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

Public Document 



No. 12 



^e Commonfoealtlj of ^assacljusetts 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1982 




State Library c= husei 

State House, Boston 



PUBLICATION OF THIS DOCUMENT APPROVED BY DANIEL D. CARTER, STATE PURCHASING AGENT. 
1 500-8-83- 1 75825 Estimated Cost Per Copy $3.72 

MR 

31+OM3 

RJ+67 

1982 

8.2 



Wqt Ctmummttjealtl] of <JJtassacrjusetts 



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, 1982. 

Respectfully submitted, 

FRANCIS X. BELLOTTI 
Attorney General 



P.D.12 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
FRANCIS X. BELLOTTI 

First Assistant Attorney General 
Thomas R. Kiley 



Assistant Attorneys General 



James Aloisi 
Nicholas Arenella 
Donna Arzt 1 
Thomas Bamico 
Stuart Becker 30 
Annette Benedetto 
W. Channing Beucler 31 
Despena F. Billings 
Paul Bishop 
Robert Bonn 32 
John Bonistalli 33 
Kenneth Bowden, III 
Stephen Bowen 2 
Susan Brand 34 
Michael Broad 35 
Roberta Brown 
Craig Browne 
Gerald Caruso 
James Caruso 
William Carroll 
Andrew Cetlin 
Francis Chase 
Paul Cirel 
Leah Crothers 
John Curran 
Leo Cushing 
Mary Dacey 
Richard Dalton 
George Dean 3 
Paula DeGiacomo' 
Stephen Delinsky 
Elaine Denniston 
Emest DeSimone 
Vincent DiCianni 5 
Carol Dietz 6 
John Donohue 
Elizabeth Donovan 
Raymond Dougan 7 
Irene Emerson 
Joan Entmacher 
Leslie Espinoza* 
Peter Flynn 
Carol Fubini" 
Robert Gaines 
Dwight Golann 
Paula Gold 
James Gomes 9 
Paul Good 
Joseph Gordon 35 



Steven James Gordon 37 
John Graceffa 
Alexander Gray, Jr. 
Mark Gray, Jr. 10 
Robert Griffith 38 
John Grugan 
Michael Hassett 
Catherine Hantzis 
F. Timothy Hegarty, Jr. 
David Hopwood 
Marilyn Hotch 
Andra Hotchkiss 
William Howell 
Edward Hughes 
Linda Irvin 
Ellen Janos 
Paul Johnson 39 
Richard Kanoff" 
Paul Kaplan 10 
Linda Katz 
Thomas Keaney 
Carolyn Kelliher 41 
Richard Kelly 42 
Sally Kelly 
Kevin Kirrane 43 
Alan Kovacs 
Steven Kramer 
Elizabeth Laing 44 
Raymond Lamb 12 
Paul Lazour 5 
Stephen M. Leonard 
William Levis 45 
Martin Levin 13 
James Lewis 
Stephen Limon 
Harriet Fordham 
Maureen Fox 
Susan Frey 
Alan Mandl 
Bernard Manning 
Michael Marks 46 
Dana Mason" 
George Matthews 
Paul R. Matthews 5 
Edward McLaughlin 
Georgianna McLoughlin' 
William McVey 
Paul Merry 
Thomas Miller 47 



P.D. 12 



William Mitchell 
Bruce Mohl 57 
John T. Montgomery 56 
Paul Muello 
Dean Nicastro 48 
Thomas Norton 3 
Henry O'Connell, Jr. 
Steven Ostrach 
A. John Pappalardo 49 
Christopher Palano 5 
Howard Palmer 
William Pardee 
Malcolm Pittman, HI 54 
Alan Posner 47 
Edward J. Quinlan 
Richard Rafferty 
T. David Raftery 
Frederick Riley 
John Roddy 
Anne Rogers 
James F. Ross 
Michael Roitman 
Maxine Lipeles 
Maria Lopez 
William Luzier 
Hilary Rowen 
Dennis Ryan 
Bernadette Sabra 
Anthony Sager 
Assistant Attorneys 

Robert Lombard 
Paul Molloy 



APPOINTMENT DATE 



Stephen Schultz 50 
Harvey Schwartz 51 
Paul W. Shaw 51 
Alan Sherr 52 
JoAnn Shotwell 
Mitchell Sikora 53 
Roger Singer 
E. Michael Sloman 
Barbara A.H. Smith 
Scott Smith 
Dianne Solomon 16 
Donna Sorgi 
Donald Stern 54 
Joan Stoddard 
Kevin Suffem 
Terence Troyer 
Carl Valvo 
Sarah Wald 
Charles Walker 4 
John J. Ward 
Betty Waxman 55 
John White 
H. Reed Witherby 17 
Carolyn Wood 
Christopher Worthington 
Judith Yogman 
Andrew Zaikis 3 
Donald P. Zerendow 
Stephen Ziedman 
General Assigned to Division of Employment Security 



George J. Mahanna 



Chief Clerk 
Edward J. White 

Assistant Chief Clerk 
Marie Grassia 



1. 


2/16/82 


2. 


6/14/82 


3. 


11/30/81 


4. 


9/8/81 


5. 


12/28/81 


6. 


10/28/81 


7. 


12/1/81 


8. 


2/8/82 


9. 


4/5/82 


to. 


2/8/82 


11. 


3/1/82 


12. 


5/17/82 


13. 


3/16/82 


14. 


11/25/81 


15. 


6/7/82 


16. 


6/1/82 


17. 


4/1/82 



TERMINATION DATE 

30. 4/30/82 

31. 10/16/81 

32. 9/30/81 

33. 2/27/81 

34. 9/9/81 

35. 9/11/81 

36. 9/30/81 

37. 5/11/81 

38. 5/28/82 

39. 6/4/82 

40. 2/5/82 

41. 9/18/81 

42. 3/23/82 

43. 1/8/82 

44. 5/12/82 

45. 10/14/81 

46. 6/25/82 

47. 8/28/81 

48. 1/29/82 

49. 11/27/81 

50. 11/13/81 

51. 1/29/82 

52. 2/17/81 

53. 1/8/82 

54. 2/26/82 

55. 6/30/82 

56. 6/2/82 

57. 7/9/82 



P.D. 12 



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P.D. 12 11 

Ol0mm0nfriealtlj of (Massachusetts 

In accordance with the provisions of Section 1 1 of Chapter 12 and of Section 
32 of Chapter 30 of the General Laws, I hereby submit the Annual Report for 
the Department of the Attorney General. This annual report covers the period 
from July 1, 1981 to June 30, 1982 and is the eighth report I have filed as the 
Attorney General of the Commonwealth of Massachusetts. Its submission also 
marks the near conclusion of my second full term in this office. As in the past, 
the achievements of this office during this past fiscal year continue to reflect my 
commitment to making the public interest paramount in both our defensive and 
affirmative efforts. 

In this annual report, I would like to take the opportunity to highlight that 
commitment by detailing the positive impact this office can have on the eco- 
nomic lives of the citizens of the Commonwealth. Through the efforts of a fine 
staff of lawyers and support personnel, this Department annually saves and 
recovers many millions of dollars for the Commonwealth and its citizenry. At 
the same time, the Department successfully defends hundreds of civil cases each 
year in which the potential drain on the General Fund is immeasurable. These 
cases are anything but glamorous and subsequently are not among the cases 
which typically appear in the news media and thus do not come to the attention 
of the public and their elected representatives. Thus a report such as this 
focusing on the financial impact of our cases may be of material assistance to 
the General Court in its deliberative functions. 

A financial focus is particularly appropriate for this report because this past 
fiscal year has been marked by continuing inflation and a depressed national 
economy. The Commonwealth did not escape the consequences of these 
national trends and our citizens are no strangers to the rapidly escalating costs of 
living. This Department has therefore expended a great effort towards lessening 
the dramatic effect the skyrocketing costs of fuel, utilities, insurance, and other 
basic necessities can have on the cost of living. 

The highlights of the accomplishments of the Public Protection Bureau per- 
haps best mirror our efforts in this regard. This past fiscal year our Utilities and 
Insurance Divisions continued to represent the interest of consumers in rate 
cases. Supported by an accounting section in the Public Protection Bureau, 
these two Divisions alone saved Massachusetts citizens over three hundred 
million dollars in cases where substantial increases were sought in utility and 
insurance rates. 

The role of these two Divisions has become central to efforts to keep the rates 
charged by utility companies and automobile and health insurance providers at 
affordable levels for citizens of the Commonwealth. Although the funding for 
these two divisions has remained the same as in previous years, the positive 
results they have obtained from state rate-making bodies reflects not only their 
hard work but also a commitment to the interests of Massachusetts ratepayers. 
Their efforts, however, are not confined to state rate making procedures. The 
Utilities Division this past fiscal year participated in a United States Supreme 
Court challenge to a Louisiana tax on natural gas, resulting in more than 
fourteen million dollars in rebates to Massachusetts gas users, while the Insur- 
ance Division undertook a review of the way deferred compensation systems are 



12 P.D. 12 

operated. Their analysis promises to yield significant benefits in the next fiscal 
year. 

The Utilities and Insurance Divisions are not the only components of the 
office effectively combatting escalating utility rates. Last year, an extremely 
important accomplishment of the Public Protection Bureau in the utilities area 
was the settlement of a consumer protection action against the Lowell and Cape 
Cod Gas Companies. Our complaint alleged, and the Superior Court found, that 
the companies committed unfair and deceptive trade practices and common law 
fraud in their accounting and billing procedures. In the largest cash settlement 
ever obtained in an action alleging unfair and deceptive trade practices, these 
related utility companies agreed to return over one million dollars to ratepayers. 

Another financial highlight was the action of the Consumer Protection Divi- 
sion in successfully preventing the default of millions of dollars in home mort- 
gages. In a time of extremely high interest rates, certain banks in the Common- 
wealth attempted to seize an opportunity to generate greater profits by calling in 
mortgages with low interest rates and then attempting to refinance them at 
market rates. At the time, those market rates were seventeen and eighteen 
percent, and in some cases represented over ten percent of the original mortgage 
note. Investigation by the Consumer Protection Division indicated that in most 
cases, homeowners were unaware of provisions in their mortgages that would 
have allowed this result. In a series of timely actions, we contended that this 
situation was caused by incomplete or misleading information from lending 
institutions. Our intervention in these matters resulted in settlements which 
clearly favored the homeowners who were not forced to pay these extremely 
high rates and were saved from possible future foreclosures. Had the rates been 
increased to the full amount authorized by the arguably deceptive mortgage 
documents, the cost to homeowners would have exceeded twelve million dol- 
lars. These utility and mortgage cases serve to illustrate how important an active 
Consumer Protection Division can be to our citizenry, but it is important to 
remember that they are only illustrations. During the period covered by this 
report the Division obtained an additional $12,486,343 in settlements or judg- 
ments, almost all of which was returned directly to injured consumers. 

As one would expect, the Antitrust Division was also active last year. This 
Division handles cases which I believe are the logical extension of our consumer 
efforts, and the attorneys assigned to it obtained almost a half a million dollars 
for the Commonwealth and its political subdivisions in fiscal 1982. Together 
these two divisions not only served to protect the public from unlawful business 
practices, but also enhanced the business climate by working with the vast 
majority of Massachusetts businessmen who legitimately seek to resolve their 
own problems with the consumers they serve. 

It would probably surprise most people to know how much of a financial 
impact the remaining divisions of the Public Protection Bureau have on their 
lives. One would not ordinarily think of the Civil Rights, Public Charities, and 
Environmental Protection Divisions as places within this Department which 
generate financial benefits for the Commonwealth, as their primary function is 
not the recovery of funds. Just last year, however, the Civil Rights Division 
collected almost two million dollars of free or reduced health care at hospitals in 



P.D. 12 13 

the Commonwealth pursuant to the Federal Hill Burton requirements. Investiga- 
tions indicated that although these hospitals were required to provide levels of 
free health care under the federal law, they were not fulfilling these obligations. 
Our efforts were singularly responsible for the hospitals agreements to provide 
those services mandated by their receipt of Federal funding for construction of 
their facilities. The Public Charities Division, is primarily responsible for pro- 
tecting the public from the misapplication of charitable funds and participating 
in probating estates and trusts which have charitable remainders. The activities 
of attorneys in this Division have protected over three hundred thousand dollars, 
earmarked for charitable purposes, from those who sought to use those funds for 
individual and private use. The successful efforts of the Environmental Protec- 
tion Division in keeping our environment clean has resulted in fines and penal- 
ties of almost two hundred thousand dollars to be used in various clean up 
efforts. 

