulent Unemployment Compen-
sation Claims Recovered I -^5 ,9 1 7

8. Civil Penalties in Environmental

Protection Cases 225,000

9. Restitution and Fines in Tax

Fraud Cases 934,439

TOTAL $3,699.620

14 P.D. 12

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

1. Antitrust Recoveries $ 398,250

2. Back Pay Recovered for Female

Employees at Publishing Companies 375,000

3. Judgments and Restitution in

Consumer Protection Court Cases 7 14,096

4. Consumer Recoveries - Non-Court Cases 395,416

5. Consumer Recoveries - Springfield

Office 45,554

6. Consumer Savings - Springfield

Office 27,409

7. Negotiated Donation 1,000

8. Hill Burton Services 206,000

9. Savings in Auto Insurance Hearings 140,000,000

10. Savings in Utility Rate Hearings 170,829,000

1 1 . Savings in Health Insurance Rate Hearings 1,000,000

TOTAL $313,991,725

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
agencies in all Civil actions involving contract and contract related disputes.

A majority of the cases handled by the Division concern public building,
state highway and other public work construction disputes. The Contracts
Division attorneys represent the Commonwealth in both affirmative and
defensive litigation. Typical cases in the Division involve claims arising from
the interpretation of leases, employment contracts, statutes, rules and
regulations.

In contract actions against the Commonwealth, G.L., c. 258, §12, is, for
the most part, the controlling statute. With increasing frequency, multiple
parties are becoming involved in contract actions, since there has been a
tendency to implead consultant engineers, architects and subcontractors as
third-party defendants.

Plaintiffs routinely seek temporary restraining orders and preliminary injunc-
tive relief against the Commonwealth, its agencies and officers at the
commencement of actions. The granting of such relief would delay the
execution of contracts, increase contract costs, and result in additional claims
for damages. During the fiscal year, the Division attorneys have successfully
resisted all such attempts for injunctive relief.

P.D. 12 j3

Discovery in contract cases is prolonged due to the volume of the
documentation, especially in building construction cases. Issues in contract
cases are usually complex often involving long hearings before court appointed
masters. However, there has been a trend, due to the efforts of the attomevs
to resist references to masters and to seek trials before the court '

Bid protests in the rapidly evolving data processing area are occurring with
increasing frequency. Challenges relative to the propriety of the award of the
building construction contracts have also increased, primarily due to more
intensive scrutiny of bidders by the Bureau of Building Construction.

Seventy-seven (77) new actions were commenced during the fiscal year
Eighty-two (82) cases have been closed. As of June 30, 1981, there were 285
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, perfor-
mance 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. Economic conditions have heightened competition
Bid awards are bitterly contested. All materials, supplies and equipment
purchased by the state (except military and legislative departments) must be
advertised, bid and awarded by the Purchasing Agent. We receive, on a weekly
basis, new requests for assistance on purchasing matters. Members of the
Division counsel the Purchasing Agent and his staff, interpret regulations, and
attend informal protest hearings.

We also have an equivalent relationship with the Department of Public
Works, Metropolitan District Commission, Secretary of Transportation, Board
of Regents of Higher Education, Data Processing Bureau, Mental Health,
Youth Services, Water Resources, State Lottery Commission, Public Welfare,'
Capital Planning and Operations, etc.

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 2,380 such contracts. In many cases, 276 to be exact, 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, 1980 313

August " 210

September 141

October 264

November 1 85

December 133

January, 1981 249

February 151

16 P.D. 12

March 1 26

April 184

May 172

June 252

TOTAL 2,380

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, Metropolitan District Commission, Department of Environmental
Affairs, State Colleges, the University of Massachusetts, Armory Commission
and the Department of Food and Agriculture.

The Division also provides legal advice 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
nature. 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
legislation of importance to this office as well as other state agencies.

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; and a trial by jury may be had unless both parties file waivers,
in writing, waiving their right to a jury-waived trial. The statute also requires

P.D. 12 j^

the court make subsidiary findings of fact when the case is heard If either
party is aggrieved by the finding, they may reserve their right to a iur^' 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 accordance with Section 22 before a justice in a jury-waived session We
have found that in many instances, it is unnecessary 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 may result in a final disposition of
the case. We are still attempting to make Ch. 79 procedures even more
expeditious.

During 1981, we filed legislation (Senate 1932) providing for one trial before
a jury unless both parties agree to a waiver. The potential of a two-tiered trial
system, either via the former Master's Hearing or the present jury-waived trial,
is a luxury the court's can no longer afford. With full and complete discovery
of the expert witnesses, both parties will be prepared to try the merits of the
case one time, thereby eliminating the time consuming and expensive fishing
expeditions and the so-called '"trial by ambush". In addition, this Bill should
result in more effective trial discovery resulting in a greater number of cases
being settled without the necessity of trial. Such a result would be beneficial
to the trial bar as well as the Commonwealth and its citizens.

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. Boston on
a full-time basis. He is under the direct supervision of the Right of Way
Division with review supervision from the Eminent Domain Division. His
primary function is to represent the Department of Public Works in all matters
related to state owned property being leased or rented to the general public.
This includes negotiating settlements, closing out uncollectablcs. bringing suits
to enforce the payment of rent, and handling eviction matters. In those cases
where rent is owed to the Commonwealth and there is a land damage case
pending, the Eminent Domain Division trial attorney assigned handles both
matters at the time of trial. During the past fiscal year 62 rent cases were closed
and $ 1 3 1 ,4 1 2 was collected and turned over to the State Treasurer.

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 arc
protected by stipulation.

Obviously, 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 which arise therefrom.

18 P.D. 12

More and more, the equitable power of the Court is being used along with
the temporary restraining order and injunction process. Zoning cases are now
being transferred 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 and constitutional nature
of the issues involved.

The Attorney General's Office is involved in almost every petition to confirm
or register title. The involvement requires the determination of all interests in
state highways, the preservation of the taking lines, the determination of
drainage 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
indicated in the report of past years, this is becoming a new problem area in
that many rivers and streams have been cleaned and improved as a result of
federally funded projects, bringing into question the Commonwealth's rights
and responsibilities. Also, the tidal areas of the Commonwealth are creating
additional litigation, particularly where the Colonial Ordinances are concerned.
Litigation is developing whereby the public is asserting adverse possession and
prescriptive rights in the flats of the tidelands and access to beaches.

We are seeing more claims being made against the insurance Fund and local
probate courts are having an affect upon the land registration system in that
their decisions are causing an affect upon the land registration cases.
Considering current trends and statistics for the year, we can expect to be even
busier in fiscal 1982 in discharging our Land Court responsibilities while
protecting the rights of the citizens of the 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 Commonwealth's departments or agencies find their way to the
Eminent Domain Division for review and approval 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, The Agricultural Preservation Restriction Act.

Since 1949, farming acreage in the Commonwealth has declined from
approximately 2 million acres to about 600,000 acres in the year 1975. This
loss has necessitated Massachusetts to import some 85% of its food supply from
other states as distant as Florida and California. Considering the increase in
costs of transportation and fuel in the last five years, the reasons for the
alarming increase that our citizens must now pay for their food becomes
obvious. This high cost of energy trend is expected to continue, making it
incumbent for the Commonwealth to preserve and increase the amount of
productive farmland. The Massachusetts Legislature made this possible by
enacting The Agricultural Preservation Restriction Act and by their approval
of a 15 million dollar bond issue. This Act offers the only real hope for
preserving our remaining agricultural land, by providing for the public purchase
of agricultural preservation restrictions, which are commonly 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

P.D. 12

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 fiscal 1981, agricultural restrictions were obtained on an additional 16 farms
totalling 1,238 acres. Twenty-five farm properties, representing approximately
2,100 acres have been preserved for food production since the program's
inception in 1980.

This program is the first major step in the protection and revitalization of
the farming industry in Massachusetts. It will, no doubt, lessen our dependency
on farm produce from distant parts of the United States and hopefully lower
food costs to the citizens of Massachusetts.

The Department of Food and Agriculture is continuing with its very
important Agricultural Preservation Restriction Program. Presently, fifty farms
totalling in excess of 7,000 acres are under appraisal.

The Eminent Domain Division consists of a Chief, seven full-time attorneys,
three special assistant attorneys general, three investigators, one administrative
assistant, 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 1, 1980 through June 30, 1981. the following
statistics indicate the activities of this extremely busy division:

Land Court Cases 160

Land Court Cases Closed 1 3 1

Land Court Cases Pending 326

New Land Damage Complaints Received 1 1 1

Land Damage Cases Disposed of in Superior Court 63

Land Damage Cases Disposed of by Settlement 72

Land Damage Cases Pending 587

Total Cases Pending 9 1 3

Rent Cases Closed by Special Assistant Attorneys General 62

Rent owed to the Commonwealth - Collected

by Special Assistant Attorneys General $131.412.00

Fiscal 1981-1982 promises another busy year for the Eminent Domain
Division. The Massachusetts Department of Public Works, as well as the
Metropolitan District Commission predict a heavy workload for Fiscal Year
1982. The Department of Environmental Management is deeply committed and
involved in the Heritage State Park Projects in Lowell. Lynn, Holyoke, North
Andover and Lawrence. These ambitious undertakings are expected to cost
approximately 60 million dollars and is expected to result in extensive litigation
for this division.

The Division once again looks forward to accepting any and all challenges
presented during the coming year.

20 P.D. 12

INDUSTRIAL ACCIDENT DIVISION

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

There were 13,135 First Reports of Injury filed during the last fiscal year
for state employees with the Division of Industrial Accidents, an increase of
441 over the previous fiscal year. Of the lost time disability cases, this Division
reviewed and approved 1900 new claims for compensation and 142 claims for
resumption of compensation. In addition to the foregoing, the Division worked
on and disposed of 199 claims by lump sum agreements and 21 by payments
without prejudice.

This Division appeared for the Commonwealth on 1 ,592 formal assignments
the Industrial Accident Board and before the Courts on appellate matters. In
addition to evaluating new cases, this Division continually reviews the accepted
cases; that is, those cases which require weekly payments of compensation,
to bring them up to date medically and to determine present eligibility for
compensation.

Total disbursements by the Commonwealth for state employees' industrial
accident claims, including accepted cases. Board and Court decisions and lump
sum settlements, for the period of July 1980 to June 30, 1981 were as follows:

General Appropriation (Appropriated to the Division of Industrial Accidents)
Incapacity Compensation $6,458,442.79

Medical Payments 1,610,991.27

TOTAL DISBURSEMENTS $8,069,434.06

Metropolitan District Commission (Appropriated to M.D.C.)
Incapacity Compensation $ 719,164.74

Medical Payments 158,609.48

TOTAL DISBURSEMENTS $ 877,774.22

This Division also has the responsibility of collecting payments due the
"Second Injury Fund" set up by Chapter 152, section 65, and defending the
fund against claims for reimbursement made under Chapter 152, sections 37
and 37 A. During the past fiscal year this Division appeared on 248 occasions
to defend this fund against claims for reimbursement by private insurers. As
of June 30, 1981, the financial status of this fund was:

Unencumbered Balance $ 57,637.68

Invested in Securities 217,000.00

TOTAL 274,637.68

Payment Made to Fund $ 822,760.98

Payments Made Out of Fund 887,307.27

P.D. 12 21

Pursuant to G.L. Chapter 33, App. § §13-1 lA, 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 compen-
sation to unpaid civil 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 16 claims.

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

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

TORTS, CLAIMS, AND COLLECTIONS DIVISION

The staff of the Torts Division as of the end of Fiscal Year 1981 consisted
of a division chief, seven attorneys, three investigators and five clerical/secre-
tarial personnel. By the latter part of the year their efforts were directed
primarily toward defending tort actions against the Commonwealth and its
officers and processing and reporting on Petitions for Compensation to Victims
of Violent Crimes. Due to a steady increase in the numbers of both of these
categories of cases, and a trend towards more complexity in the tort suits, many
of these cases were also being assigned to other attorneys in the Civil Bureau.
Actions by the Commonwealth to recover for property damage were being
similarly assigned throughout the Bureau. The division is still engaged to some
extent in the handling of older collection matters, but a policy decision not
to accept new collection referrals from state agencies was implemented during
the latter part of the year.

The total amount collected for the year was $328,593.31 on a total of 956
claims, including 110 new cases. By the end of the period, 3,133 claims had
been closed as uncollectible.

Approximately 427 new Victim of Violent Crime cases were opened during
the fiscal period. The Treasurer ran out of appropriated funds for these claims
in December of 1981 after paying out $405,411.73 on 112 claims. An
additional 237 claims totalling $501,500.70 were approved by the courts and
submitted for payment during the remainder of the year, awaiting approval of
a deficiency appropriation.

New tort cases for the year totalled 224, while 191 were closed. Thirteen
cases were litigated. The Commonwealth paid out $73,486.30 on 36 claims.

M. CRIMINAL BUREAU

The Criminal Bureau, consisting of Trial, Organized Crime and Appellate
Sections, Medicaid Fraud Control Unit, Arson Enforcement, Tax and Insurance
Prosecution and Government Integrity Units and the Employment Security

22 P.D. 12

Division continued to increase the number and expand the scope and intensity
of investigations and prosecutions of criminal activity throughout the Common-
wealth during FY 1980/1981. The following is structured to reflect a
representative sampling of the cases the Bureau has instituted or resolved in
its investigative and prosecutorial functions.

Trial Section: Following four years of investigation and hundreds of
indictments, the three remaining defendants charged in the Vocational Educa-
tion bribery cases were sentenced. More than half-a-million dollars in court
ordered restitution has been assessed against the twenty-five defendants
convicted in a case that has witnessed the imprisonment of both high state
officials and private businessmen. Other functions of the state educational
system also came under the scrutiny of the Bureau. Allegations involving the
larceny of equipment and funds from the Massachusetts College of Art were
explored while a former student government president at Boston State College
who used his office for fraudulent purposes was sentenced to jail.

Mobile surveillances of home heating oil delivery trucks in Eastern
Massachusetts resulted in the indictment of three oil deliverymen and a fuel
company on charges that they fraudulently obtained money from their retail
customers by employing oil diversion devices which were illegally installed on
their trucks and which used pre-printed delivery tickets in order to misrepresent
the amount of product actually received at the residence.

Seven individuals, including four New Jersey residents and two corporations
were indicted and charged with the illegal disposal of large quantities of
hazardous waste materials in several Plymouth County towns. This year also
saw the successful prosecution in Middlesex County of nine individuals and
three corporations involved in illegally dumping dangerous chemical wastes into
tributaries of local water supplies. Following an extended trial, each of the
defendants, in the largest hazardous waste dumping operation yet uncovered
in New England, received substantial periods of incarcerations.

The Department of Revenue referred a number of tax cases to the Tax
Insurance Fraud Unit for criminal investigation and prosecution. Of those
investigations, thirteen individuals have been indicted representing almost
$650,000 in unpaid taxes. Sixteen cases have been concluded this year resulting
in fines and restitution in excess of $158,000 recovered by the Commonwealth.

The branch manager of a nationally recognized commodity trading house,
charged with misappropriating in excess of half-a-million dollars of client's
funds designated for the purchase of gold Krugerrands, was sentenced by the
Suffolk Superior Court to imprisonment for violating the larceny statute and
the Massachusetts Uniform Securities Act. In Essex County, a former used car
salesman from Danvers who had been charged with forgery and altering
automobile certificates of title and registration and an additional 21 counts of
larceny was sentenced to state prison and ordered to make restitution to the
defrauded customers. An Essex County attorney has been charged with
defrauding a number of his clients of approximately half-a-million dollars by
forging their names to settlement claims and depositing the proceeds in his
personal bank account.

An independent life insurance agent, indicted in Middlesex County on
charges of larceny by means of forgery and uttering checks, was ordered by

P.D. 12 23

the court to make restitution in the amount of $31,000 to two insurance
companies. Pending the receipt of the funds, a mortgage on the defendant's
home is required as security. A Marblehead druggist lost his license, was
required to make restitution to Blue Cross/Blue Shield and had a suspended
sentence imposed by the court after entering a guilty plea to charges that he
fraudulently billed the health care agency for prescriptions he never issued.

A Hampden County murder trial resulted in indictments of perjury when the
defendants sought to escape the consequences of their guilty pleas. Each
received a consecutive sentence for the false testimony they gave in the earlier
criminal prosecutions. In another case, a defendant is scheduled for trial on
first degree murder charges emanating from the discovery of a body buried near
Portland, Maine. In still another case, two Marlborough men are awaiting
retrial after having been indicted on charges they conspired to murder a
Framingham attorney.

Two of the largest recipient welfare fraud cases in the history of the
Commonwealth were under prosecution by the Bureau. Five Boston residents
have been indicted for misrepresenting their status. They purportedly received
in excess of a quarter of a million dollars in illegal welfare benefits. Also,
six aliens face charges in Suffolk County alleging that they stole in excess of
four hundred thousand dollars in benefits from the welfare system by forging
birth certificates to represent non-existing children. Other active cases involve
ineligible recipients who, while fully employed, illegally receive welfare funds,
food stamps and medical benefits to which they are not entitled.

Nine Greater Boston residents were sentenced to jail on charges they
participated in a conspiracy involving hundreds of thousands of dollars in stolen
luxury cars and that they illegally received money from insurance frauds. The
organization printed near perfect counterfeit titles, in an attempt to legitimize
the sale of the expensive motor vehicles they had stolen.

The number of arson cases investigated and prosecuted by the Arson
Enforcement Unit increased dramatically this fiscal year. The property manager
of a large Boston realty company was convicted on multiple indictments
charging burning insured property. Five individuals, one a Boston firefighter,
were indicted in separate conspiring charges alleging arson of a dwelling and
setting fires to buildings to defraud insurers. One of the last defendants in the
Suffolk County "Arson for Profit" ring was convicted on multiple arson
indictments. The property manager and employees of a corporation deemed to
be the largest owner of rental property in New England were indicted for
burning the same apartment house on two different nights. The building was
fully occupied at the time of the fire. Two Boston brothers, owners of extensive
real estate holdings, were awaiting trial on charges they burned numerous
multi-family dwellings in Roxbury, Dorchester and Jamaica Plain. The owner
of a discotheque in Quincy was indicted for attempting to burn his restaurant
by uncopping a gas pipe in the basement and placing lighted candles nearby
on the floor. If the premises were occupied at the time the explosion occurred,
hundreds of casualties would have resulted.

A number of public employees were indicted by the Criminal Bureau on
charges arising out of the actions in course of their official positions. An
accountant wrongfully took the Group Insurance Commissioners promotional

24 P.D. 12

examination for another; a former assistant director of the State Bureau of
Building and Construction faced conflict of interest charges; an employee of
the State Treasury awaits trial for embezzling $36,000; a state worker was
convicted of larceny from the Commonwealth; the Director of Food and Drugs
of the Massachusetts Department of Public Health was under indictment for
multiple counts of receiving bribes; the Treasurer of a regional division of the
Department of Mental Health was charged with larceny from the Common-
wealth; and the paymaster for the Department of Youth Services was terminated
and ordered to make restitution for money he stole from the state by creating
non-existent employee payroll accounts.

Organized Crime Section: While this law enforcement unit's charter man-
dates the investigation and prosecution of all illegal transactions implicating
organized criminal activity, the section also supplies essential intelligence
services to other governmental agencie§ engaged in similar prosecutorial
missions. It also offers technical support assistance to other law enforcement
organizations in need of photographic and electronic expertise.

Since the unit acts as the investigative arm of the Bureau, its activities closely
parallel that of the parent organization. This fiscal year investigations into such
diverse areas of criminal behavior as electrical current diversion, home
improvement frauds, and hazardous waste dumping have come under its
cognizance. An electronic surveillance of a major drug dealer instituted after
a year of investigation resulted in the arrest of four major Boston heroin dealers,
the seizure of two ounces of uncut heroin, guns, and more than $350,000
alleged to be the proceeds of illegal drug sales.

A major investigation into bribery, political corruption, and larceny emerged
this year as public officials and employees associated with the MBTA were
questioned with regard to payoffs and kickbacks paid to secure contracts with
that state authority. The investigative resources of the unit had this matter
assigned a priority status.

State Police Officers specially assigned to the unit made more than fifty
arrests this year of individuals involved in arson, narcotics, homicide,
gambling, bribery, tax evasion, larceny, hazardous waste disposal, fraud and
stolen motor vehicles offenses and have investigated a number of cases at the
request of various district attorneys' offices where the results are transmitted
to the county officials for criminal prosecution.

Appellate Section: The caseload of the Appellate section increased by fifty
new cases over the previous fiscal year. Two hundred forty-four new cases were
opened. Approximately 226 cases are presently active. The vast majority of
the cases involve civil litigation arising from underlying criminal convictions.
Of the 128 cases filed in the various state courts, sixty-nine petitioners sought
relief in the Superior Court either by way of habeas corpus, declaratory
judgment or civil rights damage actions. Forty-two petitions for review of
sexually dangerous persons' (SDP) status pursuant to G.L. c. 123A, § 9 were
filed. Nine suits seeking the invocation of the Supreme Judicial Court's
superintendency powers under G.L. c. 211, § 3 were filed. Three briefs as
amicus curiae, were filed in the Supreme Judicial Court. In one case.
Commonwealth v. Bastarache, under the mandate of the Supreme Judicial
Court, the Attorney General issued Suggested Guidelines for the Random

P.D.12 25

Selection of Jurors.

Eighty-eight cases were filed in the federal district court, which consisted
of sixty-seven petitions seeking the writ of habeas corpus; and twenty-one civil
rights actions or requests for declaratory and injunctive relief.

Twelve cases were argued in the Court of Appeals for the First Circuit.
Sixteen petitions for writ of certiorari were successfully opposed in the Supreme
Court of the United States and the one certiorari petition filed by this office
was denied by that Court. The division successfully defended the Commissioner
of Revenue in a contempt action in which the First Circuit, in a precedent
setting decision, recognized a limited privilege for access to state tax records.

The Appellate Division also processes the rendition of fugitives from justice.
Demands from both law enforcement officials of the Commonwealth and
governors of other states are examined and an opinion rendered as to the legality
of each demand. Approximately eighty-five rendition demands were reviewed
during fiscal 1980-1981: sixty were foreign requests and twenty-five represent-
ed requests from Massachusetts authorities. In addition to the administrative
duties involved, an attorney is required to appear in court whenever a rendition
warrant is challenged.

Medicaid Fraud Control Unit: During the past fiscal year the Unit has
continued to direct its resources to the detection, investigation and prosecution
of provider fraud and abuse within the Medicaid system.

MFCU prosecutorial efforts resulted in the return of thirty indictments against
those providers representing virtually the entire range of the Medicaid provider
industry. Of those cases which reached disposition during the year, the Unit
had twenty-nine convictions. Those convicted include dentists, podiatrists,
nursing home owners, administrators, support staff, laboratories and transpor-
tation services.

Two-hundred-forty cases were opened, an increase of 121 cases over the
previous year. One-hundred-fifty-eight cases were closed and one hundred
ninety-eight cases are presently pending.

These efforts, combined with investigations which identified non-criminal
abuses (and subsequent referral to the Department of Public Welfare for
appropriate action) identified $725,458 taxpayers dollars for recovery. In
addition $50,981 was returned to patient needs accounts.

The Unit has maintained a comprehensive training program for its staff as
well as employees of other state agencies. The MFCU also participates in
regional training sessions given to other Fraud Control Units.

Employment Security Division: The Attorney General's office in the
Employment Security Division provides the Director with whatever legal
assistance and representation is necessary to enforce G.L. c. 151 A, §42.

The Employment Security Law is both technical and highly complex. All
employers are subject to the statute and must comply with its provisions. The
efficient and economical administration of the employment security program
in Massachusetts depends in large measure on the cooperation and compliance
of well-informed employers since they pay the entire costs of its operation.
The employment security program also insures individuals who become
unemployed through no fault of their own, a weekly benefit check paid on a
claim filed with the Division of Employment Security.

26 P.D. 12

Whenever an employer does not comply with the Employment Security law
either by not filing the necessary reports or by refusing to pay the taxes due
on his account with the Division, the matter is referred to the Attorney General
for criminal prosecution under the provisions set forth by the statute.

The staff makes every effort to fully inform employers of their rights and
obligations under the law. As a result, a certain percentage of the tax matters
are settled immediately thereby avoiding the expense of prosecuting the
offender and collecting the taxes owed through court action. Consequently,
savings to the Commonwealth and its taxpayers are realized.

During the fiscal year ending June 30, 1981, 1454 employer tax cases were
handled by this Division. 1167 cases were active on June 30, 1980. 287
additional cases were received during the fiscal year, and 329 cases were closed
leaving the balance of 1 125 employer tax cases on hand June 30, 1981.

Criminal complaints were brought in the Boston Municipal Court, charging
201 individuals with non-payment of taxes totaling $1,201,049.1 1 owed on the
153 delinquent tax accounts.

$1,393,023.67 in overdue taxes was collected during the fiscal year ending
June 30, 1981. Monies collected were deposited to the Unemployment
Compensation Fund.

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

During the fiscal year ending June 30, 1981, 1 101 fraudulent claims matters
were handled by this Division. 990 cases were on hand July 1, 1980. Ill
additional cases were received during the fiscal year, and 3 1 1 cases were closed
leaving a balance of 790 cases on hand June 30, 1981 .

Criminal complaints charging 49 individuals with larceny of $82,924.00 in
unemployment benefits fraudulently collected from the Division of Employment
Security were brought by Division attorneys.

The amount of $145,917.23 was collected during the fiscal year ending June
30, 1981, and returned to the Division of Employment Security for deposit to
the Unemployment Compensation Fund.

The Division continues to prosecute CETA fraud claims. The caseload is
minimal, however, since earlier actions taken by this Division have acted as
a deterrent by keeping the filing of CETA claimants at a minimum.

During the fiscal year ending June 30, 1981, actions brought against or by the
Director of the Division of Employment Security numbered twenty-three in total.
Seventeen cases were on hand July 1, 1980, six additional cases were received
during the course of the fiscal year, and three cases were disposed of at the court
involved, leaving twenty cases remaining on hand as of June 30, 1981. The
closings involved cases handled by the Administrative Division as well as the
Employment Security Division of the Attomey General's Department.

P.D. 12 27

Twenty-eight cases brought in the Supreme Judicial Court of the Common-
wealth were handled by the Employment Security Division during the fiscal
year endmg June 30, 1981. Eleven cases were on hand July 1 1980 Seventeen
additional cases were received, increasing the total of cases on hand to
twenty-eight. Eighteen cases were argued and closed thereby reducing the
balance of cases on hand to 10, as of June 30, 1981. Of the 18 cases argued
the court upheld the position of the Division of Employment Security in sixteen
cases and remanded two cases for further review and administrative action to
be taken by the state agency.

During the fiscal year, the resources of the Division have been used to
maximize its potential to provide a statewide impact and secure an effective
remedy designed to enforce a social program which is structured to serve the
people of the Commonwealth.

III. EXECUTIVE BUREAU

ELECTIONS DIVISION

A. CAMPAIGN AND POLITICAL FINANCE

One of the primary functions of the Elections Division is to enforce
compliance with the state's campaign finance law by candidates and political
committees. (G.L. c. 55). The division is also responsible for advising the
Office of Campaign and Political Finance on questions of law.

In fiscal 1981, the Office of Campaign and Political Finance reported
ninety-nine (99) individual candidates or treasurers who had failed to file the
required financial disclosure reports. Through administrative action taken by
the Division, compliance was obtained in eighty-four (84) instances. The
Division brought civil suit against fifteen individuals; thirteen of whom have
since complied with the disclosure statute. In addition, city and town clerks
throughout the Commonwealth reported thirty-five (35) local candidates or
political committee treasurers who had not complied with the filing require-
ments. The Division obtained compliance with the law in each case; in thirty
instances by administrative action, and in five through litigation.

B. LOBBYISTS

The Elections Division also enforces the state statute that requires legislative
agents and their employees to file financial disclosure statements with the
Office of the Secretary of the Commonwealth. (G.L. c. 3 §§43, 44, 47). In
fiscal year 1981, 51 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 1981, the Elections Division was engaged in numerous civil
suits brought by candidates and voters challenging the composition of the 1980
general election ballot. The Division also defended a state statute that required
voters who were not enrolled in any political party to be designated as

28 P.D. 12

"unenroUed" as opposed to "independent." The Supreme Judicial Court in
Bachrach v. Connolly found the statute to be an unconstitutional infringement
on voters' rights of political association.

The Division also drafted an opinion of the Attorney General concerning the
extent to which corporations can become involved in political activities in the
Commonwealth. A separate opinion was drafted concerning the appropriate
definition of Legislative agents within the meaning of G.L. c. 3 §§43, 44, 47.

A submission to the United States Department of Justice was prepared by
the Division under the Voting Rights Act of 1965 seeking clearance of changes
in election laws enacted in certain towns in the Commonwealth that are subject
to this act.

VETERANS DIVISION

The Veterans Division serves primarily as an informational agency referring
private citizens to appropriate Federal and State offices for assistance in
veterans matters. The Division serves as counsel to the Commissioner of
Veterans Services and the Veterans Affairs Division of the Department of the
Treasury. The Division handles civil litigation concerning appeals of agency
decisions granting or terminating veterans benefits.

IV. GOVERNMENT BUREAU

The Government Bureau has four functions:

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

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

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

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

A report on each of those functions 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 certain cases,
before state and federal administrative agencies. These proceedings typically
involved administrative and constitutional issues in diverse areas of public law.

During fiscal 1980, the Bureau received 589 new cases and concluded a total
of 426 previously active cases. By general subject matter or client, the new
cases fell into the following categories (with miscellaneous cases omitted):

Type of Case Number

Automobile Surcharge 69
Defense of cases brought against judges

and court personnel 56

Civil Service Commission 49

Taxation 41

Special Education (Chapter 766) 38

P.D. 12

Registry of Motor Vehicles -yy

Department of Public Welfare 3q

Alcoholic Beverage Control Commission 30

Boards of Registration 23

Public Health j^

Housing J <-

Mental Health j4

Rate Setting Commission 1 4

Insurance 1 3

Department of Public Utilities 1q

Division of Personnel Administration 10

Department of Social Services 9

Banking g

Retirement Board 7

Racing Commission 5

Public Safety 5

Education (non-Chapter 766) 5

Division of Employment Security 4

Massachusetts Rehabilitation Commission 4

Lottery Commission 3

CATV Commission 3

Board of Conciliation and Arbitration 3

Secretary of State 3

State Police 3

Transportation 2

Department of Youth Services 1

Treasurer 1

National Guard 1

Department of Corrections 1

The relative time spent representing specific agencies cannot be measured
simply by the number of cases. The representation of certain agencies involves
a significant commitment to complex litigation, even though the total number
of lawsuits brought against such agencies might be quite small. For example,
as in the previous four fiscal years, substantial Government Bureau resources
were devoted to consent decrees previously entered in five cases seeking
improvement in the conditions and treatment of residents at state institutions
for the mentally retarded and in a similar case involving Northampton State
Hospital, a mental health facility.

Government Bureau lawyers argued 12 cases before the Court of Appeals
for the First Circuit which resulted in reported opinions. Among the more
significant of these cases are the following: In Aufiero v. Clarke, the Court
of Appeals rejected an attempt to retroactively apply a Supreme Court ruling
that a public employee cannot be discharged solely for the reason that he or
she is not affiliated with or sponsored by a particular political party. Thus, a
demotion of an employee which occurred prior to the date of the Supreme
Court's decision because of that employee's service relating to patronage
hirings and promotions in a prior administration did not amount to a violation

30 P.D. 12

of his civil rights. Planned Parenthood League of Massachusetts v. Bellotti
involved an appeal from the District Court's denial of preliminary injunctive
relief seeking to enjoin the implementation of St. 1980, c. 240. The Court
found the statute's provisions relating to abortions for minors and the use of
a prescribed consent from to be constitutionally permissible but held that its
24-hour waiting period for non-emergency abortions and the inclusion in the
consent form of a description of the development of the fetus probably violated
the plaintiffs' rights, thus warranting the granting of preliminary relief as to
those features of the statute. The First Circuit held in Klug v. New Perspectives
Schools, Inc. and Rendell-Baker w.Kohn, that the Commonwealth's delegation
of the education of special-needs children to private schools does not amount
to state action under the Fourteenth Amendment. In Massachusetts Coalition
of Citizens with Disabilities v. Civil Defense Agency the Court upheld, in the
face of equal protection and due process claims by disabled persons, the validity
of the Commonwealth's plan for evacuation of persons in the event of a public
safety emergency arising from a malfunctioning nuclear power facility. In
Newfield House v. Department of Public Welfare, the First Circuit affirmed
the decision of the District Court denying the Commonwealth's counterclaim
for restitution of Medicaid payments made to a nursing home which had
voluntarily withdrawn from the Medicaid program. The First Circuit found that,
although such payments were not required by federal law, the Commonwealth
could be held liable under contractual or quasi-contractual theories. The Court
of Appeals in Grendei s Den, Inc. v. Goodwin reversed the District Court ruling
that G.L. c. 138, §16C was unconstitutional. That statute governed the granting
of liquor licenses within 100 feet of a church, synagogue or school. At the
close of the reporting year, the plaintiffs had petitioned for rehearing en banc.

A substantial portion of the Government Bureau's resources were devoted
in fiscal 1981 to the litigation of numerous cases in the United States District
Court. Many of these cases involved special education (e.g., Town of
Burlington v. Dept. of Education), the rights of institutionalized elderly,
retarded, and mentally ill persons to treatment in the "least restrictive
environment" (e.g.. Linden v. King), and the amount of reimbursement to be
paid providers of Medicaid services by the Commonwealth (e.g., Massachusetts
Hospital Association v. Secretary of Health and Human Services). In addition,
the Government Bureau was actively involved in a number of proceedings
before the United States Bankruptcy Court in which Medicaid providers filed
for bankruptcy. The Government Bureau's participation in these cases sought
to ensure that state and federal Medicaid regulations were enforced, that the
claims of the Commonwealth as a creditor were protected, and that challenges
to the authority of state agencies to enforce their regulations against the debtors
were defended.

During the fiscal year. Government Bureau attorneys were involved in 34
appeals before the Supreme Judicial Court, including the following cases. In
MBTA Advisory Board v. MBTA, the Supreme Judicial Court declared that,
although the Governor is not authorized to take possession of the MBTA
because of an anticipated interruption of public transportation resulting from
a budget dispute, he is permitted to continue to operate the MBTA under
executive order for the brief period necessary to convene the Legislature. In

P.D. 12 3,

another MBTA case, MBTA Advisory Board v. The Governor, the MBTA
Advisory Board sought declaratory and injunctive rehef against assessments
upon cities and towns in the MBTA district, claiming that certain of the
expenditures under an executive order were illegal because they exceeded the
budget approved by the MBTA Advisory Board. The Supreme' Judicial Court
held that the Advisory Board was not entitled to relief. In County Commis-
sioners of Plymouth v. State Superintendent oj Buildings, five counties and the
city of Boston appealed the rent established by the state superintendent of
buildings to be paid by the judicial branch for space in county buildings. The
court held that any rent decisions by the superintendent are subject to the
availability of appropriated funds and that no obligation would be imposed on
the Commonwealth in excess of available appropriations. The superintendent
should have, however, established a rent figure taking into account certain cost
items.

There were a number of important cases decided during this reporting year
involving First Amendment and due process claims. In the Matter of Roche,
the SJC affirmed the finding of a single justice that a reporter was in civil
contempt for refusing to testify at a deposition authorized by the Commission
on Judicial Conduct. The Court in Moe v. Secretary of Administration and
Finance, considered certain statutory restrictions on the funding of abortions
under the state medical assistance program. Finding that restriction represented
an impermissible burden on the exercise of a fundamental right secured by the
Declaration of Rights, the SJC declared the statute unconstitutional. In
Commonwealth v. School Committee of Springfield, the Court held that the
anti-aid amendment of the state constitution and ordered the local educational
agency to comply with the statute. The validity of a state statute was also
upheld in DiLoreto v. Fireman' s Fund Insurance Co. There, the SJC found
that the "merit rating" provisions of G.L. c. 175. §113P did not amount to
unlawful delegation and a denial of due process.

Personal rights were similarly at stake in three cases argued by Bureau
attorneys involving questions having to do with parental unfitness, adoption,
and child custody. The SJC articulated the appropriate standards and procedures
to be followed by trial judges in cases involving children and parents.

During fiscal 1981, Government Bureau attorneys argued nine tax cases
before the SJC. For example, in Mew England Medical Center Hospital. Inc.
V. Commissioner of Revenue, the SJC found that all meals prepared by hospital
employees and served in the hospital were exempt from the meals excise tax
regardless of whether the consumer of such meals was a patient, employee,
or visitor. In Parker Affilitated Companies, Inc. v. Department of Revenue,
the Court concurred with the Department of Revenue that the amount of capital
gains reported to the federal government determines the net income taxable
under state corporate excise statutes. Westinghou.se Broadcasting Co., Inc. v.
Commissioner of Revenue concerned the issue of whether a broadcaster
qualified as a manufacturing company so that its machinery would be exempt
from local taxation. The court affirmed the Appellate Tax Board's decision
denying the exemptions, stating that, while the definition of manufacturer may
have changed from its historical origins, it was for the Legislature, not the
court, to redefine the term.

32 P.D. 12

Government Bureau lawyers also argued five insurance-related cases before
the SJC in fiscal 1981. In Massachusetts Automobile Rating and Accident
Bureau v. Commissioner of Insurance, the Court reviewed the decision of the
Commissioner of Insurance fixing industry-wide automobile insurance rates for
calendar 1980. The Court upheld the Commissioner's decision with respect to
allowances for losses and expenses, but remanded for further consideration the
allowance for profits. In Metropolitan Property and Liability Insurance Co. \.
Commissioner of Insurance, the SJC upheld the Commissioner's decision to
fix industry-wide private passenger automobile insurance rates pursuant to his
traditional authority under c. 175, §113B.

Twenty one cases were argued in the state Appeals Court. For example, in
Ash V. Police Commissioner of Boston, the Court affirmed a superior court
decision that the state personnel administrator was empowered to round off
Civil Service test scores to the nearest whole number to determine the pool
of certified applicants. In Stiger v. Dept. of Public Welfare, the court held that
the Department was not required to compensate for private psychological
therapy under the Medicaid program. In another case arising under the
Medicaid program, the Department argued that it was not obliged to adhere
to a method of calculating costs incurred for medical care specified by the
federal government. The Appeals Court agreed and, in Tinkham v. Department
of Public Welfare, held that since the method was contained in a federal
directive which had not gone through rule-making, the Department was not
bound to follow it.

Wing Memorial Hospital v. Dept. of Public Health involved the question
of whether a separate certificate of need was necessary for satellite clinics. The
Appeals Court found that such clinics could not exist solely on the authority
of a hospital's existing license. Rather, the clinics are required to obtain
separate licenses based on a determination of need. In Plymouth County Bus
Transportation, Inc. v. Greater New Bedford Regional Vocational Technical
High School, et al., the validity of a regional school district committee's plan
to transport large numbers of students to and from its high school by means
of public transportation rather than by private contractors was at issue. The
plaintiff claimed that the state's approval of the transportation plan violated
state law but the court upheld the trial judge's ruling that the plan was fully
consistent with the statutory authority of the Commissioner of Education.

Bureau attorneys argued six cases in the Appeals Court involving the
Alcoholic Beverages Control Commission. In one of these cases. New Palm
Gardens v. ABCC, the Court upheld the Commission's suspension of a license
on the grounds that the license permitted obscene dancing on the premises in
violation of G.L. c. 272, §29.

AFFIRMATIVE LITIGATION

The Attorney General established the Affirmative Litigation Division within
the Government Bureau in order to represent agencies of the Commonwealth
when performance of their statutory functions require resort to the state and
federal courts.

Cases which the Affirmative Litigation Division brings may be divided into
three broad, and often over-lapping categories: (1) advocacy litigation; (2)

P.D. 12 33

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 the furtherance of his own
obligation to advance the public interest. Litigation related to grant-in-aid
programs subject to federal oversight continues to account for a substantial
portion of the Affirmative Litigation Division's efforts. These cases also tend
to be the most significant ones in terms of financial value. Finally, the Division
performs the traditional Attorney General enforcement function by commencing
suit on behalf of state regulatory and licensing agencies. The following
paragraphs contain brief descriptions of representative cases litigated during the
reporting year.

In Commonwealth v. Klutznick, the Attorney General, in cooperation with
twenty municipalities, challenged the conduct and results of the 1980 Decennial
Census. Alleging that the methodology and management of the Census
Bureau's effort produced an inaccurate enumeration of the Commonwealth's
true population, the action seeks an upward adjustment in the figures in order
to ensure the Commonwealth's entitlement to federal grants and other programs
which are census-based. The case has been consolidated with similar litigation
throughout the country challenging the 1980 census, and all cases are
proceeding to trial in the United States District Court in Maryland.

In Commonwealth v. New Hampshire, the Attorney General intervened, on
behalf of the Commonwealth and its residents, in a challenge to a decision of
the New Hampshire Public Utilities Commission prohibiting the exportation of
hydroelectric power by the New England Power Company. The cost of that
decision to Massachusetts consumers is estimated to be in excess of one
hundred million dollars annually. Following the New Hampshire Supreme
Court's affirmance of the PUC order, the Attorney General sought further
review in the United States Supreme Court, which accepted the case for
argument.

In another case initiated by the Commonwealth and seven other states.
Maryland v. Louisiana, the United States Supreme Court invalidated Loui-
siana's tax on natural gas, resulting in savings of eight million dollars to
Massachusetts consumers. Finally, bankruptcy proceedings of nursing homes
and hospitals have required the Attorney General in several instances to assert
the Commonwealth's entitlement to the recovery of payments in excess of the
amounts permitted under the Medicaid program.
OPINIONS AND BY-LAWS DIVISION

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.

( 1 ) Standards for Issuing Opinions

Following in large part the established practice of previous Attorneys
General, the Attorney General gives opinions only to state agencies and
departments and to 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 organizations.

34 P.D. 12

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, questions which ask
generally about the meaning of a particular statute, lacking a factual under-
pinning, 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 or existing 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 would then request the opinion on behalf
of the agency or send the agency's request with the secretary's approval noted.

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
inappropriate for the Attorney General to place himself in the midst of an
administrative 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
accompany the request.

When an agency request raises questions of direct concern to other agencies,
governmental entities, or private individuals or organizations, this Department
will solicit the views of such other agencies, individuals or organizations before
the Attorney General renders an opinion. In this way, the Attorney General
seeks to make sure that he does not overlook the significant and relevant
considerations of all interested parties.

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.

P.D. 12 33

(3) Opinions for 1980-81

Approximately 115 requests for opinions of the Attorney General were
received during FY 1981. Because many of those requests originated from
private individuals, municipal officials and other persons or organizations who
are not entitled to an opinion of the Attorney General, most requests were
declined. Eighteen formal opinions of the Attorney General were rendered in
FY 1981, some of which are summarized below.

