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

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 



MR 



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'' 


AP 


POINTMENT DATE 


1. 


3/19/81 


2. 


3/2/81 


3. 


3/30/81 


4. 


1/17/81 


5. 


2/9/81 


6. 


10/14/80 


7. 


9/29/80 


8. 


7/14/80 


9. 


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 



P.D. 12 



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P.D. 12 11 

®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 



19 



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 



29 



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 



39 



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 



55 



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 



61 



CONSUMER PROTECTION CASE LIST 



A. ADVERTISING 

Defendant 

AAA Rental (T.V.'s) 

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 

Middlesex 

Suffolk 

Suffolk 

Middlesex 

Hampden 

Suffolk 

Suffolk 

Suffolk 

Middlesex 

Norfolk 

Essex 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Hampden 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Hampden 

Suffolk 

Hampden 

Suffolk 

Suffolk 



62 



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 

Pyramid Construction Company 

Railroad Salvage of Connecticut 

Rautio, James d/b/a Treas. Chest 

S & L Sales Corp./K&L Sound 

Saab-Scania of America 

Seiden Sound 

Seiden Sound 

Shaker's Workshops 

Sherman's 

Shuman, Stanley 

Siesta Sleep Shop 

Sound 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 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Consent Judgment Middlesex 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Franklin 

Consent Judgment Franklin 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Consent Judgment Suffolk 

Assurance of Discontinuance Suffolk 

Consent Judgment Hampden 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Consent Judgment Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Assurance of Discontinuance Suffolk 

Consent Judgment Suffolk 

Consent Judgment Middlesex 

Assurance of Discontinuance Suffolk 

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 



63 



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 

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 

Suffolk 

Plymouth 

Suffolk 

Suffolk 

Suffolk 

Hampden 

Suffolk 

Suffolk 

Hampden 

Suffolk 

Hampden 

Suffolk 

Middlesex 

Suffolk 

Suffolk 

Bristol 

Suffolk 

Hampden 

Hampden 

Middlesex 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Middlesex 

Barnstable 

Middlesex 

Suffolk 

Suffolk 

Suffolk 

Hampden 

Suffolk 

Suffolk 

Suffolk 

Hampden 

Suffolk 

Worcester 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Essex 

Suffolk 

Suffolk 



64 



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 

Assurance of Discontinuance 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 

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 

Litigation 

Litigation 

Final Judgment 

Consent Judgment 

Consent Judgment 

Final Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Final Judgment 

Final Judgment 

Final Judgment 

Consent Judgment 

Preliminary Injunction 

Consent Judgment 

Final Judgment 

Litigation 

Consent Judgment 

Consent Judgment 



County/Court 

U.S. Dis. Ct. 

Suffolk 

Suffolk 

Bristol 

Middlesex 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Suffolk 

Worcester 

Suffolk 

Hampden 

Suffolk 



D. CONTRACTS 

Defendant 

American Int'l Holiday 



StatuslDispostion 
Assurance of Discontinuance 



County/Court 
Suffolk 



P.D. 12 



65 



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 



66 



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. 

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 

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 



67 



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 

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 

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 



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 



68 



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 



69 



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 

Suffolk 

Suffolk 

Middlesex 

Essex 

Middlesex 

Plymouth 

Middlesex 

Middlesex 

Suffolk 

Suffolk 

Hampden 

Plymouth 

Essex 

Suffolk 

Hampden 

Plymouth 

Suffolk 

Middlesex 

Suffolk 

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 



70 



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 



71 



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 




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 




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 



72 



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. 



9HHBOixfiMVffmfW?ffRffB^^^H 



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 

Consent 

Consent 

Consent 

Consent 

Open 

Consent Judgment 



Status/Disposition 

Consent Judgment 

Consent Judgment 

Consent Judgment 

Open 

Consent Judgment 

Consent Judgment 

Consent Judgment 

Consent Judgment 
Consent Judgment 
Consent Judgment 

Consent Judgment 



82 



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 

Closed 

Closed 

Closed 

Open 

Open 

Closed 

Closed 

Closed 

Open 

Closed 

Open 

Closed 

Open 

Open 

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 



84 



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. 



92 



P.D. 12 



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P.D. 12 



95 



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 


11 


5 


6 


Contracts 


1 





1 


Eminent Domain 


2 





2 


Victim of 








Violent Cinme 


31 


12 


19 


Torts 


25 


14 


11 


Industrial Accidents 


12 


9 


3 


CRIMINAL BUREAU 








Chapter 123 A 








Section 9 hearings 


7 


2 


5 


Employment Security 


8 


6 


2 


Medicaid Fraud 








Investigations 


22 


2 


20 


GOVERNMENT B UREA U 








Defense of State Agencies 


14 


3 


11 



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 p assage 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