One also may not typically think of criminal prosecution as an area which 
yields favorable financial results for the public. However, the efforts of our 
Criminal Bureau successfully prosecuting those individuals who violate our 
criminal laws have had a decidedly favorable fiscal impact on the Common- 
wealth and its citizens. This impact is best exemplified by our .prosecution of 
those individuals who seek to enrich themselves by unlawful schemes in the 
delivery of governmental benefits. Both the public generally, and those persons 
who are the proper recipients of various governmental benefits lose when those 
funds are misdirected to those that neither qualify nor deserve them. Many of 
our criminal prosecutorial efforts therefore are directed toward these illegal 
schemes. A case during the reporting period which received significant media 
attention and illustrates the point involved a college professor sentenced to 
Walpole for masterminding a welfare larceny scheme which netted more than 
half a million dollars. It was but one of scores of welfare fraud cases we brought 
last year, many of which were against state employees. Virtually all of these 
prosecutions resulted in convictions and frequently in fines and restitution of 
funds that were stolen. 

These benefits cases are similar in many ways to our tax fraud cases; those 
who defraud the system cause us all to pay more than our own fair share to 
support the system. Last year we collected more than half a million dollars in 
fines and court ordered payments in such tax fraud cases and collected nearly 
two million dollars in back taxes in the process. The true measure of success for 
our tax prosecution, however, is not how much we recover but how well those 
efforts encourage voluntary compliance with our laws. Our experience has 
shown that vigorous prosecution operates to deter those who will not voluntarily 
comply. 

The Criminal Bureau also saves the Commonwealth hundreds of thousands of 
dollars through successful prosecution of public employees who use their posi- 
tions to convert public resources to their own personal benefit. This theft of state 
property by public employees impacts on all of us because it is the public that 
ultimately pays. Protecting the public fisc from those who are in a position to 
raid it has long been one of the most successful targets for prosecution in the 
Criminal Bureau. Last year our Government Integrity Unit convicted more than 
a dozen state employees for larcenous schemes against the Commonwealth or its 



14 PD. 12 

citizens. Among those convicted were a cabinet secretary and the director of a 
major division in the Department of Public Health. Again, these schemes 
diverted more than a quarter of a million dollars from the Treasury, much of 
which was recovered. 

The Medicaid Fraud Control Unit also brought a series of provider fraud cases 
which had a direct impact on the public treasury. The Medicaid program is a 
cooperative federal-state program which finances health care delivery systems. 
During the reporting period we secured forty-seven convictions involving corpo- 
rations and individuals from throughout the system, collected more than a 
quarter of a million dollars in fines and restitution and identified nearly five 
times that amount for civil recovery. The United States Congress rated the unit 
one of the top two in the country, and federal estimates suggest that for every 
dollar we collect or identify for recovery, the deterrent effect of our efforts saves 
ten. 

Sometimes our prosecutorial efforts have a less direct impact on the state 
treasury, but have a significant impact on the financial well-being of our busi- 
ness community. For instance, we worked cooperatively with major corpora- 
tions in a series of cases involving on-going white collar crime conspiracies. We 
successfully prosecuted a night-club owner who stole more than a hundred 
thousand dollars worth of electricity, store owners who had taken approximately 
seven million dollars in computer software, and half a dozen individuals using ' 
counterfeit credit cards and charging hundreds of thousands of dollars worth of 
goods and services to non-existent accounts. 

In our traditional role of defending the Commonwealth, its agencies and 
officers, it is also possible to have a positive impact on the financial lives of our 
citizens. Whether it be through successfully defending complaints seeking 
money damages, or those which would result in increased expenditures, the 
Civil and Government Bureaus of this office have continued to significantly 
impact on the finances of the Commonwealth this fiscal year. 

We may not have had a case as large as the seventy-four million dollars we 
recovered from the federal government two years ago, but our impact was 
significant, nevertheless. The savings achieved by the successful defense of 
civil cases is impossible to measure simply because of the large volume of cases 
that are disposed of in any given year. Even the most conservative estimates, 
however, would be in the tens of millions of dollars each year. In the Eminent 
Domain Division of the Civil Bureau, for instance, our involvement in land 
damage cases resulted in savings to the Commonwealth of approximately four 
million dollars. One can similarly ascribe substantial savings to the Contracts, 
Torts and Industrial Accident Divisions of that Bureau. 

It is possible, however, to measure the financial impact of affirmative recov- 
eries, where as a result of our efforts, monies flow back to the general treasury 
of the Commonwealth. In the Torts, Claims and Collections Division of the 
Civil Bureau, for instance, almost six hundred thousand dollars was recovered 
for the state this past fiscal year. Similarly, the Contracts Division recovered 
almost two hundred thousand dollars in two suits where we alleged that contrac- 
tors either breached their contracts with the Commonwealth or were negligent in 
construction of public buildings. The Eminent Domain Division obtained more 



P.D. 12 15 

than two hundred thousand dollars in rents, and the Industrial Accident Division 
recouped a like amount for the Second Injury Fund. 

In our Government Bureau, attorneys were successful before the United 
States Supreme Court in their challenge to a decision of the New Hampshire 
Public Utilities Commission which would have prohibited the exportation of 
hydro-electric power by the New England Power Company. The Supreme Court 
reversed the New Hampshire Supreme Court's affirmance of that order and 
thereby saved Massachusetts electric consumers in excess of one million dollars 
annually for the indefinite future. In another case with significant financial 
impact, Bureau attorneys commenced action with nine other states against the 
Secretary of Education seeking to require him to use 1980 and not 1970 census 
data as the basis for allocating federal education funds to states and local school 
districts. Use of the 1970 census would have resulted in a loss of over nine 
million dollars of federal aid to the Commonwealth. Our litigation resulted in 
the enactment of remedial legislation by Congress, which restored the level of 
funding to that the Commonwealth would have received under the 1980 census. 

Many would think that our single most significant contribution to the taxpay- 
ers of the Commonwealth during the reporting period was our successful 
defense of "Proposition 214", the law enacted by the people via initiative 
petition which limits the levels of municipal property and excise taxes. Regard- 
less of one's views of the merits of Proposition 2V2 and hence of the lawsuit, it 
is an apt case with which to close this introduction, because it demonstrates 
perhaps better than any other single case how the work of this office can have a 
dramatic impact on the financial condition of the Commonwealth and its citizens 
for had we lost the case, the economy of the state would be different from 
current conditions. 

The recovery of monies on behalf of the Commonwealth and financial sav- 
ings we achieve is by no means the only measure of how well we serve the 
public interest. I have only highlighted the financial consequences of our activi- 
ties this year because this past fiscal year has been a particularly difficult 
economic period for the nation and the state. Anything that this office can do to 
make the adverse financial condition of the economy less felt by Massachusetts 
citizens, is a goal worth pursuing. I believe the foregoing pages should demon- 
strate that in pursuing that goal we have achieved a more than respectable level 
of success in serving the public interest. Those particularly interested in our 
financial successes should pay particular attention to the charts which follow 
this introduction and summarize the monetary effect of our cases. 

There were many more accomplishments during the past fiscal year than I 
could possibly hope to set forth in these few paragraphs. I offer the foregoing 
highlights to demonstrate that, as in years past, I am committed to the principle 
that this Department is and should be committed to serving the interests of the 
public. A fuller exposition of the activities of this Department is set forth in the 
pages that follow. 



16 P.D. 12 



MONEY RECOVERED AND SAVED 
FOR THE COMMONWEALTH AND ITS CITIZENS 

/. MONEY RECOVERED FOR THE COMMONWEAETH TREASURY 

A. Charitable Registrations & Certificate Fees $ 242,765 

B. Charitable Recoveries & Savings 245,000 

C. Escheats 505.597 

D. Collections, Rent 221,533 

E. Collections, General 557,687 

F. Delinquent Unemployment Compensation Claims 1,346.699 

G. Fraudulent Unemployment Compensation Recovered 67,291 
H. Civil Penalties in Environmental Protection Cases 190,000 
I. Restitution and Fines in Tax Fraud Cases 311.500 
J. Restitution and Fines in Criminal Cases 56,000 
K. Restitution in 93A Insurance Cases 290.000 

TOTAL S 4,034,072 

//. MONEY RECOVERED & SAVED FOR COMMONWEAETH' S CITIZENS 

A. Hill-Burton Recoveries $ 1,785,000 

B. Antitrust Recoveries 431.186 

C. Deposits to Antitrust Enforcement Fund 115.625 

D. Judgments, Settlements and Restitution In Consumer 12,486,323 
Protection Division Court Cases 

E. Consumer Recoveries — Non-Court Cases 292,003 

F. Consumer Savings, Restitution Settlements & Judg- 39,863 
ments — Springfield Office 

G. Savings Auto Insurance 100,000,000 
H. Savings Utility Rate Hearings 149,000.000 
I. Savings Blue Cross/Blue Shield (Medex) 131,000,000 
J. Savings Electric Fuel Clause Intervention 5,400,000 
K. Savings Return of First Use Tax Payments 14,500,000 
L. Eminent Domain Land Takings Savings 3,365,008 

TOTAL $418,415,008 

TOTAL OFTABLES I & II $422,449,080 

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. 



P.D. 12 17 

A. LITIGATION 

The Contracts Division represents the Commonwealth, its officers, and agen- 
cies, as both party plaintiff and defendant 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 public work construction disputes. Other typical cases in the 
Division involve claims arising from the interpretation of leases, employment 
contracts, statutes, rules, regulations, and surety bonds. 

In contract actions against the Commonwealth. G.L., c. 258, §12. is. for the 
most part, the controlling statute. At the commencement of actions, litigants 
routinely seek temporary restraining orders and preliminary injunctions. The 
grant of such relief would delay the execution of contracts, increase contract 
costs, and result in additional claims for damages. During the fiscal year. 
Division attorneys successfully resisted all such attempts for injunctive relief. 

With increasing frequency, government contract disputes have become more 
complicated, since there has been a tendency for consultants, engineers, archi- 
tects, and subcontractors to be joined as parties. Discovery in contract cases is 
prolonged partly due to the volume of documentation and the complexity of the 
issues, especially in the building construction area. 

On July 1, 1981 the beginning of the fiscal year, the one hundred, nineteen 
page Omnibus Bill "To Improve The System Of Public Construction In The 
Commonwealth" (c. 579, Acts of 1980), sponsored by the Special Commission 
Concerning State and County Buildings went into effect. The implementation of 
this Bill has further complicated contract disputes. The impact of the new 
legislation became increasingly evident near the end of the fiscal year when a 
number of actions, principally relating to the validity of the "set aside" provi- 
sions for minority and women-owned business enterprises, were initiated. 

Trials of contract cases often involve long hearings before court appointed 
masters. During the fiscal year, opposing counsel have successfully resisted 
references to masters, resulting in an increase of trials before the court. 

Eighty-nine (89) new actions were commenced during the fiscal year. Forty- 
one (41) cases were closed. As of June 30. 1982. there were three hundred 
thirty-three (333) 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. Problems involve formation of contracts, performance of 
contracts, bidding procedures, bid protests, contract interpretation, and numer- 
ous other miscellaneous matters. The most frequent requests received during the 
fiscal year were related to the interpretation of the language of the new Public 
Construction Legislation (c. 579 of the Acts of 1980). 

On a weekly basis, the Contracts Division also receives requests for assis- 
tance in purchasing matters. Economic conditions have heightened competition, 
and bid awards are often bitterly contested. Members of the Division counsel the 
Purchasing Agent and his staff, interpret regulations, and attend informal protest 
hearings. 



18 



P.D. 12 



Board of Regents of Higher Education, Data Processing Bureau, Mental Health, 
Youth Services, Water Resources, State Lottery Commission, Public Welfare, 
Division of Capital Planning and Operations, etc. 



C. CONTRACT REVIEW 

The Division reviews all state contracts, leases, and bonds submitted by state 
agencies. All contracts are logged in and out, and a detailed status record is 
maintained. Contracts are assigned to the attorneys on a rotating basis; and the 
average contract is approved within forty-eight hours of its submission to the 
Division. 