Opinions are frequently requested by newly created state agencies and
agencies affected by recently adopted law to clarify their authority. The
Chairman of the Arts Lottery Council requested an opinion on several questions
relating to that agency's authority under newly passed legislation. The Attorney
General concluded that, among other obligations, the Council did not have
authority to permit arts organizations, acting as ticket sales agents, to receive
more than the regular sales commission established by the Lottery Commission.

Adoption of Proposition IVi generated a question from the Chairman of the
Joint Labor-Management Committee who asked whether the Committee may
use binding arbitration subsequent to the time Proposition IVi took effect. The
Attorney General concluded that the power of the committee is no longer
binding on a municipality.

The Court Reform Act of 1979 was impetus for the Comptroller to solicit
an opinion whether an individual may receive payment for services rendered
as an employee of an agency of the Commonwealth and simultaneously be paid
as an employee of the court system of the Commonwealth. The Attorney
General concluded, generally, that it is a violation of G.L. c. 30, §21 for
salaried employees of the Commonwealth who are salaried employees in the
judicial system to continue to receive two salaries.

The creation of the Bay State Skills Commission left the Secretary of
Economic Affairs with a question concerning the application of the "Anti-Aid"
Amendment to the proposed activities of the Commission. The Attorney
General concluded that the Bay State Skills Commission may use public funds
to make matching grants to private, post-secondary, non-degree granting
institutions of skills-training and education without violating the Anti-Aid
Amendment of the Constitution.

Legal questions often arise out of the day-to-day functioning of a state
agency. Four opinions were rendered concerning statutory interpretation of
definitions and duties. One such opinion request came from the Secretary of
State, who asked for a clarification of the appropriate standards to be used in
administering G.L. c. 3, §39 et seq., pertaining to legislative agents. The
Attorney General found that all lobbying activity, both within state and in other
jurisdictions, must be considered to determine whether the activity is part of
the individual's regular and usual employment.

Two opinions relating to election laws were solicited. The Secretary of Stale
asked whether certain ballot questions were ones of public policy, appropriate
for submission to the voters. The Attorney General determined that the
questions, which took the form of instructions to State Senators or Represen-
tatives, were appropriate public policy questions.

The Director of the Office of Campaign and Political Finance requested an
opinion on the extent to which business corporations may become involved in

36 P.D. 12

Massachusetts political activities. The Attorney General concluded that corpo-
rate expenditures or contributions of anything of value specifically to promote
or oppose a candidate for state, county or local political office are forbidden
and that corporations may not circumvent the prohibition by forming political
action committees.

Two opinions clarified the financial administration of the state. The
Clerk-Magistrate for Criminal Business for Suffolk Superior Court inquired
whether money which is deposited as bail with the court should be deposited
in interest-bearing accounts and whether the interest is payable to the surety,
defendant, or Commonwealth. The Attorney General concluded that money
held by the court as bail should be placed in interest accounts and the interest
must be paid into the state treasury.

The Secretary of Administration and Finance asked whether he was required
to hold public hearings before setting the amount of fees and charges to be
paid to the Commonwealth. The Attorney General advised the Secretary that
although no public hearings are required, he must give notice to afford
interested persons an opportunity to present data, views, or arguments.

Finally, a constitutional question arose when the Commonwealth was in the
process of acquiring land in the Town of Mashpee. The Commissioner of
Environmental Management asked what the effect would be of certain terms
of an agreement between the Town of Mashpee and the Department. The
Attorney General concluded that an agreement to subject the use of state land
to the terms of future ordinances and by-laws of the municipalities in which
the land is located constitutes a relinquishment of control which, in conjunction
with Article 97, necessitates a favorable two-thirds vote in each branch of the
General Court.

(4) By-Laws

Town by-laws and home rule charters and amendments thereto are reviewed
and must be approved by the Attorney General. During the fiscal year ending
June 30, 1981, this office reviewed over 1500 by-laws and 12 home rule charter
actions.

Regulations regarding pesticides, hazardous waste and the discharging of
firearms were frequent subjects of by-laws approved over the past year. Also,
several by-laws which sought to regulate condominium conversions without
proper enabling legislation were disapproved.

Many towns have increased their fees in response to a legislative change
allowing them to do so. Some by-laws were disapproved on the grounds that
the cost of the service charge exceeded the cost of the service. This guideline
is mandated by section 12 of the Proposition IVi legislation.

The Federal Food Insurance Program, begun in 1974, continued to be
adopted as more towns submitted Federal Flood Plain maps. These maps were
submitted as general, rather than zoning, by-laws.

The concerns exhibited by the reporting year's by-law submittals suggest that
Commonwealth's communities feel a need for regional environmental planning
and expanded local control of nuclear and hazardous waste. This concern for
the local environment, coupled with attempts to regulate condominium
conversion, door-to-door solicitation and the display of potentially sexually

P.D. 12 37

offensive material to minors, indicate that the towns of the Commonwealth are
concerned with protecting and preserving local standards of living, notwith-
standing the regional expansion and growth seen in previous years.

V. PUBLIC PROTECTION BUREAU

The Public Protection Bureau, the largest of the Bureaus in the Department
of the Attorney General, carries on affirmative litigation in the public interest
in a number of significant areas. During fiscal 1981. Bureau staff prosecuted
violations of law in such areas as consumer protection, civil rights, antitrust,
and environmental protection. The Bureau's attorneys also appeared to
represent the public in numerous agency hearings held to set maximum rates
for automobile and medical insurance and for utility services.

During the 1981 fiscal year, the number of cases brought through the joint
efforts of attorneys from various divisions within the Bureau increased. Among
these cases were:

(1) Attorney General v. Lowell and Cape Cod Gas Companies

On April 29, 1981, the Lowell Gas and Cape Cod Gas Companies were
found to have committed unfair and deceptive acts and to have defrauded their
ratepayers by employing improper accounting practices from 1970 through
1977. This judgment followed four years of litigation in the Superior Court
by Bureau attorneys specializing in utilities and consumer law. It is the first
case in which any Massachusetts utility company has been found liable for
violations of Chapter 93A or for common law fraud. The Bureau will now ask
for an assessment and payment of damages in excess of one million dollars
to the companies' ratepayers.

(2) Local Division 589 v. Commonwealth and M.B.T.A.

In 1978 and 1980, the Massachusetts Legislature passed laws to reform
collective bargaining and arbitration involving labor unions at the Massachusetts
Bay Transportation Authority. M.B.T.A. unions immediately challenged the
constitutionality of these laws. In November, 1980, the unions sought to
prevent the Authority from receiving over 20 million dollars in vitally-needed
federal operating grants and larger capital construction grants because of the
Authority's efforts to enforce the laws in arbitration over labor contracts for
1981. Bureau attorneys, in cooperation with the M.B.T.A. 's staff, argued
successfully for continuation of federal funding and defended the constitution-
ality of the disputed statutes in federal court. Following hearings in March.
1981, a federal district judge upheld portions of the statutes and found other
portions unconstitutional. Appeals from the judgement were argued by both
sides to the First Circuit Court of Appeals; with the court's decision pending
at the close of the fiscal year.

(3) Other M.B.T.A. Issues

During fiscal 1981, Bureau attorneys from various divisions represented
consumer and environmental interests in connection with M.B.T.A. decisions
to increase fares. We negotiated agreements to ensure that the Authority
complied with the Massachusetts Open Meeting Law and the Massachusetts
Environmental Policy Act when considering changes in fare policies.

38 P.D. 12

(4) D.P.U. 555 - Gas Crisis Investigation

Bureau attorneys specializing in consumer and utilities law have appeared
to represent consumer interests in the Department of Public Utility's investi-
gation into the causes of a major disruption in natural gas supplies to the
Lowell, Cape Cod and Boston areas which occurred in January, 1981. Among
the questions raised are the causes of the crisis and whether consumers should
pay the expenses incurred by the companies to buy extra gas supplies on an
emergency basis. Investigatory hearings continue at the close of fiscal year.

(5) Small Loans Regulatory Board

Bureau and consumer attorneys also appeared before the Small Loans
Regulatory Board to oppose a proposed increase in the ceiling for interest rates
for loans of less than $6,000. The Bureau recognized the basis, under statutory
criteria, for an increase in the maximum rate. We recommended that the ceiling
be raised from 18 percent plus a flat administrative fee to 21 percent plus a
fee. The lending industry proposed a sliding scale of 24 to 30 percent. We
also introduced evidence that some large lenders engage in unfair and deceptive
sales tactics and asked that the Board issue orders to insure that any increase
be explained clearly to borrowers involved in refinancing. In July, 1981, the
Board established a new rate of 23 percent plus a flat fee and adopted our
requested refinancing notice.

(6) Blue Cross-Blue Shield Hearings

In fiscal 1981, attorneys from the public charities and insurance divisions
jointly represented consumer interests in hearings held to fix maximum rates
for "Medex" and non-group insurance offered by Blue Cross-Blue Shield.
After the hearings, the rate increase ordered was equal to one-half the amount
originally requested.

(7) Bellotti V. Amoco Oil Company

In July, 1979, after a statistical analysis of Amoco's credit scoring system
showed it had a disproportionately heavy impact on black communities, civil
rights and consumer attorneys in the bureau filed suit against the Amoco Oil
Company because of its practice of "zip code redlining", i.e. the practice of
penalizing applicants for credit cards solely because of the zip code area in
which they live. After the filing of our lawsuit, which was the first such action
by any government agency in the nation, Amoco agreed with the FTC to drop
its practice nationwide, to re-evaluate rejected applicants, and to pay a
$200,000 civil fine. Further, by an agreement reached with the Attorney
General on January 15, 1981, Amoco agreed to pay our expert costs and will
make an additional payment of $150 to each consumer who complained to us
about this practice.

During fiscal 1981, in addition to the joint efforts described above, the
Bureau's specialized divisions and sections carried on and expanded litigation
in their subject areas. Reports of each section and division appear below.

INVESTIGATIVE SECTION

In the 1981 fiscal year the professionalization of the Investigative Section
of the Public Protection Bureau continued. In the past, the Investigative Section

P.D. 12

had dealt primarily with referrals from the Bureau's Consumer Protection
Division. Over the last year, investigators handled cases referred not only from
the other Bureaus in the Attorney General's Office, but also from agencies
throughout the Commonwealth. At the close of the fiscal year, we were acting
on referrals from Senate committees, the Comptroller's Office and the
Department of Mental health. This influx of new cases is indicative of the
increased reliance state agencies have placed on the Attorney General's
investigators during the past fiscal year.

For example, a special committee to investigate seclusion, restraint and death
in state supported institutions, and to review complaints of conditions at mental
health institutions run by the Commonwealth of Massachusetts, referred to this
office a number of cases. Most of these dealt with patients at the mental
institutions who were alleged to have been mistreated or who were classified
as missing for extended periods of time. In one such case, involving the
disappearance of a female patient from one state facility, investigators
discovered that the missing cHent had been killed, located her remains and
identified the perpetrator, who was later convicted.

In November 1980, the Commissioner of Mental Health formally requested
the Attorney General to review the results of a large number of audits of
community mental health and mental retardation programs operated throughout
the state by private providers. Since that time, DMH has administratively closed
and taken action to recover funds against twenty-eight providers. The cases of
fifteen providers have been forwarded to the Bureau's Division of Public
Charities with our findings, and information about twenty-two providers has
been turned over to the State Ethics Commission.

At the close of the year the financial operations of sixteen other providers
were under continuing review by section investigators. The investigations of
these referrals being conducted by personnel in the Investigative Section with
the assistance of a financial investigator on loan from the State Auditing
Department.

In fiscal 1981, investigators also began a survey of motor vehicle dealers
in order to determine their compliance with the Commonwealth's motor vehicle
statutes and regulations. As a result of this ongoing survey, several cases have
been referred for prosecution under the state odometer statute and Consumer
Protection Act. It is hoped that active enforcement will encourage voluntary
compliance with the law.

Anti-arson and housing investigators have continued to break new ground
in this highly specialized and important area in cooperation with Bureau
attorneys specializing in housing issues. In fiscal 1981. we added experts
knowledgeable in the areas of building and construction. This has enabled us
to analyze bousing problems more quickly and to identify opportunities for
appropriate relief. The Bureau has also hired a second investigator who v^iii
specialize in the investigation of anti-trust complaints.

The Investigative Section continues to maintain a number of mediators to
handle the numerous matters referred by the Complaint Section that should be
handled through mediation. The Section also has two clerks who work directly
with the attorneys in the Insurance Division handling both complamts and
research on the structure of insurance rates.

40 P.D. 12

Finally, during fiscal 1981, investigators were assigned periodically to
continue monitoring of hospitals to insure that those hospitals that are required
to furnish assistance under the Hill-Burton Act meet their obligations.

Over the past year, through the above efforts, the Investigative Section made
continued progress toward meeting the Attorney General's aim of providing
better service to the public and the Commonwealth.

ACCOUNTING SECTION

The Accounting Section of the Public Protection Bureau operates as a
specialized support staff on a bureau-wide basis providing accounting services
to each and every division when and how the need arises.

The Bureau's Accounting section made major progress during the fiscal year
in a project in association with the Civil Rights Division to evaluate the
compliance by hospitals in the Commonwealth with regulations under the
Hill-Burton Act, a federal law requiring granted facilities to provide a level
of free or reduced-cost services to persons unable to afford hospital care. Field
visits were made to 37 facilities during the year, a majority of which were
found to be in significant non-compliance with the regulations. Agreement was
reached with one hospital, Haverhill Municipal (Hale) Hospital to provide an
additional $206,000 of uncompensated services to eligible persons in future
years. Ten hospitals were found to be in substantial compliance; two
administrative complaints were filed with the U.S. Department of Health and
Human Services, against Fairlawn Hospital (Worcester) and St. Anne's
Hospital (Fall River); setdement agreements were close to completion with five
other facilities; and negotiations were under way with the remaining hospitals.
Field audits are continuing at an accelerated pace by three teams of accountants,
investigators and student interns. In addition, assistance has been provided to
the Office of the Attorney General in New York State to support their efforts
to institute a similar Hill-Burton compliance program. The Accounting Section
also supported the Civil Rights Division in the suit filed against the City of
Boston and others to keep the public schools open for the full school year.

The Accounting Section participated in the activities of the other divisions
of the Public Protection Bureau as well:

- Public Charities:

Blue Cross contract with the Massachusetts Hospital Association and two
other investigations.

- Environmental:

Study of the MBTA fare increase and four other cases involving
assessment of ability to pay damages.

- Utilities:

Computation of damages in actions brought against the Lowell and Cape
Cod Gas companies and consultation on accounting issues in four other
rate cases and related matters.

- Consumer Protection:

Assistance in the preparation of civil investigative demands and review
of accounting records in fifteen cases.

P.D. 12 41

- Anti-Trust:

Review of accounting records and consultation on ability to pay damages
in four cases.

- Insurance:

Analysis of data submitted and required in suit against Word Guild, Inc.
and consultation on two other matters.

COMPLAINT SECTION

During fiscal 1981, the Public Protection Bureau's Complaint Section opened
6,334 new cases and closed 3,535 cases. The section recovered for consumers
$395,416 in refunds, savings and the value of goods or services they would
not have received but for our intervention. In addition, we referred 4.865
written complaints to out of state agencies, other state agencies or departments,
and local consumer groups.

The Bureau's information line staff received a total of 128,277 calls during
the past year. 12,933 complaint/inquiry forms were sent to citizens, '4,586
citizens were given information, and 100,818 calls were referred to different
agencies, departments or local consumer groups.

Through part of fiscal 1981, the Bureau maintained a Citizens' Intake Unit
which was separate from its general information line staff; as of March 31,
1981 the Intake Unit was merged with the Bureau's information line.

Special projects conducted by the Complaint Section staff this year included:
(1) Negotiations with representatives of AAMCO Transmissions concerning
service and advertising complaints resulting in substantial cash refunds and
services to complaining consumers. (2) Investigation of complaints from many
automobile dealerships that they were being sent and charged for unsolicited
parts, resulting in refunds for these dealerships. (3) Investigation of racial
discrimination in the provision of certain transit services. (4) Formulation of
procedures for distributing refunds to "Airport Jam '77" concert ticket-holders
who were unable to obtain a refund at the time promoters cancelled the concert.
(5) Review of the hundreds of complaints received alleging misrepresentations
made in the sale of International Health Spa memberships.

On receipt of inquiries concerning solicitation of law firms for trips to Las
Vegas, we initiated an investigation which led to the discovery of a massive
credit card scam. Due to our intervention in the matter, many Massachusetts
attorneys were instructed on how to have their credit cards credited through
their banks for these purchases. This resulted in thousands of dollars of savings
for the potential victims of this scam.

LOCAL CONSUMER AID FUND

For the fiscal year 1981, the Massachusetts Legislature appropriated
$210,700 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 807f of the cities and
towns in the Commonwealth are now serviced at the local level. The handling

42 P.D. 12

of complaints at the local level 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.

Because less money was appropriated for the Fund in fiscal 1981 than in
previous years, distributions were lower, forcing some groups to cease
operations entirely or to transfer their caseloads to other organizations. The
1981 appropriation was distributed among twenty-five agencies in the following
manner:

Grant Recipient Amount Awarded

Agawam Consumer Advisory Committee $ 2,000

Arlington Office of Consumer Affairs $ 4, 100

Berkshire County Consumer Advocates, Inc. $12,500

Brockton Consumer Advisory Commission $ 7,000

Cambridge Consumer Council $ 6,500

Cape Cod Consumer's Assistance Council, Inc. $ 5,450

Duxbury Consumer Advisors $ 300

Fall River Consumer Service Office $10,000

Greater Lawrence Community Action, Inc. $ 5,800

Hampshire-Franklin Consumer Protection Agency $ 6,050

Haverhill Community Action Commission $10,000

Lowell Community Teamwork, Inc. $ 7,500

Mayor of Boston's Office of Consumer Affairs and Licensing $15,000

Medford Consumer's Council $ 9,000

Newton Department of Human Services $ 6,450

North Shore Community Action Program, Inc. $ 7,650

Northern Worcester County Consumer Rights Project $ 8,750

On the Comer Taunton Area Consumer Protection Program $12,100

Quincy Consumers' Council $ 5,000

Revere Consumer Affairs Office $ 8,050

Somerville Multi-Service Center $ 2,000

South Middlesex Consumer Protection Office $10,500

Southeastern Massachusetts Consumer Action Center $ 6,700

Springfield Consumer Action Center $13, 100

Worcester Consumer Protection Coalition, Inc. $12,500

ANTITRUST DIVISION

A. Introduction

In fiscal 1981, the Antitrust Division of the Department of the Attorney
General continued to progress in terms of development and maturity. It was
staffed with five attorneys who had one or more years of involvement with
antitrust law and litigation and ten support personnel. Thus we were able to
provide a more experienced approach to all antitrust issues in which the
Department was involved. Moreover, in selecting investigations and litigation
to be given priority, the Division was primarily concerned with insuring that

P.D. 12 43

the Commonwealth, its political subdivisions and citizens received adequate
redress for injury resulting from antitrust violations and that violations centered
in Massachusetts and New England not go undetected.

B. Federal Funding

During fiscal 1981, the Antitrust Division continued to have available limited
federal funding. As of October 1, 1980, Attorney General Bellotti was able
to obtain an additional $99,000 to be used for further development of an
effective antitrust enforcement program. However, approximately two-thirds of
the operating expenses of the Antitrust Division for the fiscal year were funded
through the Antitrust Revolving Fund, created by Chapter 459 of the Acts of
1978.

C. Litigation

During fiscal 1981, the Antitrust Division had the following cases, 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. A settlement, 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 potential
recoveries available to the Commonwealth.

2. Commonwealth of Massachusetts \ . Amstar Corp., etal.
(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 Common-
wealth is representing itself in its proprietary capacity as well as the Cities of
Boston and Cambridge. Setttlements have been reached with all defendants for
a total recovery of $26.5 million and the Commonwealth is awaiting
distribution to determine its share of the recovery.

3. 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
carriers alleging that they conspired to fix the price of armored car services
throughout the United States. A global settlement of $11.8 million has been
approved. The Commonwealth is presently awaiting a determination of the
appropriate division of the settlement amounts in order to detemiine its share
of the recovery in this case.

4. 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 ptilitical

44 P.D. 12

subdivisions, for injunctive relief and damages under the Federal Antitrust laws
alleging that the major wiring device manufacturers in the United States
conspired 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
defendants for a total of $1.1 million. Massachusetts received a distribution
of approximately $155,000 in January, 1981.

5. 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
conspiring to fix the prices of fine paper products throughout the United States.
The Commonwealth was certified as a class representative of its political
subdivisions in this action. Trial had been scheduled for September 15, 1980
and the Commonwealth was assisting in preparation of plaintiffs case. On that
date, however, settlement was reached with the remaining defendants. The total
settlement of approximately $62,000,000 has been approved by the Court. The
Commonwealth is awaiting award of its share of the total settlement fund (to
be based on claims submitted) and attorneys fees requested in the amount of
$35,000. The Division was actively involved in the processing of claims by
the Commonwealth and its cities and towns.

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

The Commonwealth brought suit in fiscal 1980 on behalf of four
municipally-owned gas works against three major manufacturers of gas meters
in the United States, alleging that they have conspired 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.

7. 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 Common-
wealth of Massachusetts, alleging that they had conspired to rig bids on
governmental building projects within the Commonwealth of Massachusetts. In
fiscal 1981, settlement was reached with the remaining defendants, creating a
total settlement fund of approximately $100,000. Distribution to affected public
entities will be made in fiscal 1982.

8. 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,
seeking civil penalties and restitution for consumers as a result of an alleged
conspiracy by real estate brokers to fix and raise the rate of real estate brokerage
commission fees in the Amherst area. This was the first suit brought under
the state antitrust act. The case was settled with the two defendants for a total

P.D. 12 45

recovery of $60,000, of which $40,000 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
commission 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. During fiscal 1981, the Division proceeded with the processing of
claims submitted by individuals who will be entitled to a refund.

9. Commonwealth of Massachusetts v. Donne gan 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 that it and another
supplier of film, Joseph Merritt & Co., had conspired to allocate territories
within the Commonwealth. Prior to filing the complaint, a settlement was
reached with Merritt Co., which agreed to pay $2,650. A Consent Decree was
entered prohibiting Merritt from allocating territories in the future. During fiscal
1981, settlement was reached with the defendant, resulting in a payment of
$5,000 and a consent decree being entered in Superior Court.

10. Commonwealth of Massachusetts v. Bang and Olufsen, Inc.
(District Court of Massachusetts)

The Commonwealth brought suit in fiscal 1980, claiming that Bang and
Olufsen, Inc., a manufacturer of stereo equipment, had been engaged in
unlawful 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 was in pretrial discovery, to be completed by April 30.
1981. when it was settled. Defendant agreed to assure the Department of the
Attorney General that it would not engage in unlawful resale price maintenance
in the future.

1 1 . Commonwealth of Massachusetts v. B.L. Makepeace, et al.
(District of Connecticut)

The Commonwealth, along with the five major New England states filed suit
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, was unique in that the six
New England states joined together in filing a single action against the alleged
co-conspirators. During 1981. defendants' motion to dismiss was denied and
the parties continued in pre-trial discovery. Settlement was reached with all
defendants creating a settlement fund in the amount of $274,000. Approxi-
mately one half will be distributed to the Commonwealth and its cities and
towns during fiscal 1982.

12. Commonwealth of Massachusetts v. Harborside Liquor. Inc..
et al. (Dukes County Superior Court, District Court of
Massachusetts)

The Commonwealth brought two antitrust actions in fiscal 1980. one in state

46 P.D. 12

court and one in federal court, charging seven liquor stores on Martha's
Vineyard 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 unlawful conspiracy. The case was settled with all defendants in fiscal 1981,
during pre-trial discovery. The total settlement amounted to approximately
$80,000, and provided for the entry of a Consent Decree in federal court. A
decision as to the manner of distribution is pending.

13. Commonwealth of Massachusetts v. Milton Bradley Co.,
et al. {District of Massachusetts)

The Commonwealth filed suit in fiscal 1980 against the four major
manufacturers of art supplies in the United States, charging them with a
nationwide conspiracy to raise the prices of art supplies and bid rigging. The
suit was brought on behalf of the Commonwealth and its political subdivisions
in their proprietary capacities. During fiscal 1981, the Commonwealth's case
was consolidated with other civil antitrust actions brought against the same
defendants and transferred to the Federal District Court in Cleveland, Ohio for
coordinated pretrial proceedings. Class action discovery was then ordered to
proceed by the Court. We are serving on the Plaintiffs' Executive Committee,
responsible for overall management of the litigation.

14. Commonwealth of Massachusetts v. Cuisinarts, Inc., et al.
(District of Connecticut)

The Commonwealth filed this case in fiscal 1981 against Cuisinarts, Inc.,
claiming that it had unlawfully engaged in a vertical price fixing agreement.
Federated Department Stores was named as a party defendant several months
after the filing of the complaint. This is a parens patriae action filed by the
Department of behalf of Massachusetts residents and seeks treble damages.
Defendant's motions to dismiss are pending and the parties are proceeding with
class action discovery. In a related action, the Commonwealth filed a motion
for release of materials presented to and testimony before a Federal grand jury
which returned an indictment against Cuisinarts, Inc. The motion, filed and
argued on behalf of fourteen states, was denied; it is being appealed in the
Second Circuit Court of Appeals.

15. Commonwealth of Massachusetts v. Richard Zimmerman, etal.

This suit, filed in fiscal 1981 against two individuals and two corporations,
alleges that the defendants engaged in bid-rigging with respect to busing
contracts entered into by the Department of Education, Division of Special
Needs. The suit seeks injunctive relief and damages for the Commonwealth.
Motions to dismiss are pending.

16. Jaymar-Ruby, Inc. v. Federal Trade Commission, et al.
(Northern District of Indiana, Seventh Circuit Court of Appeals)

The Commonwealth, along with nineteen other states, intervened in this
proceeding in fiscal 1981. The states had been granted access to Federal Trade
Commission documents which related to alleged resale price maintenance by
Jaymar-Ruby. Jaymar-Ruby filed this action seeking to enjoin the Federal Trade

P.D. 12 47

Commission from releasing the documents to the states. The District Court
denied the injunctive relief and the Court of Appeals affirmed.

D. 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 Stereo Component Systems, Inc. dibia
Tech Hi Fi

The Division accepted and filed in Superior Court an Assurance of
Discontinuance from Stereo Component Systems, prohibiting it from engaging
in resale price maintenance with respect to stereo equipment. An additional
payment of $1 ,000 was received as a penalty.

2. In the Matter of New England Audio Co., Inc. dIbIa Tweeter, Etc.

The Division accepted and filed in Superior Court an Assurance of
Discontinuance from New England Audio, prohibiting it from engaging in
resale price maintenance with respect to stereo equipment.

3. Municipal Insurance

The Division contacted municipalities in the Commonwealth to determine the
manner in which various municipal insurance contracts were purchased. The
Division had been informed that certain insurance agents were engaged in joint
practices in violation of the antitrust laws. As a result of this review, a number
of municipalities were informed that the practices of the insurance brokers with
whom they were dealing for municipal insurance were questionable and should
be modified. Letters were also sent to the insurance brokers involved.

4. Marinas

During fiscal 1980 and 1981, the Division conducted a thorough review of
certain business practices of marinas located throughout the Commonwealth.
This investigation revealed a significant number of practices which violated the
antitrust laws. Accordingly, a letter was sent to all marinas in the Common-
wealth listing twelve specific types of conduct which, if engaged in the future,
would result in prosecution by the Department.

E . A dditional A ctivities

1 . New England Bid Monitoring Project

In the summer of 1978, the Commonwealth began a pilot program to
determine the feasibility of collecting and analyzing masses of bid data from
municipalities 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 commenced development of computer programs for analysis of the data.

During fiscal 1981, the computer programs thus far developed were applied
to much of the bid data collected. Approximately a dozen products were chosen
for thorough analysis. As a result, investigation of three product lines was
commenced. Basic computer analysis was begun on approximately another

48 P.D. 12

dozen product lines during fiscal 1981. Data collection also continued during
the year, since it is imperative that bid information be kept current to assure
the project's validity.

2. Public Education
In fiscal 1981, the Antitrust Division sponsored three antitrust seminars
directed primarily at the small business. The seminars were held in Framing-
ham, Fall River and Lowell. Lectures were given on basic antitrust law, state
and federal enforcement of antitrust law and the small business' rights and
obligations under antitrust law.

CIVIL RIGHTS DIVISION

A. INTRODUCTION

The Civil Rights and Liberties Division, established by G.L. c. 12, §11A,
initiates affirmative litigation on behalf of citizens, citizen groups, agencies and
departments of the Commonwealth in matters involving constitutional protec-
tions, 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. 15 IB, §§5 and 9, to initiate complaints before the
Massachusetts Conmiission Against Discrimination (MCAD), to represent that
agency before trial and appellate courts when judicial review of MCAD
decisions is sought, and to bring legal actions for violations of Chapter 15 IB
in the Massachusetts Superior Court.

In FY- 1981, the division was staffed by a Chief, five assistant attorneys
general, one of whom directed the Women's Rights Unit, and appropriate
support personnel.

B. OVERVIEW

In FY-81, five matters of particular importance were either concluded or
begun.

On June 2, 1981, a consent judgment was approved by the Court in
Richardson v. Houghton Mifflin Company, the last of the four Title VII cases
brought by division attorneys in 1977 alleging race and sex discrimination in
employment. The settlement provides for payment of over $375,000 to class
members, bringing our total recovery in the four publishing cases to approxi-
mately $1.5 million. The settlement also establishes affirmative action goals
for women and minorities; establishes an expanded educational assistance
program, and mandates expanded job posting and career counselling.

Second, in the fall of 1980, the Mayor of Boston refused to recommend a
supplemental appropriation request made by the Boston School Committee.
Subsequently, the Mayor announced that he had instructed the Treasurer not
to pay any bills submitted by the school Department once the annual
appropriation of $210 million was exhausted. As a result, it later appeared that

P.D. 12 49

the Boston Public Schools would have to close before the end of the
state-required 180 day school year.

On March 24, 1981 , on behalf of the Board and Commissioner of Education,
we filed suit against the Mayor, the School Committee, the City Council, the
Auditor, and the Treasurer, to enjoin them from ending the school year before
the required time. On April 28, 1981, the day the funds were to run out, a
Superior Court Judge issued a preliminary injunction at our request requiring
the City to continue to operate and fund the schools for the full 180 days. The
City appealed and sought a stay of the Superior Court's Order. The request
for a stay was denied after hearing by the Supreme Judicial Court on April
30. As a result, the City furnished additional funds to enable the public schools
to complete the full 180 day school year.

In the meantime, the City and parent-student intervenors filed complaints
naming the Governor, General Court, and other state officials as defendants,
seeking state funds for Boston's schools. These claims were dismissed. The
Superior Court's final judgment declared that the City had a duty, as long as
it had unexpended funds in any account, to provide 180 days of schooling.
It also declared that if such funds were unavailable, the Commonwealth would
become responsible. The Superior Court judge reported his decision to the
Appeals Court.

Third, throughout FY-81, and continuing, lawyers from the division,
working with staff from the Accounting Section and the Investigative Division,
began a project to enforce the uncompensated services provisions of the
Hill-Burton Act, which requires hospitals receiving federal funds to provide a
reasonable volume of free or reduced cost care to persons unable to pay. To
date, audits of 36 hospitals have been completed. In those cases where the
audits revealed non-compliance, attorneys negotiated with representatives from
the hospitals to remedy violations and to insure future compliance. In those
cases where negotiations were unsuccessful, administrative complaints were
prepared and have been filed with the federal Department of Health and Human
Services. As of June 30, 1981, hospitals have agreed to provide approximately
$300,000 in additional free or reduced cost care.

Fourth, throughout FY-81, attorneys from the division, either through their
own effort or in conjunction with district attorneys in Suffolk and Middlesex
counties, brought several successful prosecutions for several racially motivated
incidents under Chapter 801 of the Acts of 1979, the state Civil Rights Act.
These cases marked the first successful civil and criminal prosecutions under
the newly enacted statute.

Finally, in FY-81, two significant cases involving conditions at county
houses of corrections were concluded or begun.

In Attorney General v. Sherijf of Worcester, the Supreme Judicial Court
firmly established the authority of the Department of Public Health to inspect
and apply its minimum health regulations to county penal institutions, and the
Attorney General's standing to enforce those regulations in court. Subsequently,
we filed an administrative complaint before the Department of Corrections
against the Mayor of Boston and his Penal Commissioner to remedy health and
safety code violations at that institution. Hearings were held before an
administrative hearing officer in September, 1980, and an order for renovation

50 P.D. 12

issued. After negotiations for implementing the hearing officer's Order proved
unsuccessful, we filed a complaint in the Suffolk Superior Court to enforce
the Order. In April, 1981, after hearing argument from the parties, a judge
of the Superior Court granted our motion for final and declaratory relief,
appointed a special master to make further findings of fact and develop a
schedule for implementation of the hearing officer's order, and took continuing
jurisdiction over the case.

C. FURTHER DESCRIPTION OF ACTIVITIES

A further description of the more significant cases by category follows:

1 . Correctional/Youth Services

Attorney General v. Sheriff of Worcester County

On August 2, 1979, we filed a complaint against the sheriff of Worcester
County to enjoin him from the continued use of jail cells not equipped with
a toilet, bed, and sink, as required by regulations of the Department of Public
Health.

The sheriff defended the suit by arguing that the use of such a cell for
disciplinary and medical purposes was not unlawful; that the Attorney General
did not have standing to enforce DPH regulations and that the DPH did not
have authority to inspect his institution.

After trial, a Superior Court Judge ruled that the Sheriff's use of the cells
was lawful. We appealed.

On December, 3, 1980, the Supreme Judicial Court reversed the ruling of
the Superior Court and ruled: a) that DPH county correctional standards are
applicable to isolation or blue room cells; b) that DPH has the authority to
inspect the houses of correction; and, c) that the Attorney General has standing
to seek a declaration concerning the scope of the sheriff's duty to enforce the
DPH regulation.

Following the SJC decision, the sheriff converted the so-called strip cells
to regular cells meeting DPH standards.

Bellotti V. Penal Commissioner

In the fall of 1980, following the favorable SJC decision in the Worcester
House of Correction matter, we initiated a joint DPH/DOC inspection of
conditions at the Suffolk County House of Correction at Deer Island. In
September 1980, administrative hearings were held by a Department of
Corrections Hearing Officer, who subsequently adopted proposed findings of
fact and conclusions of law prepared by attorneys in the division. An Order
incorporating those proposals was issued on December 9, 1980. Negotiation
for implementing that Order proved unsuccessful and, on March 31, 1981, we
filed a complaint in Suffolk Superior Court for enforcement of the adminis-
trative order.

On April 9, 1981, a hearing on our Motion for Judgment on the Pleadings
was held before a Suffolk County Superior Court Judge who, subsequently,
ordered the City to comply with the earlier administrative decision and
appointed a special master to prepare a schedule for compliance.

P.D. 12 51

Further work will be required in FY-82 to insure compliance with all Orders
and the eventual improvement in the physical conditions at Deer Island.

2. Credit Discrimination

Equal Credit Opportunity Act

In October, 1980, we filed comments with the Federal Reserve Board
concerning its proposed interpretations of Regulation B under the Equal Credit
Opportunity Act. The proposed interpretations relate to the way creditors should
consider "protected income" such as alimony, and the way in which creditors
should disclose the reasons for adverse action on credit applications.

3 . Developmentally Disabled

In the Matter of Anne Marie Davee

In December, 1979, the special legislative committee to Investigate Restiaint,
Seclusion and Deaths in State Supported Institutions referred to us a case of
a 36 year old woman who had been missing from Metropolitan State Hospital
for two years.

On August 12, 1980, after an extensive investigation by personnel from the
Investigative Unit of the Public Protection Bureau, we were led to the gravesite
of the missing woman by a former patient. The former patient who was
responsible for the missing woman's death and who had buried her body on
the grounds of the hospital was later convicted.

Gens V. Coolidge; MHHI v. Board of Appeals; MMHI v. Priestly;

MHHI and Comm. ofDYS v. Priestly

These four cases, in which we have intervened on behalf of the Department
of Youth Services, involve the denial by the Boston Board of Appeals of
certificates of occupation requested by Massachusetts Halfway House, 'a
community provider.

Bellotti, et al. v. Sandwich School Committee, et al.

This complaint, filed in February, 1981, sought to enforce G.L. c. 19, §28,
which requires school committees to transport non-school age mentally retarded
persons to "educational, habilitational, or day care programs or facilities of
the Department of Mental Health." On March 4, 1981, a single justice of the
Supreme Judicial Court granted our motion for summary judgment, declaring,
among other things, that the statute applies to privately-run programs as well
as facilities directly operated by D.M.H.

Bellotti, et al. v. Middleboro and Greenfield School Committees
On March 13, 1981, we filed suit against the Middleboro and Greenfield
School Committees to enforce G.L. c. 19, §28. On March 25, a single Justice
of the SJC granted our motion for preliminary injunctive relief, declanng,
among other things, that a community program did not have to have a DMH
license to be a "program of the DMH"; and, that the failure of the state to
reimburse the towns did not relieve the towns of their obligation to provide
transportation.

52 P.D. 12

Attorney General et al. v. Rehoboth School Committee

On March 27, we filed suit against the Rehoboth School Committee to
require it to provide transportation pursuant to G.L. c. 19, §28. On May 8,
1981, a single justice declared the Committee had an obligation to provide
transportation independent of state reimbursement and that provisions of St.
1980 c. 580, §2 (Section 2 of Proposition IVi), which deal with state
reimbursement for mandated programs, did not apply to costs imposed as a
result of legislation adopted prior to the effective date of Proposition IVi.

Commonwealth v. New England Harness Raceway, Inc.

In December, 1980, after preparing a complaint. New England Harness
Raceway, Inc., which administers the parking lot at Schaefer Stadium, agreed
to comply with the provisions of G.L. c. 22, §I3A, which requires the
maintenance of a percentage of the spaces in parking lots for handicapped
persons in accordance with Architectural Barriers Board Regulations.

Commonwealth v. New England Patriots

In February, 1981, following the preparation of a complaint and notice to
sue, the New England Patriots agreed to discontinue their ticket-selling policy,
which required persons in wheelchairs seeking to purchase a ticket in the special
section of Schaefer Stadium reserved for wheelchair-users to purchase a second
ticket for someone to push them. The Patriots also agreed to notify all persons
requesting tickets in that section about the change of policy.

Architectural Barriers Board v. Clark and Clark v. A.B.B.

On January 12, 1981, the Norfolk Superior Court approved a consent
judgment in this litigation brought to enforce a 1979 Architectural Barriers
Board Decision requiring a Bellingham, Massachusetts shopping center be
made accessible to the handicapped. The Judgment is the first application of
the architectural barriers law to a building complex.

4. Educational Matters

Board of Education v. City of Boston

Through this action, the Board successfully enforced its regulation mandating
a 180 day minimum length of the school year, as required by G.L. c. 71, §§I
and 4. The suit was brought in response to the likelihood that the Boston public
schools would close for the year shortly after April 16, 1981, the 141st day
of the year, because the School Committee's appropriation was exhausted. See
Overview, supra.

Bellotti and Anrig v. Grace Bible Church Christian School
On December 10, we filed suit against the Grace Bible Church Christian
School to enforce the state's compulsory school attendance laws by requiring
the supervisory officers of the school to report the name, age and residence
of the children of compulsory school age attending the school to the
Superintendent of schools where the child resides, as required by G.L. c. 72,
§2.

P.D. 12 53

Bellotti andAnrig v. New Life Christian Academy, et al., and

Bellotti and Anrig v. Temple Christian Academy, et al.

These cases, filed in Suffolk Superior Court in April, 1981, seek a
declaration that the supervisory officers of the schools are required to comply
with the private school attendance reporting provisions of G.L. c. 72, §2.

Attorney General Francis X. Bellotti v. School Committee of
the Town of Essex

On October 31, 1980, we filed a complaint in Essex Superior Court to
enforce the provisions of G.L. c. 76, §1 requiring school committees to provide
students attending private schools with the same transportation benefits afforded
to public school students. On February 17, 1981, partial summary judgment
was entered requiring defendants to provide those students with transportation
to the same extent as public school students. The trial court is reporting the
question of the meaning of the language "to the same extent" to the Appeals
Court.

Morgan v. McDonough

In FY-8 1 , we continued to represent the Massachusetts Board of Education
in this seven year old school desegregation case involving the Boston Public
Schools. Major issues in FY-81 were those involving the closing of 24
elementary, two middle and one secondary schools, staff lay-offs caused by
funding reduction, and preliminary negotiations to discuss final resolution of
the case by way of settlement.

Braintree School Department v. Department of Education
In this c. 766 Special Education case, we defended the Bureau of Special
Education in an appeal from a hearing officer's decision to allow individual
psychotherapy to a child with special needs. A hearing on the merits was held
May 4, 1981 at Norfolk Superior Court and the decision was affirmed.

In re: Spear School

In July, 1980, we assisted the Department of Education in suspending the
license of this school for severely emotionally disturbed children. The license
suspension was based on the school's failure to develop and implement
educational plans as required by state regulation, and on serious health and
safety problems at the school.

5. Employment Discrimination and Other Employment Matters
Houghton Mifflin

On June 2, 1981, a United States District Court Judge approved the consent
judgment in this Title VII sex discrimination case brought against a Boston
publishing company. See Overview, supra.

Boughton V. Addison-Wesley

On June 4, 1980, a United Sates District Court judge approved the negotiated
settlement in this Title VII sex discrimination case for a class of women
formeriy or currently employed by the Addison-Wesley Publishing Company,
in an amount totalling over $375,000. On July 21 and 22, 1980, checks for
back pay were mailed to 416 eligible class members.

54 P.D. 12

Commonwealth v. Gulliver

In October, 1980, we filed a complaint in Middlesex Superior Court to enjoin
operation of a farm labor camp for migrant apple pickers, because the camp
failed to provide sleeping quarters with adequate natural light and outside
ventilation as required by the State Sanitary Code.

Holden v. MCAD

After eight days of trial, at the close of plaintiff's case, the United States
District Court granted our motion to dismiss the complaint in this race
discrimination case brought against the MCAD, finding that there were
legitimate, non-discriminatory reasons for plaintiffs discharge.

MBTA Starters Examinations

In January, 1981, after investigation, we notified the MBTA that its selection
process for starters (by examination and supervisors' recommendation) may
have had an adverse impact on minority applicants, that it appeared lacking
in validation as job-related, and may have been in violation of state and federal
antidiscrimination laws. We assisted the MBTA in remedying the matter
without litigation.

Rock V. Westinghouse & MCAD

In February, 1981 we filed an amicus brief in this age discrimination case
in support of the "continuing violation" concept under the six month filing
requirement of §5 of G.L. c. 15 IB. We supported MCAD's ruling that the
filing requirement is satisfied where a complaint is filed concerning a pension
plan, the benefits of which are still being paid at the time of filing, although
the eligibility criterion and the plan itself were established more than 6 months
before the filing. In August, 1981 , the Court affirmed the MCAD's ruling.

6. Health Matters

Frechette v. Ber gland

On March 10, 1980, we filed this complaint against the U.S. Secretary of
Agriculture challenging the formula for allocating funds among the states for
the federal supplemental food program for women, infants and children (WIC).
Cross motions for summary judgment were argued before the U.S. District
Court for the District of Columbia in September, 1980. A decision on the cross
motion is pending.

Commonwealth of Massachusetts v. Fairlawn Hospital

On March 20, 1981, we filed an administrative complaint with the
Department of Health and Human Services against this Worcester Hospital for
failure to comply with the uncompensated services obligation of the Hill-Burton
Act for fiscal years 1975-1980. See Overview, supra.

Commonwealth v. St. Anne's Hospital

On May 28, 1981, we filed an administrative complaint with the U.S.
Department of Health and Human Services against St. Anne's Hospital in Fall
River alleging that the hospital violated its obligation under the Hill-Burton Act

P.D. 12

to provide over $230,000 in free health care from 1975 through 1980. See
Overview, supra.

Department of Public Health v. Dare School

In FY-80, we had obtained an Order against the President of Dare, Inc.
requiring him to correct numerous sanitary code violations in Dare's community
facilities in Kenmore Square and Jamaica Plain.

On September 5, 1980, because the corrections had not been made, we filed
a complaint for contempt against the President. Subsequently, all corrections
were completed and on September 16, 1980, we withdrew our complaint.

Custody of a Minor II (Chad Green Case)

On April 19, 1978, a Superior Court Judge placed Chad Green in the limited
legal custody of the Department of Public Welfare, whom we represented in
this litigation, and required that he be treated by a board-certified pediatric
hematologist within Massachusetts. Contrary to this order, the Greens left the
state.

On Monday, December 8, 1980, following the Green's voluntary return, a
Plymouth Superior Court Judge heard the Greens respond to civil and criminal
contempt of court citations. The judge advised the parents that probable cause
for criminal contempt had been found against them. The Greens waived a jur>'
trial and admitted sufficient facts of criminal contempt. They then apologized
to the Court.

The Court found the Greens guilty of criminal contempt and placed the matter
on file. However, citing the extraordinary nature of this case, the judge declined
to take any further actions against the Greens.

7. Housing

Attorney General v. Apartment Showcase

In September, 1980, settlement was reached in this case involving discrimi-
nation against persons with children in the rental of housing. Among other
things, the defendant agreed to make changes in its policies and practices and
to donate $1 ,000 to a charity of its choice which benefits children.

Bellotti V. Charles Wedgewood, et id.

On January 18, 1981, we obtained a judgment against a Brighton real estate
agent, permanendy enjoining him from discriminating against applicants for
rental housing because they have children.

Perez v. Boston Housing Authority

In October, 1980, on behalf of the Secretary of Communities and Devel-
opment, an amicus brief was filed in the Supreme Judicial Court supporting
the emergency eviction procedures instituted by the Superior Court for the
Boston Housing Authority receivership. The issues addressed included the
necessity for the emergency procedures and the validity of the Secretary's
waiver of his lease and grievance regulations. The SJC, however, declared that
the procedures violated due process.

56 P.D. 12

Department of Public Health v. Clinton Housing Authority
On October 30, a complaint and motion for preliminary injunction was filed
in Suffolk Superior Court against the Clinton Housing Authority to enforce
compliance with the State Sanitary Code. On November 24, a Superior Court
Judge granted our motion for a preliminary injunction and entered a detailed,
time-specific order designed to improve the premises.

Department of Public Health v. Somerville Housing Authority
In January, 1981, in response to fire egress concerns voiced by both DPH
and a State Building Code Commission inspector, we contacted the Somerville
Housing Authority and requested them to correct locked or secured secondary
fire egresses on the roofs in six buildings at the Mystic Park Development.
After several communications and a meeting, the Authority agreed to open the
existing secondary egress doors. Furthermore, the Authority entered into an
architectural contract for design of new roofs and egress exits.

Department of Public Health v. Fabian Machinski and

Tri -County Realty Co.

This 93A action, filed on March 13, 1980 against the owner of 23 buildings
in Brockton, alleged multiple State Sanitary Code violations in every building.
On March 25, 1981, the Defendant entered into a consent decree with this
office and agreed to make all necessary repairs.

8. Public Records

Bellotti V. The New Bedford Consortium

In February, 1981 , the Consortium, which is a collection of cities and towns
grouped together to form a "private sponsor" under the CETA statute, refused
to reveal the names and addresses of supervisory staff hired in the Summer
Youth Employment Program on the grounds that it was not a political
subdivision of the Commonwealth. At our intervention, the Consortium
reversed its decision and released the information.

Bellotti V. Town of Watertown

On June 5, 1981, a Middlesex Superior Court Judge granted our motion for
summary judgment in this suit filed in April, 1981 under the public records
law, to compel the Town of Watertown to release portions of a study done
about its police department. The town has subsequently appealed the decision.

Bellotti V. Milton Board of Appeals

This public records case arose from the Milton Board of Appeals' refusal
to disclose a letter to it from town counsel regarding the legality of an existing
sign. The Supervisor of Public Records ordered the Board to submit the
document to him for an in camera inspection, pursuant to his regulations, or
to disclose it. The Board refused. Our motion for summary judgment has been
filed and briefed, and awaits argument.

9. Other

Cambridge School Desegregation

In FY-8 1 we advised the Cambridge School Department in handling possible

P.D. 12 57

community opposition to desegregation of the Kennedy and Roberts elementary
schools in September, 1981.

Task Force on Privacy, Human Sexuality and Sex Education
On February 24, 1981, the Task Force on Privacy, Human Sexuality and
Sex Education for residents of the state schools for mentally retarded, of which
a division attorney was the Chairman transmitted its final report to the
Commissioner of Mental Health.

Conference of Law Enforcement Aspects of Racial and
Religious Harassment

On February 3, 1981, Attorney General Bellotti gave the opening statement
at a conference on Law Enforcement Aspects of Racial and Religious
Harassment, Vandalism and Assault. The conference, sponsored by a coalition
of civil rights agencies, was held at Boston University Law School. Those in
attendance included clergy, community leaders, police chiefs, district attoiiieys
and others.

Conference on Comparable Pay

In October, 1980, a division attorney led a workshop on litigation strategies
at a conference on comparable pay for work of comparable worth attended by
approximately 175 women. The conference was sponsored by the Women's
Commission in Exile and the Conference on Alternative State and Local
Government Policies.

Conference on Title VII Settlements

On April 3 and 4, 1981 an attorney from this Division conducted workshops
on Title Vll Settlements and the use of statistics in Title VII cases at the 12th
National Women and the Law conference in Boston. Several thousand attomeys
and law students attended the conference.

Civil Rights Inquiry Unit Manual

An updated and rewritten Civil Rights Inquiry Unit Manual was completed
on January, 1981. The Manual will be a training tool for Civil Rights Intake
Unit interns. It has also been distributed to lawyers in the Civil Rights Division
and to the Division's legal interns.

Attorney General's Self-Evaluation Committee

In September, 1980, division personnel planned and participated in the
Attorney General's self-evaluation committee, the function of which was to
ensure that the Department's buildings, personnel procedures and programs do
not discriminate against and are accessible to handicapped persons. A final
report, drafted by division personnel, was presented to the Attorney General
on January 19, 1981.

Rules and Regulations of the Architectural Barriers Board

Beginning in May, 1980, and continuing through June, 1981, we completely
redrafted the Rules and Regulations of the Architectural Barriers Board, which
provide for accessibility of public buildings to handicapped persons. After
public hearings in August, the new regulations will be promulgated.

58 P.D. 12

CONSUMER PROTECTION DIVISION

I. INTRODUCTION

The Consumer Protection Division has continued to place major emphasis
on Utigation in the areas of investment schemes, nursing homes, hospitals,
automobiles, insurance, banking and credit, travel schemes and fraud in the
sale of primary energy sources. In June, the Arson Unit merged with the
Consumer Protection Division, which will carry on a number of major
investigations and lawsuits aimed at discovering and preventing arson. Finally,
the Division continues its cooperative actions with local, state and federal law
enforcement agencies.

II. STATISTICS

During fiscal year 1980-1981, the Consumer Protection Division commenced
ninety-seven lawsuits; obtained fifty-six judgments; obtained fifteen Assurances
of Discontinuance; and initiated three contempt of court proceedings. In
addition, the Division obtained $664,096 in judgments and restitution for
Massachusetts consumers.

III. MAJOR CASE AREAS

A. Contempt

Close monitoring of judgments resulted in the filing of two major contempt
of court actions. In Commonwealth v. George M. Ward, after a six-day jury
trial in Middlesex Superior court, the defendant Ward was found guilty of
criminal contempt for violation of a Preliminary Injunction barring him from
engaging in various unfair and deceptive practices in the course of his roofing
business. Ward was sentenced to two years at Billerica House of Correction,
thirty days to be served, the balance suspended for two years during which
time Ward will be on probation.

In Commonwealth v. Al Libman, the defendant, a home improvement
salesman, was found in contempt of a 1980 Final Judgment. The defendant
was ordered to post a thirty thousand dollar bond with the Department of the
Attorney General prior to continuing his aluminum siding business.

B. Health Care

The rights of health care consumers remain a major focus of the Division's
efforts. We continue to use the consumer protection statute to combat patient
abuse and neglect in nursing homes. In addition, the Division has successfully
enforced the new patient abuse statute, G.L. c. ill, §72. In Commonwealth
V. Six States Management Corporation dibia Park Hill Manor Nursing Home,
the Division obtained a preliminary injunction enjoining the owner and
administrator from failing to immediately report and investigate known or
suspected abuse.

The Division also brought an equitable action in Ashmere Manor Nursing
Home, Inc. v. Commissioner of Public Health, et al., securing the appointment
of a receiver to run a nursing home to ensure that patients would be properly
cared for and to avoid precipitous transfer of the patients. In addition, the
Division secured the appointment of a receiver to run a community health center

P.D. 12 59

in In Re Dimmock Community Health Center, filed in April, 1981. The center,
which was experiencing severe financial difficulties, was reorganized and is
continuing to provide important health care services to the Roxbury community.
In addition, the division filed suit against the U.S. Food and Drug
Administration, challenging a recent F.D.A. decision that bars the enforcement
of a Massachusetts law designed to protect purchasers of hearing aids. As a
result of the F.D.A. decision. Federal hearing aid regulations preempt the 1977
Massachusetts law, which requires a professional hearing test and a medical
evaluation prior to the sale of a hearing aid. The Commonwealth's complaint
alleges the F.D.A. has acted beyond the scope of its authority by preempting
the Massachusetts statute.

C. Automobiles

The Division has continued its efforts in all areas of the automotive industry
to protect the rights of consumers. While maintaining an emphasis on mediating
individual complaints against motor vehicle dealers, the Division has focused
its litigation in three specific areas of the industry: odometer tampering, option
packing on new cars, and advertising.

Several consent judgments have been obtained against motor vehicle dealers
who were engaged in the alteration of odometers on used cars in violation of
G.L. c. 266, §141. These judgments required the restitution of thousands of
dollars to consumers and enjoined the dealers from future alterations of
odometers. One of the more significant odometer cases in 1980 was Common-
wealth V. Belmont Auto Sales, Inc., et al, in which the corporate and individual
defendants consented to the entry of a judgment requiring the restitution to
consumers of over $69,000 and the creation of an extended warranty for the
vehicles purchased with altered odometers. In Commonwealth v. Frank Lussier,
a temporary restraining order and an attachment of the defendant's bank
accounts and vehicles on his lot were obtained. Following the entry of a
preliminary injunction, the case was settled with the entry of a final judgment
and the payment of $15,000 in restitution.

A second major area of concentration concerned the practice by foreign car
dealers of refusing to sell vehicles to consumers unless they agreed to purchase
numerous unwanted accessories or options which increased the price of the
vehicle by hundreds of dollars. These actions were in violation of G. L. c.
93B, §4(4)(a). After a year-long investigation, three judgments were entered
by consent against Toyota dealers enjoining them from the aforementioned
practices and requiring the payment of over $40,000 in restitution to consumers.
In addition, a preliminary injunction was entered in the case of Commonwealth
V. Middlesex Subaru, Inc., prohibiting similar practices by that dealer.

Finally, in the area of motor vehicle advertising, numerous investigations
were conducted by the Division to enforce the Motor Vehicle Regulations as
they apply to this area. As the result of these investigations, several Assurances
of Discontinuance were obtained against dealers who had employed deceptive
forms of advertising.

D. Energy

In the past fiscal year the Consumer Protection Division has continued its
efforts to stop fraud in the sale of energy saving devices and fuel. Workmg

60 P.D. 12

closely with the Massachusetts Division of Standards, the Division investigated
a number of home heating oil dealers who overcharged consumers. Four
judgments were obtained providing for injunctions against future unlawful
activities and restitution of $1 17,000 to Massachusetts residents.

E. Investment Schemes

Commodities futures trading and the related investments in physicals such
as precious metals, oil and gas continued to be the primary investment problem
dealt with by the Division. Several final judgments were entered and the
Division continued to work with private attorneys appointed by state courts as
receivers for the benefit of investors.

Several new investment schemes, such as overpriced advice on how to bid
for oil and gas leases on government-owned land and margin purchases of
specified coal deposits to be mined in the future, were investigated by the
Division and agreements reached with the offerors that such opportunities
would not be sold in Massachusetts.

In a pyramid sales scheme, the Division was able to use the affidavits of
undercover investigators to obtain a continuing Preliminary Injunction prevent-
ing the company Feelin' Great, Inc. from doing business of any sort in
Massachusetts.

F. Banking and Credit

In this area, the Division has focused on consumer injury caused by
Truth-in-Lending violations both in advertising and required loan disclosures.
Consent judgments were entered into with four Massachusetts banks during the
period which resulted in $34,416 restitution to consumers. Additionally, one
credit union paid $1 ,093 to consumers for similar violations.

Truth-in-Lending in advertising violations by finance and loan companies
resulted in one Consent Judgment and several Assurances of Discontinuance.
The Division made novel use of the Truth-in-Lending laws by applying them
against a debt consolidation service. A Preliminary Injunction was entered in
Suffolk Superior Court that required the debt consolidation service to make
certain Truth-in-Lending disclosures to its customers because of its role as an
intermediary between debtors and creditors.

G. Real Estate/Landlord-Tenant

Since the purchase of a home or vacation home constitutes the major
investment of most people, protecting consumers from fraud in the sale of real
estate is a priority for the Division. In Commonwealth v. Land and Leisure,
the Division obtained a final judgment and $50,000 restitution for Massachu-
setts consumers who purchased property located near Disney World in Florida
from a Florida corporation. The developer failed to construct roads, provide
sewage facilities and deliver other promised improvements which would have
allowed consumers to construct homes on their lots. In addition, the judgment
prohibits the defendants from land sales promotion in Massachusetts without
notice to the Attorney General and the establishment of an escrow account to
ensure the costs of promised improvements to the land.

In another real estate development case, the Division sued a Massachusetts
developer for accepting consumer deposits for home construction, failing to
build the homes or building homes with substantial and dangerous defects.

P.D. 12

CONSUMER PROTECTION CASE LIST

A. ADVERTISING

Defendant

AAA Rental (T.V.'s)

Aaron Glickman

Amherst Radio/Electronics/Videsign

Anderson's Furniture

Aqua-King Pool Co.

Arkey Radio/Electronics

Atlantis Sound, Inc.

Audiosonics, Inc.

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

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

Consumer Audiosonics

Crown Convertibles (Johema, Inc.)

Discount Records

Eardrum of New England

Eclipse Sleep Prod, of N.E.

Ed's Radio

Edward's Wayside Furniture

Emerson Rug

Figures & Fitness

Furniture Gallery

Gentlemen Warehouse Factory Outlet

Golub Furniture

Goodrich, B.F.

Graham Radio

H.M. Fisk/Emeralds

Hercules Trouser Co.

Hi-Fi Buys/Leisure Distr.

Hyannis Hi-Fi

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.

StatusI Disposition
Consent Judgment
Litigation
Consent Judgment
Assurance of Discontinuance
Consent Judgment
Consent Judgment
Assurance of Discontinuance
Assurance of Discontinuance
Assurance of Discontinuance
Consent Judgment
Assurance of Discontinuance
Litigation

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

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

Counts'/Court

Middlesex

Suffolk

Middlesex

Hampden

Suffolk

Middlesex

Norfolk

Essex

Suffolk

Hampden

Suffolk

Hampden

Suffolk

Hampden

Suffolk

P.D. 12

Nantucket Sound

National Business Directory

New England Audio/Tweeter

New England Furniture Co.

New England Group

New England Photo

New England Sound Svc/Tech HiFi

Olde Colony Stereo

Overseas Employment Research

Paul's Furniture/Paul Doucette

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

Shaker's Workshops

Sherman's

Shuman, Stanley

Siesta Sleep Shop

Sound Co.

Spartan Paint & Supply

Starlander Beck

Stereo Component Systems, Inc.

Strawberries, Inc.

Summerfield's

Todd's World of Furniture

Wholesale Furniture & Carpet

Wholesale Marketing/Joanne Scheff

Wilmington Ford

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

Consent Judgment Suffolk

Assurance of Discontinuance Suffolk

Consent Judgment Middlesex

Assurance of Discontinuance Suffolk

Assurance of Discontinuance Franklin

Consent Judgment Franklin

Assurance of Discontinuance Suffolk

Consent Judgment Suffolk

Assurance of Discontinuance Suffolk

Consent Judgment Hampden

Assurance of Discontinuance Suffolk

Consent Judgment Suffolk

Assurance of Discontinuance Suffolk

Consent Judgment Suffolk

Consent Judgment Middlesex

Assurance of Discontinuance Suffolk

Consent Judgment Suffolk

Consent Judgment Middlesex

Assurance of Discontinuance Suffolk

B. AUTOMOBILES

Defendant

Status/Disposition

County/Court

Abel Ford

Consent Judgment

Suffolk

Auto Brokers, Inc.

Assurance of Discontinuance

Suffolk

Auto Superman, Inc.

Consent Judgment

Suffolk

Automotive Products

Default Judgment

Berkshire

Avenue Auto Wholesalers/Brazel

Assurance of Discontinuance

Suffolk

Bart Auto Ctr. (Rev-Ben Enterp.)

Consent Judgment

Worcester

Beacon Auto Sales

Assurance of Discontinuance

Suffolk

Belmont Auto Sales

Judgment

Suffolk

Belotti (Victor), Inc.

Assurance of Discontinuance

Suffolk

Big Beacon Chevrolet

Assurance of Discontinuance

Suffolk

Bob Brest Buick

Consent Judgment

Suffolk

Bonded Dodge

Judgment

Norfolk

Borlen, E.J. d/b/a City Auto Sales

Judgment

Hampden

Boston Imported Cars

Litigation

Suffolk

P.D. 12

Boston Imports/Lamb Lotus/Wasil

Brigham-Gill Pontiac AMC

Brockton Auto Sales

Brockton Dodge

Budget Auto Sales

Cape Motors

Car Finders

Chalet Motor Sales

Chestnut Hill Motors (odometer)

City Auto a/k/a Edward Borlen

Clay Chevrolet

Colonial Motor Sales/B. Milton

Connelly (Tom) Pontiac

Cullinan (Joe) Ford, Inc.

Dazell Volvo

Delaney (Kevin) Pontiac

Desautels, William

Dino Buick

Don's Getty Service Station

Eastfield Auto Sales, Inc.

Eck's Auto Sales

English Chevrolet

Excellent Car Co.

Falmouth Datsun

Falmouth Dodge

Fife, Walter

Fleischer Auto Sales

Foreign Auto Import (Watertown)

Haddon Lincoln-Mercury

Hallissy Toyota

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

Locke, Chet Auto Sales

Lord Toyota

Lynn Motors, Inc.

Main Street Auto Sales & Serv.

Mass. State Auto Dealers Ass'n

Medeiros (William) Chevrolet

Merrimac Savings Bank

McCoy Auto Sales (odometer)

Morris Motors, Inc.

Motor Mart of Maiden

Nassar Ford, Inc.

Northshore Toyota

O'Brien (Tom) Pontiac/Datsun

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

Assurance of Discontinuance
Consent Judgment
Judgement
Consent Judgment
Consent Judgment
Assurance of Discontinuance
Assurance of Discontinuance
Assurance of Discontinuance
Consent Judgment
Consent Judgment
Consent Judgment
Final Judgment
Consent Judgment
Assurance of Discontinuance
Stipulation

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

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

Suffolk

Plymouth

Suffolk

Hampden

Suffolk

Hampden

Suffolk

Hampden

Suffolk

Middlesex

Suffolk

Bristol

Suffolk

Hampden

Middlesex

Suffolk

Middlesex

Barnstable

Middlesex

Suffolk

Hampden

Suffolk

Hampden

Suffolk

Worcester

Suffolk

Essex

Suffolk

P.D. 12

One Twenty Eight (128) Sales, Inc.

One Twenty Eight - 128 Imports.

Owens Motors

Peterson Ford

Pete's Chrysler/Plymouth

Plaza Oldsmobile

Precision Motor Rebuilders

Robichaud Auto Sales, Service

Ryll Automotive Products

Saab-Scania of America

Smyly Buick

Taunton Sales, Inc.

Topor Motor Sales

Toyota of Falmouth

United Auto Buyers/Gregorie

Valley Chevrolet

Village Chevrolet

Wakefield Motors

Wasil, Kenneth and Michael

West Country Motors

West Springfield Chevy/Plymouth

Westport Autorama

Wilmington Ford

Yenom Auto Sales

Litigation Middlesex

Assurance of Discontinuance Suffolk

Consent Judgment Suffolk

Assurance of Discontinuance Suffolk

Consent Judgment Middlesex

Judgment Worcester

Consent Judgment Berkshire

Consent Judgment Suffolk

Assurance of Discontinuance Suffolk

Consent Judgment Bristol

Consent Judgment Hampden

Assurance of Discontinuance Plymouth

Consent Judgment Worcester

Assurance of Discontinuance Suffolk

Final Judgment Middlesex

Consent Judgment Suffolk

Final Judgment Hampden

Consent Judgment Hampden

Consent Judgment Bristol

Consent Judgment Suffolk

Litigation Worcester

C. BANKING & CREDIT

Defendant

Aetna/St. Anns Credit Union
Allied Bond & Collection Agency
Arthur Ind./lst Safety Natn'l Bnk
Balfour Credit Union
Cambridge Trust Company
Central Secret Service
Chrysler Credit Corp.
Financial Ent. /Statewide Credit
Ford Motor Credit Corp.
General Motors Acceptance Corp.
Hancock Bank & Trust
Hull Cooperative Bank
Hull Cooperative Bank
Industrial Nat'l Bank of R.I.
Legal Credit Counselors
Leominster Savings Bank
Merrimac Savings Bank
Security National Bank
Tuck & Pozzi
Van Ro Credit Corp.

Status/Disposition

Final Judgment

Litigation

Final Judgment

Consent Judgment

Final Judgment

Assurance of Discontinuance

Final Judgment

Consent Judgment

Preliminary Injunction

Consent Judgment

Final Judgment

Litigation

Consent Judgment

County/Court

U.S. Dis. Ct.

Suffolk

Bristol

Middlesex

Suffolk

Worcester

Suffolk

Hampden

Suffolk

D. CONTRACTS

Defendant

American Int'l Holiday

StatuslDispostion
Assurance of Discontinuance

County/Court
Suffolk

P.D. 12

American Int'l Leisure/G. Paglia

Crimson Travel Service

Diamedic, Inc.

Great Amer. Travel (Southwind)

Intem'l Magazine Services

Kiddy Photographs

Northeast Marketing Services

Pereira Brothers Roofing

Selective Singles

Slimtique, Inc.

Supersonic Tours

United Marketing Corp., et al

WAAF, A-Ok Productions

Walo & Levine

Assurance of Discontinuance

Suffolk

Litigation

Middlesex

Litigation

Norfolk

Consent Judgment

Suffolk

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Litigation

Suffolk

Litigation

Middlesex

Litigation

Norfolk

Litigation

Suffolk

Assurance of Discontinuance

Suffolk

Final Judgment

Suffolk

Final Judgment

Norfolk

Consent Judgment

Middlesex

E. EDUCATION

Defendant

Allied Construction Training Cntr

Colonial Travel School

Conway School of Landscape Design

E. Atl. Trac/Trail Training Sch.

Elro Ent. /Brockton Auto Wholesaler

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

Solan Schools

StalusI Disposition

County/Court

Assurance of Discontinuance

Suffolk

Final Judgment

Worcester

Litigation

Franklin

Judgment

Hampden

Judgment

Plymouth

Consent Judgment

Middlesex

Consent Judgment

Suffolk

Consent Judgment

Suffolk

Consent Judgment

Suffolk

Consent Judgment

Middlesex

Consent Judgment

Hampden

Preliminary Injunction

Suffolk

F. ENERGY

Defendant

Status/Disposition

CountylCourt

All Star Fuel Co./Marshall

Litigation

Essex

Atlantic Farm, Inc.

Assurance of Discontinuance

Suffolk

Birch, J.T.

Assurance of Discontinuance

Suffolk

C & C Oil Co. (Isaac Cohen)

Consent Judgment

Suffolk

Caporale, Leonard

Consent Judgment

Suffolk

Cardelli, Aenzo

Consent Judgment

Suffolk

Caswell, Patrick/Pat's Fireplace

Assurance of Discontinuance

Suffolk

Clene Heat/R.J. Holding

Consent Judgment

Suffolk

Coy, Ron/Northern Tree

Consent Judgment

Suffolk

D & P Service Co.

Litigation

Suffolk

D Oil Co./Jack DePalma

Final Judgment

Suffolk

Daigle, Barry

Assurance of Discontinuance

Suffolk

DePalma, Anthony/Hilltop Oil

Final Judgment

Suffolk

DePalma, Jack/D Oil

Final Judgment

Suffolk

DePalma, John

Consent Judgment

Suffolk

Festino Fuel, Inc.

TRO/Preliminary Injunction

Middlesex

Forbes, Richard/Dick's Landscp.

Assurance of Discontinuance

Suffolk

Global Oil

Litigation

Suffolk

Hilltop Oil/DePalma, Anthony

Final Judgment

Suffolk

P.D. 12

Holding, R.J. Oil & Gas

Kero-Sun, Inc.

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.

Scholboro Foods/Evergood Market

Simonelli Oil Co.

Smith Farms/G. R. Smith

Smith, Mark

Superior Stove Co.

Wheeler, Steve/Saddleback Farms

Wilkensky, Julius

Zion, Ronald

Defendant

A-Z Appliance/Allen Zellin

Acme Power Vac/Ralph Rigione

Air Temp Engineering, Inc.

Alco Aluminum Pool & Siding Co.

Anderson Construction/R. Anderson

Associated Pools

Beacon Hill Roofing

Bianco Construction

Chalue

Factory Heating/Paul Johnson

Hale/United Vinyl

Jack's Radio & TV (John Debie)

King Appliance Service

Libman, Al

Luisi, Paul, et al

McCarthy Construction

O'Connor Brothers

Rigione, Ralph/ Acme Power Vac

Seamless Plumbing

Stott Charles/Waltham Roofing

Supreme Remodeling (Al Libman)

Vassett

Ward, George M.

Watertown Roofing/Leander Vlahakis

Watertown Roofing/Vlahakis

Wonder Construction/Sesser

Consent Judgment

Suffolk

Partial Final Judgment

Suffolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Suffolk

Final Judgment

Suffolk

Consent Judgment

Suffolk

Consent Judgment

Middlesex

Contempt

Middlesex

Litigation

Suffolk

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Suffolk

Final Judgment

Consent Judgment

Suffolk

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Litigation

Hampden

Consent Judgment

Suffolk

Consent Judgment

Suffolk

Contempt

Suffolk

Consent Judgment

Suffolk

' AN CE REPAIR

Status/Disposition

County/Court

Assurance of Discontinuance

Suffolk

Consent Judgment

Bristol

Final Judgment

Middlesex

Final Judgment

Hampden

Contempt

Suffolk

Consent Judgment

Suffolk

Litigation

Norfolk

Final Judgment

Plymouth

Default Judgment

Hampden

Litigation

Middlesex

Litigation

U.S. Dis. Ct.

Contempt & Judgment

Essex

Consent Judgment

Suffolk

Consent Judgment

Norfolk

Judgment

Suffolk

Consent Judgment

Middlesex

Final Judgment

Middlesex

Consent Judgment

Suffolk

Litigation

Suffolk

Litigation

Middlesex

Judgment

IstCir. Ct.

Judgment

Criminal Contempt

Middlesex

Final Judgment

Middlesex

Criminal Contempt

Middlesex

Consent Judgment

Middlesex

P.D. 12

n. HEALTH

Defendant

Appelton, Lloyd O./Kings Mount
Beltone Hearing Aid Service
Dimmock Community Health Center
ELM Med Lab, Inc/Baez-Giangreco
Genesis Laboratory
Inter-Church Team Ministries
Roman Health Spa

I. INSURANCE

Defendant

Balfour Federal Credit Union

Blue Cross/Blue Shield, Inc.

CUNA Mutual Insurance Society # 1

CUNA Mutual Insurance Society #2

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

Gallagher, Philip G. (M.D.)

Metropolitan Life Insurance

Travelers Insurance Co.

Union Fidelity Life Insurance Co.

J. MOBILE HOMES

Defendant

Bluebird Acres Mobile Home Park

Hampden Village

Mogan's Mobile Home Park

Suburban Estates

K. NURSING HOMES

Defendant

Adams Nursing Home/Alessandroni

Algonquin RH/ Whitlow, Hazel/Irv

Almeida Lewis

Ashmere Manor Nursing Home

Berkshire Nursing Home

Dranetz, Marshall/Daley, Harry

Fleetwood Nursing Home

Hancock House Of Beverly

Harvard Manor Nursing Home

Havolyn Management/Ray Monahan

Heritage Hill Nursing Homes

Jewish Nurs. Home Of West. Mass.

Kimwell, Weston Manor Nurs. Home

Lewis Bay Convalescent Home

Middlesex Manor Nursing Home

New Eng NH Devel Corp/Cape Ann NH

People's Church Nursing Home

0 tatusi Disposition

County/Court

Assurance of Discontinuance

Suffolk

Consent Judgment

Hampden

Litigation

Suffolk

Litigation

Suffolk

Litigation

Norfolk

Litigation

Bristol

Litigation

Hampden

Status/Disposition

County/Court

Litigation

Bristol

Litigation

Suffolk

Litigation

Suffolk

Litigation

Middlesex

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Litigation

Suffolk

Litigation

Suffolk

Litigation

Suffolk

Status/Disposition

County/Court

Consent Judgment

Hampden

Partial Final Judgment

Hampden

Contempt

Hampden

Consent Judgment

Middlesex

Final Judgment

Bristol

Status/Disposition

County/Court

Partial Judgment

Suffolk

Litigation

Suffolk

Consent Judgment

Bristol

Litigation/Receivership

Suffolk

Final Judgment

Berkshire

Litigation

Barnstable

Litigation

Berkshire

Litigation

Middlesex

Final Judgment

Middlesex

Consent Judgment

Suffolk

Contempt

Suffolk

Litigation

Suffolk

Litigation

Hampden

Consent Judgment

Suffolk

Preliminary Injunction

Barnstable

Judgment

Bristol

Judgment

Suffolk

Judgment

Worcester

P.D. 12

Resthaven Rest Homes Receivership

Six State Mgt/Park Hill Manor NH Litigation

Twin Pine Corp. /Weston Manor NH Final Judgment

Suffolk
Suffolk
Middlesex

L. PRICING/FOOD

Defendant
First Nat'l Stores
f*urity Supreme

Stat us/ D isposition County/Court

Assurance of Discontinuance Suffolk

Final Judgment Middlesex

M. REAL ESTATE/HOUSING

Defendant

Status/Disposition

County/Court

Acres 'n Acres

Litigation

Essex

Alan Realty/Alan Zuker

Consent Judgment

Norfolk

Allen Realty

Consent Judgment

Norfolk

Apex Apartment Rentals

Consent Judgment

Suffolk

Arroyo

Litigation

Battlegreen Construction

Litigation

Middlesex

Bluebird Realty Trust

Consent Judgment

Norfolk

Cape Real Estate

Consent Judgment

Middlesex

City Real Estate

Consent Judgment

Hsing. Ct./Bos.

Citywide Rentals

Consent Judgment

Hsing. Ct./Bos,

Clarke-Jacob Realty

Assurance of Discontinuance

Suffolk

Christine Anne Realty Trust

Consent Judgment

Suffolk

Cohen, Terry (Bulfmch Realty)

Consent Judgment

Suffolk

Colonial Realty

Litigation

U.S. Dis. Ct.

Commonwealth Condo Tr/Gear/Bem

Consent Judgment

Suffolk

Co-Ree Real Estate

Consent Judgment

Middlesex

Countryside Realty

Consent Judgment

Delta Realty Co., Inc.

Consent Judgment

Middlesex

DiBiase, Ugo & Elio/DiBiase Realty

Consent Judgment

Suffolk

DiSarro, Stephen

Consent Judgment

Suffolk

Elwood Park Rlty Tr/Stivaletta

Assurance of Discontinuance

Suffolk

E-Z Rentals

Consent Judgment

Hsing. Ct./Bos.

Ferioli, R.J., Inc.

Consent Judgment

Plymouth

Gei-Ger Real Estate

Consent Judgment

Middlesex

Gesner Construction Co.

Consent Judgment

Norfolk

Giambro, Ronald

Litigation

Suffolk

Gladestone Realty Trust

Litigation

Middlesex

Golden Eagle Apartments

Assurance of Discontinuance

Suffolk

Gray Rental Properties

Assurance of Discontinuance

Suffolk

H & F Realty

Consent Judgment

Bristol

Hamilton Realty

Con.sent Judgment

Suffolk

Hampden Village

Partial Final Judgment

Hampden

Harkey, John Realtor

Consent Judgment

Norfolk

Hartwick (William) Construction

Litigation

Norfolk

Holt, Fran. /Christine Anne Realty

Consent Judgment

Suffolk

Home Insulating of New England

Litigation

Hampden

Homes By Design

Consent Judgment

Middlesex

Hub Realty

Consent Judgment

Suffolk

Kantor, Irwin

Judgment

Hsing. Ct./Bos.

Kaplan, EUiot/Sharonshire Homes

Preliminary Injunction

Suffolk

P.D. 12

Kaufman & Broad

Keith (John W.) Builders

Land & Leisure

Land Auction Bureau

Ledge mere Farms/Davis Farm Rd.

Liberty Hill Management Corp.

MacDonald Real Estate

Marshfield Real Estate

Messineo, Randolph/Randy's Rty.

Murphy & Murphy Drive-In R.E.

Park Avenue Realty Trust

Parkwood Estates Realty

Pyramid Construction

Realty Sales Co.

Sergi Enterprises

Sharonshire Homes

Shibley, Edward (Sr.)

Simeone, Inc., Realtors

Southbrook Real Estate

Starr, Paul/Sharonshire Homes

United Resources, Inc.

Weiss, Sheila

Wish Realty Assoc, Inc.

Woods Real Estate

Judgment
Consent Judgment
Litigation
Litigation
Consent Judgment
Consent Judgment
Consent Judgment
Consent Judgment
Litigation
Consent Judgment
Restitution only
Consent Judgment
Final Judgment
Consent Judgment
Consent Judgment
Preliminary Injunction
Consent Judgment
Consent Judgment
Consent Judgment
Preliminary Injunction
Final Judgment
Assurance of Discontinuance
Consent Judgment
Consent Judgment

Norfolk

Suffolk

Middlesex

Essex

Middlesex

Plymouth

Middlesex

Suffolk

Hampden

Plymouth

Essex

Suffolk

Hampden

Plymouth

Suffolk

Middlesex

Suffolk

Norfolk

N. SALES PRACTICES

Defendant

Apartment Showcase

Aubin, Wm. /North East Land Realty

Automotive Equip. Co. /Robert Webb

Bonney Rigg Camping Club, et al

BICs

Bi-Lo Food Warehouse

Butcher's Pride

Debie, John E./Jack's Radio & TV

Delta Electronics

Dinner Tours/Alfred Zimei

Diversified Hlth Ind/Roman Spa

Edwin R. Sage Co.

Executive Dating Serv. (Konior)

Farm Stand of Peabody

Feelin' Great, Inc.

Food Marts

Foodmaster Supermarkets, Inc.

General Investment & Devel. Co.

Gloucester Dispatch, Inc.

Guarino, Stephen

Hearing Dynamics of New England

Homelike Apartments

Hub Ticket Agency

International Health Spa/Keene

J & T Auto Repair

Status/Disposition

County/Court

Judgment

Middlesex

Judgment

Hampshire

Final Judgment

Middlesex

Assurance of Discontinuance

Suffolk

Consent Judgment

Middlesex

Judgment

Hampden

Assurance of Discontinuance

Suffolk

Consent Judgment

Essex

Consent Judgment

Suffolk

Litigation

Worcester

Litigation

Hampden

Consent Judgment

Suffolk

Final Judgment

Suffolk

Consent Judgment

Suffolk

TRO/Preliminary Injunction

Suffolk

Judgment

Hampden

Consent Judgment

Suffolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Essex

Consent Judgment

Suffolk

Consent Judgment

Norfolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Suffolk

Litigation

Suffolk

Assurance of Discontinuance

Suffolk

P.D. 12

Jewell Companies, Inc.
Kilgo, John (Evelyn Wood)
Lamour, Inc.
Lane's Furniture
Leisure Distributors/Hi Fi Buys
, Liberty Park Equip. & Sales
Mansfield Mattress Corp.
Mass. Business & Prof. Directory
Mass. Distributors, Inc.
Maynard Market
Middlesex Vacuum
Mold Specialists
Murphy, Wayne

National Business Assoc. Directory
Okun's Furniture, Inc.
Our House Furniture, Inc.
Out-of-Town Ticket Agency
Pat's Ticket Agency
People's Choice
Pieroway Electric Co., Inc.
Pioneer Pools

Promotional Sales Consultants
Ray's IGA Store
Rocola Manufacturing Company
Schultz Lubricants, Inc.
Showman, Oren
Skyline Manor

Stanley, James/King of Hottop
Stanley, LeGrant/AAA Paving
Supreme Furniture Co.
Swim-Rite Pools, Inc.
Town & County Products/Leonard
Tyson Ticket Agency
Uniserv International Corp.
United Marketing
Valenti Ticket Agency
Weight Loss Medical Center
Woods, Paul (Swimming Pools)
World of Homes

O. TRAVEL

Defendant

Associated Travel Serv of Newton

Garber Travel

G & G Travel

Intern '1 Weekends

Quality Tours/Gloria Patt

Trans National Travel

P. WEIGHTS & MEASURES

Defendant

Aceite Tropical Oil Co.

Consent Judgment

Middlesex

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Appeal Decided

Suffolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Hampden

Assurance of Discontinuance

Suffolk

Consent Judgment

Plymouth

Assurance of Discontinuance

Suffolk

Consent Judgment

Suffolk

Stipulation/Restitution

Middlesex

Consent Judgment

Suffolk

Consent Judgment

Essex

Final Judgment

Suffolk

Consent Judgment

Hampden

Litigation

Bnrk. ofB

Consent Judgment

Suffolk

Final Judgment

Middlesex

Consent Judgment

Middlesex

Assurance of Discontinuance

Suffolk

Consent Judgment

Norfolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Suffolk

Consent Judgment

Hampden

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Judgment

Hampden

Preliminary Injunction

Middlesex

Preliminary Injunction

Middlesex

Consent Judgment

Suffolk

Litigation

Norfolk

Judgment

Hampden

Consent Judgment

Suffolk

Litigation

Hampden

Litigation

Hampden

Consent Judgment

Suffolk

Consent Judgment

Norfolk

Consent Judgment

Norfolk

Assurance of Discontinuance

Suffolk

StatusI Disposition

County/Court

Assurance of Discontinuance

Suffolk

Investigation

Suffolk

Litigation

Hampden

Litigation

Suffolk

Litigation

Norfolk

Litigation

Suffolk

StatusI Disposition

County/Court

TRO/Preliminary Injuction

Suffolk

P.D. 12

Blue Ribbon Dairy

B & T Wood Products/Tarentino

Corrigan, James and Michael

Dick's Landscaping

Family Assoc.

J & J Market

Kneeland, Thomas (wood seller)

Lamusta's Auto Service

Mr. Meat of Mattapoissett

Ricci, Louis (wood seller)

Sage's Market

Scholbro Foods d/b/a Evergood Mkt

Q. MISCELLANEOUS

Defendant

Able Rug Cleaners, Inc.

Anchutz, Donald E.

Andrews Paint

Artistic Typing Headquarters

Barry, Henry

Big-Y-Foods, Inc.

Blackstone Trading Company

Bragel, Shirley

Brettman, Hy

Brigham's Ice Cream

Brown & Finnegan (Gerald), Inc.

Chala Foods

Chatham Development Co.

Chawa Tash

Codman Co.

Coffman, Ralph

Comfort Comer

Continental Employment Agency

Coordinators, Inc.

Datamarine International

Daylight Dairy Products

DeSautels

Dorchester Wayport Trust

Doucette, Paul

Eck's Trucking Inc. /David Eck

E & S Enterprises

Fafco Division, VSI

Famalette, Anthony

Feodoroff Agency

Framingham Housing Authority

Goldstein & Gurwite Auctioneers

Grochmal, Richard

Hearing Aid Petition/FDA

Hewitt Assoc, Inc.

laciafano, Dominic, et al

Juno, Inc.

Katz, Raanan/Victory Realty

Final Judgment

Suffolk

Final Judgment

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Suffolk

Assurance of Discontinuance

Suffolk

Litigation

Middlesex

Consent Judgment

Worcester

Consent Judgment

Suffolk

Litigation

Midlesex

Final Judgment

Suffolk

Litigation

Suffolk

Status/Disposition

County/Court

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Norfolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Plymouth

Consent Judgment

Final Judgment

Suffolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Suffolk

Consent Judgment

Middlesex

Preliminary Injunction

Suffolk

Judgment

Middlesex

Consent Judgment

Middlesex

Assurance of Discontinuance

Suffolk

Consent Judgment

Suffolk

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Consent Judgment

Barnstable

Consent Judgment

Hampden

Contempt

Assurance of Discontinuance

Suffolk

Assurance of Discontinuance

Suffolk

Preliminary Injunction

Suffolk

Consent Judgment

Hampden

Consent Judgment

Middlesex

Consent Judgment

Suffolk

Consent Judgment

Middlesex

Consent Judgment

Worcester

Consent Judgment

Hampden

Litigation

U.S. Dist. Ct.

Assurance of Discontinuance

Suffolk

Litigation

Norfolk

Assurance of Discontinuance

Suffolk

Judgment

Suffolk

P.D. 12

Kitchen Delight

Consent Judgment

Suffolk

LaFranchise, Arthur Jr.

Consent Judgment

Plymouth

Lesnow Mfg. Co.

Assurance of Discontinuance

Suffolk

Little & Co.