During the fiscal year, the Division approved as to form a total of 1,952 
contracts. Two hundred fifty-eight (258) contracts were rejected and later 
approved after the deficiencies were corrected. The monthly count for the fiscal 
year is as follows: 

Month 

1981 

July 

August 

September 

October 

November 

December 

1982 

January 

February 

March 

April 

May 

June 

TOTAL 



Number 


Number 


Number 


Received 


Approved 


Rejected 


269 


206 


63 


217 


178 


39 


250 


227 


23 


198 


182 


16 


141 


123 


18 


149 


135 


14 


123 


103 


20 


108 


97 


11 


109 


92 


12 


110 


100 


10 


164 


159 


5 


114 


87 


27 


1,952 


1,689 


258 



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 acquisition 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 Environmen- 
tal Affairs, State Colleges, the University of Massachusetts, Armory Commis- 
sion 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. 



P.D. 12 19 

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. 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 impor- 
tance 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 
from the date of the taking to the date of judgment. In years past, during the 
road building boom of the sixties and seventies 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 satisfactory because too many cases previously tried 
to auditors were retried to juries. In 1973, the Legislature passed Section 22 of 
Chapter 79 which provided 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 could be had 
first only if both parties filed written waivers of their right to a jury-waived trial. 
The statue also required the court to make subsidiary findings of fact when the 
case was heard. If either party was aggrieved by the finding, he would reserve 
his right to a jury by so filing, within ten days of the finding. 

It had been the practice of our division to try the great majority of our cases in 
accord with Section 22 before a justice in a jury-waived session. We found, in 
many instances, it was not necessary to retry the case because the findings 
usually contained a clear statement of the subsidiary facts to support the decision 
of the single justice. In many cases this resulted in a final disposition of the 
matter. Still the backlog continued as did our efforts to make Chapter 79 more 
expeditious. 

During 1981, we filed and supported legislation providing for one trial before 
a jury unless both parties agreed to a waiver. The potential of a two trial system, 
either via the earlier Master's Hearing or the jury-waived trial, was a luxury 
courts could no longer afford. With full and complete discovery of the expert 
witnesses, both parties would 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, we felt that the passage of this bill 
would 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 benefi- 
cial to the trial bar as well as to the Commonwealth and its citizens. We are 
pleased to report that Chapter 476 of the Acts of 1981 was signed into law on 
October 26, 1981, abolishing the two trial system once and for all. Each case 



20 PD. 12 

now would be tried one time before a jury, unless both parties agreed to waive 
their right to trial by a jury and try the case before a judge. 

If occupied buildings are situated on parcels acquired by eminent domain, the 
occupants remaining become tenants of the Commonwealth and are 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 uncollectables, suits to enforce the payment 
of rent, as well as 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 over 100 rent cases were closed out and $221,533 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 are 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 arising therefrom. 

More and more, the equitable power of the Courts is being used along with 
the temporary restraining order and injunction process. Zoning cases are now 
being sent to the Land Court from the Superior Court and also being com- 
menced at the first impression in the Land Court. The Attorney General is 
involved in all these cases because declaratory relief is usually sought and 
constitutional issues are typically 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 drain- 
age and other easements and the assurance that the decree is entered subject to 
all of the above. 

In addition, the Land Court determines so-called '"water rights". As indi- 
cated in 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 respon- 
sibilities. Also, the tidal areas of the Commonwealth are creating additional 
litigation, particularly where the Colonial Ordinances are concerned. Litigation 



P.D. 12 21 

is developing whereby the public is asserting adverse possession and prescrip- 
tive rights in the flats of the tidelands and access to beaches. 

In addition, more claims are being made against the Insurance Fund and local 
probate court decisions are having an effect upon the land registration system. 
Considering current trends and statistics for the year, we can expect to be even 
busier in fiscal 1983 in discharging our Land Court responsibilities while pro- 
tecting 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 State's departments or agencies find their way to the Eminent Domain 
Division to be reviewed and approved as to form. 

As reported in last year's report, this Division is actively assisting the Depart- 
ment of Food and Agriculture to expedite and carry out the mandates of Chapter 
780 of the Acts of 1977, known as The Agricultural Preservation Restriction 
Act. 

It is important to understand that since 1949, farming acreage in the Com- 
monwealth had 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 her 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 possi- 
ble by enacting The Agricultural Preservation Restriction Act and by their 
approval of a 5 million dollar bond issue to initiate the program. This Act 
offered the only real hope for preserving our remaining agricultural land, by 
providing for the public purchase of agricultural preservation restrictions, com- 
monly referred to as "Developmental Rights". This program is completely 
voluntary. It allows the farmer to obtain the developmental value of his land 
without destroying its productive capacity as farmland. The statute provides that 
the Commonwealth will pay the farmer the difference between the agricultural 
value of the land and its appraised market value. Stated simply, the farmer 
keeps his farmland but sells his developmental rights. A deed is then filed in the 
appropriate registry wherein it is agreed that the land be restricted in perpetuity 
to farming purposes. 

Since the inception of this program in 1977 more than 5,605 acres of farm- 
land have been permanently protected in the Commonwealth. Presently there are 
more than an additional 4,700 acres under consideration. During the last four 
years the Legislature has appropriated a total of 20 million dollars to fund this 
program, which is by far the most ambitious of any in the United States, and is 
being used as a "model program" by many other states considering ways to 
protect their diminishing farmland. 

The Attorney General's Office considers this program to be essential to the 
protection and revitalization of the farming industry in Massachusetts. Hope- 
fully it will lessen our dependency on farm produce from distant parts of the 
United States and lower food costs to the citizens of Massachusetts. 



22 P.D.12 

The Eminent Domain Division consists of a chief, six full-time attorneys, 
three special assistant attorneys general, one investigator, 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, 1981 through June 30, 1982, the following 
statistics are indicative of the activity of this extremely busy division: 

New Land Court Cases 241 

Land Court Cases Closed 209 

Land Court Cases Pending 358 

New Land Damage Complaints Received 126 

Land Damage Cases Disposed of in Superior Court 38 

Land Damage Cases Disposed of by Settlement 43 

Land Damage Cases Pending 632 

Total Cases Pending 990 

Rent Cases Closed by Special Assistant Attorney General 175 

Rent Owed to the Commonwealth - 

(Collected by Special Assistant Attorney General) $221,533 

Fiscal 1983 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 1983. The 
Department of Environmental Management is still deeply committed to and 
involved in the Heritage State Park Projects in Lowell, Lynn, Holyoke, North 
Andover and Lawrence. These ambitious undertakings are expected to cost in 
the vicinity of 100 million dollars and can be expected to result in extensive 
litigation for this Division. 

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

INDUSTRIAL ACCIDENT DIVISION 

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

There were 12,969 First Reports of Injury filled during the last fiscal year for 
state employees with the Division of Industrial Accidents, an increase of 1305 
over the previous fiscal year. Of the lost time disability cases, this Division 
reviewed and approved 2,080 new claims for compensation and 144 claims for 
resumption of compensation. In addition to the foregoing, the Division worked 
on and disposed of 182 claims by lump sum agreements and 25 by payments 
without prejudice. 



P.D. 12 23 

This Division appeared for the Commonwealth on 1 ,289 formal assignments 
before the Industrial Accident Board and before the Courts on appellate matters. 
In addition to evaluating new cases, this division continually reviews the 
accepted cases; that is, those which require weekly payments of compensation, 
to bring them up to date medically and to determine present eligibility for 
compensation. 

Total disbursements by the Commonwealth for state employees* industrial 
accident claims, including accepted cases, Board and Court decisions and lump 
sum settlements, for the period July 1, 1981 to June 30, 1982 were as follows: 

General Appropriation 

(Appropriated to the Division of Industrial Accidents) 

Incapacity Compensation S7. 120.721.54 

Medical Payments 1,555,355.19 

TOTAL DISBURSEMENTS 58.676,076.73 

Metropolitan District Commission 

(Appropriated to M.D.C.) 

Incapacity Compensation $ 681,053.29 

Medical Payments 104,761.18 

TOTAL DISBURSEMENTS S 785.814.47 

This Division also has the responsibility of collecting payments due the 
''Second Injury Fund" set up by Chapter 152, section 65, and defending the 
fund against claims for reimbursement made under Chapter 152, section 37 and 
37 A. During the past fiscal year this Division appeared on 165 occasions to 
defend this fund against claims for reimbursement by private insurers. As of 
June 30, 1982, the financial status of this fund was: 

Unencumbered Balance S 11,233.73 

Invested in Securities 247,000.00 

TOTAL 258,233.73 

Payments Made to Fund S 765.871.65 

Payments Made Out of Fund 959.122.86 

Pursuant to Section 11A (Acts of 1950. c. 639. as amended), the Chief of this 
Division represents the Attorney General as a sitting member on the Civil 
Defense Claims Board. This involves reviewing and action on claims for com- 
pensation to unpaid civil defense volunteers who were injured while in the 
course of their volunteer duties. During the past fiscal year the Chief of this 
Division appeared at the sitting of this Board and acted on 12 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 



24 P.D.12 

private industry and their insurers. Every effort was made to assist these 
employees in resolving their difficulties or in referring them to persons or 
agencies for solution of their particular problems. 

TORTS DIVISION 

The staff of the Torts Division as of the end of Fiscal Year 1982 consisted of 
a division chief, seven attorneys, one investigator and four clerical personnel. 

The main activities of the division remained unchanged, with highest priority 
being given to the handling of tort and civil rights actions against the Common- 
wealth and its officers. Petitions for Compensation to Victims of Violent Crime 
absorbed a lesser although still significant amount of staff time, and attorneys 
continued to handle some collections work. The Violent Crime Petitions were 
assigned throughout the year to all of the attorneys in the Civil Bureau; a large 
number of tort cases were also assigned to attorneys outside the torts division. 

During the fiscal period, 286 new tort cases were opened, while 74 were 
closed, resulting in a large overall increase in pending tort matters. This increase 
was due primarily to three factors: (1) a growing utilization on the part of the 
plaintiffs' attorneys of opportunities for suing the Commonwealth under the 
1978 Tort Claims Act; (2) the necessity of trying many more tort actions 
because of the lack of appropriation of money for settlements; and (3) the 
absorption by the Torts Division of a significant number of serious and complex 
civil rights cases, many of which would formerly have been handled by other 
divisions of the office. 

The increase in tort cases against the Commonwealth included a large number 
of new cases involving employees of the Department of Mental Health and the 
Department of Social Services. For example, the division was engaged in 
defending seven serious cases involving deaths of patients at state mental hospi- 
tals. These included four suicide cases, one alleging negligence of Westborough 
State Hospital employees involved with the care of a young patient who com- 
mitted suicide by drowning himself in the bathtub, another involving a patient 
who hung himself at the Solomon Mental Health Center, an action arising out of 
the death of a 22-year old man who placed a bag over his head at Taunton State 
Hospital, and the fourth involving a patient at Metropolitan State Hospital who 
hung himself in the shower. The other Mental Health death actions involved a 
patient at Dan vers State Hospital who drowned while on an outing, and two 
patients who died while in restraints, one at Taunton State Hospital and one at 
the Solomon Mental Health Center. 

Other serious cases involving Mental Health employees being defended by 
this division were the Zeleznik case, where 9 year old Arnold Zeleznik was 
murdered in Florida by a patient released by the Northampton State Hospital, a 
civil rights and malpractice case involving a young woman patient at Boston 
State Hospital who blinded herself while in seclusion, a suit brought by a 
woman who lost several toes due to frostbite while she was lost on the grounds 
at Medfield State Hospital, actions involving permanent injuries to a patient 
who jumped out of a third-story window at Worcester State Hospital, a civil 
rights and malpractice suit against officials of the Wrentham State School for 
failure to properly treat a young patient committed there, and a negligence 



Hffl 



P.D. 12 25 

action arising out of injuries inflicted on a 13-year old retarded child by another 
child at a community residence. 

The division was also engaged in handling an increasing load of cases ques- 
tioning conduct of social workers and their supervisors in the Department of 
Social Services. These included a number of death cases: a 16-year old girl 
under supervision of the department who was shot by her boyfriend, a 4-year 
old child purportedly abused by his foster parents, a 3-year old child who was 
allegedly denied adequate medical care by his foster parents, and a 6-year old 
child allegedly abused by his foster parents. Another serious case alleges that 
the department's negligent conduct was the cause of a foster child's rape of a 4- 
year old girl in the home where he was placed, while social workers were under 
attack in a different kind of suit for allegedly removing a child from her natural 
parents without making a sufficient investigation of whether the child was being 
abused. 

The Torts Division absorbed a large number of new suits against employees 
of the Department of Correction, almost all federal civil rights cases claiming 
personal injury to inmates. Several complicated death cases in this category 
were being litigated by torts attorneys during the past year. Among those suits 
are a suit by the family of a Walpole inmate killed by another inmate who had a 
prior history of mental illness and homicidal behavior ( Salmon v. Hall, et al.), 
a negligence suit involving an inmate who escaped from MCI-Framingham and 
then killed one person and seriously injured two others, (Valentine v. Common- 
wealth), and a federal civil rights and tort action brought against doctors and the 
Superintendent at Bridgewater State Hospital by the estate of Patricia Gilmore, a 
woman who was stabbed to death by her former boyfriend Bradford Prendergast 
after being released from Bridgewater State Hospital and later the Billerica 
House of Correction {Gilmore v. Buckley, et al.). The Department of Youth 
Services was also being defended in several major cases, a civil rights suit 
alleging failure to provide adequate medical care to a 15-year old girl in DYS 
custody, resulting in a complete hysterectomy {Irwin v. Calhoun), and two civil 
rights suits for failure to provide adequate rehabilitation, treatment and educa- 
tional opportunities to juveniles in custody. 

The cases just described have typically involved extensive discovery, the 
need to arrange for expensive evaluation and testimony by medical and psychi- 
atric experts, the necessity to locate, interview and prepare for trial many 
witnesses, and difficult legal issues such as the propriety of the use of restraints, 
seclusion and psychotropic drugs in state hospitals, the predictability of danger- 
ousness, the limits of the state's duty to protect individual citizens from persons 
who are or have been in state care, and the application of common law immu- 
nity principles to supervisory and professional employees in various situations. 
In many of these cases the Attorney General is representing several state 
employees whose personal liability is potentially unlimited, as well as appearing 
for the Commonwealth. 

Other types of cases being defended included hundreds of motor vehicle 
accident suits, many involving deaths and serious injuries, actions claiming 
damage to property from flooding and improper salt storage, various suits 
against court personnel, district attorneys, and state and MDC police on causes 



26 P.D.12 

of action arising out of criminal prosecutions, and personal injury claims arising 
out of falls on state-controlled property. 

Lack of availability of appropriated funds for the settlement of claims was 
reflected in a decrease in the number of tort cases being closed. Cases which 
would otherwise have been settled thus joined the large number of cases which 
await trial. At the present time, many of the judgments which were obtained by 
plaintiffs after trial or settlement over the last year have not been paid, again due 
to lack of funds. The total number of tort cases tried was eleven. 

Approximately 490 new Violent Crime Petitions were received by the divi- 
sion, an increase of about 14% over last year. The Treasurer's Office paid out 
roughly $905,269.87 on completed claims, and there were no significant delays 
in payment. Processing and investigation of the VC's continued to be handled 
smoothly by the clerical and investigative staff, with minimal attorney input 
prior to preparation of a final recommendation to the court. Court hearings on 
reports did require significant attorney time, especially due to the necessity to 
make appearances in the district courts in distant regions of the Commonwealth. 

Collections for Fiscal Year 1982 totalled $557,687.30 on 285 claims, the 
bulk of that amount being from Revenue and Probate accounts. By the end of 
the period 2,041 claims have been closed as uncollectible. 

II. CRIMINAL BUREAU 

The Criminal Bureau, consisting of Trial, Organized Crime and Appellate 
Sections, Arson Enforcement, Tax and Insurance Prosecution and Government 
Integrity Units, and the Employment Security Division continued to accelerate 
the number and increase the range of investigations and prosecutions of illegal 
activity occurring throughout Massachusetts during fiscal 1981-1982. The fol- 
lowing report has been designed to reflect a representative sampling of cases the 
Bureau has generated in its efforts to enforce the laws of the Commonwealth, 
promote public safety and secure justice for all citizens. 

Trial Section: Following the institution of a series of investigations designed 
to detect corruption in state government, there resulted the successful prosecu- 
tion of a large number of appointed officials charged with breaching their public 
trust. 

As a direct consequence of numerous presentments to a Suffolk County 
Grand Jury, sixty-four indictments were returned against seventeen individuals 
and a corporation implicated in bribery and larceny schemes involving the 
Massachusetts Bay Transportation Authority. After a lengthy trial, the Secretary 
of Transportation and Chairman of the Board of the MBTA was convicted of 
conspiracy to steal and receive bribes. He was sentenced to serve seven to ten 
years in Walpole State Prison and ordered to pay a $5,000.00 fine. Others who 
were ultimately convicted and sentenced on criminal charges arising out of this 
complicated criminal fraud scheme included MBTA managerial personnel, pro- 
ject directors and department heads as well as an attorney, construction contrac- 
tors, rental agents, a druggist, parking lot concessionaires and the editor of a 
nationally recognized travel journal. The resulting scandal encouraged a reor- 
ganization of the authority's structures and public functions in an effort to 
restore integrity and efficiency to a system long burdened by institutionalized 



P.D. 12 27 

patronage, notorious featherbedding and encumbered by an antiquated physical 
plant and ancient equipment. 

The Director of the Division of Food and Drugs of the Massachusetts Depart- 
ment of Public Health who had occupied that position for more than twenty 
years was convicted of accepting bribes and sentenced for receiving tens of 
thousands of dollars in free food, meats and liquor from a supermarket chain 
subject to inspection by the division for sanitary code violations. He was also 
fined court costs for making false statements to the State Ethics Commission 
concerning his financial interersts. 

A member of the Massachusetts Board of Registration of hairdressers, and a 
clerk employed by the Board of Registration for Plumbers and a Medford barber 
were indicted for conspiracy to steal and receive professional and trade license 
certificates from various State Boards of Registration. The three individuals sold 
the license certificates to unqualified persons who would then be able to fraudu- 
lently represent to the public that they were qualified to perform in that particu- 
lar trade or profession and bill the unsuspecting customer accordingly. 

Two program coordinators employed by the Massachusetts Department of 
Youth Services have been convicted and sentenced for stealing money from 
juveniles enrolled in a restitution program funded by the Massachusetts Depart- 
ment of Manpower Development. The restitution program had been instituted as 
a form of alternative sentencing for juvenile offenders. Rather than face incar- 
ceration, qualifying youth are admitted to the program and provided a job to 
supply a source of income in order to make restitution to the victims of crime. 

While one official from the Massachusetts Department of Revenue employed 
as a tax examiner has been arrested on charges that he attempted to solicit a 
bribe, another state revenue agent in an entirely separate case was approached 
by three Middlesex County men and offered a substantial amount of money if he 
would reduce a meals tax assessment. The agent promtly reported the matter, 
and an undercover investigation was conducted by the Bureau which culminated 
in the indictment of two Framingham men and the owner of a Marlborough 
bakery on substantive charges of bribery and conspiracy to bribe the state 
revenue agent. 

An inspector for the Massachusetts Department of Communities and Devel- 
opment was convicted and sentenced after being charged with soliciting a bribe 
of $800.00 and stealing money from a Revere corporation while engaged in the 
performance of his official duties. A State Treasury employee was found quilty 
of larceny of state funds and ordered to make full restitution of $36,000.00. 

As part of the Bureau's continuing program designed to detect cases where 
government employees illegally collect welfare payments while remaining on 
the public payroll, six individuals employed by government agencies: the Suf- 
folk County Sheriffs Department; the Massachusetts Group Insurance Commis- 
sion; the Department of Education; the Roxbury District Court; the Boston 
Public Schools, and the Massachusetts Department of Public Welfare as well as 
high salaried employees of Bethlehem Steel Corporation and Polaroid, Inc. have 
been charged by multiple indictments with stealing state money and making 
false statements to obtain welfare payments fraudulently. Through the use of 



28 P.D.12 

computer assisted investigative techniques and information supplied by individ- 
uals who report the names and circumstances of illegal welfare benefit recipi- 
ents, thousands of larceny cases have been developed by the Bureau of Special 
Investigations over the past year which have been reviewed by this office for 
prosecution. One such case involved a Northeastern University professor who 
unlawfully induced his students and some of his acquaintances to wrongfully 
apply for welfare benefits. He was convicted and ordered to serve a long state 
prison sentence for his part in the scheme that generated more than half a million 
dollars in illegal welfare payments. Four of the participants were also impris- 
oned. In another case, five illegal aliens from the Dominican Republic were 
indicted and received prison sentences for unlawfully collecting more than 
$400,000 in welfare payments when they used forged Puerto Rican birth certifi- 
cates to verify the presence of non-existent children. 

Three western Massachusetts residents have been convicted of larceny and 
making false statements to obtain welfare payments. The three unlawfully 
obtained aid, food stamps and medical assistance while employed or enrolled in 
a fellowship program at the University of Massachusetts at Amherst. One of the 
three was also indicted for fraudulently receiving payments from a state admin- 
istered Vietnamese refugee aid program. A social worker assigned to the 
Roxbury Crossing Intake Unit of the Welfare Department was convicted and 
sentenced to serve a year in jail. Over a six month period, the defendant, using 
his official position, fraudulently issued approximately $21,000 worth of food 
stamps. 

The Director of Facilities of the Massachusetts College of Art pled guilty to 
larceny charges predicated upon the theft of paint and supplies from the college 
and using credit cards issued to the school for personal purposes. 

A husband and wife have been arrested and charged in multiple indictments, 
with defrauding the Division of Employment Security of more than $100,000. 
They accomplished the larceny of state funds by using more than twenty differ- 
ent aliases and furnishing false identification when submitting applications for 
unemployment compensation at departmental offices throughout the Greater 
Boston area. 

The activities of law enforcement officers have also come under the scrutiny 
of the Bureau. Five Department of Correction Officers have been charged with 
assault and battery and violating the civil rights of a patient who had been 
committed to the Bridgewater State Hospital for evaluation. The new Civil 
Rights Statute, enacted in 1979, makes it a crime to use force or threat of force 
to injure, intimidate or interfere with a person's exercise of his rights under 
federal or Massachusetts Constitutions or laws. A Captain of the Amesbury 
Police Department has been arraigned on an Essex County indictment alleging 
that he forged the signature of the clerk of the Amesbury District Court to a 
search warrant and then executed the warrant at a private residence in that town. 
Three Ayer police officers have been dismissed as the result of an investigation 
conducted by the Bureau. Allegations had been made that members of the Ayer 
Police Department had been engaged in extortionate activities and had mali- 
ciously destroyed valuable construction equipment in an effort to pursue their 
illegal design. 



P.D. 12 29 

The Department of Revenue referred a number of tax cases to the Tax 
Insurance Fraud Unit for criminal prosecution. Of those investigations, eleven 
individuals and one corporation have been indicted and arraigned on 359 counts 
representing almost $250,000 in unpaid taxes. Nine cases have been concluded 
this year resulting in fines and restitution in excess of $31 1 ,500 recovered by the 
Commonwealth. 

The Bureau has developed a number of important cases involving what has 
been classified as white collar crime. Three individuals and a corporation have 
been arraigned and charged with conspiracy, larceny, and receiving stolen 
goods. The participants, with inside help and through the use of false shipping 
documents, were able to steal computer systems and equipment with a value that 
could reach $7,000,000 from a Waltham based computer manufacturer and 
resell the stolen items through a Peabody retail electronics company. In another 
case, a coordinator in field engineering for a Burlington computer firm has been 
indicted and charged with larceny after he sold hundreds of thousands of dollars 
worth of computer equipment to an undercover state police officer assigned to 
the Bureau. A Middlesex businessman has been convicted of larceny and sen- 
tenced to serve a term of probation providing that he make restitution in the 
amount of $15,000 to customers he defrauded while operating a storm window 
installation franchise. An executive of a corporation under contract with the 
state for cleaning services has been convicted and ordered to make restitution for 
funds that he stole engaged as an independent contractor. A Revere nightclub 
has been indicted on larceny charges based upon the finding that more than 
$100,000 worth of electricity was used by the corporation without charge 
through the use of an illegal device that bypassed the meter and nullified the 
utilities billing mechanisms. 