Consent Judgment

Suffolk

Loring Hills Assoc.

Consent Judgment

Suffolk

Mass. Rentals

Consent Judgment

Housing Ct./Bos

Massachusetts Commodities, Inc.

Judgment

Suffolk

Miller, Ephram

Assurance of Discontinuance

Suffolk

Millis Commodity Ltd.

Litigation

Suffolk

Moccasin Craft

Consent Judgment

Middlesex

N.L Associates

Assurance of Discontinuance

Suffolk

Nassi Assoc.

Assurance of Discontinuance

Suffolk

National Marketing Consultants

Litigation

New England Studio Co.

Consent Judgment

Paglia, Gene

Assurance of Discontinuance

Suffolk

Parks, Frank H.

Consent Judgment

Hampden

Pickwick Int'l Corp.

Consent Judgment

Suffolk

Quigley, Charles

Consent Judgment

Suffolk

Rao (Roger), Inc.

Assurance of Discontinuance

Suffolk

Ruderman's Furniture

Investigation

Ryan, Kenneth

Consent Judgment

Plymouth

San-Mac Industries

Consent Judgment

Essex

Seven's, Inc. /Hub Ticket Agency

Consent Judgment

Suffolk

Stamps Information Associates

Consent Judgment

Suffolk

Valve Service International

Consent Judgment

Middlesex

WAAF/A-OK Productions/Kasparian

Final Judgment

Worcester

Wasserman, Max

Consent Judgment

Middlesex

Waystack, Charles Jr.

Consent Judgment

Middlesex

Windsor Meadows

Assurance of Discontinuance

Suffolk

ENVIRONMENTAL PROTECTION DIVISION

The Environmental Protection Division is established by G.L. c. 12, §11D.
The Division has responsibilities 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 on matters such as air and water
pollution, hazardous and solid waste control, wetlands protection and billboard
control. In addition, and also pursuant to its mandate under G.L. c. 12, §11D,
the Division initiates and intervenes in judicial and administrative actions for
the purpose of protecting the environment of the Commonwealth. These cases
include hearings before federal agencies on the siting of energy generating
facilities and participation in state and federal appellate courts on issues of
significance to the environment.

During fiscal year 1980/81, the Division continued its involvement with three
issues of great significance to Massachusetts: acid rain, hazardous waste
disposal and the environmental effects of off shore oil drilling. The acid rain
problem is now 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

P.D. 12 73

problem in several areas. In Massachusetts v. Ohio, we have challenged the
federal government's relaxation of air pollution requirements in Ohio. (Much
of the problem begins in the midwest.) The case is under consideration by the
Sixth Circuit. We are participating in several proceedings before EPA regarding
the interstate transport of air pollutants. We have given testimony before a
United States Senate committee considering amendments to the Clean Air Act.

The unlawful disposal of hazardous substances has been a problem in
Massachusetts for some time. It threatens water supplies and public health, and
the Division has for six years so'ught 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. Several
specific cases are described below. In addition the Division was instrumental
in the formation of the Northeast Hazardous Waste Coordination Committee,
a committee composed of assistant attorneys general from the entire northeast
to coordinate responses to the problem. The committee received one of the last
grants ever awarded by the Law Enforcement Assistance Adminstration for this
effort.

During fiscal 1981, the Division continued its long involvement with the
issue of offshore drilling and its implications for the onshore environment and
economy. In a number of cases, described more fully below, the Division has
pressed those concerns and the rights of states to participate in decisions that
will affect them and their citizens.

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

The Division's enforcement policy includes seeking monetary penalties in
appropriate cases. During the year judgments entered calling for the payment
of penalties of approximately two hundred and twenty-five thousand dollars
($225,000).

CATEGORIES

AIR

Air pollution cases are referred from the Department of Environmental
Quality 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 ot Water
Pollution Control and the United States Environmental Protection Agency.
Others seek to recover costs expended in cleaning up oil spills. The statutory
authority is G.L. c. 21, §§26-52.

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74 P.D. 12

WETLANDS

Wetlands cases are generally referred from the Department of Environmental
Management, Wetlands Section, or Department of Environmental Quality
Engineering, Wetlands Division. 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. 131,
§40 A.

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. HI, §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
involve defending petitions for judicial review of decisions of the Outdoor
Advertising Board. The statutory authority is G.L. c. 93, §§29-33.

OTHERS

A number of the cases handled by the Division do not fall into any of the
above categories. Some of them involve representation of state agencies, for
example, the defenses, in federal court, of the Massachusetts Executive Office
of Environmental Affairs and Executive Office of Transportation and Construc-
tion. Others are brought pursuant to the Attorney General's statutory authority
to prevent environmental damage. These are frequently in areas of broad
concern, such as energy policy, the siting of nuclear facilities and the
interpretation of state and federal environmental statutes. They involve the
initiation of or intervention in proceedings in a variety of forums; judicial and
administrative; state and federal.

SIGNIFICANT CASES

There follows a description of some of the cases the Division handled during
the year.

DEQE and the Attorney General v. Danial Striar, Rockland Industries and the
Striar Realty Trust

This was a hazardous waste case involving a chemical company in
Middleborough. The company had been repeatedly cited for water pollution
violations over a number of years. The Division obtained a search warrant and
conducted an inspection of the property in the company of members of DEQE

P.D. 12 75

and the state police which revealed numerous containers of hazardous waste
scattered over the property. Some were leaking and all were stored illegally
and unsafely. Suit was filed and a settlement was reached which mcluded a
compliance schedule for a full cleanup of the property and a $50,000 civil
penalty.

Attorney General and DWPC v. Westfield Electroplating Corp.

This was a hazardous waste and water pollution case involving an
electroplating corporation in Westfield. The defendants were observed dumping
hazardous materials including cyanide into a storm drain which discharges into
the Westfield River. The Division obtained a search warrant and conducted an
inspection of the premises in the company of members of DWPC and the state
police. Suit was filed thereafter and a settlement was reached which included
a compliance schedule for construction of pretreatment facilities and a $35,000
civil penalty.

Attorney General and Metropolitan District Commission v. Cainbridge
Thermionic

This case involved a violation of MDC sewer use regulations by a Cambridge
company which was discharging metal plating wastes into the MDC sewers
in excess of the amounts allowed under regulations. The Division's suit was
the first enforcement action involving these MDC regulations. The case settled
with a compliance schedule for installation of pretreatment and a $20,000 civil
penalty.

DEQE and the Attorney General v. William H. H. Johnson III and J & G
Auto Salvage, Inc.

This hazardous waste enforcement action arose out of the defendants
unlawful receipt and burial of more than 300 barrels of hazardous waste in
Middleborough. An Agreement for Judgment was filed in and approved by the
Suffolk Superior Court, whereby the defendants were required to clean up the
barrels of hazardous waste pursuant to a specified time schedule and to pay
$25,000 to the Commonwealth over a three-year period. The defendants failed
to conduct the cleanup by the deadlines in the Judgment and a petition for
contempt was filed. The Superior Court adjudged the defendants to be in civil
contempt, ordered them to take various steps to raise money for the cleanup
and to report bi-weekly to the court on their efforts to do so. and established
a new schedule for completion of the cleanup.

DEQE V. D'Annolfo

This extremely complicated case involves a parcel of land in Wobum which
was recently commercially developed, but which was historically the site of
industrial and chemical facilities whose activities resulted in serious contami-
nation of the area. The Division sued several years ago seeking to compel the
present landowner to clean up the site. During the year an Agreement for
Judgment was filed which called for a phased cleanup. The landowner did not
meet the requirements of the judgment, and the Division sought and obtained
an order allowing the Commonwealth to fence off the property and begin a
cleanup. This is being accomplished with the assistance of EPA, and it is
anticipated that federal "Superfund" money will be available for the job.

76 P.D. 12

DWPC V. City of Leominster and Mayor Raymond Harper

In the spring of 1980, the Divison brought a motion for contempt based on
the defendants' refusal to comply with a consent judgment requiring construc-
tion of a sewage treatment plant for the last remaining major polluter of the
Nashua River. After hearing, the Superior Court ordered the Mayor to proceed
with the next steps in the compliance schedule. In September 1980, the
defendants refused to award the contract for construction. The Division renewed
its motion. The court again ordered the mayor to proceed; the contract was
awarded and work commenced. In June 1981 the mayor ordered the work
stopped and attempted to fire the consulting engineers who were supervising
the project. The court ordered the mayor to rescind the stop work order and
to retain the consulting engineers unless EPA and the DWPC approved a change
of engineers.

DEQE and Town of Edgartown v. Tuscarora Land Co. and Olsen Brothers,
Inc.

This case involved a violation of the Wetlands Protection Act on Martha's
Vineyard by a local contractor and a Pennsylvania based development
company. The company had unlawfully bulldozed a sand dune on property it
owned on South Beach in order to provide a better view for houses then under
construction. The Division and the Town of Edgartown filed suit seeking full
reconstruction and restoration of the dune. We eventually negotiated a
settlement in which the defendants agreed to full restoration and guarantee the
result with a $20,000 letter of credit, payable to the Edgartown Conservation
Commission if they were unsuccessful. The Town will be able to use the money
to restore the dune if the developer does not succeed in doing so within
prescribed time limits.

DEQE and the Attorney General v. Tobe Deutschmann Sr., Tobe Deutschmann
Jr., and Tobe Deutschmann Laboratories, Inc.

Following a lengthy investigation into the presence of polychlorinated
biphenyls ("PCB's") in barrels and in portions of the soil at three properties
owned or rented by the defendants in Canton, the Division filed this civil
hazardous waste enforcement case. Further tests revealed that the PCB's did
not pose a health danger to the community. The case was settled with the
defendants' agreement to clean up the PCB's on their properties.

Massachusetts v. EPA

This a challenge to EPA's relaxation of sulfur dioxide emission limits for
two power plants near Cleveland, Ohio. (These two plants together emit more
sulfur dioxide than all sources in Masachusetts combined.) Pennsylvania, New
York and New Hampshire have joined us in this proceeding, which is pending
in the Sixth Circuit Court of Appeals. Sulfur dioxide emissions from plants
such as these in the midwest are transported long distances and undergo
chemical changes in the atmosphere, resulting in acid rain and sulfate pollution.
We are seeking to establish that EPA has an affirmative duty to consider and
resolve problems of interstate air pollution when it approves, promulgates or
revises a plan for air pollution control. Briefing is not yet completed. We have
also filed comments in the administrative proceeding under review.

P.D. 12 y^

California v. Watt
North Carolina v. Watt

These cases were brought separately by California and North Carolina to
enjoin the Secretary of Interior from leasing for oil and gas development tracts
offshore those states. The cases raised issues of great significance to
Massachusetts, in light of the federal government's plans to expedite offshore
oil development here: (1) whether the Coastal Zone Management Act requires
the Interior Department to determine, prior to conducting a lease sale, that the
proposed sale is consistent with the affected state's coastal zone management
plan; and (2) the extent to which the Secretary of the Interior must accept a
coastal governor's recommendations regarding a proposed lease sale, pursuant
to the Outer Continental Shelf Lands Act. We filed briefs as amicus curiae
in support of the states in both cases. In the California action, the court granted
first a preliminary and then a permanent injunction on the ground that the
Secretary had unlawfully refused to render a consistency determination
regarding the lease sale. There has been no decision in the North Carolina case.

California v. Watt

The Division is appearing amicus curiae in support of a challenge by the
States of Alaska and California and a number of environmental groups to the
Department of the Interior's 5 -year plan for oil and gas leasing on the outer
continental shelf. This plan includes three lease sales on Georges Bank. We
argued that Interior failed to consider and incorporate environmental and other
non-energy-related factors into its plan, as required by the Outer Continental
Shelf Lands Act Amendments of 1978.

Illinois, Massachusetts, and New York v. Lewis

This suit was filed in 1976 to compel the Federal Aviation Administration
("FAA") to take various actions to control and abate airport and aircraft noise.
While the suit was pending, the FAA took several of those actions. In March
1981 , the court granted our motion for summary judgment and ordered the FAA
to take the remaining action pursuant to a specified time schedule. The FAA
subsequently took that action, promulgating new regulations regarding noise
level standards for new aircraft. Still pending before the court is our motion
for attorneys' fees and costs.

McMahon v. Amoco, et al.

This case was brought to recover clean-up costs for gasoline which leaked
from an underground storage tank and contaminated a major water supply for
Provincetown. The defendants moved to dismiss, raising several significant
issues under the Massachusetts Clean Waters Act, including whether the term
"waters of the commonwealth" includes groundwaters, whether the Act's
remedies are exclusive and therefore preclude a public nuisance cause of action,
whether the Attorney General has standing to bring a public nuisance claim
for violation of the Act and whether recovery on a strict liability theory for
an abnormally dangerous activity could be claimed in addition to claims for
violafion of the Act. The Superior Court resolved all issues in favor of the
Commonwealth.

78 P.D. 12

DEQE V. Hingham

In this case the Town of Hingham claimed that a special act authorizing the
Town to improve waterways and drainage fell within the exemption provisions
of the Wetlands Protection Act, so that the Town was not required to follow
the Act. Since several towns operate under the provision of such special acts,
and the question of whether Towns must submit the filings required by the Act
to their own conservation commissions arises frequently, the outcome was
important to the Department. The court granted summary judgment in the
Department's favor, ruling that the special act did not exempt the Town from
the Act's provisions.

Driscoll V. Lowell

Residents in the. area of Lowell's 'new sewage treatment plant brought this
action to enjoin operation of the plant, alleging that it created odors which were
a private and public nuisance. Cessation of operation of the plant would have
resulted in discharge of 8 million gallons of sewage a day into the Merrimack
River. The Department of Environmental Quality Engineering intervened and
brought a motion for summary judgment, arguing that a legislatively authorized
activity (sewage treatment) could not be a nuisance absent negligence in
carrying out the activity. The court granted the motion for summary judgment.

Pilgrim II

We are an intervenor in the construction permit proceeding for Pilgrim Unit
II. Hearings have been held on all issues with the exception of emergency
planning and the appropriate application to this proposed plant of the lessons
learned from the Three Mile Island accident. We have been preparing during
this past fiscal year for hearings on these issues, which are now scheduled to
occur in October 1981 . We have been assisted in our efforts by MHB Technical
Associates, a consulting firm based in San Jose, California, Phillip B. Herr,
a city planner and MIT professor, and Gordon Thompson of the Union of
Concerned Scientists. Our concerns involve both the feasibility of evacuating
the population surrounding the Pilgrim site in the event of an accident and the
adequacy of current plans for such emergency actions.

STATISTICS

Cases opened in Fiscal Year 1981, by category:

AIR 4

BILLBOARDS 4

HAZARDOUS WASTE 12

SOLID WASTE 4

WATER 23

WETLANDS ENFORCEMENT 11

WETLANDS RESTRICTION 18

MISCELLANEOUS _U

TOTAL 90

P.D. 12 ^9

Cases closed in Fiscal Year 1981, by category

AIR .

BILLBOARDS 22

HAZARDOUS WASTE 5

SOLID WASTE 25

WATER 37

WETLANDS ENFORCEMENT 14

WETLANDS RESTRICTION 30

MISCELLANEOUS 29

TOTAL 7^

HOUSING AND ARSON PREVENTION UNIT

A. INTRODUCTION

The Housing and Arson Prevention Unit, which operates as part of the
Attorney General's Comprehensive Arson Prevention and Enforcement System
(CAPES), continued the work initiated when the program began in early 1980.
The program concentrated on identifying buildings in the Greater Boston Area
which showed symptoms of possible arson situations. By working jointly with
Urban Educational Systems, a neighborhood consultant group, the CAPES unit
identified and targeted over one hundred buildings which were either vacant,
abandoned, or in extreme disrepair. Since these buildings with these charac-
teristics are potential arson targets, the Unit would contact one or perhaps
several municipal agencies. These included the Fire Department, Housing
Inspection Department, Building Department, Collector Treasurer, and Boston
Redevelopment Authority, in addition to various state agencies. There were
several instances where the owner of a building was contacted to discuss the
problems which existed in his building. If a building was found to be several
years behind in property tax payments, the address was forwarded to the
Collector-Treasurer's office for expedited foreclosure proceedings. This process
would be monitored by periodic checks at the Land Court to ensure a speedy
foreclosure process. Finally, arrangements were made with the Massachusetts
Government Land Bank Program to facilitate the rehabilitation of vacant
buildings which had been the subject of litigation.

LITIGATION

Commonwealth v. Longfellow Management

This suit was filed against Longfellow Management Company and Frederic
W. Rust III for unfair and deceptive practices in misrepresenting to the tenants
of a building that the building had been condemned and therefore that they
had to vacate their apartment units. The building had just suffered a fire and
was soon converted into condominiums. The suit sought to enjoin the
condominium conversion and force the building to be kept open as apartments
for one year, in compliance with the Boston Condominium Ordinance. A
consent judgment was entered whereby the defendants are to keep seventeen
of the apartments open for a period of fifteen months. In addition, all tenants
who were forced to vacate the premises are to receive relocation expenses from
the defendant's insurer.

80 P.D. 12

PENDING LITIGATION

Commonwealth v. Carista
Commwealth v. Second Realty
Commonwealth v. Sarah Cutler

INSURANCE DIVISION

During 1980-1981, the Insurance Division operated with legal staff including
three attorneys, three investigators and one secretary. The efforts of the
Division were concentrated primarily on automobile and group health insur-
ance. In addition to the Division's intervention in various administrative rate
proceedings, staff attorneys initiated a number of actions under chapter 93A.

Chapter 93A Cases: The attorneys within the Division have recovered funds
in the range of $50,000 in each of several cases involving the failure of self
insurance plans, the improper cancellation of several hundred automobile
motorists, the failure of a large manufacturer to provide a continuation of
insurance to approximately 500 laid-off workers and the removal of an
improperly authorized medicare insurance product from the marketplace.

Rate Proceedings: The Division, as in the past, intervened in the hearings to
fix and establish the 1981 auto insurance rates. The hearings, which took place
over 13 days, resulted in a rate increase of 7% rather than the 24% requested
by the industry. The staff also took an active role in hearings remanded to the
Commissioner pursuant to the decision of the Supreme Judicial Court
concerning 1980 rate levels.

In the area of health insurance, the Insurance Division participated in several
Blue Cross/Blue Shield rate hearings. Recently, in the instance of a proposed
increase in non-group rates, the Division was successful in indefinitely
postponing the hearing by pointing out the failure of Blue Cross to comply
with procedural guidelines.

INSURANCE CASES UNDER CHAPTER 93 A
CASE NAME DISPOSITION RESTITUTION SECURITY

Commonwealth v. Cooke

and Currie, et al. , In Litigation

Commonwealth v. Miles

Chrysler Consent Judgment $20,000 $10,000

Commonwealth v.

Calianos In Litigation

Commonwealth v. Cross

Country Motor Club. Inc. $25 ,000

Commonwealth v. TKO Consent Judgment

Commonwealth v.

Marquis, et al. In Litigation

Commonwealth v. Amer

Income Life Insurance In Litigation

Commonwealth v.

Scribner In Litigation

P.D. 12

In re: The Word Guild

In Litigation

In re: American Vet-

erans Group Insurance

Trust

Settled

Commonwealth v. Lif>ht-

house Insurance Agency

Settled

PUBLIC CHARITIES DIVISION

The Division of Public Charities, estabhshed by the Attorney General
pursuant to G.L. c. 12, §8B, is one of seven divisions in the Public Protection
Bureau. It performs a number of functions which protect the public generally
from misapplication of charitable funds and from fraudulent or deceptive
solicitations. These functions range from monitoring the filing of annual
financial reports by charitable institutions, to maintenance of public viewing
files, to enforcement of charitable registration statutes and the due application
of charitable funds.

I. LITIGATION

Major enforcement efforts have been undertaken in the following areas:

Failure to Register - Cases Filed

Defendant

Barnstable County Agricultural Society

Berkshire County Fair Association

East West Foundation, Inc.

Fenway Community Health Center, Inc.

Franklin County Assoc, for Retarded

Citizens, Inc.

Massachusetts Assoc, of Alcoholism

Recovery Homes, Inc.

Northern Berkshire Mental Health Assoc.

Peoples Church Home, Inc.

Piedmont Citizens for Action, Inc.

Scituate Police Relief Association

The Communication Theatre Group. Inc.

Westfield Fair Association

Failure to File Audited Financial Statements
Defendant

Arts Council of Franklin County
Barnstable Agricultural Society
Berkshire County Fair
Brockton Agricultural Society
Columbia Point Alcoholism Project, Inc.
Fenway Community Health Center, Inc.
Harvard Street Neighborhood Health
Center, Inc.

Independent Living for The Adult
Retarded, Inc.

Language and Cognitive Center, Inc.
League School of Boston, Inc.
Marshfield Agricultural & Horticultural
Society

StatusI Disposition
Consent Judgment
Consent Judgment
Consent Judgment
Consent Judgment

Consent Judgment

Judgment
Judgment
Judgment
Judgment
Judgment

Consent

Open

Consent Judgment

Status/Disposition

Consent Judgment

Open

Consent Judgment

Consent Judgment
Consent Judgment
Consent Judgment

Consent Judgment

P.D. 12

Middleborough Agricultural Society

New England Fellowship for

Rehabilitation Alternatives, Inc.

Northern Educational Service, Inc.

Sharon Agricultural & Industrial

Association, Inc.

South Berkshire Community Arts

Council, Inc.

South Central Massachusetts

Elderbus, Inc.

The Institute for Community

Economics, Inc.

The Urban Medical Group, Inc.

Westfield Fair Association

Weymouth Agricultural Society

Open

Consent Judgment
Consent Judgment

Open

Consent Judgment

Dismissed

Consent Judgment
Consent Judgment
Consent Judgment
Open

Dissolutions

A. The Attorney General during this fiscal year is in the process of
investigating various inactive charities which have no assets and whose
dissolution would be in the public interest. It is expected that approximately
sixty charitable organizations will be dissolved in the first quarter of the next
fiscal year.

B. In addition, organizations may disssolve 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 charitable assets. During the past year the division has been involved in the
following dissolutions:

NAME
Berkshire Medical Center, Inc.
Congregational Church of Chicopee Falls
Oliver Ditson Society for Relief of Needy Musicians
Energy Conservation Research Institution, Inc.
First Church of Christ Scientist
Foundation of Total Peace
Groupways, Inc.

Haemonetics Research Institute, Inc.
Health Fair of Greater New Bedford, Inc.
Merrimack Valley Council on the Arts & Humanities
Michah Foundation
Mountain Rest, Inc.
Perriwinkle Nursery School
Resource Planning Institute
Unitarian Universalist Association
War Chest Fund Commission
Wellesley Hospital Fund
Worcester Academy for Girls

C. In addition to these matters, the Attorney
Peregrine White Sanctuary, Inc. in Bellotti v. Per
This matter arose from a probate proceeding in
previously inactive charitable corporation was
insurance proceeds. The division sought to have

STATUS

Open

Closed

Open

Closed

Open

Closed

Open

Closed

Open

Closed

General sued to dissolve the
■egrine White Sanctuary, Inc.
which it was discovered this
entitled to $23,000 of life
these proceeds transferred to

P.D. 12 33

the Department of Environmental Management for the improvement and
beautification of the Ames Noweil State Parle. The Ames Nowell State Park
had been created by a gift from Peregrine White in 1955 On May ^9 1981
the Supreme Judicial Court approved the transfer of funds to the Departmeni
of Environmental Management and dissolved Peregrine White Sanctuary, Inc.

Las Vegas Nights
The Attorney General undertook a major enforcement program in the area
of Las Vegas Nights held by charitable institutions. Charitable organizations
are allowed by law to use Las Vegas Nights for fund-raising purposes if the
organizations exclusively operate the games and the proceeds exclusively
benefit the charity. Several months of investigation developed nine cases where
it was found that certain suppliers of Las Vegas type gambling equipment
promoted, conducted and operated the Las Vegas Nights. Pursuant to this
investigation, civil suits were filed against the nine suppliers of Las Vegas type
gambling equipment:

Defendant Status/Disposition

Leo F. Johnson Consent Judgment

Alfred R. Meurant d/b/a Vegas Time Associates Consent Judgment

Aubrey Cole, James Spencer and Robert

Pugliese d/b/a Arlington Las Vegas Knights Consent Judgment

Richard Pacifico and Gail Pacifico d/b/a Authentic

Las Vegas Equipment & Consulting Company Consent Judgment

Paul Ryan & Paul Ryan Productions, Inc. Consent Judgment

Leonard Sacco d/b/a Las Vegas Limited Consent Judgment

Anthony Saponaro d/b/a Casino Fun Time Assoc. Consent Judgment

Joseph K. Sinnot d/b/a Las Vegas Knights Consent Judgment

Leo Ferry and Joseph Cantrella d/b/a/ Las

Vegas Enterprises Consent Judgment

Ad Books
The Attorney General also took enforcement action in the area of deceptive
charitable solicitation through ad book schemes. In this scheme, for-profit
corporations approach charities seeking to produce an ad book for a particular
charity's benefit. In exchange, the for-profit corporations receive a large
percentage of the gross receipts (usually about 75 percent). Other operators
produce ad books for fictitious charitable organizations in a locality. The
Attorney General filed complaints against three such organizations, alleging
deceptive or fraudulent solicitation, failure to register as a professional
fund-raiser/solicitor and failure to fully disclose the facts of the solicitation.
After protracted negotiations, consent judgments were filed in each of the three
cases which carefully delineate between commercial advertising and charitable
solicitation and require full disclosure of the facts of the ad campaigns. These
consent judgments go on to enjoin each of the defendants from further violation
of any Massachusetts charitable registration or solicitation laws. The defendants
in these cases are listed below:

Defendant Status/Disposition

Charles Manfredi Consent Judgment

M & M Publications, Inc. Consent Judgement

General Mass Marketing Consent Judgement

P.D. 12

Registration of Professional Solicitors and Fund-Raisers
Professional solicitors and fund-raisers are required by law to be registered
with the division and to obtain a bond to protect the public against
misapplication of funds. During the course of the last year, cases were brought
against the following professional solicitors or fund-raisers for failure to comply
with these requirements:

Status/Disposition

Defendant

Help Fund-Raising Association, Inc.,

Paul and William Solas d/b/a Cancer

Patient Rehabilitative Services

Richard E. Markiewiecz

Leo E. Wesner d/b/a Leo E. Wesner Assoc.

DECEPTIVE SOLICITATION

The Attorney General is empowered by law to bring actions to enjoin deceptive solicitation.
During the past year such actions were filed in the following cases:

Open

Consent Judgment

Consent Judgement

Defendant

Boston's Firemen's Band, Inc.

Horizons For Youth, Inc.

Steven Parker d/b/a Eastern Service

Workers Association

Status/Disposition
Consent Judgment
Assurance of Discontinuance

Consent Judgment

Civil Investigative Demand
During the prior fiscal year the charitable registration and reporting statute
was substantially altered. One significant addition was G.L. c. 12, §8H, which
allows the Attorney General to issue civil investigative demands upon approval
of the trial court. During this fiscal year the civil investigative demand power
was utilized in the following cases:

The New Assembly of Saint Cecelia, Inc.
Leo C. Wesner Associates

Open

Consent Judgment

Compulsory Accounting and Record-Keeping
Pursuant to the revised registration and reporting statute, the Attorney
General in G.L. c. 12, §8L was also given authority to demand the records
of charitable organizations for audit purposes. This particular statute also
compels charities to maintain such fiscal records as will enable the charity to
comply with the financial disclosure requirements of G.L. c. 12, §8F. Pursuant
to this statute the Attorney General in the past fiscal year brought actions
against the following defendants for failure to maintain proper records and for
failure to account for the charitable funds in the defendant's care:

Joan Callaghan et. al.
Communications Theatre Group, Inc.
Help-Fund Raising Association, Inc.
Paul and William Solas d/b/a Cancer Patient
Rehabilitative Services

Preliminary Injunction/Open
Preliminary Injunction/Open

Open

Probate Actions
The Attorney General is required by law to be named as a defendant in any
legal action involving charitable interests. Many wills and trusts involve such

P.D. 12 85

actions. Accordingly, the Attorney General is named in approximately 250
probate court actions per year. The more unusual or significant o\' these are
set forth below.

Boston Bar Association v. Attorney General

Entry of final judgment in Cy Pres action for the benefit of the Boston Bar
Association.

Bellotti V. Benjamin Freeman

Filed eight complaints for contempt against Benjamin Freeman for failure
to obey a court order requiring him to render accounts of his administration
of eight estates under his care.

Estate of Barbara Livermore

Entry of final judgment resulted in charities taking 70 percent of the amount
in issue. The charities, in defending against an "undue influence" amendment
to a will, received over $300,000 for their efforts. The Division was
instrumental in persuading the charities to insist on a settlement at this level.

Chase v. Pevear

The trustee of a trust with a charitable remainderman appealed a judgment
of the Probate Court. The judgment surcharged the trustee for making
imprudent investments, for improper allocation of fees and for excessive
administration costs. In addition, the probate court ordered the trustee
personally to pay counsel fees for other parties involved.

On appeal, the Supreme Judicial Court reviewed the prudent man rule as
set forth in Harvard College v. Amory and overturned most of the charges for
imprudent investments imposed by the lower court. The Supreme Judicial Court
held that counsel fees were to be paid from the trust and remanded the case
to the probate court for a determination of the amount of such fees.

Kaswell v. Brandeis University

This matter involves interpretation of a handwritten will of a physician who
wrote his will without the benefit of legal advice. At issue is a $25,000 bequest
which may result in the establishment of a scholarship fund.

Luise V. Morgan et al

Trustees of a scholarship fund for medical students failed to file accountings
of their administration of the fund. Pursuant to a court order obtained by the
Attorney General, accountings were filed. The accountings indicate that the
trustees have used improper practices in dealing with the trust funds and failed
to properly carry out the terms of the trust. Negotiations are ongoing for
repayment of funds by the trustees to the trust.

Miscellaneous

Blue Cross Non-Group Rate Hearing

The Division intervened in a hearing before the state Division of Insurance
in October concerning a proposed rate increase sought by Blue Cross and Blue
Shield of Massachusetts for their non-group subscribers. The hearing concluded
after four days with an agreement with Blue Cross that they would settle for

86 P.D. 12

a zero increase in non-group Blue Cross rates. Savings to Massachusetts
non-group subscribers totalled approximately $1 million.

Hearings of the Rate Setting Commission - Blue Cross/Hospital Contract

The Division also participated in hearings by the Massachusetts Rate Setting
Commission concerning the approval of a contract between Blue Cross of
Massachusetts and the state's 139 acute-care hospitals. Testimony prepared by
the Division opposed approval of the contract because it did nothing to
restructure a wasteful system of hospital reimbursements. Blue Cross and the
hospitals subsequently agreed upon a revised contract which substantially
changed reimbursement methodology.

Bellotti V. Survival, Inc.

A complaint and consent judgment were filed enjoining defendant from
failing to timely file for real estate tax abatement.

In Re: General Lawton Post of Civil War Veterans Association

A petition was filed in Suffolk Superior Court on behalf of the Attorney
General's office which sought to apply for similar charitable purposes the
newly-discovered assets of a previously dissolved public charity. The Superior
Court ordered the funds seized and distributed in equal amounts to the Holyoke
Soldier's Home and Quigley Memorial Hospital for the purpose of obtaining
video equipment to aid in the counseling of veterans at these institutions.

Bellotti v. Dimock Community Health Center

The Division obtained a temporary receiver for the Dimock Community
Health Center to continue Center operations and preserve the Center's $1
million dollar endowment.

In Re: Guardianship

A brief, proposed findings of act, proposed rulings of law and proposed order
were filed in this case involving a seventy-three year old psychotic woman who
had refused treatment of a suspected cancerous breast lump.

Bellotti V. Sylvester et al.

A consent judgment was filed in this action regarding surcharge and removal
of a trustee for improper trustee actions. The charitable assets were transferred
to a non-profit corporation in accordance with the original trust's terms.

Bellotti v. Stewart et al.

A consent judgment was entered against the present and former officers of
the Scituate Police Relief Association regarding record-keeping and compliance
with the Massachusetts statutes regulating charitable solicitation and financial
reporting.

Bellotti V. Samuels et al.

Complaint filed against the trustees of the Knights of Pythias Relief Fund
for imprudent investment of $450,000 of charitable assets in a mortgage which
primarily benefits the Knights of Pythias rather than the charitable beneficiaries.
Complaint seeks to surcharge the trustees for losses and to remove said trustees.

P.D. 12 37

INVESTIGATIONS

During the past fiscal year, the Division completed seventeen field audits.
Four of these have resulted in enforcement actions. In addition, a number of
investigations are pending.

II. ROUTINE FUNCTIONS

The Division has numerous administrative and routine responsibilities
including:

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

2.) Administering the state's charitable solicitation act (G L c 68
§§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.

Annual Registrations Under G.L. c. 12, §8F

During the period from July 1, 1980 to June 30, 1981, the charitable
registrations were processed as follows:

FORM PC -$25.00 Fee 6028 $150,700

FORM PC -$15.00 Fee 325 $ 4,875

6353 $155,575

Review of these registrations resulted in nearly 1500 individual requests for
further information or additional fees.

During the past fiscal year, the Division made minor modifications in the
form PC which is used in these registrations. The form now contains an
expanded Investment Schedule and is 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.

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 July 1, 1980 to June 30, 1981, 1217 applications
were processed. Certificate fees received were $12,170.

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
approved by the Director if it meets statutory requirements. During the fiscal
year ending June 30. 1981, thirty-nine registrations were received and approved
and total fees were $390.

88 P.D. 12

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 1309 new wills were received.
Each of these wills was reviewed and it was determined that the Attorney
General had an interest in 704 of these estates.

Probate accounts were reviewed and approved as follows:
Executor Accounts 854

Administrator Accounts 37

Trustee Accounts 2341

Total 3232

In addition, the Division approved 83 petitions for the sale of real estate and
25 petitions for appointment of trustees and was involved in 110 miscellaneous
probate legal actions.

The Division has continued its efforts to review old probate matters in order
to close files where no further action is required and to investigate estates and
trusts where additional accountings are required but have not been received by
the Division. In the fiscal year ended June 30, 1981, 2900 estates were
reviewed and closed. At the completion of this effort only active cases will
remain in the files and as a result the monitoring of such cases by the Division
will be more effective.

Public Administration

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

New Estates 1 25

Estates Closed 182

With Escheat 70

Without Escheat 112

Total Amount of Escheats Received $364,450

In addition, actions were filed against four Public Administrators as follows:

Bellotti V. Donald R. Kelly

Filed four (4) complaints for contempt against Donald R. Kelly for failure
to obey a court order requiring him to render accounts of his administration
of four public administration estates under his care.

Bellotti V. John Douglas Cummings

Filed two (2) petitions with the Probate Court against John Douglas
Cummings to render an Inventory and Accounting of his administration of two
public administration estates under his care.

Bellotti v. William L. Mahoney, Jr.

Filed a petition with the Probate Court against William L. Mahoney, Jr. to
render an Inventory and Accounting of his administration of one public
administration estate under his care.

P.D. 12 39

Bellotfiw. William J. Kittredge

Filed a petition with the Probate Court against William J. Kittredge to render
an Inventory and Accounting of his administration of one public administration
estate under his care.

UTILITIES DIVISION

Pursuant to Massachusetts General Laws, Chapter 12, Section HE, the
Attorney General is "authorized to intervene in administrative and judicial
proceedings 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
Commonwealth and subject to the jurisdiction of the Department of Public
Utilities." During the 1981 fiscal year a statutory budget of $250,000 was
provided which was used by the Division to act on behalf of consumers
pursuant to Section HE. Under authority conferred by other statutes or the
common law, the Division has participated in utility related matters outside the
Commonwealth.

As of the end of fiscal 1981, the Utilities Division consisted of six attorneys,
one utility rate analyst, two secretaries and one administrative assistant. A
summary of the cases handled by the Division is set forth below.

RATE CASES

During the fiscal year, the Utilities Division intervened in each of the thirteen
gas, electric and telephone company rate cases filed with or decided by the
D.P.U. during the year. In the seven matters decided during the fiscal year,
$322,771,000 in permanent rate increases was requested and $151,842,000 was
awarded by the D.P.U. The decisions of the Department to award less than
the amounts requested are based in large part upon the record developed by
the Division and the specific recommendations advanced in briefs. The
discovery preparation, 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 hearings may take anywhere from 3 to 30 days depending
upon the number or complexity of the issues involved. The following charts
set forth the status or outcome of the rates cases in which the Utilities Division
was involved during the fiscal year.

FUEL CLAUSE HEARINGS

The Division has continued to intervene in electric fuel clause proceedings.
During the fiscal year the Division participated in the quarterly fuel adjustment
hearings of each electric company. 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 Division to seriously contest many
of the fuel clause filings. As a result of evidence presented in the.se proceedinjgs,
the D.P.U. is requiring utilities to pro-rate fuel adjustment charges when hilling
for more than one billing month. We testified on behalf of legislation which
would give the D.P.U. greater authority to review fuel adjustment charges and
disallow recovery of imprudently incurred costs and provide additional funding
to the Attorney General for consumer representation.

90 P.D. 12

TELECOMMUNICATIONS

During the fiscal year, the Division intervened in a major telecommunications
rate case. In September of 1980, New England Telephone and Telegraph
Company filed for a $37 million interim rate increase and filed for a $172
million permanent rate increase. The D.P.U. awarded $121 million on an
interim basis, but reduced the amount to $12.1 million based upon adjustments
suggested by the Division on reconsideration. In April, 1981, a permanent rate
increase of $56,065,000 was allowed. The majority of the Division's revenue
adjustments were accepted by the D.P.U. Following the Division's recommen-
dation, the D.P.U. rejected increases in pay phone rates and service and
installation charges. The case was staffed by four attorneys. The Company
presented nineteen witnesses and commercial intervenors presented several
witnesses. The Division budget did not permit the hiring of any expert
witnesses.

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 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. The work of our utility rate analysts has
been very valuable here.

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 forecast. The work of
the Division's utility rate analysts has also been invaluable here. E.F.S.C.
forecasts are used by electric companies to justify the need for future
construction of energy facilities such as power plants and transmission lines.
During the fiscal year the following electric forecast matters in which the
Division intervened were decided as follows:

NEGEA forecast rejected

MMWEC forecast conditionally approved

BECO hearings not yet completed

NU undecided

EUA forecast conditionally approved

The Division was also involved in several gas utility forecasts to insure the
adequacy of gas supplies to meet projected sendout requirements.

MISCELLANEOUS MATTERS

The Division has been involved in extensive hearings before the D.P.U.
regarding the causes of the 1980-1981 winter gas shortage in Massachusetts
(D.P.U. 555). It has also urged the D.P.U. to adopt regulations regarding
profits from intemiptible gas sales and submitted comments thereon.

P.D. 12 9j

The Division has been involved in D.P.U. rule makings regarding billing
and termination practices, PURPA advertising guidelines, small power producer
rates, home energy audit charges and AFUDC accounting. It participated in
D.P.U. hearings involving the restructuring of Colonial Gas Energy System as
well as other individual utility requests for authority to issue securities.

At the Federal level the Division represented the interests of Massachusetts
in Maryland v. Louisiana, in which we succeeded in invalidating a Louisiana
tax on Outer Continental Shelf Natural gas which was costing Massachusetts
consumers about $8 million per year. The Division has been participating in
wholesale electric cases involving New England Power Company and Montaup
Electric Company, each of which sell power to retail affiliates. It has also taken
an active informal role in the review of coal conversion financing plans filed
at FERC by Northeast Utilities and New England Power Company.

The Division has been involved in the Attorney General's Chapter 93 A action
against Cape Cod and Lowell Gas Companies. In April, 1981, summary
judgment issued and the companies were found liable for unfair and deceptive
practices and common law fraud.

The Division was also involved in two separate proceedings before the
D.P.U. regarding the purchases of additional shares of Seabrook Units 1 and

2 by Massachusetts Municipal wholesale Electric Company (MMWEC) and by

3 private electric companies, Montaup Electric Company, Fitchburg Gas and
Electric Company, and New Bedford Gas and Edison Light Company. The
Division took the position that these purchases were not in the public interest.
The D.P.U. approved the acquisition of shares from Public Service of New
Hampshire by MMWEC and by the three private companies, and Fitchburg's
acquisition of shares from Connecticut Light and Power Company, but the
D.P.U. disallowed Montaup's acquisitions of shares from Connecticut Light
and Power Company and United Illuminating Company.

CONCLUSION

During the 1981 fiscal year, the Utilities Division continued to serve as the
major, and in most cases the only advocate of consumer interests in utility rate
cases and related matters. The burden placed upon division personnel increased
greatly due to staff limitations, the absence of any D.P.U. staff intervention
in all but one rate case and the increase in the number and complexity of rate
cases in a highly inflationary year. Lack of resources has prevented the Division
from hiring expert witnesses and sponsoring a direct case in opposition to
portions of utility rate increase requests. The present budgetary outlook suggests
that the Division can no longer engage such witnesses. A substantial effort must
be mounted to increase the size of the statutory assessment, established in 1973.
The record of the Division's past activities show that an increase in resources
will return large benefits to consumers in the form of lower rates.

P.D. 12

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P.D. 12

SPRINGFIELD OFFICE

The Springfield Office of the Department of the Attorney General continues
to be responsible for matters of concern to the Department of the Attorney
General m the four Western Counties: Hampden, Hampshire, Franklin and
Berkshire. As in the past, the primary function of the office has been to handle
division referrals and requests for assistance from Boston. Only consumer
protection matters originate in the Springfield Office.

In addition to the usual types of cases i-eferred by the various Boston
divisions during the fiscal year, the Springfield Office began handling
Department of Employment Security criminal prosecutions relating to recipient
fraud, Chapter 123 A, §§9 discharge hearings, and Industrial Accident Board
claims hearings in the four western counties.

The following represents, by bureau and division, the cases assigned to the
Springfield Office:

CIVIL BUREAU

Assigned

Closed

Pending

Collection

Contracts

Eminent Domain

Victim of

Violent Cinme

Torts

Industrial Accidents

CRIMINAL BUREAU

Chapter 123 A

Section 9 hearings

Employment Security

Medicaid Fraud

Investigations

GOVERNMENT B UREA U

Defense of State Agencies

PUBLIC PROTECTION BUREAU

Consumer Protection 19 7 12

In addition to the above cases, attorneys in the Springfield Office responded
to 73 requests to make court appearances on behalf of the various divisions
in Boston. These court appearances ranged from answering calls of the trial
list to filing various pleadings and/or arguing various motions before the court.

At times such as above, attorneys from the Springfield Office will appear
in court on a particular assignment but will not handle the entire case. During
the course of the year over 150 hours were spent in court on such matters.
The ability of the Springfield Office to respond to these requests on short notice
contributes to the efficiency of the Department as a whole because of the
savings that result from not having to send an attorney from the Boston Office
out each time on such matters.

The Springfield Office also supplies personnel to the Board of Appeal on
Motor Vehicle Liability Policies and Bonds which meets monthly.

96 P.D. 12

The Consumer Protection section of the Springfield Office continued to
actively pursue enforcement of the consumer protection statutes and regulations.
Additionally, the office provides assistance and information to the local
consumer groups in the four western counties and aids individual consumers
where no local consumer groups exist. In FY '81 the office handled 179 such
complaints resulting in savings to consumers of $22,553.72.

Investigators assigned to the consumer protection section conducted numer-
ous investigations of firms or individuals suspected of unfair and deceptive
trade or business practices. The investigations covered a wide range of
businesses including automobile sales and service, career schools, health spas,
swimming pool sales, consumer savings booklets, business franchise sales,
home improvement contractors and advertisers.

One of the major areas of concern for the Springfield Office in the consumer
protection area was that of odometer turnbacks. The office conducted reviews
of the records of 21 new car dealerships and 20 used car dealerships throughout
the four western counties. The investigations entailed a review of dealer record
books, odometer statements, warranties and follow-up with the consumer who
purchased, the automobile. Currently, the results of those investigations are
being analyzed for a determination of the type of action to be taken against
the dealerships we find to be in violation of the law.

The Consumer Protection section took action in two separate cases involving
home improvement firms. In the first instance, complaints were received
against a home improvement firm which installed vinyl insulated windows. The
complaints generally involved failure to deliver, shoddy workmanship, failure
to honor warranty, and failure to refund deposits. After an investigation a
consent judgment was entered into whereby the firm agreed to deliver the goods
in a timely fashion, repair or replace defective materials and refund money to
over 50 consumers for a value of $23,000.00. The second case involved a
siding contractor. In this instance, complaints were received regarding poor
workmanship and failure to perform specified work. Difficulty was encountered
in locating the principals of the siding firm. A number of consumers affected
had received loans from the same bank. The bank had a continuing relationship
with the siding company, thus, never having holder in due course status.
Through negotiations with the bank we were able to have a total of $27,409
deducted from the outstanding loans to consumers.

The Springfield Office conducted a public hearing relative to proposed
changes in the landlord-tenant regulations dealing with utility escalation clauses
and gave testimony on behalf of the Attorney General at two Department of
Public Utilities hearings held in the area. Additionally, personnel from the
consumer protection section fulfilled speaking engagements for numerous
groups.

The Medicaid Fraud investigators were assigned 22 separate cases involving
suspected fraud or patient abuse. One investigation resulted in the indictment
of a pharmacist for larceny. Another investigation involved patient abuse and
resulted in the revocation of the license of a licensed practical nurse.

P.D. 12 ^^

During the fiscal year, the Springfield Office has continued to provide a high
^vel of service to the various divisions of the Department of the Attorney
General and the citizens of western Massachusetts.

^^^^^'^ July 21.1980

David M. Marchand

Personnel Administrator

Division of Personnel Administration

One Ashburton Place

Boston, MA 02108

Dear Mr. Marchand:

You have requested my opinion whether disabled veterans must be accorded
any preference when civil service employees are laid off due to lack of funding
and whether my predecessor's opinion on this question, issued in 1936, is still
valid in light of subsequent amendments to the pertinent statutes.' You have
requested this opinion because several municipalities have asked you which
employees must be laid off first due to lack of funds.

For the reasons discussed below, it is my opinion that when employees must
be laid off due to lack of funding, disabled veterans should be laid off last.

In 1930, one of my predecessors issued an opinion on precisely this question,
concluding that "a disabled veteran who has been given a position in the
classified service . . . [is] entitled to preference in being retained at work,
when, through lack of work or other cause, it is necessary to suspend some
one in the class." 1930 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at
69, 70 (1930). His conclusion was based on his interpretation of the veterans"
preference statute in effect at that time, which provided that **|al disabled
veteran shall be appointed and employed in preference to all other persons,
including veterans." St. 1922, c. 463, formerly codified at G.L. c. 31, §23
(hereinafter, "former section 23"). In his opinion, the statutory term "em-
ployed" applied to continuation in employment, as well as to original selection,
and, therefore, disabled veterans were entitled to a preference in being retained
at work when temporary suspensions were necessary.

In 1935, the General Court enacted a statute providing that "|ijf the
separation from service of persons in the classified service becomes necessar)'
from lack of work because of the season, because of lack of apprnnrialions.
or from any other temporary cause, they shall be suspended and re mploycd
according to their seniority in the service." St. 1935, c. 408. formerly codified
at G.L. c. 31, §46G (hereinafter, "former section 46G"). This statute was
silent as to its effect upon the preference accorded to disabled veterans by
former section 23.

One year later, in 1936, when asked for his opinion as to the joint effect
of these two statutes, another of my predecessors concluded that the statutory

' You have also asked whether disabled veterans should be accorded a preference in the event of future rcinslalcrncnis Bccautc
of the hypothetical nature of this question. I decline to answer it at this lime. See l97'>/80 Op. Ally. Gen No I-. Rep A G..
Pub. Doc. No. 12 at ( 1980); I Op. Atty. Gen. at 273. 275 (1895).

98 P.D. 12

provision concerning temporary suspensions and reinstatements was an excep-
tion to the preference generally accorded to disabled veterans. 1936 Op. Atty.
Gen., Rep. A.G., Pub. Doc. No. 12 at 71, 72 (1936). In 1938, however, the
General Court effectively overruled this opinion by adding the following
sentence to former section 46G: "Nothing in this section shall . . . impair the
preference provided for disabled veterans." St. 1938, c. 297. Moreover, by
St. 1971, c. 1051, the legislature amended the veterans' preference statute to
provide that "[a] disabled veteran shall be retained in employment in
preference to all other persons . . . ." (Emphasis added).

Given the pertinent statutes as they presently appear,- it is no longer possible
to infer, as my predecessor did in 1936, that by enacting section 39, the
legislature intended to create an exception to the rule of preference for disabled
veterans. Rather, now that the legislature has indicated that the provisions of
section 39 are subject to the disabled veterans' preference provided by section
26, and section 26 expressly provides that "disabled veteran[s] shall be retained
in employment in preference to all other persons," it is clear that if employees
are laid off due to lack of funds, all employees having the same title in a
particular departmental unit who are not disabled veterans must be laid off first
according to seniority, followed by such employees who are disabled veterans
according to seniority.

This is the same conclusion reached by my predecessor in 1930. 1930 Op.
Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 69, 70 (1930). It is no longer
necessary, however, to resort to statutory construction to reach this conclusion,
since section 26, unlike former section 23, expressly applies to retention in
employment.

In sum, it is my opinion that when employees must be laid off due to lack
of funding, disabled veterans, according to seniority, should be laid off last.

Very truly yours,
FRANCIS X. BELLOTTI

Attorney General

Number 2 July 31, 1980

Mr. Bradlee E. Gage

Chairman of the Board

Division of Fisheries and Wildlife

Leverett Saltonstall Building

100 Cambridge Street

Boston, Massachusetts 02202

Dear Mr. Gage;

You have requested my opinion whether the Board of Fisheries and Wildlife

General Laws chapter 31, section 39 (hereinafter, "section 39") presently provides in relevant part:

If permanent employees in positions having the same title in a departmental unit are to be separated from such
positions because of lack of work or lack of money or abolition of positions, they shall, except as hereinafter provided,
be separated from employment according to their seniority . . . and shall be reinstated . . . according to such seniority,
so that employees senior in length of service . . . shall be retained the longest and reinstated first .... Nothing in
this section shall impair the preference provided for disabled veterans by section twenty-six.

General Laws chapter 31, section 26 (hereinafter, "section 26") provides that "|al disabled veteran shall be retained
in employment in preference to all other persons, including veterans."

P.D. 12 99

may, consistent with its governing statute, give blanket approval to the
Division's Director to employ necessary personnel. General Laws chapter 21.
section 7F, provides, in pertinent part, that:

The director of the division of fisheries and wildlife shall be

appointed and may be removed by the board ... and the position

shall not be subject to the provisions of chapter 31. The director.

subject to the approval of the . . . board, may appoint, without

regard for the provisions of chapter 3 1 , an assistant director for

non-game and endangered species . . . The director with the

approval of the board, may employ such experts, clerks, and other

employees from time to time, and for such periods as he may

determine to be necessary for its operations.

It is my understanding that your question concerns only those appointments

made pursuant to the last sentence of G.L. c. 21, §7F, referring to the

employment of "such experts, clerks, and other employees' as the director

"may determine to be necessary" for the operation of the division.

After examining the statutory provisions governing the Division of Fisheries
and Wildlife, I have concluded that the Board may not give the Director a
blanket approval to make appointments specified in the last sentence of G.L.
c. 21, §7F. Rather, the Board must actively approve or disapprove employment
candidates as they are recommended by the Director. I base my conclusion both
upon the statutory structure of G.L. c. 21, §§7, et. seq., and upon the
interrelationship between the Division's appointment process and other statutory
procedures governing state employment.

On its face, General Laws chapter 21, section 7F, clearly contemplates that
the Board will assume some oversight role in the course of hiring personnel
for the Division: the director may, under G.L. c. 21, §7F, appoint necessary
"experts, clerks, and other employees," but only with the "approval" of the
Board. Moreoever, the supervisory role contemplated in G.L. c. 21, §7F, is
consistent with the language of G.L. c. 21, §7, which provides generally that
"[t]he division of fisheries and wildlife . . . shall be under the supervision
and control of the fisheries and wildlife board. "

In determining the precise nature of the supervisory role intended in G.L.
c. 21, §7F, it is significant that employees who are appointed pursuant to the
last sentence of §7F are subject to civil service and other laws regulating the
state's employment process. With respect to these appointments, state statutes
limit such factors as: the amount of money to be expended for the employment
of personnel;! ^^^ j^^ jj^igs available;' and the range of candidates from which
the appointing authority may choose.' The Board has no supervisory role in
these areas. Indeed the only approval function remaining for the Board is one
which may be exercised after the Director has recommended candidates trom
among the names certified by the Division of Personnel Administration.

'See G.L. c. 29. §27, prohibiting employment of personnel by a state agency -^nless an appropnat.on by .he general court and

an allotment by the governor, sufficient to cover the expenses thereof, shall have been maoc.
^See G.L. c. 30. §45. which provides, in peninent part, that "the personnel administrator shall esubl.sh, i^lmmister. «k1 keep

current an office and position classification plan and a pay plan of the commonwcaltn.
^See G.L. c. 31, §6. requiring, inter aUa. that each appointment to a civil service position be made only after •ccnif.c.uon

from an eUgible list established as the result of a competitive examination ....

100 P.D. 12

In light of these considerations, were the Board to issue the Director a blanket
approval on hiring, it would leave the reference by G.L. c. 21, §7F, to Board
"approval" virtually meaningless and would dilute the supervisory authority
contemplated by G.L. c. 21, §7. Board approval of the Director's appointments
is affirmatively required by statute. The Board may not subvert this requirement
by issuing a blanket approval in advance of the action to be taken, for to do
so would constitute an impermissible delegation of the authority which the
legislature has granted. Cf. City of Boston v. Shaw, 42 Mass. 130, 138-139
(1840); Commonwealth v. Howes, 32 Mass. 231, 233 (1834) (where a power
and a means of executing the power are expressly set forth in a statute, the
power can be exercised in no other way); 1976/77 Op. Atty. Gen. No. 22,
Rep. A.G., Pub. Doc. No. 12 at 132, n.l (1976) (re-delegation of a
decision-making power conferred by statute is unlawful); 5 Op. Atty. Gen. at
628, 629 (1920) (public officer may not delegate affirmative duties imposed
by statute to other individuals or agencies).

For all of these reasons, I conclude that the Board may not delegate its
authority to approve appointments by granting its Director blanket authority to
hire Division personnel. Rather, General Laws chapter 21, section 7F, requires
the Board to consider the Director's recommendations and voice either its
approval or disapproval in each case.

I understand from the materials which you have provided that the Director
has made appointments over the years pursuant to votes of the Board which
purport to authorize him to employ members of his staff without specific Board
approval. I am of the opinion that these appointments have not been made in
compliance with the statute and are not, therefore, valid. Until such time as
these employees are validly appointed by a specific vote of the Board, they
serve in a de facto, as opposed to a de jure capacity. 1979/80 Op. Atty. Gen.
No. 4, Rep. A.G., Pub. Doc. No. 12 at (1979). The proper method of

validating these appointments is a formal vote of approval by the Board on
each of them.

Very truly yours,

FRANCIS X. BELLOTTI

Attorney General

Number 3 August 1, 1980

Robert E. Sheehan

Comptroller of the Commonwealth

One Ashburton Place

Boston, MA 02108

Dear Mr. Sheehan:

You have requested my opinion whether it is a violation of General Laws
chapter 30, section 21, for an individual to receive payment for services
rendered as an employee of an agency of the Commonwealth, when that
individual is also being paid as an employee in the court system of the
Commonwealth. Your question arises because the expenses of the judicial
branch, including personnel costs, were formerly paid by the counties, but are

P.D. ,2 ,Q,

now paid by the Commonwealth pursuant to the Court Reform Act G L c
29A §§1 et seq. as added by St. 1978, c. 478, §12.1. Consequently, many
mdividuals who formerly received one salary from the Commonwealth and a
second from a county, now find themselves on two Commonwealth payrolls
and potentially liable for violating G.L. c. 30, §21 .

Although your request included a list of named employees currently receiving
pay simultaneously from two separate state agencies, I must respectfully decline
to make mdividual determinations based upon specific cases, since this
necessarily involves determinations of facts, which the Attorney General has
traditionally refrained from making. I do, however, conclude that it is a
violation of G.L. c. 30, §21, for salaried employees of the Commonwealth
who are also salaried employees in the judicial system to continue to receive
two salaries. In addition, I take this opportunity to offer general guidelines to
assist your office in reviewing potential violations of the statute prior to
submitting them to me for enforcement.

Your inquiry in this regard requires a construction of G.L. c. 30, §21, which
provides:

"A person shall not at the same time receive more than one salary
from the treasury of the Commonwealth."

In order to determine whether there has been a statutory violation, you must
first ascertain whether the employee is receiving a "salary" or a "wage". If
the person receives compensation other than "salary", neither G.L. c. 29, §31
("salaries payable by the Commonwealth . . . shall be in full for all services
rendered to the Commonwealth by the persons to whom they are paid."), nor
c. 30, §21, has any application. For this purpose, one of my predecessors in
office has formulated the following test:

(Salary) is limited to compensation established on an annual or
periodical basis and paid usually in installments, at stated intervals,
upon the stipulated per annum compensation. It differs from the
payment of a wage in that in the usual cases wages are established
upon the basis of employment for a shorter term, usually by the
day or week or on the so-called "piece work" basis and are more
frequently subject to deductions for loss of time.

5 Op. Atty. Gen. at 699, 700 (1920).

If, as tested, the compensation is a "salary". General Laws chapter 30,
section 21, would prohibit the receipt of a second "salary" from the
Commonwealth. 8 Op. Atty. Gen. at 604 (1929). This is true even though the
work of the second office might be done outside the usual working hours of
employment of the first office. 7 Op. Atty. Gen. at 330 (1924).

Additional compensation may be paid, however, provided that any of the
following conditions are met:

1. The compensation to be paid is not a salary but is in the nature of
"wages" for special services performed from time to time. 1961 Op. Atty.
Gen., Rep. A.G., Pub. Doc. No. 12 at 91 (1961).

2. The services are rendered only occasionally. 1967/68 Op. Atty. Gen. at
33(1967).

3. The services are performed outside the normal workmg hours of the

102 P.D, 12

salaried personnel. 1955/56 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12
at 43 (1955).

4. The services are not required to be performed as part of their salaried
duties. 1967/68 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 33 (1967).

5. No other person is available to perform the services as part of regular
duties. 5 Op. Atty. Gen. at 698-699 (1920).

I have reviewed the Court Reform Act and have found that it contains no
express or implied exemption from the application of G.L. c. 30, §21, for
county employees who became state employees as the result of its passage.
St. 1978, c. 478. Accordingly it must be construed so as to operate consistently
with G.L. c. 31, §21. Commonwealth v. Hayes, 372 Mass. 505, 512 (1977).
Cf. Colt V. Fradkin, 361 Mass. 447, 349-50 (1972) (statute is not to be deemed
to supersede a prior statute in whole or in part in the absence of express words
to that effect or of clear implication). For this reason, you should continue to
review the information available to you to determine whether two Common-
wealth salaries are currently being paid to these employees.

In reviewing the cases that come to your attention, prior to referral to this
office for enforcement pursuant to G.L. c. 30, §22, you should ascertain
additional facts, as follows:

1 . the scheduled working hours for the employee in each position;

2. whether the positions are full-time or part-time;

3. whether any of the payments involved is attributable to limited services
provided to the Commonwealth at times when the employee is not required
to be working at his other employment.

Any referral should contain a brief recitation of these facts.

In sum, it is my opinion that General Laws chapter 30, §21, as construed
by my predecessors, applies to those individuals who are employed in the
Commonwealth's court system who, prior to passage of the Court Reform Act
in 1978, were county employees.

Very truly yours,

FRANCIS X. BELLOTTI

Attorney General

Number 4 August 4, 1980

Jacqueline D. O'Reilly, Chairman

Arts Lottery Council

Room 212M,

State House

Boston, MA 02133

Dear Chairman O'Reilly:

You have requested my opinion regarding the operation of Chapter 790 of
the Acts of 1979 (the Arts Lottery Act) and your authority pursuant thereto.
Specifically, you have asked the following questions:

(1) Does the Arts Lottery Council have authority to permit arts
organizations which act as arts lottery ticket sales agents to receive

P.D. 12 ,03

a percentage of the proceeds generated by them in addition to their
regular commissions? If the Council does not have this authority
how could it acquire it?

(2) Are there any legal requirements that Arts Lottery Fund
disbursement checks be made payable to the local or regional arts
council or to the city/town itself, and are there any legal require-
ments that these funds be deposited in the general city/town fund
or in a separate local arts council fund?

(3) Who is the "executive body" (a) in a city with a mayor, (b)
in a city/town with a Plan E form of government, (c) in a town
with a Board of Selectmen, (d) in a town with a town council form
of government?

My response to the questions and the reasons therefor are stated below.

In response to your first question, it is my opinion that the Arts Lottery
Council (hereafter, "the Council") is not authorized to permit art organizations
engaged as sales agents to retain, in addition to their regular sales commissions,
a percentage of the proceeds generated by them from the sale of lottery tickets.
I base this opinion on the literal language of two related statutes. General Laws
chapter 10, section 24, as amended, authorizes and directs the State Lottery
Commission (hereafter, "the Commission") "to conduct a lottery for the arts
. . . known as the arts lottery." It mandates that, subject to G.L. c. 10, §35A,
the arts lottery be conducted "in accordance with the general provisions of the
state lottery law." Section 35 A creates an arts lottery and an arts lottery
council. Although it authorizes the Council to establish guidelines for the use
of art lottery funds, it does not prescribe a particular method for selling the
arts lottery tickets or compensating ticket sales agents. Thus, the amount of
commissions to which all sales agents, including arts organizations, may be
entitled is governed by the general state lottery law.

Under G.L. c. 10, §24, the Massachusetts Lottery Commission is authorized
to determine "the type or types of locations at which llottery] tickets or shares
may be sold, the method to be used in selling tickets or shares . . . the manner
and amount of compensation, if any, to be paid licensed sales agents, and such
other matters necessary or desirable for the efficient and economical operation
and administration of the lottery . . . ." (Emphasis supplied). General Laws
chapter 10, section 35A, does not change or affect this provision. The
legislature has vested the authority to set the commissions of sales agents in
the Commission. Thus, only the Commission may establish the rate of
reimbursement paid to lottery sales agents.

The second part of your first question asks how the Council could acquire
the authority for increasing the commissions of art organizations which arc
engaged as sales agents. Such authority would be most appropriately conferred
on the council through an amendment to the Arts Lottery Act.'

'The result sought may also be accomplished through the Stale Lottery Commission. The Lolico Commission ha* t^cnj;;;™
the authority tS establish rules and regulations which allow seller an organizations lo receive a percentage of their genenled
proceeds for commissions, in addition to the commissions normally paid to agents. See G.L. c. 10. 824.

104 P.D. 12

You have next asked whether there are any legal requirements that funds
from the arts lottery be distributed directly to the local or regional arts councils
or to the cities and towns, and also whether these funds must be deposited
in the treasuries of the cities and towns, or in separate funds for each arts
council. It is my opinion that monies derived from the arts lottery and certified
by the Council as payable must be paid into the treasuries of the cities and
towns and may not be distributed directly to the local or regional arts councils.

General Laws, chapter 10, section 24, as amended by St. 1979, c. 790,
requires that, subject to section 35A, the arts lottery revenues must be
distributed "in accordance with the general provisions of the state lottery law."
The distribution of state lottery funds is governed by G.L. c. 10, §35, which
provides that "revenues of the lottery commision from whatever source shall
be expended only for the following purposes: (a) for the payment of prizes .
. . (b) for the expenses . . . (c) the balance of said fund . . . shall be credited
to the Local Aid Fund established under" G.L. c. 29, §2D and "shall be
distributed to the several cities and towns in accordance with the provisions
of section eighteen C of chapter fifty-eight." General Laws chapter 58, section
18C, establishes the procedure by which the Local Aid Fund is distributed and
requires the distribution of this fund to be made directly to the cities and towns
of the Commonwealth.

General Laws chapter 10, section 35A, on the other hand, requires the Arts
Lottery Council to establish guidelines for the use of arts lottery funds by the
local and regional arts councils. That same provision permits the Council to
review applications for funds submitted by the local and regional groups. If
the Council determines that an application complies with their guidelines, it
"shall then certify to the comptroller the payment of the cost thereof to the
extent that funds therefor are payable under section twenty-four to such city,
town or region." Thus, while General Laws chapter 10, §24, provides that
the distribution of arts lottery funds is subject to section 35 A, that latter section
is silent on the subject of distribution except for the specific reference to
payment "to such city, town, or region." For purposes of your question, the
essence of this section is that it establishes a system whereby local and regional
arts councils apply for arts lottery funds. Once the Council determines that the
application complies with its guidelines, it thereafter certifies to the Comptroller
the amount to be distributed, to the extent that revenues from the arts lottery
are available. Despite this statutory scheme, section 35 A nowhere provides that
monies are thereafter to be paid directly to the local and regional councils whose
applications have been approved, nor, in fact, does the statute provide that any
check is to be disbursed for the purposes approved and in the amount certified.^

Generally, when construing a statute, the statutory language itself is the
principal source of insight into the legislative intent. Hoffman v. Howmedica,
Inc., 373 Mass. 32, 37 (1977). When a statute is ambiguous, however, whether
in its language or its means of operation, resort must be made to the various
principles of statutory construction to resolve the ambiguity. See Globe

^I am informed that the manner of distnbution of monies from the Local Aid Fund is merely by means of the Bureau of Accounts
cherrysheet, with no line item amounts signifying specific sources thereof.

P.D. 12 ,05

Newspaper Co.y. Superior Court, Mass. Adv. Sh. (1980) 485 489 ( and cases
cited therein); Massachusetts Mutual Life Inc. Co. v. Commissioner of
Corporations and Taxations, 363 Mass. 685, 690 (1973). The inconsistencies
should be resolved in a manner which coincides with the legislature's intent
in passing the statute. See Murphy v. Charlestown Savings Bank Mass Adv
Sh. (1980) 1323, 1329. . .. .

To the extent that General Laws chapter 10, section 35 A, contains an
ambiguity, that ambiguity must be resolved through the legislative history of
the Arts Lottery Act. City of Worcester v. Quinn, 304 Mass. 276, 281 (1939).
This legislative history supports the conclusion that distribution of funds is to
be made in accordance with the formula of G.L. c. 58, §18C.

As originally introduced into the Senate, the arts lottery bill required that
distribution of the Arts Lottery funds be made directly to the local arts councils.
Mass. S. Doc. No. 1873 (1977). This bill was not enacted. In 1978, the bill
was again filed in the Senate. Again funds were to be distributed "in
accordance with the state's lottery distribution formula to art councils in each
city and town." Mass. S. Doc. No. 332 (1978) and Mass. S. Doc. No. 1329
(1978). Similar legislation was introduced in the House in 1979 and also called
for distribution of the funds directly to local arts councils. Mass. H. Doc. No.
626 (1979) and Mass. H. Doc. No. 6720 (1979). Thus, each and every bill
introduced into the Legislature since the inception of the arts lottery concept
contained a provision calling for distribution to the local and regional councils.
Despite these facts, the bill as approved on November 15, 1979 contained no
such distribution provision. In place thereof was the more general mandate that
the funds be made "payable under section twenty-four to such city, town, or
region." St. 1979, §790.

The action of the Legislature in rejecting five bills requiring direct
distribution to the arts councils and passing the only bill calling for a more
general distribution is highly indicative of legislative intent. The "statutory
expression of one thing is an implied exclusion of other things omitted from
the statute." Harborview Residents Committee Inc. v. Quincy Housing
Authority, 368 Mass. 425, 432 (1975). Thus, the included reference in Stat.
1979, c. 790 to distribution according to G.L. c. 10, §24, coupled with the
exclusion of other distribution formula precludes any other interpretation than
that the funds must be distributed by the comptroller directly to the cities and
towns pursuant to G.L. c. 58, §18C. In my opinion, the legislature's action
indicates an intention not to have the arts lottery funds distributed directly to
the local or regional arts councils, but, as St. 1979, c. 790, section 1.
specifically provides, to have the funds distributed under the general distribu-
tion formula of G.L. c. 58, §18C.

It is my opinion, then, that the distribution of arts lottery funds must be made
in accordance with the formula set forth in G.L. c. 58, §18C. Moreover, the
distribution of these funds may not be made directly to local or regional arts
councils, but must be made directly to the cities and towns in accordance with
section 18C. The funds must be deposited into the treasuries of the cities and
towns and may not be used by the local or regional arts council until there
has been specific appropriation therefor. G.L. c. 44, §53.

While I am mindful of the practical inconsistencies which may be mherent

106 P.D. 12

in this construction,^ the statute can only be interpreted according to its
language and the legislature's intent "without enlargment or restriction and
without regard to [one's] own ideas of expediency." See v. Building Com'r
of Springfield, 246 Mass. 340, 343 (1923). The scope of the statute's operation
cannot be extended by any construction beyond its apparent limits. Worcester
V. Quinn, 304 Mass. 276, 280 (1939).

Finally, I note that any practical problems or inconsistencies encountered by
the State Arts Lottery Council may be resolved through further legislation. In
this regard it is important to note that the disbursement mechanism is
particularly susceptible to any remedial legislation the council deems appro-
priate, since the funds under the statute will not be distributed until June 1,
1981.G.L. c. 10, §35A.*

Your final question concerns the definition of executive body in the various
municipal settings who will appoint the members of the local arts council. The
"executive body" in a city with a major is the mayor. The mayor is "the
executive head of the municipality and has general supervision of all
departments of the city government." Rollins v. Salem, 251 Mass. 468, 471
(1925). See also G.L. c. 43, §48. Cities operating under the Plan E form of
government have city managers rather than mayors as their chief administrative
officers. See Conway v. City Manager of Medford, 5 Mass. App. Ct. 764,
778 (1977) and G.L. c. 43, §§103-05.

It is my opinion that the "executive body" in a town with a Board of
Selectmen is the board. While there is no case law or statute defining
"executive body", an analogy may be drawn to the procedure set forth in G.L.
c. 41, §83 whereby the Board of Selectmen is authorized to appoint members
to a local arts commission. It seems appropriate for the same procedure to apply
to the appointment of arts council members. This conclusion is also supported
by analogy to the Board of Selectmen's power to approve disbursement of funds
under G.L. c. 41, §41. See also 18 Mass. Prac. §105 (2nd Ed., 1979) on the
powers of selectmen.

Finally, the "executive body" for a town government with a town council
form of government will depend upon the Home Rule charter creating the
municipal entity. Normally, it will be the individual who exercises the
administrative functions under the charter. His title may vary from community
to community.
In sum, it is my opinion that:

(1) the state Arts Lottery Council does not have authority to permit
arts organizations which act as ticket sales agents to receive more
than the regular sales commission established by the Lottery

'One could argue, for example, that the statutory scheme in its entirety is inconsistent with this manner of distribution. St. 1979,
c. 790, creating the arts lottery fund, specifically provides that this fund be separate and distinct from the state lottery fund created
by c. 10, §35. The general state lottery and the general state lottery fund have as their purpose the increase of revenue to the
local municipalities. In contrast, the arts lottery and the arts lottery fund are established for the purpose of aiding the visual
and performing arts. Thus, the use of these lottery funds is more narrow in scope than the general lottery and should arguably
be distributed in a distinct manner. The statute, however, nowhere provides for any manner of distribution distinct from that
by which the general state lottery is distributed.

*It would appear that legislative amendment of G.L. c. 44, §53, as well as of G.L. c. 10, §§24 and 35A, is required to achieve
the purposes which you desire.

P.D. 12

107

Commission;

(2) the disbursement checks must be made payable to the city and
towns pursuant to G.L. c. 58, §18C; and

(3) a mayor, the city manager in a city/town with a plan E
government, a Board of Selectmen, and the charter adminisu-ator
m a town council form of government are the executive bodies of
the various municipal entities.

Very truly yours,
FRANCIS X. BELLOTTI

Attorney General

Number 5 September 4 , 1 980

Edward Hanley
Secretary of

Administration and Finance
Executive Ojficefor

Administration and Finance
State House
Boston, MA 02133

Dear Secretary Hanley:

You have requested my opinion whether you are required to hold public
hearings pursuant to General Laws c. 30A before setting the amount of fees
and charges to be paid to the Commonwealth, pursuant to G.L. c. 7, §3B,
as recently amended by St. 1980 c. 572 §1 (hereinafter "Chapter 572").'

For the reasons discussed below, it is my opinion that you are not required
to hold public hearings pursuant to G.L. c. 30A, §2, prior to the determination
of such fees and charges, but that you are required to comply with the
procedures set forth in G.L. c. 30 A, §3.

This conclusion is based, first on my opinion that the fees and charges set
pursuant to Chapter 572 are "regulations" within the meaning of Chapter 30A.
General Laws chapter 30A, section 1(5) defines the term "regulation" to
include "the whole or any part of every rule, regulation, standard or other
requirement of general application and future effect . . . adopted by an agency

'St. 1980c. 572, §1 provides:

Section 3B of chapter 7 of the General Laws, as inserted by section 27 of chapter 684 of the acts of 1975. is hereby
amended by inserting, at the end thereof, the following paragraph:

For the period beginning July first, nineteen hundred and eighty, and ending December thirtyfirst. nineteen hundred
and eighty-two, the secretar>' of administration ( I ) shall determine the amount to be charged by the Commonwealth
for each service of any kind performed by any slate personnel or agency which is pnmanly for the benefit of any
individual person or corporation, other than services for patients in and by institutions of correction, (21 shall determine
the charge to be made by the commonwealth for each use for pnvate purposes or gain ol state-owned buildings, houses,
facilities, and equipment; (3) shall determine the charge to be made by the commonwealth for meals served in sUlc
institutions or facilities to employees thereof; and, (4) shall determine the amount to be charged for any other jjcr^ice,
registration, regulation, license, fee, permit or other public function provided, however, that said secretary shall not
determine the rates of tuition at state colleges, state community colleges, state uniserMtics. and the Massachusetts
Maritime Academy or any fees or charges relative to the administration and operation of the trial court, appeals court.
supreme judicial court and any other department of the judiciary of the commonwealth.
The remaining sections of Chapter 572 generally strike out the amounts of fees and charges as set by vanous statutes and provide
that such fees and charges shall be set by the secretary of administration pursuant to G.L. c. 7. §3B.

108 P.D. 12

to implement or interpret the law enforced or administered by it." Moreover,
since the secretary of administration is an "official of the state government
authorized by laws to make regulations," he is an "agency" within the
meaning of chapter 30 A, §1(2). Fees and charges set pursuant to Chapter 572
would, therefore, be "requirements[s] . . . adopted by an agency to
implement" Chapter 572. Since these fees and charges are "of general
application and future effect," they must be characterized as "regulations."

This construction of Chapter 30A is supported by the well-established
principle that rates or charges fixed by administrative agencies which operate
prospectively and apply generally to a large group of people constitute
regulations. See United States v. Florida East Coast Railway Co., 410 U.S.
224, 246 (1973); Prentis v. Atlantic Coastline Co., 21 1 U.S. '210, 226 (1908);
Automobile Club of New York, Inc. v. Cox, 592 F. 2d 658, 664 (2d Cir. 1979);
Palm Manor Nursing Home v. Rate Setting Commission, 359 Mass. 652, 654
(1971); 1965/66 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 259. 264
(1966).

The determination that fees and charges set pursuant to Chapter 572
constitute regulations is not dispositive, however, of the question whether
public hearings are required, G.L. c. 30A, §2, provides, in part, as follows:

A public hearing is required prior to the adoption ... of any
regulation if: (a) violation of the regulation is punishable by fine
or imprisonment; or, (b) a public hearing is required by the enabling
legislation of the agency or by any other law; or, (c) a public
hearing is required as a matter of constitutional right.

Subsection (a) clearly does not apply here since failure to pay fees and charges
is not punishable by fine or imprisonment. Nor is subsection (c) applicable,
since there is no constitutional right to a hearing in rulemaking proceedings,
even where the regulations may have an adverse impact on the economic
interests of those affected. Bi-Metallic Investment Co. v. Colorado, 239 U.S.
441, 445 (1915); Alaska Steamship Co. v. Federal Maritime Commission, 356
P. 2d 59, 61 (9th Cir. 1966); Cambridge Electric Light Co. v. Department
of Public Utilities; 363 Mass. 474, 488 (1973); Cast Iron Soil Pipe Institute
V. Board of State Examiners of Plumbers and Gas Fitters, Mass. App. Ct.
Adv. Sh. (1979)2150, 2164.

Thus, any requirement that public hearings be held prior to the establishment
of fees and charges pursuant to Chapter 572 would have to be imposed by
statute. G.L. c. 30A, §2(b). Chapter 572 itself contains no express requirement
that public hearings be held. By contrast, paragraph 2 of G.L. c. 7, §3B, which
authorizes the secretary of administration to determine the costs of certain
services provided by the Commonwealth, does require that such costs be
determined "after notice and a hearing in the manner provided by chapter thirty
A." The fact that such a requirement is absent from Chapter 572 (while present
in the preceeding paragraph of the same statute) indicates that in enacting
Chapter 572 the legislature intended not to require public hearings. See
Richerson v. Jones, 551 F.2d 918, 928 (3rd Cir. 1977) (where statute with
respect to one subject contains a given provision, omission of such provision

P.D. .2 ,05

from a similar statute is significant to show a different intention existed) ^ For
these reasons I have concluded that no public hearings are required bv Chapter
572, either expressly or by implication. '

In sum, it is my opinion that since none of the conditions set forth in G L
c. 30A, §2, apply here, no public hearings are required. General Laws chapter
30A, section 3, however, provides that "[p]rior to the adoption ... of any
regulation for which a public hearing is not required under section two, the
agency shall give notice and afford interested persons an opportunity to present
data, views, or arguments" as provided therein. See also Cambridge Electric
Light Co. v. Department of Public Utilities, supra at 485; Massachusetts
General Hospital v. Cambridge, 341 Mass. 519, 523 (1964); 1975/76 Op.
Atty. Gen. No. 63, Rep. A.G., Pub. Doc. No. 12 at 161, 164 (1976)^
Therefore, prior to setting the fees and charges covered by Chapter 572, you
should adhere to the procedural requirements set forth in G.L. c. 30A, §3.

Verv truly vours,

FRANCIS X. BELLOTTl

Attorney General

Number 6 September 10, 1980

Honorable Michael Joseph Connolly

Secretary of the Commonwealth

State House

Boston, Massachusetts 02133

Dear Secretary Connolly:

By letter dated August 8, 1980, you have asked me whether certain questions
are ones of public policy in accordance with G.L. c. 53, §19. It is my opinion
that the questions concern important public matters in which every citizen of
the Commonwealth would have an interest, are fit subjects for lawmaking, and,
therefore, are questions of "public policy" which may be submitted to the
voters, provided, however, that you determine that all other requirements of
law are met.^

My opinion that all of the questions are appropriate public policy questions
is based upon the well-settled principle that the term "public policy" as used
in G.L. c. 53, §19, should not be given a restrictive meaning. 1978/79 Op.
Atty. Gen. Nos. 8 and 17, Rep. A.G., Pub. Doc. No. 12 at (1978). Each
question must constitute an "important public question" in which "ever>

2 Furthermore, this distinction between paragraphs two and three of G.L. c. 7. <!.1B. can be said lo be a rcasonahlc ono simc
the cost determinations to be made pursuant lo paragraph two need only be made ■■from lime lo lime, while mmiol ihc Ices
and charges covered by paragraph three must be made annually. The legislature may ihcrcforc have considered public hcanng»
to be overly burdensome with respect to the hundreds of fees and charges covered by Chapter 572.

'The requirements to which I make reference are contained in G.L. c. 53. §§19. 20 and 21 and involve a niimher of ^iMulocy
prohibitions specifically set out in those sections which involve questions of fact. For example, a question •> n.Jiiy

accurate and presents an important public issue may not appear on the ballot if the question is substani. »nc

which has been submitted to the voters within less than three years. G.L. c. 5i. §21 As Sccrctiiry ol ilu i »>u

have in your possession past election ballots from each of the relevant districts and arc therefore in a better p..-.i...n man l lo
make the factual determination required bv the statute. .. i i <„, . r™ ,.. _..,«

Consequently, I have made no independent inquiry lo determine whether these questions are *la>i"only «fcf«''vc for any r««o
other than a failure to qualify as a public policy quesUon in proper lomi for presentation on the ballot Srf 1958 Op AUy.
Gen., Rep. AG. Pub. Doc. No. 12 at 44 (1958).

110 P.D. 12

citizen in the Commonwealth has an interest." 1976/77 Op. Atty. Gen. No.
7, Rep. A.G., Pub. Doc. No. 12 at 89 (1976); 1978/79 Op. Atty. Gen. Nos.
6,9-11, 13-17, Rep. A.G.,Pub. Doc. No. 12 at (1978).

Even when questions concern a small geographic area, if the problem is one
of concern to the Commonwealth in general, then the question may be
considered one of public policy. 1974/75 Op. Atty. Gen. No. 11, Rep. A.G.,
Pub. Doc. No. 12 at 54 (1974); 1978/79 Op. Atty. Gen. Nos. 16, 17, 18,
Rep. A.G., Pub. Doc. No. 12 at (1978).

Accordingly it is my opinion that the questions you submitted are all matters
of public policy and should be printed on the ballot in the following form:

Senatorial District: Franklin and Hampshire

"Shall the Senator from this district be instructed to vote in favor of
legislation requiring a moratorium on the construction and licensing of new
nuclear power plants and requiring the phased replacement of existing nuclear
power plants with conservation, energy efficiency measures, short-term use of
coal, co-generation, and renewable energy sources such as hydro-electricity,
wind and solar?"

Senatorial District: 2nd Essex

"Shall the Senator from this district be instructed to vote in favor of
legislation requiring a moratorium on the construction and licensing of new
nuclear power plants, and mandating instead that the state promote energy
conservation and renewable energy sources such as hydro-electric, wind and
solar power?"

Senatorial District: 1st Suffolk and five other Senatorial Districts'^

Representative District: 9th Bristol and nineteen other Representative Districts^
"Shall the Senator (or Representative ) from this district be instructed to vote
in favor of legislation requiring a moratorium on the construction and licensing
of new nuclear power plants, and mandating instead that the state promote
energy conservation and renewable energy sources such as hydro-electric and
solar power?"

Senatorial District: Berkshire

Franklin and Hampshire

Hampden
"Shall the Senator from this district be instructed to vote in favor of a
resolution requesting the President of the United States to propose to the Soviet
Union a mutual nuclear weapons moratorium immediatly halting the testing,
production, and deployment of all nuclear warheads, missiles, and delivery
systems, and requesting Congress to transfer the funds that would have been
used for those purposes to civilian use?"

^2nd Middlesex and Norfolk; Bristol and Plymouth; Suffolk and Middlesex; 4lh Middlesex; 3rd Essex.

^4th Essex; 5th Essex; 6th Essex; 2nd Hampden; 4th Middlesex; 20th Middlesex; 26th Middlesex; 32nd Middlesex 3rd Plymouth;
1 2th Suffolk; 13th Suffolk; 17th Suffolk; 18th Suffolk; 19th Suffolk; 17th Worcester; 14th Norfolk; 6th Middlesex; 7th Middlesex.

P.D.12 ,,,

Representative District: 9th Middlesex

"Shall the Representative from this district be instructed to vote in favor
of legislation prohibiting the storage and transportation of nuclear waste within
this distnct and to vote in favor of legislation providing for the development
of alternatives to nuclear energy such as conservation and renewable energy
sources?"

Representative District : 1st Essex

"Shall the Representative from this district be instructed to vote in favor
of a resolution recommending to the Nuclear Regulatory Commission that no
operating licenses for nuclear power plants be granted unless all state and
federal guidelines for evacuation are met and also to vote against any
expenditure of public funds for the purpose of developing such evacuation
plans?"

Representative District: 18th Suffolk
19th Suffolk
"Shall the Representative from this district be instructed to vote in favor
of legislation providing for a City Council in the City of Boston composed of
nine members to be elected from equally populous districts and four members
to be elected at large?"

Representative District: 1st Plymouth

"Shall the Representative from this district be instructed to vote in support
of the construction and operation of a second nuclear power plant at Pilgrim
Station, if all safety and other regulatory requirements are satisfied?"

Representative District: 1st Plymouth

"Shall the Representative from this district be instructed to vote in favor
of legislation prohibiting the construction of a second nuclear power plant in
the Town of Plymouth?"

Representative District: 31st Middlesex

"Shall the Representative from this district be instructed to vote in favor
of legislation prohibiting the construction or licensing of any new nuclear power
plants and providing state programs to encourage building insulation, energy
conservation, solar and hydro-electric power and other renewable energy
sources?"

Representative District: 12th Suffolk

"Shall the Representative from this district be instructed to vote in favor
of legislation providing that abortions are to be paid for by the
Commonwealth?' '

Senatorial District: 3rd Essex

"Shall the Senator from this district be instructed to vote in favor of
legislation prohibiting the construction of overhead high voltage power lines
in excess of 69,000 volts, and to vote in favor of legislation mandating that
such lines be buried underground?"

112 P.D. 12

Representative District: 6th Norfolk
7th Norfolk
8th Norfolk
"Shall the Representative from this district be instructed to vote in favor
of legislation preserving in its entirety the Prowse Farm at the gateway of the
Blue Hills Reservation?"

Representative District: 2nd Essex
3rd Essex
"Shall the Representative from this district be instructed to vote in favor
of legislation ordering the demolition of the Haverhill Parking Garage?"

Senatorial District: Suffolk and Middlesex

2nd Middlesex

2nd Middlesex and Norfolk

5th Middlesex
"Shall the Senator from this district be instructed to vote in favor of a
resolution calling on the federal government to cease spending on military
programs and, instead, to spend the funds for civilian needs such as
construction of energy-efficient housing, mass transit, public education and
health care?"