Nine individuals have been indicted in a major credit card fraud scheme has 
resulted in the loss of hundreds of thousands of dollars in money and goods to 
merchants and banks in Eastern Massachusetts. The group has been implicated 
in a conspiracy to manufacture counterfeit Visa and Mastercard credit cards and 
to use them to obtain money and merchandise. The perpetrators selected valid 
credit card numbers from carbon copies of a legitimate sale or purchase by 
credit card. The valid number would then be printed on a counterfeit credit card 
along with a fictitious name and identification. Numbers stolen from cards of 
several prominent people were used in the scheme. Since the population is 
tending to rely upon the credit card as a currency replacement in transacting 
business in ever increasing numbers, the Bureau is exercising greater vigilance 
to guard against this proliferating fraud. 

The Comprehensive Arson Prevention and Enforcement System (CAPES) 
Program, a federally funded arson unit with civil and criminal law enforcement 
responsibilities throughout the Commonwealth, continued to investigate and 
successfully prosecute cases of suspected and proven fire setting. One individual 
was convicted of burning the same building on two different nights and conspir- 
ing to burn insured property. At the time of the incendiary activity the Roxbury 
apartment housed thirty tenants. In another case, an owner of extensive real 
estate holdings was convicted and sentenced to prison after being charged he 
burned for profit a multi-family dwelling in Jamaica Plain. The owner of a 
restaurant and discotheque in Quincy is awaiting trial based upon charges he 



30 P.D.12 

uncapped a gas pipe in the basement and placed lighted candles close at hand. 
The premises were occupied at the time, and had the expected explosion 
occurred, hundreds of casualties most probably would have been a consequence. 

Four individuals and a New Jersey Corporation have been convicted and 
sentenced on charges that they illegally disposed of huge quantities of danger- 
sous and hazardous waste materials in several Plymouth County towns. Investi- 
gations into illegal dumping of toxic and explosive materials throughout the 
Commonwealth are continuing at an increased rate. The alert has been caused 
by recent site discoveries by law enforcement officers and environmentalists in a 
number of urban, suburban and rural locations. 

The practice of assisting the district attorneys with Bureau personnel when 
requested by the county prosecutors has continued this fiscal year. This inter- 
vention has led to convictions in cases involving; homicide, where a second life 
sentence was imposed upon the convicted killer and conspiracy to murder, 
where two Marlborough men received long prison sentences for their unsuccess- 
ful attempt to kill a Framingham attorney. Other crimes of a more diverse nature 
including the sale of cocaine, assault with a dangerous weapon, contributing to 
the delinquency of a minor and similar offenses directed against both person and 
property have been successfully concluded by the Bureau. 

Organized Crime Section: The Organized Crime Section disseminates crimi- 
nal intelligence information on a strict need-to-know basis and provides other 
support services to law enforcement agencies investigating political corruption, 
organized, and white collar crime activities. It supplies photographic and techni- 
cal expertise to other prosecutorial units and maintains systems for the collection 
and distribution of computerized information designed to enhance the ability of 
the police to understand and protect against the ever increasing sophistication of 
criminal schemes and complex unlawful commercial enterprises. The section 
continues to be involved in an investigative capacity in a number of diverse 
areas of concentration such as; gaming, bribery, narcotics, arson, hazardous 
waste, larceny and receiving stolen goods. 

This year witnessed a proliferation of criminal activity in the computer and 
software field. A number of Greater Boston companies designing and manufac- 
turing electronic equipment sought the assistance of the section in an effort to 
end the theft of these expensive products. Undercover operations were con- 
ceived and implemented with the consequence that both individuals and corpo- 
rations engaged in the sale of stolen data processing devices have been charged 
for their participation in the larcenous plans. 

With the aid of statutorily authorized clandestine auditory and visual surveil- 
lances, the section has been able to amass sufficient evidence to indict numerous 
state and local officials on charges that they sought, solicited and accepted 
bribes from corporations and individuals over which they maintained, under 
color of law, a supervisory capacity. In addition to the effect upon the wrong- 
doer, such enforcement methods serve to discourage others who entertain 
thoughts of easy riches and deter further incursions by those who have already 
embarked upon a career in crime. 

Considerable investigative effort has been expended by the section in policing 
the police. When the constabulary cannot be trusted the criminal justice system 



P.D. 12 31 

will no longer function. In closely scrutinizing complaints involving such cor- 
rupt practices, the section has unearthed a number of cases where peace officers 
have betrayed their oath and engaged in extortionate activity, solicited and 
accepted bribes and had become involved in outright larcenies. Charges have 
been preferred against the malefactors and dismissal from the force has been 
ordered pending judicial disposition of the cases. With a record 72 arrests made 
in 43 cases, the achievements of this investigative backbone of the Bureau, have 
been many. The Section's operational mandate has been predicated upon the 
lesson that the war against crime is not won through isolated victories remote 
from the center of battle. The Section demonstrates unequivocally that only 
centralized authority is capable of maintaining the coordinated effort needed to 
avoid costly duplications and unnecessary waste. The advantages of a unified 
command reflect the development of effective strategy and exemplify the evalu- 
ation of appropriate tactics to assure the success of its mission. 

Appellate Section: The caseload of the Appellate Division increased by 30 
cases over the previous fiscal year. Two hundred and seventy-four new cases 
were opened. Approximately 254 cases are presently active. The vast majority 
of the cases involve civil litigation arising from underlying criminal convictions. 
Of the 183 cases filed in the various state courts, 111 constituted inmate suits 
challenging some aspect of sentences or prison conditions or treatment. This 
number does not reflect the number of inmate suits referred to attorneys within 
the Department of Correction. 

Fifty (50) petitions for review of SDP status pursuant to G.L. c. 123A, §9 
were filed. Working in conjunction with the Office of the Chief Justice of the 
Superior Court, evidentiary hearings are now held in one unified session in a 
single convenient location before a specially assigned judge every three months. 
For example, in November, 15 cases were on the list, five full hearings were 
held, four petitions were withdrawn and one petition dismissed. In the March 
session of 22 cases, 12 full hearings were held and three petitions withdrawn. 

This new procedure has greatly reduced costs of transportation of inmates, 
attorneys and doctors, reduced the amount of payment to the doctors by assuring 
that the case will go forward on a specifically assigned date and has streamlined 
the judicial administration of these matters. 

Seventy-three (73) cases were filed in the federal district court, 47 petitions 
for writs of habeas corpus (for the first time in approximately ten years the 
number of habeas petitions have decreased), and 26 civil rights actions or 
requests for declaratory and injunctive relief were filed. 

Fifteen (15) cases were argued in the Court of Appeals for the First Circuit. 
Seven petitions for writ of certiorari were successfully opposed in the Supreme 
Court of the United States. The one petition filed, challenging the First Circuit's 
grant of a writ of habeas corpus (Meachum v. Longval), was granted and the 
decision of the First Circuit vacated and the case remanded for reconsideration. 

In an unusual case, the Attorney General intervened, in the Supreme Judicial 
Court, on behalf of the Justices of the Superior Court to argue, successfully, that 
the court had the power, without violating the constitutional prohibition against 
double jeopardy, to increase as well as decrease, under the constraints of Rule 
29 of the Massachusetts Rules of Criminal Procedure, a previously imposed 
sentence. 



32 P.D.12 

The Appellate Division also processes the rendition of fugitives from justice. 
Demands from both law enforcement officials of the Commonwealth and gover- 
nors of other states are examined and an opinion rendered as to the legality of 
each demand. The number of rendition demands increased dramatically during 
fiscal 1981-1982: from 85 the previous year to 199, 125 foreign requests and 74 
requests by Massachusetts authorities. In addition, an attorney must appear in 
court whenever a rendition warrant is challenged. 

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

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

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

The Assistant Attorneys General in the Division make every effort to fully 
inform employers of their rights and obligations under the Law. As a result, a 
certain percentage of the matters are settled immediately, avoiding the expense 
of prosecuting the offender and collecting the taxes owed through court action, 
representing a savings to the Commonwealth and its taxpayers. 

During the fiscal year ending June 30, 1982, 1,472 employer tax cases were 
handled by this Division. One thousand one hundred and twenty-five cases were 
on hand July 1, 1981. Three hundred and forty-seven additional cases were 
received during the fiscal year, and 182 cases were closed leaving a balance of 
1,290 employer tax cases on hand June 30, 1982. 

Criminal complaints were brought in the Boston Municipal Court, charging 
115 individuals with 1,301 counts of tax delinquencies, totalling $1,346,699.53 
in monies owed the Commonwealth's agency by the 87 employer tax accounts. 

$1,182,039.13 in overdue taxes was collected during the fiscal year ending 
June 30, 1982. Monies collected were deposited to the Massachusetts Unem- 
ployment Compensation Fund. 

Whenever individuals are found to be collecting unemployment benefits 
fraudulently on claims they have filed while gainfully employed and earning 
wages, the matters are referred to the Attorney General's Division for prosecu- 
tion of the criminal offenses. Criminal complaints are brought only when the 
facts surrounding the offense have been investigated, reviewed with the individ- 
ual involved and criminal intent has been found. The criminal action is brought 



P.D. 12 33 

in the court with jurisdiction over the offense for larceny under G.L. c. 266, §30 
or under G.L. c. 1 15 A, §47, in order that monies stolen from the Massachusetts 
Division of Employment Security may be reclaimed and the criminal punished. 

During the fiscal year ending June 30, 1982, 972 fraudulent claims of unem- 
ployment benefits were handled by this Division. Seven hundred and ninety 
cases were on hand July 1, 1981. One hundred and eighty-two additional cases 
were received during the fiscal year, and 158 cases were closed leaving a 
balance of 814 fraudulent cases on hand June 30, 1982. 

Criminal complaints were brought in various courts charging 32 individuals 
with larceny of $67,291 in unemployment benefits fraudulently collected from 
the Commonwealth's agency. 

The amount of $162,519.07 was collected from the fraudulent claimants 
during the fiscal year ending June 30, 1982, and has been restored to the 
Unemployment Compensation Fund of the Massachusetts Division of Employ- 
ment Security. 

Furthermore, after intensive investigations were conducted by the Massachu- 
setts Division of Employment Security and the Attorney General's Division, on 
November 17, 1981, the Grand Jury of Suffolk County returned five (5) larceny 
indictments against two individuals, totaling $24,399 from the Massachusetts 
Division of Employment Security. On April 1, 1982, the Grand Jury of Middle- 
sex County returned five (5) larceny indictments against another individual 
totaling $14,270 from the Massachusetts Division of Employment Security. 
This case has been continued to September 14, 1982 for trial. 

Subsequent to the indictments being returned, four additional fraudulent 
claims were discovered in Suffolk County, totaling $23,109 and seven fraudu- 
lent claims were discovered in Middlesex County, totaling $35,398, as well as 
two additional fraudulent claims discovered in Norfolk County, totaling 
$12,555. Investigations are presently in progress and when completed, criminal 
action will be brought, after reviewing the sentences imposed by the Superior 
Court on September 14, 1982 in the original five (5) indictments. 

Five of the criminal actions brought in years past remain outstanding pending 
court disposition. Default warrants have issued and are outstanding at this time 
after exhaustive searches have been made to locate the defendants. As a result of 
our earlier prosecutions made on the CETA claims, the case-load during the 
fiscal year ending June 30, 1982 continues to be the five cases presently 
awaiting court disposition. 

During the Fiscal year ending June 30, 1982, actions brought against or by 
the Director of the Massachusetts Division of Employment Security numbered 
21. Twenty cases were on hand July 1, 1981. Two additional cases were 
received during the course of the fiscal year, and two cases were disposed of and 
closed, leaving 19 cases remaining on hand as of June 30, 1982. The two cases 
closed involved a case that was dismissed by the United States Court of Appeals 
and another case dismissed by the United States District Court. 

It should also be noted that during the past fiscal year this division has been 
involved in rendering both formal and informal opinions on various aspects of 
Chapter 151 A and related laws. With regard to G.L. c. 151A, Section 46, we 
were involved with rendering an opinion concerning the confidentiality of infor- 
mation secured by the Massachusetts Division of Employment Security pursuant 



34 P.D.12 

to this Chapter. In every instance where these positions were challenged in court 
the Director's position was upheld due to the representations and recommenda- 
tions of the Attorney General's Division. 

Twenty-three cases brought in the Supreme Judicial Court of the Common- 
wealth were handled by the Attorney General's Employment Security Division 
during the fiscal year ending June 30, 1982. Thirteen of the cases were argued 
and closed leaving the balance of cases on hand at ten. Of the thirteen cases 
argued, the court upheld the position of the director in three cases and denied 
benefits; reversed the position of the Director in four cases and allowed benefits; 
remanded three cases to the state agency for further administrative review which 
resulted in a denial of benefits; and, dismissed three cases by agreement of the 
parties. 