Representative District: 3rd Hampden

"Shall the Representative from this district be instructed to vote in favor
of legislation providing for the use of a refundable deposit on soft drink and
beer containers?"

Representative District: 38th Middlesex

"Shall the Representative from this district be instructed to vote in favor
of legislation prohibiting the licensing of nuclear power plants until an
independent public agency verifies that all safety and waste disposal problems
are solved, implementing programs for conservation, and promoting the
development of cost-efficient, renewable energy resources?"

Very truly yours,
FRANCIS X. BELLOTTI

Attorney General

Number 6 - Addendum 1. September 12, 1980

Honorable Michael Joseph Connolly
Secretary of the Commonwealth
State House
Boston, Massachusetts 02133

Dear Secretary Connolly:

I have received and considered your suggested wording for the Public Policy
Question to be submitted to the voters in the Suffolk and Middlesex, 2nd
Middlesex, 2nd Middlesex and Norfolk and 5th Middlesex Senatorial Districts.

P.D. 12 ,,3

You have suggested the following wording:

"Shall the Senator from this district be instructed to vote in favor
of a resolution calling on the federal government to cease unnec-
essary spendmg on new military programs and, instead, to spend
the funds for civilian needs such as construction of energy-efficient
housing, mass transit, public education and health care?"
I concur with your suggestion and believe that the wording you proposed

would be appropriate for inclusion on the ballot.

Very truly yours,

FRANCIS X. BELLOTTI

Attorney General

Number 7 September 25 . 1 980

Daniel J. Kelly, Executive Secretary
Teachers' Retirement Board
One Ashburton Place
Boston, MA 02108

Dear Mr. Kelly:

You have requested my opinion whether St. 1980, c. 429, requires retirement
boards to pay an allowance for the benefit of students who have reached age
21 but have not yet turned 22. The question arises because St. 1980, c. 429
amends G.L. c. 32, §12B to provide for such payment until the student reaches
22, rather than 21 as under the prior law. The amendment was approved July
9, 1980, without an emergency preamble, and thus becomes effective on
October 7, 1980. Since benefits have been discontinued for students who turned
21 prior to that date, your question is whether benefits must be resumed for
such students who are not yet 22.

In construing St. 1980, c. 429, I must be guided by the plain meaning of
the statute. Burke v. Chief of Police of Newton, Mass. Adv. Sh. (1978) 425.
427; Boston v. Massachusetts Port Authority, 364 Mass. 639, 657 (1974). On
its face, the amendment clearly provides for payment on behalf of students
under age 22.^ There is no distinction made for students who. though still under
22, had turned 21 while the prior law was in effect.

A construction which imposed such a distinction would conflict with the
apparent statutory intent and should therefore be avoided, in construing the
statute, I must look to the language used, the evil to be remedied, and the
objective to be accomplished by the enactment. Hayon v. Coca Cola Bottling
Co., Mass. Adv. Sh. (1978) 1888, 1893. Moreover, my interpretation must
be "in accordance with sound judgment and common sense." Sun Oil Co. v.
Director of the Division on the Necessaries of Life, 340 Mass. 235, 238 (1960).

*In relevant part, St. 1980, c. 429 provides:

•If a member in service . . . dies and leaves a spouse ... and if there arc any sunivm^
member who are under age eighteen ... or under age twenty two; if a full-time student, i/u
spouse for the benefit of all such children an additional allowance of eighty dollar, a monil
allowance of sixty dollars a month for each additional child ..."

114 P.D. 12

The obvious purpose of St. 1980, c. 429 is to continue support of college
students who typically turn 21 prior to graduation. It would be inconsistent with
this purpose to refuse payments on behalf of those under 22 who have already
turned 21 , but have not yet graduated.

This analysis is consistent with the general rule that remedial statutes are
commonly treated as applying to pending matters. Hein-Werner Corp. v.
Jackson Industries, Inc., 364 Mass. 523, 525 (1974). St. 1980, c. 429, "being
in the main remedial" by merely extending a substantive benefit already
provided, is to be "liberally interpreted in order to effectuate [its] purposes."
Wynn v. Board of Assessors, 281 Mass. 245, 249 (1932).

For these reasons, I conclude that St. 1980, c. 429 requires the payment
of benefits on behalf of students under age 22 regardless of whether such
benefits had previously been terminated because the students had turned 21.
I note that my conclusion is consistent with that of the Director of Retirement
Systems within the Division of Insurance.^

Very truly yours,
FRANCIS X. BELLOTTI

Attorney General

Number 8 October 23 , 1 980

George A. Luciano, Secretary
Executive Office of Public Safety
One Ashburton Place
Boston, MA 02108

Dear Secretary Luciano:

You have asked my opinion whether the provision in G.L. c. 32, §7(1),
which prohibits retirement for certain state police officers "within any period
of two years prior to attaining the maximum age," precludes an individual who
falls within that period from being retired pursuant to the physical or mental
incapacity provisions of G.L. c. 32, §26(2).^ For the reasons set forth below,
I conclude that a state police officer who is two or fewer years removed from
the mandatory retirement age is not prohibited by statute from receiving a
disability retirement pursuant to G.L. c. 32, §26 (2).

The facts as you have provided them to me are brief. A state police officer
has submitted a request for retirement based upon a disability caused by duties
performed during his employment. The officer is within two years of reaching

^G.L. c. 32, §21(1) (a) directs the Commissioner of Insurance "to inspect and examine the affairs of each [retirement board]
to ascertain . . . whether all parties in interest have complied with the laws applicable thereto, and whether the transactions
of the board have been in accordance with the rights and equities of those in interest."

'G.L c. 32, §26 (2) (a) provides in relevant part that:

(a) Any member in service classified in Group 3 who is an officer of the division of state police in the department
of public safety shall be retired by the state board of retirement in case the rating board, after an examination of such
officer by a registered physician appointed by it, shall report in writing to the state board of retirement that such officer
is physically or mentally incapacitated for the performance of duty by reason of (i), illness incurred through no fault
of his own in the actual performance of duty, or (ii), an injury resulting from an accident occurring during the
performance and within the scope of his duty and without contributory negligence on his part, and that such incapacity
is likely to be permanent.

State police officers are classified for purposes of retirement as "Group 3" employees. See G.L. c. 32, §3 (g).

P.D.12 ,,5

age fifty, the mandatory retirement age for state police. ^ According to the
required statutory procedures, the officer has submitted his retirement request
to the Ratmg Board, ^ which, if satisfied of the genuineness of the disabihty
IS required to report in writing to the state board of retirement that the officer
meets the statutory prerequisites for disabihty retirement. G.L. c. 32. §26 (2)
(a). It is my understanding that the Rating Board has failed to act in this case
because of what it considers to be ambiguity in the law. In particular, the Rating
Board finds the following passage from G.L. c. 32, §7(1) troublesome:

Any member ... in service classified in Group 3 . . . shall be
retired for accidental disability .... No such retirement shall be
allowed within any period of two years prior to attaining the
maxium age on account of any accident or hazard . . . undergone
within three years of attaining such maximum age.

On its face, this language would appear to prohibit the disability retirement
of a state police officer who is two or fewer years away from the mandatory
retirement age. This passage, however, cannot be considered in isolation. It
is an essential element of statutory construction that full force and effect must
be awarded to all the words used by the legislature. See, e.g., Hartley v.
Eastern Steamship Corp., 221 Mass. 125, 131 (1915). It therefore cannot be
ignored that G.L. c. 32, §7 (1), expressly exempts from its provisions those
state police officers who seek disability retirement pursuant to G.L. c. 32. §26
(2). The opening proviso of section seven provides that it applies only to
members:

in service classified in Group 3 to whom the provisions of
subdivision (2) of section twenty-six are not applicable . . .
(Emphasis added).

This particular exemption is repeated in section twenty-six, subdivision 4, of
the chapter:

Section seven [of chapter 32] shall not apply to any member . .
. to whom the provisions of subdivision (2) of this section are
applicable.

There can be no doubt from the plain meaning of these statutes, see. e.g..
Rosenbloom v. Kokofsky, 373 Mass. 778, 781 (1977). that the state police
officer in question here, because he is eligible for disability retirement under
section twenty-six (2), is not subject to the particular prohibition of section
seven. See 1957 Op. Atty. Gen., Rep. A.G., Pub. Doc. No 12 at 21. 22 (1956)
(the provisions of G.L. c. 32, §7, do not impact upon a question of retirement
pursuant to G.L. c. 32, §26 (2), since section seven "is not applicable" to
retirements under that letter section). I conclude, therefore, that the olticer's

2G.L. c. 32, §26 (3) requires s.ate police officers to retire upon reaching age 50. See Massachusens Beard of Renremen, v Murgia.

427 U.S. 307.309(1976).
3Tlie Rating Board is established by statute to process disability retiremem requests made by slate police ofr.cen. G L. c. 32.

§26 (1). See 1957 Op. Atty. Gen., Rep. AG., Pub. Doc. No. 12 at 71 (1957).

116 P.D. 12

age in this case is immaterial to the ultimate decision whether he may be retired
pursuant to G.L. c. 36, §26 (2), and the Rating Board is not estopped from
taking appropriate action on the officer's retirement request.

Very truly yours,

FRANCIS X. BELLOTTI

Attorney General

Number 9 October 29, 1980

Edward V. Keating

Clerk-Magistrate for Criminal Business

712 Courthouse

Suffolk Superior Court

Boston, MA 02108

Dear Mr. Keating:

You have asked my opinion whether money which is deposited as bail with
the court under General Laws chapter 279, sections 57 and 79, is money which
should be deposited in interest-bearing accounts and, if it should be so
deposited, whether the interest is payable to the surety or defendant or to the
Commonwealth under General Laws chapter 35, sections 22 and 23.

You have advised me that cash held by the court as bail is currently deposited
in a checking account which bears no interest and that this practice has long
been in operation in Suffolk County. You have further advised me that in recent
years there has been a large increase in the amount of money which is deposited
with your office as bail. This fact, together with the apparent directive in
General Laws chapter 35, sections 22 and 23, gives rise to your concern.

For the reasons stated below, I conclude that money held by the court as
bail should be placed at interest and that this interest must be paid into the
state treasury in accordance with the provisions of General Laws chapter 35,
sections 22 and 23.

While I based my opinion primarily upon the language of sections 22 and
23, as interpreted according to basic maxims of statutory construction, my
conclusion is supported by the fact that the admission of a defendant to bail
in the Commonwealth is, subject to constitutional strictures,^ wholly governed
by statute. The posting of bail by a defendant does not create a relationship
of trust between the Commonwealth and the defendant. See Carpenter v.
Sujfolk Franklin Savings Bank, 362 Mass. 770, 777 (1973). Hence, no
fiduciary duty exists under which the Commonwealth would be required to
make prudent investment of a defendant's bail money. The closest analogy is
that of a contractual bailment, see, e.g.. Read & Sons, Inc. v. Bay State Auto
Springs Mfg., Co., Inc., 48 Mass. App. Dec. 85, 88 (1972), which would,
even if apt, create not a fiduciary duty, but only a duty of ordinary care with
respect to the moneys paid to the clerk as bail. Fireman's Fund Am. Ins. Co.
V. Capt. Fowler's Marina, Inc., 343 F. Supp. 347, 350 (D. Mass., 1971).

'us. Constitution, Amendment VIII; Massachusetts constitution. Part 1, Article XXVI. See. for example. Carlson
342 U.S. 524, 544-46; f;.S. \. Abrahams. 575 F.2d 3 (1st Cir., 1978), cm. den. 439 U.S. 821 (1978).

P.D. 12 JJ7

General Laws chapter 35, section 2V directs that various officials, including
clerks of the courts, who have "more money in their hands than is required
for immediate use, shall deposit it ... at the best practicable interest rates."
St. 1978, c. 478, §23, added "and clerks of courts" to the final sentence of
section 22, thereby mandating that interest earned on these deposits be paid
to the Commonwealth.

General Laws chapter 35, section 23, as recently amended by St. 1978. c.
478, §25\ provides that money paid into the court shall, if possible, be placed
in interest-bearing accounts by the clerks. Such interest shall be available to
the commonwealth "unless the court directs it to be paid to the parties to the
litigation in connection with which such money was paid into court."

The relevant bail statutes. General Laws chapter 276. sections 57-' and 79.^
both of which provide for cash bail, exhibit no conflict with the requirements
of General Laws chapter 35, sections 22 and 23, concerning the disposition
of actual cash deposited with the courts. Cash bail, therefore, should be placed
in interest-bearing accounts, and the interest earned thereby should go to the
Commonwealth, as specified in both sections.

In interpreting these statutes, I am guided by several rules of statutory
interpretation. First, where the language of a statute is clear and unambiguous,
that language must be interpreted according to its "usual and natural meaning."
Rosenbloom v. Kikofsky, 373 Mass. 778, 781 (1977); Johnson s Case, 318
Mass. 741, 747 (1945). Section 22 concerns "more money . . . than is required
for immediate use . . ." and section 23 concerns "[mjoney paid into the
courts." There is no ambiguity in this language and in the absence of any
language which limits the application of these two sections to certain money
which comes to the various officials, these sections are applicable to money
paid to the clerks as bail.

G.L. c. 35, §22, in pertinent part, provides:

Except as otherwise provided, . . . clerks of the courts . . . having more money in Iheir hands than is required
for immediate use, shall deposit it. in their official names, in national banks or trust companies in the commonwealth
or banking companies doing business in the commonwealth and qualified to receive demand deposits under the provisions
of section six A of chapter one hundred and seventy two A. al the best practicable interest rales Inlcrcsi thereon

shall be paid to the county, except that interest accruing lo deposits by . . . clerks of courts shall be paid to the
commonwealth; provided, that interest accruing on the deposit as aforesaid of any money paid lo any official mcniioned
in this section which is so paid under order of a coun or which is otherwise subject lo the direction of a court shall,
if the court so directs, be paid to the panics entitled lo the principal fund of such deposit.

^G.L. c. 35, §23, in pertinent part, provides:

Money paid into the courts in any county shall, if possible be placed at interest by the clerks thereof, and the inlcresi
shall be available for the uses of the commonwealth unless Ihc court directs it lo be paid to the parties lo the iiligation
in connection with which such money was paid into court. All interest in the custody of any clerk of said courts m.
directed to be paid as aforesaid, remaining after payment by order of ihe court of ihe pnncipal fund to panics luigani
entitled theretoi shall annually be paid to the stale treasurer . . . lo be used for ihc general purposes of the commonwealth

■•G.L. c. 276, §57, in pertinent part, states:

A justice of the supreme judicial or superior court, a clerk of courts or the clerk of the supcnor court for cnmina
business in the county of Suffolk ... upon application of a pnsoner or *""■=" hf""";^"^' . ,„'^fV,,,„, ,fT
such prisoner or witness to bail ... . No person offering himself as surety shall be deemed lo be '"'•"fr'^^' ^
deposits money of an amount equal lo the amount of the bail required of him in ^"^^ "^'^.''!=" 'f ^^'^^"'^ =! ^,»^,^^
ofVsavings bink, credit union or of a savings accounts in a tnisl company or "''''°;f„*',?^/-,^Y ''.•'j;'^;;^ '"J^'^^
shares of a cooperative bank doing business in the commonwealth, properly assigned lo the clerk with whom the same
s^is to li^Sed or deposits non-regislered bonds of the United Stales or of ihe commonwealth or of «^y

counti, dty or t^n wilhin the commonwealth equal at their face value to Ihe amount of the bail required of him in
such recognizance ....

^G.L. c. 276, §79. in pertinent part, states:
the clerk of the court.

118 P.D. 12

Another principle of statutory construction provides that the legislature acts
with full knowledge of the effect statutory enactments will have on pre-existing
laws. Lynch v. Commissioner of Education, 317 Mass. 73, 79 (1945). General
Laws chapter 35, sections 22 and 23, were recently amended in 1978 by the
Court Reform Act, which brought these provisions into conformity with the
general takeover of the court system by the Commonwealth. St. 1978, c. 478,
§§23 and 25. Amendments to statutes should be construed as a continuation
of those portions of the statute which remain unchanged. Worcester County
National Bank v. Commissioner of Corporations and Taxation, 275 Mass. 216,
218 (1931). Furthermore, the legislature is presumed to be aware of existing
situations at the time of an amendment. Flanagan v. Lowell, 356 Mass. 18,
21 (1969). I must presume that the legislature was aware that the courts in
1978 were increasingly utilizing cash bail for which clerks of court, as officials
listed in sections 22 and 23 of chapter 35, were responsible. I must also
presume, therefore, that the legislature knew of the impact of the amendments
of G.L. c. 35, §§22 and 23, upon the payment of cash bail to the clerks of
the courts of the Commonwealth.

Until such time as the legislature further considers this matter and indicates
more specifically the disposition of moneys held by clerks of court as bail,
I am compelled to follow the rules of statutory construction set out above and
to conclude that clerks should place money deposited as bail at interest at the
best practicable rates. This interest must be deposited into the General Fund
unless the court orders the payment of interest to the surety or the defendant.

Very truly yours,
FRANCIS X. BELLOTTl

Attorney General

Number 10 November 6, 1980

Charles J. Doherty, Director
Office of Campaign and

Political Finance
Eight Beacon Street
Boston, MA 02108

Dear Mr. Doherty:

You have requested my opinion concerning the extent to which business
corporations^ may become involved in Massachusetts political activities. In your
request you have posed twenty-nine specific questions, each relating to a
narrow aspect of this single issue. In this response, I have not attempted to
set forth and answer those questions in the form and order you have presented
them, choosing instead to address the larger issue and to allow my answers
to your individual questions to be subsumed in the resulting discussion.

'l use the terra business corporation in this opinion to include all of the business entities within the statutory prohibition contained
in G.L. c. 55, §8. Those entities include corporations carrying on the business of a bank, Uiist, surety, indemnity, safe deposit,
insurance, railroad, street railway, telegraph, telephone, gas, electric light, heat, power, canal, aqueduct or water company, any
company having the right to take land by eminent domain or to exercise franchises in public ways granted by the Commonwealth
or by any county, city or town, as well as any business corporation formed under the laws of, or doing business within, the
Commonwealth.

P.D.12 ,,y

The starting point for any discussion of corporate political activity m the
Commonwealth, must be the provisions of G.L. c. ^5 §8 ^ Business
corporations organized under Massachusetts law or doing business within the
Commonwealth are precluded by that statute from makinu contributions' of
anything of value to state or local candidates for public office or to any political
committees organized on their behalf/ In spite of this seemingly clear statutory
prohibition, you have informed me that numerous political committees have
registered with your office and have indicated that they are connected with
business corporations, thus giving rise to the inference that corporate funds are
being directly or indirectly used in political campaigns. Your questions are
intended to clarify the scope of the statutory ban and eliminate the attendant
confusion.

Confusion as to the meaning of G.L. c. 55, §8, can be traced to two recent
developments. First, the United States Supreme Court recently ruled that the
statute was unconstitutional as applied to corporate contributions or expendi-
tures favoring or opposing ballot questions. First National Bank of Boston v.
Bellotti, 435 U.S. 765 (1978). While the dissenting opinion therein casts some
doubt on the continuing viability of a ban on corporate contributions to
candidates,^ the reasoning of the Court and the holding itself make it clear that
G.L. c. 55, §8, still applies to candidate-related corporate expenditures.

Second, federal law allows corporations to expend corporate funds to
establish and administer separate, segregated accounts to be used to benetlt
candidates for federal elective office. '^ 2 U.S.C. §441b. This is specifically
authorized by exempting these corporate costs from the statutory definition of
contribution and expenditure. 2 U.S.C. §441b (b) (2). Massachusetts provides
no similar exemption, and corporate involvement in the establishment and
administration of political committees to favor or oppose candidates remains
an indirect corporate political expenditure prohibited by G.L. c. 55, §8.

^ Massachusetts General Laws Chapter 55. section 8, provides in pertinent part:

. . . [N)o business corporation incorporated under the laws of or doing business in the commonwealth and no officer
or agent acting in behalf of any corporation mentioned in this section, shall directly or indirectly give. pay. expend or
contribute, or promise to give, pay, expend or contribute, any money or other valuable thing for the purpose of aiding,
promoting or preventing the nomination or election of any person to public office, or aiding, promoting or antagonizing
the interests of any political party, or influencing or affecting the vote on any question submiiled to the voters, other
than one materially affecting any of the property, business or assets of the corporation.

^The Supreme Court has noted that there are differences of constitutional dimension between •contributions" and •expenditures"
Buckler V. Valeo. 424 U.S. I, 15-23 (1976). General Laws chapter 55. section I, defines the two terms and sets forth the
distmctions between them. Since G.L. c. 55, §8. flatlv interdicts both corporate contribuuons and corporate expenditures, these
distinctions are of no significance here. See First National Bank of Boston v. Beltolii. 371 Mass. 773, 782-83, n II (1^771.
reversed on other grounds. 435 U.S. 765 ( 1978). Accordingly, the two terms are used interchangeably in this opinion

"•The statute also prohibits corporate contnbutions to committees organized to favor or oppose questions subiniticd to the voters
unless those questions matenally affect the business, property or assets of the corptiralion . This pruhihition. however, was held
to be an unconstitutional infnngemenl upon the right of the voters to hear the corporate viewpoint up..n important questions or
public concern. First National Bank of Boston v. Bellotti. 435 U.S. 765 (1978). Thcrclore, corporations arc currcnt y Irecto
expend corporate funds either directly or indirectly in ballot question campaigns and may lorm political committees for that purpoit
Those committees must register with your office pursuant to G.L. c. 55, §5.

5The pnncipal dissent noted that the Courtis opinion "casts considerable doubt upon the constitutionality of legislation f»««l
by some 31 States restncting corporate political activity, as well as upon the Federal Corrupt Practices Act - U^ C 5*^ jb)
and suggested that statutes prohibiting corporate expenditures in the context of '-•lections to (~^l'c office were pnctK^ly
extinguished and merely awaited "fonSal interment ... for another day". Ftrst National Bank of Boston v BflUmi. 435 U.S
765, 803, 821 (White, J., dissenting).

SThese accounts are generally referred to as political action committees, or by the acronym PACs '-;'™^ ^'j''^^' ' f "T* for P"rp«*^
of this opimon The phrase 'political action committee' may be ol indeterminate ongin. bu "/PP^,^ '"^^;j^^-''P"^;""^~;>
by 1944 %hen it was used as a term of art by the Congressional Social Committees %'";" •»^^,,'^-^P^'f ^*'*"^'^:.
H R. REP. No. 2093, 78th Cong., 2d Sess. (1944); S. REP No. 101. 79th Cong.. 1st Scss. (1945). It now hai a meuung
fixed by federal law. 2 U.S.C. 441a (a) (4).

120 P.D. 12

Some Massachusetts corporations may assume that they may utilize the
federally-recognized PAC entity as a vehicle to make contributions to
candidates for state or local office. Such an assumption is erroneous. The
Federal Election Campaign Act of 1971, 2 U.S.C. §431, et seq., does not
purport to regulate corporate participation in campaign financing at the state
or local level. See generally Cort v. Ash, All U.S. 66 (1975); 1974/75 Op.
Atry. Gen., Rep. A.G. No. 69, Pub. Doc. No. 12 at 165 (1975). Instead,
Massachusetts law determines how candidates for state or local office may
finance their campaigns, and prohibits corporate involvement both by direct
contribution and by indirect expenditure of corporate resources for the
administration of political committees. While a corporation may establish a
PAC for purposes of federal elections, the PAC may not contribute directly
or indirectly to state or local candidates.

This is not to say, however, that a multi-candidate committee^ organized
in accordance with Massachusetts law, could not call itself a "political action
committee". On the contrary, the prohibition contained in G.L. c. 55, §8, is
one of substance, not form, and does not restrict the First Amendment-based
freedom of committee members to choose a name for their committee. See
Riddell v. National Democratic Party, 508 F. 2d 770, 778-79 (5th Cir., 1975).
Thus, political committees organized in accordance with G.L. c. 55, §5, may
utilize the appellation "political action committee" in their statement of
organization, but they may not assume the legal incidents of federal PAC's.

The prohibition against corporate financial involvement in the election of
candidates for state and local office does not extend to individual corporate
officers and employeees. The proscription contained in G.L. c. 55, §8, applies
only to the activities of business corporations themselves. It does not attempt
to restrict volunteered political activity by individuals associated with those
corporations.* The statutes do not restrict the right of corporate employees to
endorse political candidates, to solicit political contributions, or to join political
committees. Such a law would restrict political association and would almost
certainly violate the First and Fourteenth Amendments to the United States
Constitution. See generally Cousins v. Wigoda, 419 U.S. 477, 487 (1975);
Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973). Any group of private citizens
in this state may form political committees for any purpose regardless of their
employment or financial investments.

It necessarily follows from this proposition that corporate officers, including
a corporation's chief executive officer, are free to endorse any candidate they
choose, to discuss that candidacy during the normal course of conducting
corporate business, and to solicit support, financial or otherwise, for the
candidates of their choice. Corporate officers and employees may form
multi-candidate committees, may comprise the entire membership of such

The election laws of this Commonwealth allow various individuals to form a political committee to support candidates who are
sympathetic to their views. G.L. c. 55, §5. These "multi-candidate" committees are independent of any candidate and are in
certain respects similar to federal PAC's.

^State, county and municipal employees are prohibited from soliciting campaign contributions, G.L. c. 55, §13, and from
contnbuting to cenain candidates for public office, G.L. c. 55, §15, although this prohibition does not extend to contnbutions
to political committees. 1965 Op. Alty. Gen. Rep. AG., Pub. Doc. No. 12 at 112, 115 (1964). Certain other public officers
may be precluded from seeking elective office while maintaining their public employment. See Boston Police Patrolmen's
Association. Inc. v. Boston. 367 Mass. 368 (1975); O'Hare v. Commissioner of Public Safer)-. 367 Mass. 376 (1975).

P.D. 12

committees, and may provide voluntary services during their non-business
hours.

Even as the statute does not restrict the independent political activities of
corporate officers, stockholders and employees, so also does it fail to provide
them any insulation from solicitations by their peers. Federal law does regulate
the manner by which PAC's solicit corporate personnel and their families and
the frequency of such solicitation. 2 U.S.C. §441b (b) (4) (B). See FEC AO
1977-18; AO 1976-79. Since Massachusetts law does not permit PAC's or their
functional equivalent to operate at all, such protections would be supertluous.

In considering the extent to which a business corporation may make goods
and services available to candidates or political committees, the meaning of
the phrase "anything of value," as used in G.L. c. 55, §8, is of critical
importance. This phrase cannot be interpreted in isolation, but must be read
in conjunction with the other components of the statutory scheme of which it
is a part. Boston v. Massachusetts Bay Transportation Authority, 373 Mass.
819, 823 (1977). Of particular significance is the definition of the term
"contribution" in G.L. c. 55, §1, where the word is said to include any
"discount or rebate not available to other candidates for the same office and
to the general public." Many of the specific questions you have posed may
be answered by reference to this statutory provision.

The Massachusetts statutory scheme does not prohibit corporations from
selling or renting their facilities, goods and services to candidates for political
office or political committees organized on their behalf. Questions arise,
however, as to the remuneration that the corporations must receive in return
for the goods or services provided. It is my opinion that corporations may not
offer those goods or services without charge and must charge a rate such that
no discount or rebate is offered to any candidate or committee which is not
available to other candidates for the same office and to the general public'
Accordingly, Massachusetts business corporations can allow utilization'" of
their meeting rooms, their equipment, including telephones, and their office
supplies, including stationery, for candidate-related political purposes only
where they receive such compensation for those goods or services.

A slightly more difficult question is presented when a particular fair market
value cannot be ascribed to the use of corporate property. You have inquired,
for instance, whether a business corporation may provide lists of its sharehold-
ers or employees to candidates or committees. These lists may be things of
value, see Zentner v. American Federation of Musicians of U.S. and Canada,

8The Federal ElecUons Commission, operating under analogous federal law has promulgated ^gulauonsw^^^^^^
to make available corporate fac.l.fes to cand.dates .f ^^^y^^ ^''l'^^^.^^^^;^^"^^^^^ '^^^^i

consistent with norma] and and usual rental charges. II L.h K i i^.y (a) ^'^'■"\"'%"'°,,. ,.,..-™,„i r,r rrhair i>n*l<-m Sec
FEC advisory opinions which are illustrative of how the federal g"^"''"^' ''''^''^.f.V.Hrn^^ com,,^v olu^^^^^
FEC AO 1978-34 (reimbursement for use of corporate telephones must include charges by telephone company plus Uir maree
^n^ vie oLfficeTace iTfuriitlire); FEC A^ l97.S-9/(loan of corporate equipment such a^ .ypewn.cn. copymg c^u.pmen.
and airplanes is an in-kind contribution in an amount equivalent to normal and usual rcnwl charges)

-Genera. Laws Chapter 55. secUon 8 proscnbes the u. of cor^^^^^
cannot pay for sutionery or postage used by its chiet execuuve oiiicci lu cnu •;>- . f,^,,,,,,. of „ «»ocia.ion of

on behif of such a cand.da.e. Similarly theprohibuion contained m

which Oie corporation is a dues-paying member. The proh bition '-''''="''1'° '^"' "ii;, "/ 'T ji nuv no. do lo indirectly

If a corporation cannot directly provide facilities to a candidate or commiltcc by virtue of Oie SUWK. .. nuy no. ao «. inairecuy
^trough the associations to which it belongs.

122 P.D. 12

237 F. Supp. 457, 463 (S.D.N. Y. 1965), and as such could not be provided
to a candidate or political committee without appropriate remuneration."

You have asked whether a corporation may allow a candidate or political
committee to use its internal mail system or to implement a payroll deduction
plan for employee contributions. This type of corporate involvement is
contemplated by the federal statute which permits PAC's to operate, 2 U.S.
C. §44 lb (b) (2), and is explicitly allowed by regulations adopted by the
Federal Elections Commission. 11 CFR, §§114.1 (b) and (f); 114.11 (a).
Massachusetts law contains no similar exemption from the general ban on
corporate contributions and expenditures. Accordingly, corporations, may not
provide internal mail or payroll deduction systems to candidates or political
committees without receiving appropriate compensation in return.

You have also specifically inquired, concerning the use of a corporate name,
logo or trademark by a political committee. The exclusive use of corporate
names and trademarks is protected by Massachusetts statutes. G.L. c. 155, §9,
c. 156B, §11; c. HOB, §§12, 13. There also exists at common law the right
to protect the use of a business name. Tiffany & Co. v. The Boston Club, Inc.,
231 F. Supp. 836 (D. Mass. 1964). Trade names and trademarks have been
held to constitute valuable property. See General Electric Co. v. Kimball
Jewelers, Inc., 333 Mass. 665, 677 (1956). I am of the opinion that insofar
as a corporation would enforce its right to the exclusive use of its name,
trademark or logo against other entities, it grants a thing of value if it allows
their use by a committee or other organization. A business corporation may
allow a multi-candidate committee to use its name, trademark, or logo without
compensation, only to the extent that it would not prohibit such use by any
other individual or entity.

The same reasoning applies to the use of corporate personnel. The statutory
definition of the word "contribution" specifically includes "payment, by any
person other than a candidate or political committee, or compensation for the
personal services of another person which are rendered to such candidate or
committee." G.L. c. 55, §1. A business corporation which requires an
employee to work for the election of a candidate, while at the same time
providing the employee with a salary, makes a political contribution to the
candidate in violation of G.L. c. 55, §8. It is immaterial whether the employee
is required to perform the political activity during normal business hours. As
long as political activity is a condition of employment, it must be viewed as
part of the duties of the employee for which he is compensated.

A separate issue is raised by the question whether a corporate employee may
volunteer his time to a political candidate during business hours. If the
corporation generally allows employees to perform non-business functions
during normal working hours, then the corporation could allow an employee
to perform volunteer political work in a similar manner. As this policy would
be considered part of the normal course of conducting business and would "not
involve corporate expenditures specifically designed to influence the electoral

"G.L. c. 156B. §32, governs access by stockholders to the list of names and addresses of stockholders in a corporation and
the amount of stock held by each, including access "for the purpose of selling said list."

P.D. 12 P3

process," First National Bank of Boston v. Bellotti, supra, 371 Mass at 789
the provisions of G.L. c. 55, §8, would not be implicated. Of course, the
corporation could not prescribe particular candidates or committees for whom
the employees may volunteer their services during business hours. If. however,
the corporation generally prohibits its employees from performing non-business
activities during normal working hours, it may not make an exception for
political services rendered to a political candidate. By allowing political
services to be performed by an employee during a time when the employee
would normally be required to devote his attention to corporate business, the
corporation would in fact be making a donation of the employee's time. Such
a donation is prohibited by G.L. c. 55, §8.

The prohibition against corporate expenditures does not apply to expenses
incident to the publication of an internal newspaper which has editorialized in
favor of a particular committee or candidate, urged that contributions be made
to such a committee or candidate, or sold advertising space to a candidate or
a multi-candidate committee. As the Supreme Judicial Court has authoritatively
stated in construing the applicable law, "§8 does not bar such activities (as
publishing a house organ or newspaper expressing political views] which are
in the normal course of . . . corporate affairs and do not involve corporate
expenditures specifically designed to influence the electoral process". Id. See
also United States v. C.I.O.. 335 U.S. 106, 122-24 (1948) (Federal Corrupt
Practices Act does not bar publication of internal corporate newspapers
endorsing political proposals or candidates). Since the Supreme Judicial Court
is the ultimate expositor of the meaning of Massachusetts law, see Moore v.
Sims, 442 U.S. 415, 429 (1979); Smiley v. Kansas, 196 U.S. 447, 455 (1905),
this narrowing construction of section 8 is controlling.

In summary, I believe that Massachusetts law interdicts any corporate
expenditure or contribution of anything of value specifically to promote or
oppose a candidate for state, county or local political office and that the law
does not allow corporations to circumvent the prohibition by forming and
administering PAC's. It does not, however, restrict the First Amendment
freedoms of individual corporate officers, stockholders or employees to
participate in such political activities, nor does it ban corporate expenditures
in the normal course of business which are incidental to the internal
dissemination of political views through house organs or newspapers.

Very truly yours,

FRANCIS X. BELLOTTl

Attorney General

Number 11 November 26. 1980

Michael J. Sabbagh, Commissioner
Division of Insurance
100 Cambridge Street
Boston, MA 02202

Dear Mr. Sabbagh:

You inform me that a group of individuals in the Commonwealth proposes
to organize an insurance company under General Laws chapter 175. section

124 P.D. 12

48, to engage in one line of business specified in section 47 of that chapter,
and that it desires to do so by forming a business corporation to act as a
promoter in the formation of the insurance company. As a promoter, the
corporation will purchase twenty-five percent of the first million dollars and
fifteen percent of the second million dollars of original issue stock, thereby
satisfying the requirement of section 48, concerning the amount of stock to
be purchased by the promoters, organizers, directors and officers of the stock
insurance company.

You seek my opinion whether a business corporation formed under General
Laws chapter 156B may be a "promoter" of a stock insurance company, as
that term is used in G.L. c. 175, §48. Specifically, you ask whether the word
"person", as used in G.L. c. 175, §48, includes such a business corporation
or whether it refers only to natural persons.

General Laws chapter 175, section 48, as amended by St. 1966, c. 95. §2,
defines a promoter as follows:

The word "promoter", as used in this section, shall mean any
person who, acting alone or in conjunction with one or more other
persons, directly or indirectly takes initiative in founding and
organizing any company organized under this section.

You properly observe that G.L. c. 4, §7 (23), provides that unless a contrary
intention clearly appears, the word "person" in a statute includes corporations.
In light of this provision, your question is clearly posited: does the word
"person" as used in the statutory definition of promoter include a corporation
or does "a contrary intention clearly appear" in G.L. c. 175, §48, thereby
making G.L. c. 4, §7 (23) inapplicable?

It is my opinion that the word "promoter", as it is used in section 48, refers
only to natural persons acting in that capacity. Based upon the literal language
of the statute, in conjunction with the legislative purpose of its enactment, it
clearly appears that in using the term in section 48, the legislature contemplated
that only natural persons would be promoters.'

As with the construction of any statutory provision, section 48 must be
interpreted "according to the intent of the Legislature ascertained from all its
words construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be accomplished, to the
end that the purpose of its framers may be effectuated." Board of Education
V. Assessor of Worcester, 368 Mass. 511, 513 (1975), quoting Industrial Fin.
Corp. V. State Tclx Comm., 367 Mass. 360, 364 (1975). Following that
methodology, I begin with an analysis of the words of the statute itself.

The word person is used twice in section 48, once in the definition of

'There is some indication in the General Laws that corporations are not precluded from acting as promoters. See G.L. c. 156B.
§9 (o); G.L. c. 175, §30 (a); Productora E Imporladora De Papel v. Fleming. Mass. Adv. Sh. (1978) 3106, 3117; see also
American Bar Foundation, Model Business Corporation Act, S4 (1971 & Supps. 1973, 1977). Indeed, the law has not undenaken
to define or to catalogue the nature or functions of a promoter. Massachusetts courts have wisely restncted themselves to stating
promoters' rights and duties on the facts of a particular case. See, e.g.. Whaler Motor Inn. Inc. v. Parsons, ill Mass. 620,
625-27 (1977) (It is well to proceed modestly, with no hope of finding invariant precepts) Productora E Importadora De Papel
v. Fleming, supra. Mass. Adv. Sh. (1978) at 3117; Old Dominion Copper & Co. v. Bigelow. 203 Mass. 159, 178 (1909). The
definition of "promoter" contained in section 48, as any person who "directly, or indirectly takes initiative in founding and
organizing any company," is as precise as any hazarded by a court.

P.D. 12 ,35

"promoter", and once in the first sentence of the section: "Ten or more
persons residents of this commonwealth may form a stock company
Both the numerical requirement of ten or more persons, and the requirement
that those persons be residents of the commonwealth are significant The
number of persons required to join in forming an insurance company makes
little sense if corporations are counted as persons. Similarly, the use and
definition of the term "resident" in chapter 175 suggests that the legislature
contemplated that only natural persons be promoters.^ See G.L. c. 175, §1 .

Finally, the statutory limitations on the issuance of options and warrants to
promoters also clearly indicate that promoters must be natural persons. The
statute requires in the fourth paragraph that any options and warrants issued
to promoters cannot be transferred except by operation of law as a result of
death or with the prior written approval of the Commissioner. G.L. c. 175,
§48. This initial factor is significant because only natural persons are subject
to a transfer of property by operation of law as a result of death.

In addition, it is an historical fact that corporations have not had formal
authority to join in the formation of other corporations. In the absence of a
statute expressly so providing, corporations may not be incorporators or original
subscribers for stock in another corporation. W. Fletcher, Cyclopedia of the
Law of Private Corporations, §85 (perm. ed. rev. vol. 1974), §2827 (perm,
ed. rev. vol. 1968). They may not join in partnership with individuals. See,
e.g., Walsh v. Atlantic Research Associates, Inc., 321 Mass. 57, 64 (1947);
Hosher-Platt Co. v. Miller, 238 Mass. 518, 523 (1921). Consequently, they
have not, historically, acted as promoters. See Henn, Law of Corporations,
§183 (1970).^ But see generally American Bar Foundation, Model Business
Corporation Act §4 (p) and Commentary (1971). Thus statutes, such as G.L.
c. 175, §48, which provide for the formation of corporations are not to be
construed as authorizing other corporations to become incorporators, unless
such an intention on the part of the legislature is clear. Therefore, it seems
clear that where section 48 provides that "ten or more persons" may form a
stock insurance company, the statute refers only to natural persons.

Chapter 175 of the General Laws was first enacted in 1872. The provision
that "[t]en or more persons residents of this commonwealth" may join to form
an insurance company is essentially unchanged from the original enactment.
See Stat. 1872, c. 375, §1. There is no provision in chapter 175 expressly
granting to insurance companies the powers only recently given to business
corporations. See St. 1969, c. 392. It is thus fair to say, for the reasons set
out above, that these words have always referred to natural persons, notwith-
standing that G.L. c. 4, §7 (23), has been in effect since 1836. R.S. 1836,
c. 2, §6, cl. 13. In my opinion, that remained true in 1966, when the last
three paragraphs of section 48 were inserted. These considerations require the

^Indeed, where statutes providing for the formation of corporations require pcrsor« forming the -^"T""''"" '° "?= 'I^")^"''' "
is generally held that the term "persons ' refers to individual natural persons. See W. Fletcher. Cyclopedia of the U* of Pnvue
Corporations, §82 (perm. ed. rev. vol. 1974).

^-niese were the circumstances concerning corporations formed under G.L. c. 156. "°•*'**'^S'!'?„^«''^^™^".■l?^'!'-^ chlScI
provides that a corporation could be formed by •three or more persons. When the new B"*'""%f °T~",''°"JJ^ '^'^V.
156B was enacted in 1964 section 12 provided that Three or more natural persons ma> act as incotporalor^

S . 196^ c 723 etlacinroi!. c. 1568'! §12. I. was not un.U 1969 ^^at -T^rations were pcimmed to act ^irKorporaton
and freely to join in partnerships. See St. 1969, c. 392. amending G.L. c. 156B §9 (o). and mserung G L c 156B. 9A

126 P.D. 12

conclusion that the word "person", as it appears in the final paragraph of
section 48, likewise refers only to natural persons. This follows both from the
desireability of according the same meaning to a word that appears more than
once in a statute, see Plymouth County Nuclear Information Committee, Inc.
V. Energy Facilities Siting Council, 314 Mass. 236, 240 (1978), and from the
fact that the amendments increasing the power of business corporations were
enacted after the insertion of the final three paragraphs of section 48.

That this interpretation is consistent with the legislative purpose may be
ascertained by further analysis of the statute and its history. The third paragraph
of section 48 provides that:

. . . The promoters, organizers, directors and officers of the
company shall purchase a total of at least twenty-five per cent of
the first million dollars of stock originally issued and a total of not
less than fifteen per cent of each additional one million dollars of
stock originally issued. Any such stock shall be purchased at the
same price and on the same terms as stock offered publicly. Any
stock issued to the promoters, organizers, directors or officers of
the company shall be held by the person to whom issued for a
period of not less than five years. . . .

This provision, in effect, requires those most responsible for the success and
soundness of the company to have a substantial stake in that success, thereby
assuring good faith in their dealings with the company." Plainly, the General
Court has concluded that there is special need in the insurance industry for
measures designed to insure the responsibility and good faith of those who
form, control and operate insurance companies. '' See generally, Elmer v.
Commisssioner of Insurance, 304 Mass. 194, 197-98(1939).

Granting this premise of section 48, it is evident that the scheme which you
have described would seriously imperil the statutory purpose. If a business
corporation may hold the shares required to be held by an insurance company's
promoters, organizers, directors or officers, then no individual promoter,
organizer, director or officer need have the personal stake envisioned by the
statute.*^ Nor is the corporate promoter's stake in the insurance company an
adequate substitute for the personal interest of individuals. This is so because
a corporation acts through individuals, and the individuals through whom it
acts may have no personal stake in the success of the insurance company.
Moreover, a business corporation cannot give undivided attention to making
a success of the insurance company, for it is obliged to answer to its
shareholders. It is true that the insurance company's individual promoters,
organizers, directors and officers have well defined legal duties to the company.

'No similar requirements are to be found in chapter 156B, the Business Corporations Law.

^A complementary provision may be found in G.L. c. 175, §49. requiring the Commissioner of Insurance to satisfy himself that
the incorporators of an insurance company are "of good repute and intend in good faith to operate the company . ' '

^To put the worst case, suppose that a group of individuals promotes a business corporation, and capitalizes it by the sale of
shares to the public. Suppose next thai this corporation nominally acts as a promoter in concert with the same individuals to
form a stock insurance company, and that it purchases all of the requisite shares. In that case, only the shareholders in the business
corporation have a substantial money stake in the success of the company; the individuals most responsible for promoting the
company need have no money stake at all. Worse, they will look to their promoters' fees for their compensation, rather than
to a speedy return on investment in a healthy insurance company.

P.D. 12 P7

but the very premise of section 48 is that these duties are not sufficient
assurance of individual good faith and responsibihty.

My conclusion is reinforced by consideration of the context of section 48
in the overall statutory scheme. One objection to construing section 48 to treat
corporations as promoters is the consequence of that construction in light of
the merger provisions of chapter 175. General Laws chapter 175, section 193S.
provides that an insurance holding company may be merged into its domestic
insurance subsidiary if at least eighty per cent of its assets are committed to
its subsidiary's insurance business. Thus, in the case that you have stated, a
business corporation formed for the sole purpose of promoting a stock insurance
company could be merged into the insurance company upon its formation. If
the business corporation were the only promoter holding shares in the insurance
company, its merger into the company would eliminate the only promoter,
organizer, director or officer with the "personal" stake contemplated by the
statute. This result is clearly inconsistent with the statutory requirement that
stock issued to promoters, organizers, directors or officers "be held by the
person to whom issued for a period of not less than five years, unless the
commissioner shall approve a prior transfer, in writing." G.L. c. 175, §48.
I do not mean to say that such a result would necessarily follow on the
construction advanced; it is enough to say that chapter 175 does not clearly
provide for such an eventuality. This is significant because the act which added
the final three paragraphs of section 48 also amended section 19A to require
that the corporation resulting from a merger comply with part of the amended
section 48, but not with the provisions concerning promoters. St. 1966, c. 95,
§2. Had the legislature contemplated the possibility that a corporation could
act as a promoter, it would have made specific provisions in the same statute
for the situation hypothesized.

Although there has been movement recently toward removing disabilities of
business corporations to act as incorporators and partners, see Henn, Law of
Corporations §183 (1970), there is no evidence in chapter 175 to suggest that
the legislature has intended to remove such disabilities with respect to insurance
companies. On the contrary, the movement in that chapter has been toward
establishing greater individual responsibility for the affairs of insurance
companies. See generally Clark, The Regulation of Financial Holding Com-
panies, 92 Harv. L. Rev. 787, 814-48 (1979); Clark, The Soundness of
Financial Intermediaries, 86 Yale L. J. 1, 10-25, 77-85 (1976). In short, it
would be egregious to alter the traditional meanings of words in that chapter
because of events in a diverging area of corporation law.

For the foregoing reasons, it is my opinion that a corporation may not be
a promoter of a stock insurance company for the purposes of General Laws,
chapter 175 section 48.

Very truly yours,

FRANCIS X. BELLOTTI

Attorney General

128 P.D. 12

Number 12 February 10, 1981

John T. Dunlop, Chairman

Morris A. Horowitz, Vice-Chairman

Joint Labor-Management Committee

130 Bowdoin Street - Room 408

Boston, MA 02108

Gentlemen:

You have requested my opinion concerning the effect of Section 10 of
Question 2,^ which was approved by the voters on November 4, 1980, upon
the powers of the Joint Labor-Management Committee (hereafter, "the
Committee"). Specifically, you ask whether the Committee may use binding
arbitration subsequent to December 4, 1980, as a means to resolve disputes
in cases where the Committee has exercised jurisdiction prior to that date, but
where the case has not been resolved as of that date.

For the reasons set forth below, I conclude that while the Committee may
use arbitration as a method to resolve a dispute over the negotiation of the terms
of a collective bargaining agreement involving municipal fire fighters or police
officers, it may not bind the legislative body of the affected municipality to
honor the resulting agreement. I base this conclusion upon the fact that unlike
Section 4, Section 4 A of Chapter 1078 of the Acts of 1973, from which the
authority of the Committee derives, nowhere expressly states that arbitration
awards shall be binding upon the legislative body of the municipality, nor may
such authority be inferred from the statute.

Section 4 of Chapter 1078 of the Acts of 1973 established a procedure for
the resolution of labor disputes between a municipality and the collective
bargaining unit of its policemen or firefighters. Under that section, the Board
of Conciliation and Arbitration must first determine that an impasse exists in
negotiations over the terms of a collective bargaining agreement.^ The statute
then provides for the submission of such a dispute to a panel of three arbitrators,
which, after hearing, selects one of two written statements submitted by the
respective parties and containing that party's last and best offer for each of
the issues in dispute. The statute expressly provides that "the selection [by a
majority of the panel] shall be final and binding upon the parties and upon
the appropriate legislative body." St. 1973, c. 1078, §4. This "last best offer,
final and binding arbitration" was designed to balance the collective bargaining
rights of public employees against the public health and safety in police and
fire protection. Arlington v. Board of Conciliation & Arbitration, 370 Mass.
769,780(1976).

St. 1977, c. 730, entitled "An Act Establishing a Joint Labor-Management
Committee to Oversee Municipal Police and Firefighter Collective Bargaining

'Question 2. popularly known as "Proposition 2'/5" and recorded as St. 1980, c. 580, became effective December 4, 1980.
Section 10 thereof provides:

Section 4 of Chapter 1078 of the Acts of 1973, as most recently amended by Chapter 154 of the Acts of 1979,
is hereby repealed.
See n. 3 accompanying test, infra.

^Such arbitration, involving the formation of a contract between the parties, is known as "interest arbitration". See School
Committee of Boston v. Boston Teachers Union. 372 Mass. 605, 606, n.4.

P.D. 12 ,29

and Arbitration Proceedings," amended St. 1973, c. 1078, by inserting therein
Section 4A. As subsequently amended by St. 1979, c. 154, Section 4A grants
the Committee "oversight responsibility for all collective bargaining negotia-
tions involving municipal police officers and firefighters" and. at its discretion,
exclusive jurisdiction over any dispute involving the negotiation of the terms
of a collective bargaining agreement. Section 4A provides:

The committee shall forthwith review the petition [of either party
or both parties for the exercise of jurisdiction and for the
determination of the existence of an impasse] and shall make a
determination within thirty days whether to exercise jurisdiction
over the dispute .... [IfJ the committee declines to exercise
jurisdiction over the dispute or fails to act within thirty days of
receipt of the petition on jurisdiction, the petition shall be
automatically referred to the board of arbitration and conciliation
... for disposition in accordance with the provisions of [G.L. c.

150E, §9]

Said board shall not accept any petition from a party to a
municipal police and fire negotiation under [G.L. c. 150E, §9] if
the petition has not been first reviewed in accordance with the
provisions of this section by the committee ....

The committee after consultation with the board of arbitration and
conciliation may remove at any time from the jurisdiction of the
board any dispute in which the board has exercised jurisdiction, and
the board shall then take no further action in such dispute. The
committee may, at any time, remand to the board any dispute which
the committee has exercised jurisdiction. . . .

St. 1979, c. 154, §1.
Thus the Committee has been granted the authority to determine which disputes
may be submitted to "last best offer, final binding arbitration" by the Board
of Arbitration and Conciliation and which disputes are to be resolved pursuant
to its own authority granted by Section 4A.

Section 4A also provides that the Committee, after determining that a
genuine impasse exists and that the process of collective bargaining has been
exhausted, shall "determine the form of arbitration, conventional arbitration,
issue by issue, last best offer, or such other form as the committee deems
appropriate" and "determine the procedures to be followed in the arbitration
proceedings." Section 4A goes on to provide:

Except as provided herein, arbitration proceedings in matters over
which the committee assumes jurisdiction, shall be conducted in
accordance with the standards, provisions and limitations ot . . .

section four ....

St. 1979, c. 154. SI.

Your question arises because Section 4 has now been repealed by the passage
of Question 2. As I stated in my summary to the voters, the ettect of passage
of Question 2 is, in part, to "repeal the law which provides for compulsory
binding arbitration when labor negotiations concerning police and tire personnel

130 P.D. 12

come to an impasse." Some confusion has arisen from the fact that although
the original initiative petition called for the repeal of Section 4A, the first ten
signers of that petition subsequently submitted a "perfecting amendment"
clarifying their intent to repeal Section 4. See Mass. Const. Amend. Art. 48,
Init., Pt. 5, §2. I certified that their amendment was perfecting in nature and
did not materially change the substance of Proposition IVi, relying in part on
Bowe V. Secretary of the Commonwealth, 320 Mass. 230 (1946).^ In my view,
therefore, when Question 2 was ultimately submitted to the voters, it called
for the repeal of Section 4, but not for the repeal of Section 4A.

In my opinion. Sections 4 and 4A are entirely different, albeit somewhat
related, provisions of law, and the latter statute was not repealed by the passage
of Question 2, either by the express terms of that statute or by implication.
See Colt V. Fradkin, 361 Mass. 447, 449-50 (1972); Kardas v. Selectmen of
Dedham, Mass. App. Adv. Sh. (1979) 1596, 1600 . The questions remain,
however, whether and how the remedies available to the Committee have been
affected by the repeal of Section 4.

The answer to your question requires a construction of Section 4A in light
of St. 1973, c. 1078, as amended, the statute governing labor relations in the
public sector, of which Sections 4 and 4A have been a part. That statute must
be read "so as to constitute a harmonious whole." Director of Division of
Employee Relations v. Labor Relations Commission, 370 Mass. 162, 172
(1976). Moreover, in determining the remedies available to the Committee,
Section 4A cannot be viewed in isolation, but must be construed in relation
to other portions of the law governing public sector labor relations, the context
in which it was enacted, and its present language. See Pereira v. New England
LNGCo.,Inc., 364 Mass. 109, 115(1973).

St. 1973, c. 1078, §2, added chapter 150E to the General Laws. Section
9 of chapter 150E provides for voluntary interest arbitration when an impasse
exists in the negotiation of a collective bargaining agreement for public
employees and that impasse remains unresolved after mediation and fact-finding
proceedings. That section provides in relevant part:

Any arbitration award in a proceeding voluntarily agreed to by
the parties to resolve an impasse shall be binding on the parties and
on the appropriate legislative body and made effective and enforce-
able pursuant to the provisions of chapter one hundred and fifty C,
provided that said arbitration proceeding has been authorized by the
appropriate legislative body or in the case of school employees, by
the appropriate school committee.
See School Committee of Boston v. Boston Teachers Union, 372 Mass. 605,
607(1977).

^The validity of my certification of that perfecting amendment has been challenged by a number of individuals in litigation pending
in the Superior Court for Suffolk County. See International Brotherhood of Police Officers, et al., v. Secretary of the
Commonwealth, et al.. Civil Action No. 45440 (Sup. Ct. Dept., Suffolk Cty., filed Nov. 26, 1980). In theory, one could argue
that the allegedly improper certification resulted only in the repeal of Section 4A, or contend that both Sections 4 and 4A have
been repealed, or even assert that neither section was effectively rescinded. Furthermore, one might argue that the purported
violation tainted all of Question 2, so that Proposition 2'/; in its entirety must fall. It is unnecessary for me to determine in
this opinion what the impact of an erroneous certification would be, not only because the issue is in litigation, but also because
1 believe that the certification was proper.

P.D. 12 J3J

In enacting St. 1973, c. 1078, the legislature clearly made interest arbitration
involving firefighters and police officers subject to different procedures under
Section 4 and expressly made the arbitration award "final and binding" upon
both the parties and the appropriate legislative body. Section 4 was experimen-
tal and highly controversial. See, e.g., "Final Offer Arbitration in Massachu-
setts," 12 N.E. Law Rev. 693 (1977). Its constitutionality was challenged,
although upheld in Town of Arlington v. Board of Conciliation and Arbitration,
370 Mass. 769 (1976). Despite the pressures of competing interest groups,*
the statute, which was originally due to expire on June 30, 1977, was reenacte'd
that year with amendments, and its life extended by the legislature for two
additional years. St. 1977, c. 347, §§2, 3. It is in this context that the
legislature enacted Section 4A. St. 1977, c. 730, §1. As originally enacted.
Section 4A, as the amended Section 4, was to expire on June 30, 1979. St.
1977, c. 730, §2. See also St. 1977, c. 347, §3. In 1979, seven petitions were
introduced in the House and Senate, some to repeal, some to amend, and some
to affirm final and binding interest arbitration for police officers and
firefighters. Once again, however. Section 4 was extended to June 30, 1983.
St. 1979, c. 154, §2. Section 4A was reenacted, with amendments, and with
no provision for its expiration. St. 1979. c. 154, §1.

It is noteworthy that nowhere in Section 4A, as enacted both in 1977 and
1979, did the legislature provide that arbitration awards under that section are
to be binding upon the legislative body of the municipality.^ This is the case
notwithstanding that the legislature has expressly indicated both in Section 4
and G.L. c. 150E, §9,® the circumstances under which interest arbitration shall
be "final and binding" upon the appropriate legislative body. In light of the
legislative history of Section 4A, I must conclude that this omission was
intentional.

In reaching that conclusion, I am also guided by the fact that "there is a
general policy favoring voluntary arbitration in the labor field"' and "an
understandable attitude of wariness about arbitration forced on a party." School
Committee of Boston v. Boston Teachers Union, supra. 372 Mass. at 612-13.
Moreover, as the Supreme Judicial Court has noted elsewhere, the experimental
nature of Section 4 reflected "the Legislature's caution and hesitation in
prescribing arbitration as the uniform method for the resolution of labor

*In 1977, sixteen bills were introduced in the House and Senate on the subject of binding "*'^':'°"_ f^"^';"? /I^ ^^^^^^^
views of the public on the issue. State employees, for example wanted the nght to bmd.ng '^«"' o". hu *f M««.hu«u^
Federation of Teachers proposed to prohibit .t. The Massachusetts League of Cues and Towns P;"P?«^f '''•''^™'™ '^ ^
not be binding, while firefiVhters and policemen wanted to extend ,l beyond f/''P'"^''°" 'l?^ J" '^ '7iX'''^'^7^'^^^^^
force recommended extending its expiration date for an additional two y^^^^assachuscUi E^p^nt of Uhorand '^"'^.
Interim Report of the Governor's Tai Force on Chapter I50E and Impasse Procedures. Pub. No. 9I02-I4-35-8.7(hCR. .. 9 (Sep*
20, 1976).

5as orieinallv enacted Section 4A provided that •[cjxcept as provided herein, arbitrauon proceedings in nuiim over »1ikA (he
cl^nSire^'i'ss^SrisdS'n shXbe conduced 'i J acc'ordanje with the s.andarfs a^d P^-.sions o^s^ion 4 !>.. U^gu^
was included withiti the 1979 re-enactment, with two modifications, h *f '"^"f^^^. J, "'* ,P'^^?*^,„ ', ' ' *
-determine the procedures to be followed in the arbitration proceeding and <he *o^* ,,f nia^ 1^ ^m^ .>
read "standards provisions and limitations of said secuon four. G.vmg *'^ language ts ^» " »^ °^^'^„,;;' ._
V. CUef of Police of Nekton. ilA Mass. 450, 452 (1978), I '°"'^^^^^\^f ^^'^^.t^'Za^^^^ u<nK.m,nt

only the manner in which arbitration proceedings are to be conducted f'^doos not refer to the ^^'^°^»">' a«r trpol i

as L result of these proceedings. This reading of the statute -"^^ '^""'^.^'^"l? f°' ™;';f,^rc
Secuon 4 impliedly repealed the ^rtions of Section 4A which incorporated the lormer sututc b> rclcrtnce

«See also G.L. c, 150E, §8, providing for binding grievance arbitration.

'For a discussion of policy implicaUons favoring non-mandatory arbitration in the public sector, sec D Bok ^ J Dunlop, Ubc
and the American Community at 338 (1970).

132 P.D. 12

disputes." Director of Division of Employee Relations v. Labor Relations
Commission, 370 Mass. 162, 169, n. 9 (1976). This "caution and hesitation"
speaks against an enlargement of the terms of Section 4A to make arbitration
awards binding on the legislative body of the affected municipality. See also
Datatrol, Inc. v. State Purchasing Agent, Mass. Adv. Sh. (1980) 299, 320;
Worcester v. Quinn, 304 Mass. 276, 280 (1939).

I am thus of the opinion that to the extent that Section 4A grants the authority
to refer disputes to the Board of Conciliation and Arbitration, the Committee
may, of course, no longer refer disputes for purposes of mandatory "last best
offer, final and binding arbitration" by the Board. Any such disputes referred
to the Board are subject to voluntary "final and binding" arbitration in
accordance with G.L. c. 150E, §9. Furthermore, even as to those cases pending
on December 4, 1980, and over which it has exercised jurisdiction, the
Committee is without authority in resolving those cases to utilize arbitration
which is binding upon the legislative body of a city or town. The passage of
Question 2 has, therefore, left the Committee with the continuing authority to
arbitrate disputes between the bargaining agents for municipal police or
firefighters and the executive officials of those municipalities, but has
eliminated the binding effect of Committee awards on municipal legislative
bodies.

Very truly yours,

FRANCIS X. BELLOTTI

Attorney General

Number 13 February 10, 1981

Gregory R. Anrig, Commissioner
Department of Education
31 St. James Avenue
Boston, MA 02 116

Dear Commissioner Anrig:

You have requested my opinion whether General Laws chapter 31, section
37, requires a school committee to grant a leave of absence to a public school
teacher who is serving in an elective state office. Your request derives from
your responsibilities to advise school committees concerning their legal duties
and to ensure that the laws pertaining to education are enforced.

For the reasons set forth below, I am of the opinion that General Laws
chapter 31, section 37, does not apply to public school teachers and does not,
therefore, require a school committee to grant a leave of absence to a teacher
who is serving in elective state office.'

'l reach no conclusion whether a pubhc school teacher, by virtue of some other provision of law or the terms of a collective
bargaining agreement, may otherwise be entitled to such a leave of absence. See n.5, infra.

P.D. 12 ,33

General Laws chapter 31 , section 37,^ provides in pertinent part:

... any person elected to a state office or elected by the people
to the office of mayor who is a permanent employee in a civil
service position or is employed in a position in any public authority
which is supported in whole or in part by public money shall, upon
his written request made to the appointing authority, be granted a
leave of absence without pay from his civil service position or from
his position in such public authority for all or such portion of the
term for which he was elected as he may at any time, or from time
to time, designate, and shall not, as a result of such election, be
suspended or discharged or suffer any loss of rights under the civil
service law and rules ....

You specifically ask whether the phrase "person . . . employed in a position
in a public authority" may be construed to include public school teachers who
are employees of school committees. I believe the answer to that question is
"no", based in part upon the terms of General Laws Chapter 31. section 48,
which provides in pertinent part:

All offices and positions in the service of the commonwealth or
of any district or authority established by general or special law
shall be subject to the civil service law and rules unless expressly
exempted by this chapter or other law.

. . . [t]he following shall be exempt from the civil service law and
rules, unless expressly made subject thereto by statute: ....

Public school teachers and administrators whose duties require
the possession of a teacher's certificate.
General Laws chapter 31, section 1, defines "civil service law and rules" as
"this chapter and the rules promulgated pursuant to this chapter". Because the
language of a statute is the principal source of insight into legislative purpose,
Hojfman v. Howmedica, Inc., 373 Mass. 32, 37 (1977), I must conclude that
the clear intent of the legislature was that the provisions of chapter 31 should
not generally apply to public school teachers.

That the legislature intended that public school teachers be exempt from the
provisions of General Laws chapter 31 is supported by further analysis of the
statute. General Laws chapter 31, section 48, also provides that "lolffices and
positions in the service of cities and towns shall be subject to the civil service
law and rules as provided by sections fifty-one, fifty-two. and litty-thrce."
General Laws chapter 31, section 53, provides that a school committee for a
regional school district may vote to accept the applicability ot the "civil service
law and rules" to all non-academic positions within a regional school district
or regional vocational school district. G.L. c. 31 §53 (a). That section also

^Pnor to the passage of St, 1978. c. 393, §11. the section was fom,erly G.L. c, 31. §46 E. n,c comparable ,u.a«raph .
that section was added by St. 1965. c. 703. § Land provided.

Any person hold.ng an elective state office, or .he mayor ^ ^.^^ ^ ^ :^ :""- "^ "^l

holds a ^manent office%r position in the classified civ.l ,^=^'^<=/'^ *•• 'f "^.i ,^^^^;; ,hal

basis bv^nv public authority which is supported in whole or in pan by public "lon^^ ^"| ; ,„

maTe to TaKinting auth^n.y. be granjed a leave of absence withou P;>^f™- -h^HicV ^

for all or suchTortion of ^e ten. for which he -?s e ec ed s h „, j a^a^ ..n^^^^
and he shall not be suspended or discharged, and shall sutler no loss oi civii sci k

ilhin

134 P.D. 12

provides for the acceptance by a city or town, in accordance with G.L. c. 31,
§§54 and 55, of the applicability of "the civil service law and rules" to certain
positions. The statute, however, expressly exempts "the office of ... . public
school teachers" from its provisions. G.L. c. 31, §53 (b).^

The leave of absence provision in section 37 of chapter 31 brings within
its terms "[a]ny person . . . who ... is employed in a position in any public
authority which is supported in whole or in part by public money". While that
language appears to encompass a wide range of public employees, it must
nevertheless be construed together with section 48 so that the provisions of the
civil service law constitute a harmonious whole consistent with the legislative
purpose. Board of Education v. Assessor Worcester, 368 Mass. 511, 513-14
(1975). Considering the obvious intent to exclude public school teachers from
the provisions of General Laws chapter 31, 1 am unable to conclude that by
the terminology of section 37, the legislature intended to make any exception
to this general rule when providing for leaves of absence upon election to state
office or to the office of mayor. ^ See Zoulalian v. N.E. Sanatorium and
Benevolent Assoc, 230 Mass. 102, 105 (1918). While the exemption for public
school teachers contained in section 48 is not necessarily in conflict with the
leave of absence provision of section 37, that latter section does not refer to
public school teachers as such and, therefore, does not "expressly" make
public school teachers subject to its terms. There is no basis, therefore, for
applying section 37 in the situation which you have posited. O'Hara v.
Commissioner of Public Safety, 367 Mass. 376, 384 (1975).

For the foregoing reasons, I am of the opinion that General Laws chapter
31, section 37, does not apply to public school teachers and does not, therefore,
require a school committee to grant a leave of absence to a teacher who is
elected to a state office.^

Very truly yours,
FRANCIS X. BELLOTTI

Attorney General

^See also G.L. c. 71, §§37, el seq.. governing the appointment of public school teachers. These statutes, read together, provide
teachers with many of the protections otherwise granted to public employees under the civil service law.

''This conclusion is supported by the fact that the term "f)erson . . . employed in a position in any public authority," as used
in section 37, was most likely not intended to include public school teachers. Section 48 expressly distinguishes "all offices
and positions in the service of . . . any , . . authority [established by general or special law]" from "[ojfficers and positions
in the service of cities and towns." Cf. Plymoulh County Nuclear Information Committee. Inc. v. Energy Facilities Siting Council.
ilA Mass. 236, 240 (1978) (words used in one part of statute in definite sense should be given same meaning in another part
of same statute) In construing section 37, I conclude that the legislature intended to continue the distinction between authorities,
such as the Massachusetts Bay Transponation Authority established pursuant to G.L. c. 161A or the Massachusetts Port Authority,
established under G.L. c. 91 App., on the one hand, and municipal bodies such as school committees, on the other.

^This conclusion is consistent with the broad discretion and "complete and exclusive" authority given to school committees under
G.L. c. 71. §38, to contract with teachers as to wages, hours and other conditions of employment. See Allen v. Sterling. 367
Mass. 844, 847 (1975). Leaves of absence for public school teachers are governed, in part, by G.L. c. 71. §41A, and by the
terms of collective bargaining agreements. See G.L. c. 150E. §§4-7.

P.D. 12 ,3,

Number 14 February 12. 1981

Michael J. Connolly
Secretary of the Commonwealth
State House, Room 337
Boston, MA 02133

Dear Secretary Connolly:

You have requested my opinion concerning the appropriate standards to be
used by your office in administering G.L. c. 3, §§39, et seq., pertaining to
legislative agents/ You inquire, first, whether those individuals who appear
before legislative committees for compensation and offer brief testimony or
written comments (the so-called expert witnesses) are exempt from the
registration and disclosure requirements that are generally applicable to
lobbyists. You next ask what employment relationships should be considered
in determining whether the particular lobbying activity under consideration is
"incidental" to an individual's regular employment, thereby exempting him
from the registration and disclosure requirements.

The answer to both your questions requires a close analysis of General Laws
chapter 3, section 39, which defines legislative agent as:

. . . any person who for compensation or reward does any act to
promote, oppose, or influence legislation, or to promote, oppose,
or influence the governor's approval or veto thereof or to influence
the decision of any member of the Executive branch where such
decision concerns legislation or the adoption, defeat, or postpone-
ment of a standard, rate, rule or regulation pursuant thereto. The
term shall include persons who, as any part of their regular and
usual employment and not simply incidental thereto, attempt to
promote, oppose or influence legislation or the governor's approval
or veto thereof, whether or not any compensation in addition to the
salary for such employment is received for such services.

In construing this statute, I first examine its plain words, Sachs v. Board of
Registration in Medicine, 300 Mass. 426, 428 (1938); Moynihan v. To^^'n of
Arlington, Mass. App. Adv. Sh. (1978) 1255. construed so as to tultill the
legislative intent. Industrial Finance Corp. v. State Tax Commission. 367
Mass 360 (1975) The intent of the legislature should be determmed by an
examination of the language used, in connection with its legislative history^
and the system of law of which it is part. Commonwealth v. Welosky. ^Ib
Mass. 398,401 (1931). ^. -^ , , ,

The plain words of this statute are clear and unambiguous. The statute
essemially defines legislative agent as anyone who does anything to influence
legislation^ and receives compensation for his efforts. There is no specific

. fr,^„ r. I r 1 S40 and file penodic suicmenls of iheir compeiu*uoo and

•All legislauve agents mus, register wth >""[?,"" q^l^, % ^j/j^TTim employers must l.kew.se rtg.sw. gL c 3. MO.
expenditures in relation to their lobbying activities. O.L. =•-'•»'♦•'■ '™" ^ '
and disclose their expenditures for lobbying acuviues. G.L. c. i. 94/.

^THe statute also specifically includes attempting to -""--^'^'^.^^^r^'Li^'^irn^t" T °nIler;e^:.l"F^1X«"
innuence any member of the Executive branch concern ng the adoption ol^>^^ ^
of simpl.cation, I refer to all of these activiues in thi.s opinion by the gcncnc term u.

136 P.D. 12

exemption provided by G.L. c. 3, §39, for expert witnesses who appear before
legislative committees and bodies of the Executive branch, and the manifest
legislative intent of the statute appears to be to broadly regulate those who seek
to influence the legislative process for compensation. An examination of the
legislative history of this statute strongly indicates that the legislature did not
intend to exclude expert witnesses from the broad requirements of registering
and disclosing their employers.

When the Massachusetts legislature first provided for the registration of
lobbyists, a distinction was made between "legislative counsel" and "legis-
lative agents". St. 1890, c. 456, §2. The law provided for the keeping of two
separate dockets, in the following terms:

In the docket of legislative counsel shall be entered the names of
counsel employed to appear at a public hearing before a committee
of the general court for the purpose of making an argument or
examining witnesses ... in the docket of legislative agents shall
be entered the names of all agents employed in connection with any
legislation included within the terms of section one of this act, and
all persons employed for other purposes who render any services
as such agents.
This distinction was maintained by St. 1911, c. 728, §1, which for the first
time specifically defined the term "legislative counsel" as:

. . . any person who for compensation appears at any public hearing
before committees of the general court in regard to proposed
legislation, and who does no other acts in regard to the same except
such things as are necessarily incident to such appearance before
such committees.
It futher defined "legislative agent" as:

. . . any person, firm, association or corporation that for hire or

reward does any act to promote or oppose proposed legislation

except to appear at public hearings before committees of the general

court as legislative counsel.

While the definition of legislative counsel had previously included what is

commonly referred to as "expert witnesses," the legislature in 1973 eliminated

the distinction between legislative counsel and legislative agent. St. 1973, c.

981. This statute simply defined legislative agent to include anyone who did

anything, for compensation, to influence legislation. The intent of the

Legislature to include legislative counsel, and presumably expert witnesses,

within the definition of legislative agent is expressed in a "[sjtatement of

intent," which specifically provides that the statute was enacted to require the

disclosure of "the identity, expenditures and activities of certain persons who

engage in reimbursed efforts, the so-called lobbyists, to persuade members of

the General Court or the executive branch to take specific legislative actions,

either by direct communication to such officials, or by solicitation of others

to engage in such efforts . ..." St. 1973, c. 981, §1.

The intent to include expert witnesses within the definition of legislative
agent is further evidenced by the fact that in 1974, the legislature provided
a specific exemption from the definition of "legislative agent" for certain

P.D. 12

137

expert witnesses. St. 1974, c. 382, amending G.L. c. 3, §50. That statute
provides that laws pertaining to lobbyists do not apply to "any person requested
to appear before any committee or commission of the general court by a
majority of the members of such committee or commission; provided that such
person performs no other act to influence legislation . ..." It is a well-settled
principle of statutory construction that all parts of a statute should be read
together so that no clause, sentence or word is rendered superfluous, void or
insignificant. Board of Appeals of Hanover v. Housing Appeals Committee in
the Department of Community Affairs, 363 Mass. 339 (1973). Here the
legislature has provided a specific exemption to a general requirement. Where
the legislature has provided such an express exemption, it must be construed
to be the only exemption that the legislature meant to apply to the rule. See
McArthur Brothers Co. v. Commonwealth, 197 Mass. 137, 139 (1908).

I conclude, therefore, that expert witnesses who for compensation appear
before legislative committees and offer testimony or written comments are
legislative agents and must register and file the required disclosure forms with
your office. The only exception to this requirement is in the limited instance
provided in G.L. c. 30, §50, for those individuals whose testimony is requested
by the legislative committee itself.

You have posed separate questions concerning the appropriate factors to be
considered in determining whether an individual should be considered a
legislative agent within the meaning of G.L. c. 3, §39. The terms of the statute
clearly indicate that if any compensation is received by the individual for his
lobbying activities, including compensation received from his usual employer.
he must be considered a legislative agent.

The statute does not restrict or limit the definition according to the source
of the compensation. Rather, it explicitly includes within the definition of
legislative agent an individual who performs lobbying activities as any part of
his regular and usual employment. If that individual's salary or compensation
is in any way substantially attributable to activities enumerated in G.L. c. 3,
§39 he falls within the definition of legislative agent. 1974/75 Op. Atty. Gen.
No '48 Rep A G., Pub. Doc. No. 12 at 112 (1975). Those individuals who
engage 'in lobbying simply as an incidental aspect of their regular and usual
employment^ are excluded from the statutory definition. This determination
must of necessity be decided on a case-by-case basis. Id.

In those situations where the statutory exemption applies, you should
continue to examine the entire scope of the individual's regular and usual
employment, including all of the functions performed by the employee to
determine whether or not lobbying activity is a substantial part of that
employment or merely incidental thereto. The location ol the lobbying activity
is immaterial to the determination of whether or not '^^ ^^^;-^^"^;,"\P'^ '^''i,^^
the time the individual's annual salary was set, see 3 Op. Atty. Cur a 4f>9
(1912) and, therefore, part of his usual and regular employment. For this

, J K„ ^ niihlir uiililv who lc\liricd before i lcgi%Ulive commillcc. on

3The exception was held lo apply to an <-'"g'"f %'^f"P'°y^f, ^L Jnsa ion from the utility was n« allnbutabk to hi* ippeirancc

behalf of the utility, when a substam.al amount of his usuaUompcn.a.ioniro y^^ ^^ ^^ IU,197M. «e .1 Op Ati*

or to other lobbying activities. 1974/75 Op. Atty. Gen. No. 48, Rep. A.U., ni

Gen. at 469 (1912).

138 P.D. 12

reason, I conclude that you should continue to view all lobbying activity, both
within Massachusetts as well as in other jurisdictions, to determine whether
or not such activity is part of the individual's regular and usual employment
or is merely incidental thereto.

In closing, I note that the statutory exemption is based upon an analysis of
the employment relationship between the individual who performs the lobbying
activity and his regular and usual employer only. It does not apply when an
individual receives compensation for the lobbying activity from a source other
than his regular and usual employer. In that instance the individual is simply
lobbying for compensation and, by definition, subject to the registration and
disclosure requirements. Because his lobbying activity is separate from his
usual employment, there is no necessity to inquire whether the statutory
exemption applies.

Very truly yours,
FRANCIS X. BELLOTTI

Attorney General

Number 15 February 12, 1981

George S. Kariotis, Secretary
Executive Office of Economic Affairs
State House, Room 212
Boston, MA 02133

Dear Secretary Kariotis:

You have requested my opinion concerning the application of the provisions
of the Eighteenth Article of Amendment to the Constitution of the Common-
wealth (the so-called Anti-Aid Amendment) to thie proposed activities of the
newly created Bay State Skills Commission. You inform me that on September
24, 1980, the Governor issued an Executive Order^ creating the Bay State Skills
Commission, a public commission intended to enable and encourage interested
"institutions of skills training and education"^' to better respond to employment
opportunities presented by business and industry within the Commonwealth.
You further inform me that a major function of the Commission is to operate
a matching grant program whereby institutions of skills training and education
may receive state funded grants in support of programs and activities consistent
with employment demand. As chairman of the Commission, you envisage that
these grants-in-aid would be made available to independent, post-secondary,
non-degree granting institutions.

Based on the foregoing, you ask whether the Eighteenth Article of
Amendment, which generally restricts the use of state funds to public purposes,
proscribes publicly funding grants-in-aid to independent, post-secondary,
non-degree granting institutions of skills training and education. It is my
opinion that this program does not violate the Anti-Aid Amendment, first,

'Executive Order No. 185, September 24. 1980.

^Although this term is not defined in the Executive Order, you inform me that the phrase "institutions of skills training and
education" includes independent colleges, universities and other post-secondary educational institutions which develop and offer
courses consistent with the employment demand.

P.D. 12 ,35

because the proposed grants-in-aid are permitted bv that express exception of
the Amendment for the funding of private higher educational institutions and
second, because it does not conflict with the objectives and purposes of the
Amendment.

The Eighteenth Article of Amendment to the Constitution of the Common-
wealth, as amended by the Forty-Sixth and One Hundred and Third Articles
of Amendment, provides in part, as follows:

No grant, appropriation or use of public money or property or loan
of credit shall be made or authorized by the commonwealth or any
political subdivision thereof for the purpose of founding, maintain-
ing or aiding any infirmary, hospital, institution, primary or
secondary school, or charitable or religious undertaking which is
not publicly owned and under the exclusive control, order and
supervision of public officers or public agents authorized by the
commonwealth or federal authority or both .... Nothing herein
contained shall be construed to prevent the commonwealth frorp
making grants-in-aid to private higher educational institutions or to
students or parents or guardians of students attending such
institutions.

By its express terms, the Amendment does not prohibit the Commonwealth,
and therefore, the Bay State Skills Commission, from making grants in aid to
"private higher educational institutions". Your question is. therefore, directly
posited: whether the phrase "private higher educational institutions," as that
term is used in the Amendment, includes independent, non-degree granting
post-secondary educational institutions. Although the term, "private higher
educational instituions" is not defined, it is my opinion that independent,
post-secondary, non-degree granting institutions are included in that term and
therefore fall within that exception to the Anti-Aid Amendment carved out by
the 103rd Amendment to the Constitution of the Commonwealth.

In resolving the central issue presented by your question, i.e., whether the
proposed grant-in-aid program exceeds the boundaries established by the
Anti-Aid Amendment, I first survey the history and purposes of the Amend-
ment, guided by the cardinal rule of constitutional interpretation that provisions
of a constitutional amendment are to be construed in the sense most obvious
to the common intelligence so as to accomplish a reasonable result and achieve
its dominant purposes. Opinion of the Justices, 365 Ma.ss. 655, 657 (1974).
See also Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199
(1976).

As adopted in 1855, Article 18 of the Amendments contained general and
"rather uncertain language," Bloom v. School Committee ofSprinifieUL Mass.
Adv. Sh. (1978) 2110, 2113, concerning the use of public money for private
schools. Growing public dissatisfaction with that Article 18,' see, e.g.. Opinion
of the Justices, 214 Mass. 599, 601 (1913). resulted in consideration by the
Constitutional Convention of 1917 of an amendment which would prohibit the
expenditure of public funds for private purposes altogether. Bloom v. School

3There were repeated efforts m the legislature, from 1900 to 1916. to rev.se Article '« '^ '^'// °~ *"^^,^'f;'' "'* """""
to the Constitutional Convention. R.L. Bndgman, The Massachuseiis Consniuiwnal Canvrnnon of 1917. .1! (192.1)

140 P.D. 12

Committee of Springfield, supra, Mass. Adv. Sh. (1978) at 2113. Article 46,
which emerged from the Debates at that Convention, contained an absolute
prohibition against the use of public funds for any non-public educational
institution. The objectives of the amendment were twofold: to clearly prohibit
public support for religious schools and institutions and to prohibit such aid
to non-sectarian schools. Bloom v. School Committee of Springfield, supra,
Mass. Adv. Sh. (1978) at 2114; Opinion of the Justices, 357 Mass. 836,
343-844 (1970); Opinion of the Justices, 354 Mass. 779, 784 (1968). See also
Comments of Mr. Barnes of Weymouth, 1 Debates, Massachusetts Constitu-
tional Convention 1917-1918, 157-158 (1917). The amendment's broad
prohibition, provoked in part by the fact that public aid had in select instances
been provided to private schools, had as its purpose the protection of state and
municipal treasuries from increasing pressure by religious and other interest
groups in search of appropriations. Second, the amendment sought to prohibit
those appropriations which had been made upon a political basis or upon
individual need, rather than upon a "wide survey of the needs of the state."
Comments of Mr. Anderson of Newton, 1 Debates, Massachusetts Constitu-
tional Convention 1917-1918, 167(1917).

In 1974, a final revision of the Anti-Aid Amendment occurred with the
passage of Article 103 by the electorate. For purposes of this opinion. Article
103 resulted in two relevant modifications to Article 18. First, prohibitory
language in the opening clause of the 1917 version ["All moneys . . . shall
be applied to, and expended in, no other schools than those . . . under the
order and superintendence of the authorities of the town or city in which the
money is expended"] was stricken. In its place, the 103rd Amendment
employed the language that: "No grant ... or use of public money . . . shall
be made or authorized ... for the purpose of founding, maintaining, or aiding
any . . . primary or secondary school." Of primary significance, however.
Article 103 carved out an exception for private higher educational institutions
and students attending those institutions." This exception was designed to
address the severely depressed financial condition of private higher education
institutions and the resulting adverse impact upon educational opportunities in
the Commonwealth. This adverse impact included additional fiscal burdens
upon public higher education if substantial numbers of private colleges and
universities in the Commonwealth were required for these financial reasons to
reduce their classrooms or close. ^

It is in light of this historical background of Article 18 that 1 conclude that
the proposed matching grant program does not violate the Anti-aid Amendment
because independent, post-secondary, non-degree granting institutions are
included in the "private higher educational institution" exception carved out
by the 103rd Amendment to Article 18.

As 1 have stated previously, prior to the 103rd Amendment, the Eighteenth
Amendment provided that public funds could not be used to aid any "school.

■•See Election Statistics, Public Doc. No. 43, at 513-518 (1974), and Summary of Question No. 3 regarding the Proposed
Constitutional Amendment.

^House No. 6106 — Legislative Research Council, Report Relative to State Aid to Private Higher Educational Institutions and
Students, 8-17(1973).

P.D. 12 ,4,

or college, infirmary, hospital, institution, or educational, charitable or
religious undertaking which is not publicly owned." In 1967. the Attorney
General opined to the Board of Higher Education that this terminology
proscribed the use of public moneys in support of an independent, post-
secondary, non-degree institution where the intended recipient was an "edu-
cational or charitable undertaking". 1966/67 Op. Atty. Gen. No. 97. Rep
A.G., Public Doc. No. 12 at 188, 189 (1967). The 103rd Amendment deleted
the broad term "educational" from the proscriptive language. It further defined
the term "school" as a primary and secondary institution and provided that
funds could be used in support of "higher educational institutions"." This
comprehensive redrafting of the language of the Eighteenth Article of
Amendment is significant because the phrase "higher educational institutions"
is a phrase far broader than the term "college" or "university" and thereby
evidences an intent that public funds may be used to aid post-secondary,
non-degree institutions.' There is a second reason for my conclusion that the
proposed matching grant program of the Commission does not violate the
Anti-Aid Amendment. Based upon the information which you have provided
me, I am of the opinion that the expenditure of funds by, and activities of,
the Commission are valid public purposes which do not conflict with the
objectives and purposes of the Amendment.

In considering claims arising under the Anti-Aid Amendment, the Supreme
Judicial Court has indicated that three criteria are appropriate. Kent v.
Commissioner of Education, Mass. Adv. Sh. (1980) 803, 809-810 n. 1 1 . Thus,
no violation of the core prohibition of the amendment will exist if the matching
grants program of the Commission meets the following tests:

(1) its purpose is not to aid private schools;

(2) it does not in fact substantially aid such schools; and

(3) it avoids the political and economic abuses which prompted the
passage of Article 46. Kent v. Commissioner of Education, id.,
quoting from Colo v. Treasurer and Receiver General. Mass. Adv.
Sh. (1979) 1893, 1903-04.«

Applying these criteria to the facts as you have presented them to me. I
conclude that the proposed grant-in-aid program does not contravene the
provisions of Article 18 of the Amendments to the Massachusetts Constitution
for the following reasons. . .

First it is clear that the purpose of the Bay State Skills Commission is not
to aid private schools. Instead, the Executive Order indicates recognition of

«Ino.e,ha.U,e ma.ch.ng gran, program .s .o be ava,lable .o both publ.c -^.P-- --^'jr^-' J^^^^^^^^ ^"^

SWhne each of ^ese cn.ena are no. -p.cse ,in,,.s ^^^^ ^l^^^^lf^.^^^^^^lr^^^^
. . .■• (Emphasis added.) Article 103 of the Amendments.