During the fiscal year ending June 30, 1982, the direction of the Employment 
Security Division in the Department of the Attorney General has continued to 
operate in accord with the philosophy of the Department to continue to use the 
resources of this Division to its maximum potential for a statewide impact in 
providing an effective remedy by enforcing the laws of a social program 
designed to serve the people of the Commonwealth. 

The Employment Security Division's Annual Report is submitted in two 
parts, and attached hereto is the statistical report providing a breakdown of the 
case handling for the fiscal year ending June 30, 1982. 



P.D. 12 



35 



EMPLOYMENT SECURITY DIVISION 
Statistical Report 

FISCAL YEAR ENDING JUNE 30, 1982 

Cases on Hand July 1, 1982 1945 

Employer tax cases 1 125 

Employee fraudulent claims cases 790 
Supreme Judicial Court cases, 

(On appeal from Board/Review Decision) 10 
D.E.S. Director Actions, 

(Brought against or by the Director) 20 

Additional Case Referrals: 543 

Employer tax cases 347 

Employee fraudulent claims cases 182 
Supreme Judicial Court cases, 

(On appeal from Board/Review Decision) 13 
D.E.S. Director Actions, 

(Brought against or by the Director) 1 

Total Cases on Hand During Fiscal Year: 2488 

Cases Closed: 355 

Employer tax cases 182 

Employee fraudulent claims cases 158 
Supreme Judicial Court cases, 

(On appeal from Board/Review Decision) 13 
D.E.S. Director Actions, 

(Brought against or by the Director) 2 

Cases Remaining on Hand June 30, 1982: 2133 

Employer tax cases 1290 

Employee fraudulent claims cases 814 
Supreme Judicial Court cases, 

(On appeal from Board/Review Decision) 10 
D.E.S. Director Actions, 

(Brought against or by the Director) 19 

Total Monies Collected: $1,344,558.20 

From Employers: $1,182,039.13 

From Employees: 162,519.07 

Criminal Complaints Brought: 

Tax Cases: 115 Complaints, involving 1301 Counts brought against 87 
employer accounts for delinquent taxes totaling $1 ,346,699.53. 

Larceny Cases: 32 Complaints involving 677 counts brought against 32 
individuals for collecting benefits fraudulently in the amount of 
$67,291.00. 



36 P.D.12 

III. MEDICAID FRAUD CONTROL UNIT 

The Massachusetts Medicaid Fraud Control Unit during its fourth certification 
period continued to operate from its central offices at 18 Oliver Street, Boston, 
Massachusetts. The Unit has continued its efforts toward meeting all of its 
responsibilities under Public Law 95-142. Again, the Unit has addressed itself 
toward successfully responding to the four priorities stated in the Unit's first 
Annual Report: 

1. Investigating and prosecuting provider Medicaid fraud and the physical 
abuse of patients; 

2. Providing the Commonwealth of Massachusetts with an effective and visible 
deterrent force; 

3. Drafting and proposing both legislation and regulations to ensure deterrence 
to future provider fraud and to create a more efficient and equitable Medicaid 
system; 

4. Identifying for recovery and return to the taxpayers overpayments made to 
providers. 

This year MFCU opened 180 new cases and closed 165. The Unit carried 
over 198 cases from the previous year therefore leaving the Unit with 213 cases 
which are presently pending. 

The Unit's prosecutorial efforts resulted in a return of 132 indictments against 
a wide range of Medicaid providers. Of those cases which reached disposition 
during the year the Unit had 47 convictions. 

The Unit is continuing its effort to maintain a comprehensive training pro- 
gram for its staff as well as employees of other state agencies. This year the 
National Association of Medicaid Fraud Control Units held its third annual 
training conference in Boston, December 7-11, 1981, hosted by the Attorney 
General's Massachusetts Medicaid Fraud Control Unit. A total of 228 partici- 
pants attended, including representatives from 27 of the 29 state Medicaid Fraud 
Units. Many staff members served as lecturers, workshop moderators and/or 
facilitators. 

IV. EXECUTIVE BUREAU 

ELECTIONS DIVISION 

A. CAMPAIGN AND POLITICAL FINANCE 

One of the primary functions of the Elections Division is to enforce compli- 
ance with the state's campaign finance law by candidates and political commit- 
tees. (G.L. c. 55). The Division is also responsible for advising the Office of 
Campaign and Political Finance on questions of law. In fiscal 1982, the Office 
of Campaign and Political Finance reported 86 individual candidates or treasur- 
ers who had failed to file the required financial disclosure reports. Through 
administrative action taken by the Division, compliance was obtained in 52 
instances. The division brought civil suit against 34 individuals; 23 of whom 
have since complied with the disclosure statute. In addition, city and town 
clerks throughout the Commonwealth reported 160 local candidates or political 



P.D. 12 37 

committee treasurers who had not complied with the filing requirements. The 
Division has obtained compliance with the law in all but 14 instances; 120 by 
administrative action, and 26 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 
1982, 77 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 1982, the Elections Division was engaged in numerous civil 
suits brought by candidates and voters concerning the composition of the 1982 
primary election ballots. These cases were often challenges to decisions ren- 
dered by the State Ballot Law Commission; none of the challenges were suc- 
cessful. The Elections Division participated in the case of Langone v. Connolly 
before the Supreme Judicial Court, arguing, on behalf of the Attorney General 
that the rule of the Democratic Party requiring candidates to obtain the votes of 
at least 15% of the Party's Convention to qualify for a place on the state primary 
ballot would not supercede or abrogate state statutes. The Division also filed 
amicus briefs with the Supreme Judicial Court on requests for advisory opinions 
on the Democratic Party's 15% rule and concerning the procedures the Constitu- 
tional Convention must follow in considering a pending constitutional amend- 
ment introduced by an initiative petition. 

The Division also sought and obtained preclearance from the United States 
Department of Justice for the changes in the state election laws enacted during 
the prior year, including the congressional redistricting legislation. 

D. INITIATIVE AND REFERENDUM 

In August of 1981 the Elections Division reviewed thirteen separate initiative 
petitions calling for the adoption of laws and five petitions for constitutional 
amendments. The petitions concerned a wide variety of subjects including 
abolition of county government; construction of new nuclear power plants, 
reformation of the way the state legislature conducts its business and reforma- 
tion of the state budgetary process. The Division also reviewed a referendum 
petition calling for the repeal of the so-called "Bottle Bill." 

The Division handled several cases in the Supreme Judicial Court regarding 
the initiative process. The case of Slama v. Connolly challenged the Attorney 
General's determination that an initiative petition that made a specific appropria- 
tion was not proper for submission to the people. The State Ballot Law Com- 
mission's decision that the "Bottle Bill" referendum was properly filed was 
upheld in Gibbons v. Tisdale. The power of the Governor to reassemble a 
constitutional convention following the prorogation of the General Court was 
confirmed by the Supreme Judicial Court in Backman v. Connolly. 



P.D.12 

VETERANS DIVISION 

The Veteran's 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 Ser- 
and the Veterans Affairs Division of the Department of the Treasury. The 
-:on handles civil litigation concerning appeals of agency decisions granting 
or terminating veterans benefits. During fiscal 1982 the Division brought affirm- 
ative litigation to require a town to employ a full time veterans agent in 
compliance with St. 1972, c 471. 

V. PUBLIC PROTECTION BUREAU 

The Public Protection Bureau is the largest of the Bureaus in the Attorney 
General's Office. Its work is carried out by seven Divisions: Antitrust. Civil 
Rights. Consumer. Environmental Protection. Insurance. Utilities and Public 
Charities, as well as a Complaint and an Investigative Section. The Bureau 
carries on affirmative litigation on behalf of the public, and represents the public 
in insurance and utility rate hearings 

The primary work of Bureau attorneys is to aid the Divisions within the 
Bureau in earning out their work. In addition to the cases brought by individual 
Divisions, and described later in this report, a number of matters were handled 
on a Bureau level in FY- 1982. These cases involved serious public issues, and 
represented millions of dollars in costs to the Commonwealth's citizens. The 
often required in-depth study and extensive effort from a number of 
attorneys in the Bureau and support personnel. Among these cases were: 

Boston Edison ' 'Pilgrim II ' Case 

In October. 1981. Boston Edison Company filed its request with the Depart- 
ment of Public Utilities to recover from ratepayers approximately S291 million 
in costs incurred in planning and constructing the Pilgrim II nuclear power 
plant. The plant was cancelled in September. 1981 and never provided any 
services to customers. In the administrative hearings on the cost recover." 
request, attorneys from the Utilities. Consumer Protection and Insurance Divi- 
sions represented consumers in opposing recovery. We spent substantial time 
and effort _ . . .dence and argument that Boston Edison was not finan- 

cially capable of completing Pilgrim II. and thus the investment in the project 
imprudent" and costs should not be borne by ratepayers. The Department 
of Public Utilities ruled partially in our favor in April. 1982. allowing Boston 
Edison to collect approximately half of what it requested. The Attorney General 
is appealing the D.P.U. decision to the Supreme Judicial Court, contending that 
no costs of Pilgrim II should be passed through to consumers. 

-neral v. Lowell and Cape Cod Gas Companies 
In 1982. Bureau attorneys completed landmark litigation brought in 1977 
against two utilities. Lowell Gas and Cape Cod Gas. for fraud and deception on 
their customers. In 1981. we had secured a Superior Court ruling that both 
companies had acted fraudulently and deceptively toward their consumers. In 
1982, after further briefs and hearings and shortly before a trial on damages, the 
companies agreed to settle the case by paying one million dollars in cash to 



P.D. 12 39 

current ratepayers and agreeing to other conditions. This is the first known 

in the nation in which a consumer protection act has been successfully used 

against a utility. It is also the largest cash recovery ever obtained under G.L. c. 

93 A. 

Local Division 589 v. Commonwealth and S1BTA 

Bureau lawyers successfully defended the constitutionality of two Massachu- 
setts laws which make important reforms in labor practices at the Massachusetts 

Bay Transportation Authority. One statute changes labor arbitration stancL:: 
the other, enacted during the MBTA shutdown in late 1980. expands the power 
of the MBT.Vs management to run the system efficiently. Both laws were 
challenged by labor unions. During Fiscal Year "82 the United States Court of 
Appeals upheld the constitutionality of both laws in all n ?n our appeal 

from the lower federal district court decision which struck down the statutes in 
part. Later, the U.S. Supreme Court refused to hear any further appeals. The 
laws have now been put into effect, allowing the MBTA to save larger amounts 
of money and improve sen ice to customers. 

In addition to the above cases handled on a Bureau level. Bureau attor- 
assisted in many cases brought by individual Divisions. Among the most - s 
cant cases, described in greater detail in the sections on the appropriate Divi- 
sion, were: 

Attorney General v. MBTA 

This suit challenged the failure of the MBTA Board of Dhec comply 

with the Open Meeting Law (See Civil Rights Division". 

Commonwealth v. Hayes. FDA Commissioner 

This suit, which challenges the U.S. Food and Drug Administration's failure 
to exempt Massachusetts hearing aid regulations from federal preemption, con- 
tinued. (See Consumer Protection Division). 

Commonwealth. Secretary of Environmental - . ~\ r al 

v. Massachusetts Port Authority < Bird Island Flats Ca 

A significant amount of time was spent negotiating a settlement which 
resolved environmental disputes so that a development at the Bird Island Flats 
portion of Logan Airport could go forward. (See Environmental Divisi 

Special Prosecutor Program 

During FY-19S2. Bureau attorneys acted as special pr secul • 
of the District Attorneys in Essex and Plymouth Counties. This program 
vided assistance to overburdened district attorneys" offices, and resulted in 
Bureau attorneys gaining trial and courtroom experience. 

REPORTS OF DIVISIONS AND SECTIONS 

During FY-1982, in addition to the joint efforts described above, the 
Bureau's specialized divisions and sections earned on ar. ^n in 

their subject areas. Reports of each section and division appear below . 