142 P.D. 12

a general unemployment crisis caused by the existing availability of employ-
ment opportunities in commerce, trade, and manufacturing, but a corresponding
inadequate number of trained and educated citizens to take advantage of these
opportunities. The purpose of the matching grant program is to confront this
dilemma by increasing the training opportunities among the institutions of skills
training and education. It seeks, through a matching grant system, to encourage
institutions of skills training and education to provide those programs which
can ensure that existing and future employment opportunities in commerce,
trade and manufacturing are filled. Thus, the ultimate purpose of the program
is to alleviate unemployment in the Commonwealth and the alleviation of
unemployment is clearly a public purpose. Opinion of the Justices, 368 Mass.
880, 885 (1975). Public monies to be expended in the form of grants-in-aid
would not, therefore, be used for the purpose of founding, maintaining, or
aiding private schools.^

Second, and for the same reasons, the proposed grant-in-aid program does
not substantially aid private schools. Because the skills training and educational
institutions must themselves provide at least half the money for these programs,
any evidence of substantial aid to private schools is absent. Moreover, this
factor makes it highly unlikely that the funding from the Commission would
be substantial when compared to the overall funding for other programs offered
by those educational institutions.

Third, the proposed matching grant program does not raise the spectre of
the political and economic abuses existing at the time of the 1917 Constitutional
Convention and which the Anti-Aid Amendment seeks to avoid. The Executive
Order sets out a detailed scheme whereby the Commission, prior to making
a grant, is required to collect data to ascertain the need for persons trained
in the area of commerce, trade and manufacturing. The Commission is also
required to monitor the activities, capacities and resource requirements of
institutions of skills training and education to meet the demand for training and
educational skills. Therefore, because of this oversight function by the
Commission, any possibility of political or economic abuse is significantly
lessened.

For the foregoing reasons, I conclude that the Bay State Skills Commission
may, without violating the Anti-Aid Amendment, make matching grants to
post-secondary non-degree granting institutions of skills training and education.

Very truly yours,

FRANCIS X. BELLOTTI

Attorney General

'By further analogy to the Supreme Judicial Court's "public purpose" cases a similar result is evident. In these cases, statutes
which involve expenditures of public monies are examined to determine if their purpose is to further a valid public rather than
private purpose. The paramount test for determining whether an expenditure is for such a public purpose is "whether the
expenditure confers a direct public benefit of a reasonably general character ... to a significant part of the public, as distinguished
from a remote and theoretical benefit". Opinion of the Justices, 337 Mass. 777, 781 (1958); An expenditure for a public purpose
is constitutionally permissible. See Mass. Home Mortgage Financing Agency v. New England Merchants National Bank, Mass.
Adv. Sh. (1978) 2909; Opinion of the Justices, 368 Mass. 880, 885 (\915),'Opinion of the Justices, 359 Mass. 769, 772 (1971);
Opinion of the Justices, 337 Mass. 777, 781 (1958).

P.D. 12 ,^3

Number 16 .- , -^ ,„.,.

March 26. 1981
William F. M. Hicks, Commissioner
Department of Environmental Management
100 Cambridge Street - 20th Floor
Boston, MA 02202

Dear Commissioner Hicks:

Your predecessor in office has requested my opinion regarding certain terms
of an Agreement entered into September 22, 1980, between the Depanment
of Environmental Management and the Town of Mashpee for the purpose of
allowing the Commonwealth to acquire land currently belonging to the Town
as part of the process of constructing the South Cape State Park.

My understanding of the applicable facts and statutes underlying the proposed
transfer is as follows:

Chapter 1058 of the Acts of 1971 authorized the Department of Natural
Resources' to acquire the land necessary to make up the South Cape Beach
Park by gift, purchase or eminent domain, excepting, however, land owned
by the Town of Mashpee which the statute provided could not be acquired by
eminent domain. Chapter 283 of the Acts of 1976 amended St. 1971. c. 1058,
to provide that the Commonwealth could exercise eminent domain powers over
Mashpee land with the approval of the Board of Selectmen of the Town.'

An agreement between the Town and the Department was reached in July.
1976, in which the South Cape Beach Advisory Com.mittee was formed and
given the responsibility for advising the Department regarding the proposed
park. Acquisition of Town land was delayed, however, because of concern over
the litigation by the Wampanoag Indians against the Town of Mashpee. which
affected conveyancing in Mashpee for several years.

Following the resolution of the Wampanoag litigation, negotiations resumed
between the Department and the Town, resulting in the Agreement of
September 22, 1980, which has been submitted to a Town vote and accepted.
It is the terms of this Agreement which are the subject of this opinion.* You
ask whether the provisions of paragraphs (3) and (6) of that Agreement are
permissible under the Constitution and laws of the Commonwealth. Paragraph
(3) provides that the rules and regulations of the park will conform to the rules,
regulations and by-laws of the Town of Mashpee. Paragraph (6) provides for
a right of reversion to the Town in the event of breach of any conditions of
the Agreement. Specifically, you ask, first, whether the Department may
submit the regulation of activities in state parks to existing and prospective local
ordinances or by-laws of the municipalities in which such parks are kxated.
Second, you ask whether the Department may acquire land for the purposes

'By St. 1975, c. 706, §33, certain functions of the Department of Natural Resources, including those here in issue, were transferred
to the Department of Environmental Management.

^The legislature also appropriated that year the amount of $1.5 million for the acquisition of that land, developmeni of vinou»
outdoor recreation and conservation areas, and other costs connected with that acquisition and development St 1976. c 481,

§4, item 2120-8777.

^Paragraph (20) of the Agreement provides that all terms and provisions thereof are subject to an advisory opinion of the Allomey
General and grants to the Town the option to terminate the Agreement if any provision of the Agreement is nd fully »pproved

by the Attorney General.

144 P.D. 12

set forth in Article 97 of the Amendments to the Constitution of Massachusetts
by a deed containing a right of reversion of said lands to the grantor in the
event of breach of covenant on the part of the Commonwealth.

For the reasons set forth below, I conclude that the Department may submit
the regulation of activities in state parks to existing local ordinances or by-laws
of the municipalities in which such parks are located. With respect to
prospective local ordinances and by-laws, however, it may do so only when
the legislature approves such submission by a two-thirds vote, as required by
Article 97 of the Amendments to the Constitution.^ I must respectfully decline,
however, to render an answer to your second question. I do so in view of the
fact that paragraph (6) of the Agreement between the Department and the Town
provides me with the discretion to disapprove the deed from the Town to the
Department and paragraph (20) makes the acceptance of the Agreement by the
Town also subject to my approval.' Contemporaneously with this opinion, I
have this day informed you of my reservations concerning the terms of
paragraph (6) of the Agreement. Because I have thus stated my disapproval
of paragraph (6), it is inappropriate for me to render an opinion concerning
its legality.*^

Your first question requires an analysis of paragraph (3) of the Agreement,
which provides:

(3) That the Department will manage the fragile wetland, dune

and upland areas of the site to prevent erosion and to preserve

critical habitat and the area's natural scenic qualities. Local

ordinances and by-laws now effective will be incorporated into and

made part of the park's rules and regulations and shall govern and

control, provided no legal conflict exists. No park rule or regulation

will permit an activity or use otherwise prohibited by the rules,

regulations and bylaws of the Town of Mashpee.^

Thus, as that paragraph itself provides, your question appears to present two

issues for resolution: (1) whether the Department may promulgate park rules

and regulations which conform to Town ordinances and by-laws in existence

as of the date of the Agreement; and (2) whether the Department may agree

that park rules and regulations will conform to future rules, regulations and

by-laws of the Town.

"•l note that subsequent to the request for this Opinion, the Department has filed proposed legislation relative to the acqusition
of the South Cape Beach. H. 1706. Section 2 of that bill provides in pertinent part: "All such lands shall be used by the department
of environmental management and the town of Mashpee only in accordance with said agreement [between the Town and the
Department] . ' '

^In addition, section 2 of H. 1076 provides in part: "'The department of environmental management reserves the right to transfer
title, or lesser interest in land acquired for recreation or conservation purposes pursuant to item 2120-8777 in section 4 of chapter
481 of the acts of 1976, to the town of Mashpee without further authorization, provided that the agreement relative to the use
of such land executed between the department of environmental management and the town of Mashpee is approved by the attorney
general. The town of Mashpee may transfer title, or lesser interest in, land used for recreation or conservation purposes to the
department of environmental management without further authorization, subject lo said agreement approved by the attorney
general."

^As I have staled in my disapproval, the provision for a right of reversion to the Town, viewed m light of the requirement that
activities within the proposed park be subject to prospective local by-laws, presents the possibility that breach of the conditions
of the Agreement may be solely within the control of the Town. I have grave doubts that even with prior legislative approval
by two-thirds vote, the nght of reversion of state-owned lands in such circumstances is permitted by Article 97. To the extent
that discretion is vested in me to approve or disapprove the proposed transaction, I exercise that discretion by disapproval. Thus.
it is unnecessary for me to reach the legal issue you have raised.

'I note that the requirements of this paragraph of the Agreement will apply not merely to land acquired from the Town, but to
the entirety of the park, including land taken or otherwise acquired from private ownership.

P.D. 12 ,45

As to those town ordinances and by-laws in effect as of the date of the
Agreement, the Department has the discretion to determine whether that
regulation of activities within the proposed park is consistent with the
Commonwealth's policy of conservation and recreation. See Op Atty Gen
Rep. A.G., Pub. Doc. No. 12 at 335, 337 (1966). General Laws chapter 132a!
Section 7, gives the Commissioner of Environmental Management broad power
to promulgate rules and regulations governing the use of propeny controlled
by the Department, subject to the approval of the Governor and Council.
General Laws chapter 21, section 4A, gives similar power to the Director of
the Division of Forest and Parks, subject to the approval of the Commissioner.
Thus, the Department may promulgate rules and regulations governing activities
within the park which conform to existing Town ordinances and by-laws,
provided, however, that the Department reserves its control over the property,
as well as its right to enact restrictions more stringent than those enacted by
the Town.

Paragraph (3) also binds the Department to those rules, regulations and
by-laws which the Town enacts in the future. Certainly as to the future
regulation of activities within, and use of, the proposed park, the Department
is unable at this time to determine that prohibitions or restrictions upon use
which the Town may enact will be consistent with the purposes for which the
Department holds the land. Because such a determination is entirely specula-
tive, more is required than the mere acquiescence by the Commissioner to the
terms of this Agreement.**

The general rule is that in the absence of statutory provisions to the contrary,
the Commonwealth and its agents are immune from municipal regulations when
acting in pursuance of a public function on land owned by the Commonwealth.
County Commissioners of Bristol v. Conserx'ation Commission of Dartmouth.
Mass. Adv. Sh. (1980) 1289, 1291-94; Medford v. Marinucci Bros. & Co.,
Inc., 344 Mass. 50, 54-58 (1962); Teasdale v. Newell & Snowling Construction
Co., 192 Mass. 440 (1906). The legislature may, of course, subject land owned
by the Commonwealth to municipal regulation. County Commissioner of Bristol
V. Conservation Commission of Dartmouth, supra, 344 Mass. at 57. Such
legislative action, however, must be by specific statutory language. Id.-

I am, moreover, of the opinion that Article 97 of the Amendments to the
Massachusetts Constitution requires that such legislative action be by two-thirds
vote. Article 97 provides:

The people shall have the right to clean air and water, freedom from
excessive and unnecessary noise, and the natural, scenic, historic,
and esthetic qualities of their environment; and the 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.

8While the Commonwealth may exercise its police powers over property held in irxisl for the public. "°"" l"'.\*'^*[r"l\
Col~Z 202 Mass. 422. 435 (1909rit is^ssible for |heTown "'="?';' '^^.^"nubr.^^' use of the p«t .h^h
are inconsistent with the duty of the Depanment. pursuant to G.L. C. 132A. to hold land in the public m.sl.

9l note that H. 1706 does no. include that son of "unmistakable" '?"«"^^=j!;'^'\ *°"'^^,;:' S^^^^^ 'mT^^

See Counn Commissioners of Bristol v. Conserxauon Commission of Dartmouth. Mass. Ad> Sh (1><!I0) l.»v. l.-vo. Met^ora
V. Marinucci Bros. & Co.. Inc.. 344 Mass. 50. 57 (1962).

146 P.D. 12

The general court shall have the power to enact legislation necessary
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
otherwise, of lands and easements or such other interests therein
as may be deemed necessary to accomplish these purposes.

Lands and easements taken or acquired for such purposes shall not
be used for other purposes or otherwise disposed of except by laws
enacted by a two thirds vote, taken by yeas and nays, of each
branch of the general court. (Emphasis supplied.)

The relevant inquiry is whether the regulation of activities within, and uses
of, the park by as yet unenacted local ordinances and by-laws is a "disposition"
within the purview of Article 97. My predecessor has concluded that
"dispositions" for which two-thirds roll-call vote of each branch of the General
Court is required include "transfers of legal or physical control between
agencies of government, between political subdivisions, and between levels of
government, of land, easements and interests therein originally taken or
acquired for the purposes stated in Article 97 . . . ." 1972/73 Op. Atty. Gen.
No. 45, Rep. A.G., Pub. Doc. No. 12 at 139, 144 (1973). In further construing
the requirements of Article 97, I have earlier given my opinion to your
predecessor that "[ajny relinquishment of physical control over [land held by
the Department] would be a disposition and would require a vote of two-thirds
of both Legislative branches. The Department cannot, therefore, . . . surrender
its duty to police, conserve, preserve, and care for [such land]." 1979/80 Op.
Atty. Gen. No. 15, Rep. A.G., Pub. Doc. No. 12 at (1980). Although

the Department would retain its enforcement powers within the proposed park,
it is nevertheless clear that subjecting the park to as yet unenacted by-laws of
the Town of Mashpee is such a surrender by the Department of its duty to
regulate the use of that land. "Control" over land is traditionally incident to
an interest in land. Cf. Baseball Publishing Co. v. Bruton, 302 Mass. 54, 56
(1938); Gaertner v. Donnelly, 296 Mass. 260, 262 (1936). By rehnquishing
this control, the Department would effectively transfer one of the incidents of
ownership of this land. Cf. Restatement of Property, §13 (1936).

Guided by these standards, I am of the opinion that an agreement to subject
the use of state land to the terms of future ordinances and by-laws of the
municipalities in which that land is located is a relinquishment of control of
such land and, therefore, a "disposition" within the meaning of Article 97.'°
The validity of so much of paragraph (3) of the Agreement between the Town
and the Department which concerns such future control over the land, depends
upon a favorable vote by two-thirds of each branch of the General Court. In
addition, the statutory language effecting such a determination must be specific
so that the legislative intent is "unmistakable." See County Commission of

'In reaching this conclusion, I am also guided by ihe directive of my predecessor that the scope of application of Article 97
is to be "very broadly construed". 1972/73 Op. Atty. Gen. No. 45, Rep. A.G., Pub. Doc. No. 12 at 139, 142 (1973).

P.D. 12 147

Bristol V. Conservation Commission of Dartmouth, supra, Mass. Adv. Sh.
(1980) at 1296; Medford Bros. & Co., Inc., supra, 344 Mass. at 57.

Very truly yours,

FRANCIS X'. BELLOTTl

Attorney General

Number 17 April 8, 1981

The Honorable Robert Q. Crane
Treasurer and Receiver General
State House - Room 227
Boston, MA 02133

Dear Mr. Crane:

In your capacity as Chairman of the State Lottery Commission, you have
requested my opinion concerning the operation of the state arts lottery.
Specifically, you ask whether revenues received from the sale of arts lottery
tickets are to be deposited directly into the State Arts Lottery Fund or whether
they are first to be deposited into the State Lottery Fund and transferred to
the State Arts Lottery Fund only after payments have been made to holders
of winning tickets and to the State Lottery Commission for its expenses in
operating the arts lottery. In addition, you ask how you are to administer two
appropriations by the legislature for expenses in the operation and administra-
tion of the arts lottery and for payment of arts lottery prizes.

For the reasons set forth below, 1 am of the opinion that revenues from the
sale of state arts lottery tickets are to be deposited first into the State Lotter>'
Fund from which payment of prizes and the costs of operatmg the arts lottery
are to be made. Thereafter, the remaining balances are to be transferred into
the State Arts Lottery Fund. I also conclude that both appropriations to which
you refer must be deposited into the State Lottery Fund and. it there are
unexpended balances when the term of each appropnation expires, those monies
are to revert to the general fund. ^ . , i

Your first question concerns the composition of the State Ails Lottery and
the appropriate handling of revenues as well as expenses ot the arts lotte^_
The answer to that question requires an interpretation of the ac which
IstabltsheTthe state ans lottery, St. 1979, c. 790 (^chapter 90 cann.

look at that statute in isolation, but must instead examine the overall statutory
cheml m orTer to ensure that statute is read so as to constitute a harmonious
'^Z.Re,.trar of Motor VeMclesj. Board o^^^^^^^^^^^ Motor VeHule
I.iahilin Policies and Bonds, Mass. Adv. Sh. (1981 ) 4l.'i. 4.U.

cCter 790 amended G.L. e. 10, §24, by adding a s.x.h paragraph wh.h

'"°" m Commission is hereby authorized and *rec.ed ,o conduc^a
lonerv for the arts which shall be known as he ^\''"^'> 7';
a^Ttottm shall be conducted weekly and tickets shall be sold at
Tt^inlum prke of five dollars per ttcket. Subject to the prov.s.ons
of ""ron thtay-five A, the arts lottery shall be conduced and the

148 P.D. 12

revenues therefrom distributed in accordance with the general
provisions of the state lottery law.
Chapter 790 also added a new section 35 A to General Laws, chapter 10.
Section 35 A establishes "a separate fund to be known as the State Lottery
Fund. Said fund shall consist of all revenues received from the sale of arts
lottery tickets less prizes and expenses and all other monies credited or
transferred thereto from any other fund or source pursuant to law." That section
goes on to provide for the creation of an Arts Lottery Council, consisting of
five unpaid members appointed by the Governor; for the creation of local or
regional arts councils, consisting of five unpaid members appointed by the
executive body of the city or town; and for a mechanism to approve grants
of arts lottery funds to local and regional arts councils.

Reading together these two sections, it is clear from their plain meaning that
the State Lottery Commission is to conduct the arts lottery and must do so
in accordance with the state lottery law.' It is equally clear that the purpose
of the State Arts Lottery Fund is to provide monies to local and regional arts
councils for those uses approved by the Arts Lottery Council and, in addition,
to pay for the limited administrative costs incurred by the Arts Lottery Council
in connection with that distribution."

General Laws chapter 10, section 35A, plainly states that the State Arts
Lottery Fund shall consist of all revenues from ticket sales less prizes and
expenses, plus all other monies from any other fund or source. This language
is distinguishable from that of G.L. c. 10, §35, establishing the general State
Lottery Fund and providing: "Said fund shall consist of all revenues received
from the sale of lottery tickets or shares, and all other monies credited or
transferred thereto from any other fund or source pursuant to law." Because
these two provisions are contained within the overall state lottery statute, see
Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liability
Policies and Bonds, supra, Mass. Adv. Sh. (1981) at 420, and because the
Legislature must be presumed to have been aware of existing statutes when
enacting St. 1979, c. 790, see id. at 424, I must conclude that this distinction
is intentional.

Thus, it is my opinion that revenues derived from the sale of arts lottery
tickets are to be deposited in the State Lottery Fund. From that Fund, the
Commission must make payments to prize- winning ticket holders, as well as
expend amounts attributable to the costs associated with conducting the arts
lottery game. The remaining balance shall then be maintained as a separate
State Arts Lottery Fund, the primary purpose of which is to assist local arts

^While General Laws, chapter 10, section 35A, is silent as to the manner in which the arts lottery is to be conducted, it does
provide for a manner of distribution of arts lottery revenues somewhat different from that of the general state lottery. Arts lottery
funds are to be distributed to those cities and towns whose arts councils have filed applications for uses approved by the Arts
Lottery Council, which "shall then certify to the Comptroller the payment of the cost thereof to the extent that funds therefor
are payable under section twenty-four to such city, town, or region". G.L. c. 10, §35A. See 1980/81 Op. Atly. Gen. No. 4,
Rep. A.G., Pub. Doc. No. 12 at (1980).

^G.L. c. 10, §35A, provides in pertinent part:

. . . The arts lottery council, local and regional arts councils may establish their own administrative units, but no
arts council shall utilize more than five per cent of the monies received from the State Arts Lottery Fund for administrative
purposes, in the case of the arts lottery council not more than three per cent of the monies of the total State Arts Lottery
Fund for administrative purposes.

P.D. 12 ,4,^

councils. I note that this conclusion is consistent with the directive of G.L.
c. 10, §24, that the State Lottery Commission shall conduct the arts lottery
in accordance with the general provisions of the state lottery law. This manner
of administration will also ensure that the State Arts Lottery Fund will consist
solely of monies which are in fact available for distribution to local and regional
arts councils and for the administrative expenses of the Arts Lotter>' Council.

Your second question concerns two legislative appropriations. The first of
these is contained in the general appropriation bill for fiscal year 1981 and is
in the amount of $759,500., "[flor the expenses of the operation and
administration of the arts lottery". St. 1980, c. 329 §2, item 0640-0100. The
second is contained in a supplementary budget for fiscal year 1980 and is in
the amount of $1,000,000., "[f]or the payment of prizes by the state lottery
commission in accordance with the provisions of chapter seven hundred and
ninety of the acts of nineteen hundred and seventy-nine; provided, that a sum
equal to said payments shall be reimbursed by said commission from the
revenues received under the provisions of said chapter seven hundred and
ninety". St. 1980, c. 354, §2, item 0640-0200. You ask whether it is proper
to make payments for expenses and prizes based on these appropriations
through the State Lottery Fund and, if that answer is in the affirmative, whether
the balances remaining after such payments are to be transferred to the State
Arts Lottery Fund. For the following reasons, I answer the former question
in the affirmative, but conclude that any unexpended balances from these
appropriations may not be transferred to the State Arts Lottery Fund for
distribution to local arts councils and for payment of administrative expenses
of the Arts Lottery Council and must instead ultimately revert to the general
fund.

The introductory sections of both appropriation acts in which these items are
contained provide that the appropriations are made "subject to the provisions
of law regulating the disbursement of public funds . . . ."St. 1980, c. 329,
§1, and St. 1980, c. 354, §1. General Laws chapter 29, section 12. provides
as follows:

Appropriations by the general court, unless specifically designated
as special, shall be for the ordinary maintenance of the several
departments, offices, commissions and institutions of the common-
wealth and shall be made for the fiscal year unless otherwise
specifically provided therein.
See also G.L. c. 29, §13. General Laws chapter 29, section 14. governs
"[alppropriations for other than ordinary maintenance" and provides in
pertinent part that such appropriations:

unless otherwise specifically provided therein, shall be
available for expenditure in the two fiscal years following June
thirtieth of the calendar year in which the appropriation is made
and any portion of such appropriation representing encumbrances
outstanding on the records of the comptroller's bureau at the close
of such second fiscal year may be applied to the payment thereol
any time thereafter. The unencumberd balance ot such appropriation
shall revert to the commonwealth at the close ot such second, or
other designated, fiscal year ....

150 P.D. 12

Thus, whether the appropriations are for ordinary maintenance or some other
purpose, unencumbered balances from these funds will ultimately revert to the
Commonwealth.

St. 1980, c. 329, §2, item 0640-0100, is by its terms specifically earmarked
for the expenses of the operation and administration of the arts lottery. Since
the clear legislative intent of chapter 790 is that the State Lottery Commission
is to operate and administer the arts lottery,^ I must conclude that this
appropriation is intended to be for the use of the Commission. Therefore, for
the reasons set forth above, the appropriation is to be deposited into the State
Lottery Fund. Furthermore, because the "provisions of law regulating the
disbursement of public funds" so require and because the appropriation does
not otherwise specifically provide, the unencumbered balance of this appropri-
ation, after payments for the expenses of operation and administration of the
arts lottery, will revert to the general fund.

Similarly, and for the same reasons, the appropriation contained in St. 1980,
c. 354, §2, item 0640-0200, is specifically earmarked for the payments of arts
lottery prizes by the State Lottery Commission and is, therefore, to be deposited
into the State Lottery Fund. The unencumbered balance of that appropriation,
after payments of arts lottery prizes, will also ultimately revert to the general
fund. Furthermore, that appropriation requires the State Lottery Commission
to reimburse the general fund from revenues received from the arts lottery game
in an amount equal to the payments made for prizes. Thus, if the revenues
from the sale of arts lottery tickets at least equal the costs of prizes, this $1
million appropriation will be returned in full to the general fund. This result
is consistent with the manifest purpose of this appropriation item, that is, to
assist in implementing the arts lottery in its initial operations. See St. 1980,
c. 354, §1. See also St. 1980, c. 329, §2, item 0640-0100.

In reaching this conclusion, I am guided not only by the plain language of
these appropriation items, Hoffman v. Howmedica, Inc., 373 Mass. 32, 37
(1977), but also by the language of G.L. c. 10, §35A, defining the State Arts
Lottery Fund. Nowhere in these appropriations is it indicated that the
unexpended balances are to be "credited or transferred" to the State Arts
Lottery Fund. See G.L. c. 10, §35A. Thus, in the absence of express legislative
authority to the contrary, these appropriations must be made in accordance with
the statutes governing the disbursement of public funds. See Baker v.
Commonwealth, 312 Mass. 490, 492 (1942); St. 1980, c. 329, §1; St. 1980,
c. 354, §1.

I conclude, therefore, that, unlike the State Lottery Fund, the State Arts
Lottery Fund consists of an amount equal to revenues less prizes and expenses,
plus all other monies credited or transferred from other sources. Revenues from
the sale of arts lottery tickets are to be first deposited in the State Lottery Fund,
from which payments for prizes and the costs of administration and operation

^The administration of the arts lottery by the State Lottery Commission is to be distinguished from the administrative duties of
the Arts Lottery Council, see 1980/81 Op. Atty. Gen. No. 4. Rep. A.G., Pub. Doc. No. 12 al (1981), the expenses for

which are expressly limited to "three percent of the monies of the total State Arts Lottery Fund". G.L. c. 10, §35A. Because
it is clear that (he Council is not involved in the operation of the arts lottery and because the administrative expenses of the
Council are thus specifically limited, I am unable to conclude that this appropriation is available for the expenses of the Council
See Baker v. Commonwealth. 312 Mass. 490, 492 (1942).

P.D. 12 ,5,

are to be made. Those appropriations for the operation and administration of
the arts lottery and for arts lottery prizes are also to be deposited into the State
Lottery Fund. In the absence of specific statutory authority, any unexpended
balances from these appropriations are not to be transferred to the State Arts
Lottery Fund, but must ultimately revert to the general fund, as required by
law.

Very truly yours.

FRANCIS X. BELLOTTl

Attorney General

Number 18 May 5. 14X1

Romulus DiNicola, Executive Secretary
Board of Registration in Pharmacy
100 Cambridge Street - 15th Floor
Boston, MA 02202

Dear Dr. DiNicola:

You have requested my opinion on a question relating to that portion of G.L.
c. 112, §39A, which permits a "restricted pharmacy," as defined by that
section, to accept and fill prescriptions by mail, "provided, however, that the
prescribing physician is verified, according to procedures estabhshed by the
board [of registration in pharmacy], as licensed to practice in the common-
wealth or in any New England state". General Laws chapter 94C. section 18
(c), permits physicians who are licensed to practice medicine in a state
contiguous to Masschusetts and who are registered with the Commissioner of
Public Health to issue prescriptions for controlled substances. You ask whether
this latter statute limits the authority of restricted pharmacies to accept and fill
prescriptions by mail. For the reasons stated below, it is my opinion that chapter
94C does limit the practice of filling prescriptions by mail and that restricted
pharmacies may accept and fill by mail prescriptions issued only by those
physicians registered with the Commissioner of Public Health in accordance
withG.L. c. 94C, §18(c). , ^ ^

Authority to regulate the dispensing of prescription drugs m the Common-
wealth is divided under a comprehensive statutory plan between the Commis-
sioner and the Board of Registration in Pharmacy. See generally G.L. C. 94L.
G L c 112 §§30-42A ' As part of the Commissioner's authority in this area.
General Laws chapter 94C, section 18 (c), provides for the registration of
certain out-of-state physicians who may issue prescriptions within the Common-
wealth, as follows:

A prescription for a controlled substance may also be issued by any
physician who is licensed or registered in a contiguous state and

■By virtue of G.L. C. 94C, §3, all prcscnp.ion drugs are by defmUion conlrollcd substances.

2-n,e authon.y of both the Commissioner and the Board ■" *i^ ^^ - ;|[--,^ ^ '^f,^, Z1
Substances Act. Chapter 940 g.yes the C":]^"^,?;;^^ b ■ ^>T^o^or busmess ope,..

dispensation and possession of =^' ^°"'™ '^f „^"^f,"h " ed wTlh rcgXng Uie opcrauon o,

and pharmacists. The Board, on the other hand, '>> char|e<l w.in rcgu g ,,.,^,o, 28, 30
and Oie professional activities of registered pharmacists. G.L. C. 94C, S84 /, 1 1

152 P.D. 12

who resides or practices in said state provided that such physician is registered
with the commissioner subject to such rules and regulations as he may estabhsh.
Such registration shall be valid only for the purpose of authorizing the filling
of prescriptions within the commonwealth and shall not authorize such
physician to possess, administer or dispense controlled substances as provided
in section nine, or to practice medicine within the commonwealth. Any
prescription issued under this paragraph shall be issued in the manner prescribed
in section twenty-two and all relevant provisions of this chapter shall apply
to such physician and prescription.

Notwithstanding this provision. General Laws chapter 112, section 39A,^
authorizes the Board to "verify" those out-of-state physicians whose prescrip-
tions a restricted pharmacy may fill by mail. That section provides in pertinent
part:

Nothing in this section shall prohibit a restricted
pharmacy from accepting and filling prescriptions by
mail; provided, however, that the prescribing physician
is verified according to procedures established by the
board, as licensed to practice in the commonwealth or
in any New England state.

These two provisions of law appear to differ in two respects. First, General
Laws chapter 94C, section 18 (c), authorizes non-resident physicians to issue
prescriptions for controlled substances to be filled in Massachusetts only if the
prescribing physician is licensed to practice in a state contiguous to Massa-
chusetts. General Laws chapter 112, section 39 A, appears to authorize
restricted pharmacies to accept and fill by mail prescriptions issued by
physicians licensed to practice in any New England state. ^ Second, while
General Laws chapter 94C, section 18 (c), requires that a non-resident
prescribing physician must be registered with the Commissioner, General Laws
chapter 112, section 39A, imposes no such prerequisite, but instead requires
verification by the Board that the prescribing physician is licensed to practice
in Massachusetts or in any New England state.

For the following reasons, I am of the opinion that General Laws chapter
112, section 39A, does not impliedly repeal the requirements set forth in
General Laws chapter 94C, section 18 (c), and that only those physicians
practicing in states contiguous to Massachusetts who are duly registered with
the Commissioner of Public Health may issue prescriptions for controlled
substances to be filled in the Commonwealth.

In arriving at that conclusion, I am mindful that I must not view these two
statutes in isolation, but must construe them together so as to constitute a
harmonious whole consistent with the legislative purpose. Registrar of Motor
Vehicles v. Board of Appeal on Motor Vehicle Liablity Policies and Bonds,
Mass. Adv. Sh. (1981) 415, 420. Moreover, I am guided by the principle that

^General Laws chapter 112, section 39A. was added by St. 1980, c. 135, and provides for the registration by the Board of
Registration in Pharmacy of a "restricted pharmacy" to furnish pharmaceutical services only to residents of the Commonwealth
or of any New England state who are beneficiaries of a "trust, fund, pension plan, combination plan or profitsharing plan,"
established in accordance with General Laws, chapter 151D.

■•ah New England states except Maine are contiguous to Massachusetts, while New York is contiguous, but is not numbered
among those six New England states.

P.D. 12 153

Statutes alleged to be inconsistent with each other must be so construed as to
give reasonable effect to both unless there be some positive repugnance between
them. Everett v. Revere, 344 Masss. 585, 589 (1962). quoting from Fiichhur^
V. Leominster Street Railway, 200 Mass. 8, 17 (1908). Accord Hacilev v.
Amherst, 'ill Mass. 46, 51 (1975); Goldsmith v. Reliance Insurance Companv.
353 Mass. 99, 102 (1967). When no irreconcilable conflict exists, 1 must
invoke a long-standing preference to reach a solution which brings the statutes
into correlation and gives effect to both. Parker Affiliated Cos., Inc. v.
Department of Revenue, Mass. Adv. Sh. (1981) 77, 83; Count}- Commissioners
of Middlesex County v. Superior Court, 371 Mass. 456, 460 (1976); Board
of Education v. Assessor of Worcester, 368 Mass. 51 1, 513-514 (1975).

The statutes at issue here are not so antagonistic as to preclude reasonable
interaction'. Both measures were enacted to serve very distinct and largels
independent purposes. Their interrelation occurs on a very narrow ground and
need not frustrate the primary objectives of either provision.

Among its many important directives, General Laws chapter 94C provides
that physicians and certain other health care professionals who. in the course
of their professional practice, possess, dispense, or prescribe controlled
substances, must register with the Commissioner and must fulfill the require-
ments of that chapter and of regulations issued by the Commissioner. G.L. c.
94C, §§6, 7, 9, 15-24. At the time of its enactment, chapter 94C prohibited
physicians not licensed to practice in Massachusetts from prescribing controlled
substances. The Legislature, however, recognized the hardship such a blanket
provision created for Massachusetts residents who regularly receive medical
care from non-Massachusetts physicians conducting a practice in areas close
to the Massachusetts border. See Mass. H. 3231 and 3232 (1976). Chapter 498
of the Acts of 1976 added paragraph (c) to section 18 and thus permitted
physicians licensed to practice in contiguous states and registered with the
Commissioner to issue prescriptions for controlled substances. Massachusetts
residents who consulted such physicians could receive necessarv' pharmaceutical
services in Massachusetts.^

General Laws chapter 112, section 39A, was added to St. 1980, c. 135. the
purpose of which was to authorize the Board to register pharmacies operated
by health, welfare or retirement plans established under G.L. c. 151D. Such
pharmacies are thus able to furnish pharmaceutical services to plan beneficia-
ries Recognizing that such restricted pharmacies may not be easily accessible
to beneficiaries, sponsors of the measure included a provision authori/ing
restricted pharmacies to accept and fill by mail prescriptions issm-d by
physicians licensed to practice in the Commonwealth or in any New hngland
state". An examination of the original bill makes apparent the ;^P«";>;^[J
intention to ease the difficulty confronted by ^enef.c.aries ot a chapter 15iD
plan who regularly receive professional medical services Irom phvsic.an
Tacticmg m'other'New England states ^^-^fl^^;^:'^''^''^^
services from a plan pharmacy. See Mass. S. 512 (1980). Mass. H. .41.

sTiiTliii^n, when onginally i"-|"-t-?„*™„ed'^^^^^^^^^^
H. 5105(1976).

154 P.D. 12

(1980). In enacting G.L. c. 112, §39A, the Legislature exercised its judgment
that such authority is necessary to facilitate the utilization of restricted
pharmacies by the plan beneficiaries.

Despite their inconsistencies, 1 find that these two statutes are fully
reconcilable. Because of its narrow application to restricted pharmacies.
General Laws chapter 112, section 39A, does not operate to negate the
requirements of G.L. c. 94C, §18 (c). Those requirements must be satisfied
by non-Massachusetts physicians who desire to issue prescriptions to be filled
in Massachusetts. "The mere existence of one regulatory statute does not affect
the applicability of a broader, nonconflicting statute, particularly when both
statutes provide for concurrent coverage of their common subject matter."
Dodd V. Commercial Union Ins. Co., 373 Mass. 72, 78 (1977). Enforcement
of both the general requirements of G.L. C. 94C, 18 (c), as well as the more
narrowly circumscribed requirements of G.L. C. 112, 39A, can be fulfilled
without interfering with the accomplishment of the other. Moreover, nothing
contained in either statute serves to frustrate implementation of the other. Both
statutes can be readily harmonized to fulfill the legislative plan for regulating
the distribution of prescription drugs.

Finally, I am unable to conclude that General Laws chapter 1 12, section 39A,
was intended to repeal by implication those portions of G.L. c. 94C, §18 (c),
which are not fully consistent with its provisions. A statute does not operate
to "repeal or supersede a prior statute in whole or in part in the absence of
express words to that effect or of clear implication". Commonwealth v. Hayes,
372 Mass. 505, 512 (1977), quoting from Cohen v. Price, 213 Mass. 303,
309 (1930). While repeal by implication is disfavored, Kardas v. Board of
Selectmen of Dedham, Mass. App. Adv. Sh. (1979) 1596, 1600, the test of
the applicability of the principle of replied repeal is "whether the prior statute
is so repugnant to and inconsistent with the later enactment covering the subject
that both cannot stand". Registrar of Motor Vehicles v. Board of Appeal on
Motor Vehicles Liability Policies and Bonds, supra, Mass. Adv. Sh. (1981)
at 421.

After reviewing the interaction of both statutes, it is my opinion that they
are not so repugnant to and inconsistent with each other that they cannot be
reconciled. On the contrary, each enactment is capable of a construction which
will give maximum effect to both measures. This reconciliation permits
restricted pharmacies to accept and fill by mail prescriptions received from
physicians verified according to procedures established by the Board, to be
licensed to practice in Vermont, New Hampshire, Rhode Island or Connecticut
and registered with the Commissioner pursuant to G.L. c. 94C, §18 (c). It also
permits physicians licensed in any of those states or in New York to write
prescriptions for their patients which may be filled in person at other non-plan
pharmacies in the Commonwealth.

Very truly yours,

FRANCIS X. BELLOTTI

Attorney General

P.D. 12 155

INDEX OF OPINIONS

TOPICS OPINION PAGE

Appointments

Blanket approval to appoint personnel 2 98

Arts and Humanities

1) Distribution of revenues for state arts lottery 4 102

2) Disposition of revenues from state arts lottery 17 147

Bail and Recognizance

Deposit of cash bail in interest-bearing accounts and disposition

of interest 9 116

Bay State Skills Commission ^-~--.

Application of Anti-Aid Amendment tS 138

Chapter 53, §19 ("Public Policy")

Public policy ballot questions 6 109

Civil Service

Preference for disabled veterans in lay-off procedures 1 97

Constitutional Amendments

1) Application of Anti-Aid Amendment 15 138

2) South Cape Beach agreement 16 143

Corporations

1) Involvement of business corporations in Massachusetts po-
litical activities „■• _• ^

2) Interpretation of word "promoter" in G.L. c. 175, §48 11 i-i-J

Educational Institutions -„

Application of Anti-Aid Amendment '^

Elections i-,- i

Involvement of business corporations in Massachusetts political ^ ^ ^ ^ ^

activities

Employees, Public ... i 07

1 ) Preference for disabled veterans in lay-off procedures. . i

2) May state employees receive two salaries from ^ ^^
Commonwealth ; ', .'

3) Leaves of absence to public school teachers who serve in ^^ ^^^

elective state office

Expert Witness ,4 135

Definition of legislative agent

^"'^Need for public hearings prior to determination of fees and ^ ^^^

charges to be paid to Commonwealth

Final and Binding Arbitration -,,/ ^„ nnwprs of Joint

Effect of Section 10 of Proposition VA on powers ol Joint ^^ ^^^

Labor-Management Committee

Insurance •• „ri c 175 i)48 H '-^-^

Interpretation of word "promoter in G.L. c. I /-•>. 946....

Interest

Deposit of cash bail in interest-beanng accounts and disposition ^ ^ ^^

of interest

156 P.D. 12

INDEX OF OPINIONS (Cont.)

TOPICS OPINION PAGE

Labor Relations

Effect of Section 10 of Proposition 2'/2 on powers of Joint
Labor-Management Committee 12 128

Legislative Agent

Definition of legislative agent 14 135

Lobbying

Definition of legislative agent 14 135

Lotteries

1) Distribution of revenues from state arts lottery 4 102

2) Disposition of revenues from state arts lottery 17 147

Municipal Government

Distribution of revenues from state arts lottery 4 1 02

Pharmacy and Pharmacists

Authority of restricted pharmacies to accept and fill prescrip-
tions by mail 18 151

Police, State

Disability retirement within two years of mandatory

retirement 8 114

Political Committees

Involvement of business corporations in Massachusetts political

activities 10 118

Preemption

South Cape Beach agreement 16 143

Proposition V/i

Effect of Section 10 on powers of Joint Labor-Management

Committee 12 128

Public Funds

Application of Anti-Aid Amendment 15 138

Public Lands

South Cape Beach agreement 16 143

"Public Policy" Questions

Ballot questions 6 109

Retirement

Disability retirement from state police within two years of

mandatory retirement 8 114

Retirement Systems

Effective date for payment of survivors benefits to eligible

beneficiaries beyond age 21 7 113

Rules and Regulations

Need for public hearings prior to determination of fees and

charges to be paid to Commonwealth 5 107

Salaries

May state employees receive two salaries from

Commonwealth 3 100

P.D. 12 ,3,

INDEX OF OPINIONS (Cont.)

TOPICS OPINION PAGt

Secretary of State

Definition of legislative agent 14 1 35

Statutes - Ambiguities

Disposition of revenues from state arts lottery 17 147

Statutes - Clear Legislative Intent

Leaves of absence to public school teachers who scr\c in

elective state office 13 1^2

Statutes - Construction - Reasonable Rule

Authority of restricted pharmacies to accept and fill prescrip-
tions by mail 18 151

Statutes - Effective Date

Effective date for payment of survivors benefits to eligible

beneficiaries beyond age 21 7 113

Statutes - General and Specific Language

Need for public hearings prior to determination of tecs and

charges to be paid to Commonwealth 5 1 07

Statutory' Construction

1) Blanket approval to appoint personnel 2 98

2) May state employees receive two salaries from
Commonwealth 3 I (K)

3) Definition of legislative agent 14 135

Statutory Revision

Need for public hearings prior to determination of fees and

charges to be paid to Commonwealth 5 107

Surety

Deposit of cash bail in interest-bearing accounts and disposition

of interest 9 116

Teachers

Leaves of absence to public school teachers who serve in

elective state office '3 1-^2

Veterans

Preference for disabled veterans in lay-off procedures I 97

158 P.D. 12

INDEX OF REQUESTING AGENCIES

AGENCY OPINION PAGE

Administration and Finance, Executive

Office for 5 107

Arts Lottery Council 4 102

Campaign and Political Finance, Office of 10 118

Comptroller of the Commonwealth 3 100

Economic Affairs, Executive Office of 15 1 38

Education, Department of 13 132

Environmental Management , Department of 16 1 43

Fisheries and Wildlife, Division of 2 98

Insurance, Division of 11 123

Joint Labor-Management Committee 12 128

Personnel Administration, Division of 1 97

Pharmacy, Board of Registration in 18 151

Public Safety, Executive Office of 8 114

Secretary of the Commonwealth 6,14 109,135

Suffolk Superior Court, Clerk-Magistrate for

Criminal Business 9 1 16

Teachers' Retirement Board 7 113

Treasurer and Receiver General 17 1 47

3? g^ii 5

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