ACCOUNTING SECTION 

The Bureau's Accounting Section made further p: gress daring the year in a 
project in association with the Civil Rights Division to c\aluate the level of 



P.D.12 

compliant - oitals in the Comr i regulations under the Hill 

Bad nAd afbdera _ requiring g (best provide a level of free or 

■ . •'" " re ream s 

accountants, ir and student inteins completed field visits at 43 facili- 

■ring . b E - "- field visits. At this time last 

yes . rdement had : :al and two administra- 

. :omplair:- ... U.S. . :r. and Human 

HHS lb dafc spitals facilities pievi- 

_ named in the administrative complaints ) have entered into settlemen: 

agreed 1 pi ie collars in uncomr. 

as in fur_ One administrative complaint •• _ l:ed with HHS 

. and :o be in substantial 
compliance and negotiation* _ .:inuing with the remaining 21 facilities 

found not be in complin 

FY- -I the Acoouuting Sect a . . ssive assistance to the 

a attorneys in cak _._ ting the lamagt :11 Gas 

htigadon. Our personnel analyzed all rate .. adjustment clause 

. t _;:rr.dant util:: - period, in order to trace the 

impact of their fraudulent accounting practices on (he rates charged to consum- 
ers To accomr it was necessarj I level p and apply complex assump- 
and analytic techr..__: b tik had not previously been used in consumer 
or ut: . . Our work culminated in a one million dollar cash recover, for 
: :>_~c-> 

PLAINT SECTION 

During FY- I - 1 2 the Put : Protect 'r^u Complain: s .. n procc 

7,958 cases - 1 . . a ret aed for c -turners 

51-1 [efund _ and the value of good- .. they would not 

?ut for our intervention. In addition, we referred 5.158 written 

complaints to out of state agenck - aes or local 

. ->_~r: gr: ups 

The staff who ans MOO" pubhc teleph a total of 

1 " .alls during the past year. Of these call S2S citizens were sent 

Complaint Inquiry Fon 5,125 citizs . nformation and 90.216 

calls .rred to local consumer groups or other state or federal agencies. 

laffalso-... 3d 625 c f these .alls. 190 citizens were 

' romplaint Inquiry Forms and 6cil . ere given information relating 

J rights inqu:: 

. cial proje . ... ndncted by the Complaint Section staff in addition to 
our normal investigative and litigation support functions. Local consumer 
groups in both Taunton year and . bliged to 

take physical possession of. process and mediate hundreds of their complaints . 
A of the Complaint Sc . : participated in an auditing project for the 

civil rights division this spring. The project lasted for six weeks to determine 
whether discrimination was ber . ed. 

The Section also began an investigation into the sale of cars which are rebuilt 

i - - . . :hout disclosure of same. It now appears that it may be 

the largest investigation we have ever worked on. involving thousands of cars 



P.D. 12 41 

and a multitude of dealers. We are working with the investigative section and an 
Assistant Attorney General in the Consumer Protection Division. 

As always, individual members of the staff <both permanent and volur. 
worked on a wide array of projects for specific attorneys. As part of a reorgani- 
zation effort to update our closed files system, we prepared for archiving, all of 
our 1975. 1976 and 1977 closed complaints. In addition to this, we included 
those closed files from the defunct Taunton and Worcester groups as well. 

IN\ ESTIGA TI\ E SECTIOS 

In F-Y 1982. the Investigative Section diversified its activities through 
involvement in a number of areas in which its assistar . . . as nghl These 
areas reflect the broadened use of investigators in many facets : the B wean - 
activities. Some examples of major tasks undertaken are described bei 

Investigators in the auto unit obtained information that "junked"" cars were 
being deceptively returned to the market for sale to consumers. The percentage 
of such cars on the auto market was previously unknown, but continue to be 
uncovered through the unit's efforts. The odome:;: -r:r.ning investigations that 
have been conducted in the past now overlap this ne c n c em and provide the 
firm basis for discovery of both ""junked"" cars and "spun"" cars. 

In another area, close interaction with the community though the anti-arson 
and housing investigators has provided increased visibility for the Department 
and a growing respect for the Department's impact. Roac . nstrocl i 
rigging was uncovered and successfully brought to the attention of the Federal 
Court through the efforts of the investigators working with the .Antitrust Divi- 
sion. Antitrust has historically been an area which did not generate quick results 
but the joint work of the investigators and attune] s using inn ative ?::?;;_- 
tion methods produced results here. 

The financial investigative capacities of the section have 
referred to us by the Executive Office of Human Services and the State Auditor 
involving providers to the Executive Office of Human Services and the State 
Auditor involving providers to the Department of Mental Health resulted in c 
actions against six providers. Additional cases are being rursued. and some 
have resulted in voluntary repayment of overcharges to the Commonwealth. The 
on-going review of hospitals to determine compliance w ith the Hill-Burton - . 
is another example of our expanded financial investigations. 

Investigators worked with the Civil Rights Division in two important c_ 
One investigation led to the first prosecution under the state civil rights ■ 
the violation of a black family's civil rights involving an attack upon their 
home. The other instance involved the investigation of a police brutality charge 
which led to the temporary suspension of the officer involved. 

In FY-1982, the Section also investiga g st MDC a 

Police in w hich the charges were shown to be without merit. These were mat 
referred from the Government Bureau. This Bureau ... ndoritJ i 

requests for investigations by Boards of Registration including nvolving 

an attorney, a certified public accountar.: i . muses and allegaticr 

real estate fraud. All matters referred the Sec n in this mar.: ?een 

resolved successfully. 



42 P.D.12 

In FY- 1982, investigators were involved in undercover assignments which 
produced first hand testimony to aid in the prosecution of illegal practices at a 
clinic. Investigators have also worked closely with FBI personnel in matters 
involving fraudulent sale of government leases for oil land. 

The investigators have been available for use by other Bureaus in the Depart- 
ment, when needed. For example, two investigators were temporarily assigned 
to the Criminal Bureau in FY- 1982. In sum, the Investigative Section has 
expanded its activities significantly to assist in a variety of cases brought by the 
Bureau and the Department. 

LOCAL CONSUMER AID FUND 

For FY- 1982, the Massachusetts Legislature appropriated $250,700 to pro- 
vide regional consumer groups throughout the Commonwealth with supplemen- 
tal 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 14,000 consumer complaints, representing complaints 
from 85% of the cities and towns in the Commonwealth, are mediated at the 
local level. The handling 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. The familiarity with local merchants enables groups to recognize 
the patterns of unfair and deceptive practices at an early stage and had proven to 
be an asset to the Bureau in curbing these practices. 

In 1982 appropriation was distributed among twenty-five agencies in the 
following manner: 

Grant Recipient Amount Awarded 

Agawam Consumer Advisory Committee $ 3,000 

Arlington Office of Consumer Affairs $ 6,000 

Berkshire County Consumer Advocates, Inc. $13,500 

Mayor's Office of Consumer Affairs and Licensing-Boston $17,000 

Brockton Consumer Advisory Commission $ 8,000 

Cambridge Consumer Council $ 8,000 

Cape Cod Consumer's Assistance Council, Inc. $ 6,500 

Duxbury Consumer Advisors $ 300 

Fall River Consumer Service Office $10,000 

Greater Lawrence Community Action, Inc. $ 8,000 

Hampshire-Franklin Consumer Protection Agency $ 8,000 

Haverhill Community Action Commission $10,000 

Lowell Community Teamwork, Inc. $ 8,000 

Lynn Economic Opportunity $10,000 

Medford Consumer's Council $ 9,000 

Newton Department of Human Services $ 8,000 

North Shore Community Action Program, Inc. $ 8,000 

Quincy Consumers' Council $ 6,000 

Revere Consumer Affairs Office $10,000 



P.D. 12 43 

Somerville Multi-Service Center $ 2,000 

South Middlesex Consumer Protection Office $13,500 

Southeastern Massachusetts Consumer Action Center $ 8,000 

Southeastern Massachusetts Legal Assistance Corporation $13,000 

Springfield Consumer Action Center $13,500 

Worcester Consumer Protection Coalition, Inc. $18,500 

ANTITRUST DIVISION 

A. INTRODUCTION 

During FY- 1982, the Antitrust Division of the Department of the Attorney 
General continued its vigorous enforcement of state and federal antitrust laws. 
Massachusetts is now clearly recognized as one of the most active states 
involved in state antitrust enforcement. In selecting those violations to be pur- 
sued, the Antitrust Division has continued to give highest priority to bid-rigging 
and nationwide price-fixing activities to obtain the greatest possible damage 
recoveries for the Commonwealth and its political subdivisions. Additionally, 
the Division has stressed prosecution of resale price maintenance activities, 
which directly affect consumers by stabilizing retail prices at artificially high 
levels. 

B. FEDERAL FUNDING 

During FY- 1982, 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. During FY-1982, the final $65,000 of the grant 
was used for operating expenses. The additional operating expenses of the 
Antitrust Division for FY-1982 were funded through the Antitrust Revolving 
Fund created by Chapter 459 of the Acts of 1978. 

C. STAFF 

During FY-1982, the Antitrust Division consisted of four (4) attorneys and 
approximately ten (10) support personnel. 

D. LITIGATION 

During FY-1982, the Antitrust Division had cases which were in various 
stages of litigation in both federal and state court systems. 

1. Commonwealth of Massachusetts v.N.B.MA., et al. 

Chicken Antitrust Litigation (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. The Department of the Attorney 



44 P.D.12 

General serves on the Settlement Administration Committee as representative of 
all states participating in this litigation. 

2. Commonwealth of Massachusetts v. Amstar Corp., et al. 

Eastern Sugar Antitrust Litigation (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 Department is 
representing the Commonwealth in its proprietary capacity and the cities of 
Boston and Cambridge. During FY- 1982, each plaintiff received 80% of its 
proportionate share of the settlement; the Commonwealth received a distribution 
of $4,755.27; Boston received $470.56. Final distribution will be made in FY- 
1983. Additionally, the Department received an award of $30,926.45 in fees 
and expenses. 

3. Commonwealth of Massachusetts v. Brinks, Inc., et al. 
Armored Car Antitrust Litigation (Northern District of Georgia) 

This is a suit 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. In FY-1982, the 
Commonwealth received its proportionate share of the settlement, a total of 
$51,042.39. Cities and towns in the Commonwealth also received a distribu- 
tion. Additionally, the Commonwealth received $12,961.94 for attorneys fees 
and expenses. 

4. Commonwealth of Massachusetts v. Boise Cascade, Inc., et al. 
Fine Paper Antitrust Litigation (Eastern District of Pennsylvania) 

This is a suit by the Commonwealth, on behalf of itself and its political 
subdivisions, against 15 major paper manufacturers charging them with conspir- 
ing to fix the prices of fine paper products throughout the United States. The 
Commonwealth was certified as a class representative of its political subdivi- 
sions in this action. As of September 15, 1980, settlement had been reached 
with all defendants and 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 
processing the claims of the Commonwealth and its cities and towns. 

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

The Commonwealth brought suit in FY- 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. 



P.D. 12 45 

6. Commonwealth of Massachusetts v .Harbor side Liquor, Inc., et al. 
(Dukes County Superior Court; District Court of Massachusetts) 

The Commonwealth brought two antitrust actions in FY- 1980, one in state 
court and one in federal court, charging seven liquor stores on Martha's Vine- 
yard with price-fixing for at least the last fifteen years. The state action sought 
injunctive relief and a civil penalty, while the federal parens patriae action, 
sought injunctive relief and damages for consumers injured by the unlawful 
conspiracy. The case was settled with all defendants in FY-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. In FY- 1982, the 
Court ordered that the entire settlement amount be deposited in the Antitrust 
Enforcement Fund. 

7. Commonwealth of Massachusetts v. Milton Bradley Co., Art Materials 
Antitrust Litigation et al. (District of Massachusetts) 

The Commonwealth filed suit in FY- 1980 against the four major manufactur- 
ers 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 FY-1981, the Commonwealth's case was consol- 
idated with other civil antitrust actions brought against the same defendants and 
transferred to the Federal District Court in Cleveland, Ohio for coordinated pre- 
trial proceedings. Class action discovery was then ordered to proceed. During 
FY- 1982, discovery proceeded, the Commonwealth being responsible for all 
discovery in connection with Milton Bradley Co. The Commonwealth serves on 
the Plaintiff's Executive Committee, responsible for overall management of the 
litigation. 

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

The Commonwealth filed this case in FY-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 on behalf of Massachusetts residents and seeks treble damages. 
During FY- 1982, defendants' motions to dismiss were denied and the parties 
proceeded with class action discovery. In a related action, the Second Circuit 
Court of Appeals affirmed the District Court's refusal to release to the Common- 
wealth materials and testimony presented before a Federal Grand Jury which 
returned an indictment against Cuisinarts, Inc. The Commonwealth has filed a 
petition in the U.S. Supreme Court for a writ of certiorari on behalf of itself and 
twelve additional states. 

9. Commonwealth of Massachusetts v. Richard Zimmerman et al. 
(District of Massachusetts) 

This suit, filed in FY-1981 against two individuals and two corporations, 
alleges that the defendants engaged in bid-rigging with respect to busing con- 
tracts entered into by the Department of Education, Division of Special Needs. 



46 P.D.12 

The suit seeks injunctive relief and damages for the Commonwealth. Defendants 
motions to dismiss were denied in FY- 1982 and discovery has proceeded. 

10. Commonwealth of Massachusetts v. Russell Stover Candies, Inc. 
(District of Massachusetts) 

In December, 1981, the Department filed this case against Russell Stover 
Candies, Inc., claiming that company had unlawfully engaged in resale price 
maintenance. This parens patriae action was brought on behalf of Massachu- 
setts residents and sought treble damages. The complaint charged the defendant 
with unlawfully setting the retail price of its candy and thereby artificially 
raising the price paid by Massachusetts residents. After decision by the Court on 
preliminary motions, a settlement was reached. Pursuant to the settlement, 
Russell Stover agreed to payment of $140,000 and entry of a Consent Decree 
prohibiting it from engaging in resale price maintenance in the future. 
$35,625.30 is to be deposited in the Antitrust Enforcement Fund with the 
remainder to be distributed to municipalities in the Commonwealth on a pro-rata 
basis. 

11. Commonwealth of Massachusetts v. Bristol Myers, et al. 
Ampicillin Antitrust Litigation (District of Columbia) 

The Commonwealth and a number of other states during the 1970's, filed this 
complex antitrust litigation claiming that the major manufacturers of ampicillin 
had entered into various unlawful agreements restricting the sales and distribu- 
tion of this important drug. In this action seeking damages, the Commonwealth 
has represented itself and all other states which did not file their own individual 
actions (the "Residual CCS Class"). After years of expensive and time-con- 
suming discovery and motions, the case was settled with defendants for a total 
of $6,800,000. During FY- 1982, the Commonwealth filed and administered 
plans of distribution for itself and the Residual CCS Class. Massachusetts 
received $32,600.45 and its municipalities received $87,961.67. Additionally, 
as representative of the Residual CCS Class, the Department received 
$49,791.85 in attorneys fees and expenses. 

12. Commonwealth of Massachusetts v. Ashland Warren, Inc., Erg Invest- 
ments, Inc., et al. (District of Massachusetts) 

In February, 1982, the Antitrust Division filed this case alleging that nine 
companies had engaged in bid-rigging and price-fixing in Massachusetts in 
connection with the sale of bituminous concrete and the paving of roads in and 
around DPW Districts 5 and 8 (i.e. Boston and its northern environs). The suit 
was brought on behalf of the state and municipalities injured by the alleged 
conspiracy and seeks recovery of treble damages. The Court has denied defend- 
ants' motions to dismiss on statute of limitations grounds, has taken under 
advisement defendants' motions to dismiss attacking the right of the Common- 
wealth to represent political subdivisions without bringing a class action, and 
has directed that discovery should proceed. 



P.D. 12 47 

13. Commonwealth of Massachusetts v. Ashland Warren, Inc., Old 
Colony Crushed Stone Corp., et al. (District of Massachusetts) 

In February, 1982, the Antitrust Division filed this case alleging that four 
companies had engaged in bid-rigging and price-fixing in Massachusetts in 
connection with the sale of bituminous concrete and paving of roads in and 
around DPW Districts 6, 7 and 8 (Boston and its southern environs). The suit 
was brought on behalf of the state and municipalities injured by the alleged 
conspiracy and seeks recovery of treble damages. The Court has taken under 
advisement various motions to dismiss filed by defendants, which attack the 
action on statute of limitation grounds, and challenge the right of the Common- 
wealth to represent political subdivisions without alleging a class action. 

E. ADDITIONAL PROCEEDINGS AND ACTIVITIES 

In addition to the above cases, the Antitrust Division was, during FY- 1982, 
involved in the following proceedings and activities: 

1. Commonwealth v. Don Law, Inc. 

The Division accepted and filed in Superior Court a Consent Decree which 
prohibited Don Law, Inc., and related companies from engaging in certain 
anticompetitive behavior which restricted competition in the promotion of popu- 
lar music concerts in and around Boston. Additionally, the company paid the 
Commonwealth $20,000 as reimbursement of costs and expenses incurred in the 
investigation. 

2. Commonwealth v. Ralph Iaccarino & Sons Lumber Co., Inc. 

In this action, related to an investigation referred to the office by the Special 
Commission, the Commonwealth moved for an order compelling the defendant 
to respond to a civil investigative demand. The Superior Court refused to issue 
the order and the Division appealed to the Appeals Court. A single justice of the 
Appeals Court reversed the decision of the lower court and ordered production 
of the documents in question forthwith. The Division then proceeded to review 
approximately 460,000 documents produced. 

3. Architectural Hardware/Building Specialties, Inc. v. Nucor Corp., 
et al. 

The Antitrust Division submitted an amicus brief in Federal District Court in 
opposition to defendant's motion to dismiss. The issue involved relates to the 
meaning of the interstate commerce exemption in G.L. c. 93 A. A decision is 
pending. 

4. In The Matter of Shawsheen Valley Transit Authority 

Consent Decrees were accepted from four competing bus companies who had 
submitted a joint bid to the Shawsheen Valley Transit Authority with respect to 
the busing of school children. The Decrees prohibited companies from engaging 
in joint bidding practices in the future. The Commonwealth was also paid 
$1,500 as reimbursement for the costs of investigation. 



48 P.D.12 

5. New England Bid Monitoring Project 

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

During FY- 1982, data collection continued to ensure that the project 
remained current. Additionally, software was improved to permit more effective 
management of data collected and analysis of project bids in addition to product 
bids. 

Most importantly, computer analysis generated by the project played a signif- 
icant part in the investigation leading to the filing of the two road paving cases. 

CIVIL RIGHTS AND LIBERTIES DIVISION 

The Civil Rights and Liberties Division is established by G.L. c. 12, § 1 1 A. It 
initiates judicial and administrative proceedings in the name of the Attorney 
General to protect civil rights in a wide variety of substantive areas in cases 
affecting the public interest; on behalf of agencies and departments of the 
Commonwealth, to enforce statutes and regulations guaranteeing individual 
rights; and to enforce the provisions of the Massachusetts Civil Rights Act. 

In addition to litigation, staff of the Division investigate alleged violations of 
civil rights, many of which are brought to the attention of the Division by 
citizens of the Commonwealth; comment on proposed legislation and adminis- 
trative regulations, both state and federal; provide advice to state agencies on 
civil rights matters, and inform members of the public of developments and 
issues of civil rights and constitutional protections. 

In FY- 1982, the Division was staffed by a Chief, four assistant attorneys 
general, and appropriate support personnel. A description by category of some 
of the more significant activities of the Division in FY- 1982 follows. 

A. ENFORCEMENT OF THE MASSACHUSETTS CIVIL RIGHTS ACT 

The Division brought several successful criminal prosecutions under the Mas- 
sachusetts Civil Rights Act, St. 1979 c. 801. Three defendants were prosecuted 
by a Division attorney for interfering with the civil rights of a black family 
living in a Weymouth housing project by throwing rocks at their windows and 
shouting racial epithets and threats. Each of the three defendants was sentenced 
to the House of Correction (in two cases, a portion of the sentence was sus- 
pended) for the one-year maximum authorized under the Civil Rights Act for 
forcible interferences with civil rights which do not result in bodily harm. The 
sentences were the stiffest imposed under the recently enacted Civil Rights Act, 
and indicated the seriousness with which such violations will be viewed by the 
Courts. 

Division staff also worked with local police and Assistant District Attorneys 
to investigate and prosecute alleged civil rights violations in several communi- 
ties, including Boston, Cambridge, Chelsea, Hull, Milton, Needham, Somer- 
ville, Wayland and Westwood. 



P.D. 12 49 

To inform members of the public and the law enforcement community about 
their rights under the Massachusetts Civil Rights Act, a pamphlet was prepared 
in English and Spanish, and distributed to civil rights groups, district court 
clerks, local police, and other interested individuals. Division staff also spoke 
about the provisions of the law at several police training seminars. 

B. HEALTH 

Throughout FY- 1982, lawyers from the Division, working with staff from the 
Accounting Department and the Investigative Unit, continued their enforcement 
of the Hill-Burton Act. The Hill-Burton Act requires hospitals which received 
federal funds to provide a reasonable volume of free or reduced cost care to 
persons unable to pay. Approximately 110 Massachusetts health care facilities 
were subject to this "free care" obligation in 1982, and were required to 
provide approximately $85 ,000 worth of free or reduced cost care to low income 
consumers. 

In FY- 1982, we audited an additional 43 hospitals, bringing the total number 
of audits in FY- 1981 and FY- 1982 to 79. Agreements were signed with ten 
hospitals, pursuant to which the hospitals have agreed to provide approximately 
$1,700,000 in free or reduced cost care. Approximately $2 million in additional 
free or reduced cost care has been recovered during the 2 year period of the 
investigation. Negotiations with other facilities are continuing. Also in the Hill- 
Burton area, we drafted testimony which the Attorney General submitted to the 
U.S. House Subcommittee considering repeal of the Hill-Burton Act urging that 
the Act be retained. As of June 30, 1982, moves to repeal had not succeeded. 

In addition to the "free care" obligation, hospitals which received Hill- 
Burton funds have an obligation to serve the needs of the community in which 
they are located. The withdrawal from the Medicaid program of many Cape Cod 
doctors specializing in obstetrics and gynecology threatened to make those 
services unavailable to indigent women on the Cape. Following our negotiations 
with the Cape Cod Hospital, the Hospital reached an agreement with the physi- 
cians establishing a rotational referral system to provide OB-GYN services to 
Medicaid-eligible women free of charge. 

A decision was rendered in Frechette v. Block, a suit we filed in FY- 1980 
against the U.S. Secretary of Agriculture challenging the formula used in FY- 
1979 for allocating funds among the states for the federal supplemental food 
program for women, infants, and children (WIC). The U.S. District Court for 
the District of Columbia ruled that the Secretary of Agriculture had violated 
provisions of the federal Administrative Procedure Act, but denied relief 
because the Commonwealth had not used all of the funds for FY- 1979 that it had 
received. 

In accordance with the holding of In Re Saikewicz, we petitioned for the 
appointment of guardians for several mentally ill or retarded persons in need of 
medical treatment, so that the question of whether consent to the treatment 
should be given could be resolved by the Probate Court. 

C. EDUCATION 

The Supreme Judicial Court rendered its decision in Board of Education v. 
City of Boston, a suit which we had filed in FY- 1981 to enjoin the closing of the 



50 P.D.12 

Boston Public Schools before the end of the state-mandated 180-day school 
year. The Court affirmed the Superior Court injunction which had required 
Boston to keep its schools open for 180 days, even though the School Commit- 
tee had exhausted its appropriation. In addition, the Supreme Judicial Court 
dismissed a claim of the City of Boston against the Commonwealth for reim- 
bursement of the additional S30 million required to keep the schools open. 

The Supreme Judicial Court also ruled in our favor in Attorney General, et al. 
v. Bailey, et al., holding that supervisors of private religious schools must 
comply with the school attendance reporting provisions of G.L. c. 72, §2, and 
that those provisions do not violate defendants' constitutional rights. Several 
similar cases are pending. In Attorney General, et al. v. Grace Bible Church 
Christian School, et al. , we filed a civil suit against the operators of an unap- 
proved school and the parents of children attending the school to enforce 
compliance with the compulsory school attendance laws. 

The obligation of public vocational schools to provide physical education to 
their students under G.L. c. 71, §3 was established by the decision of the 
Appeals Court in the case of Worcester Vocational Teachers Association v. City 
of Worcester, a case in which we intervened on behalf of the Attorney General 
and Board of Education. 

Following a joint effort by the Division and the Department of Education, the 
Worcester vocational schools adopted a plan to change their recruiting and 
admissions policies, to improve the representation of women and racial and 
linguistic minority students in the vocational schools. We also worked with the 
Department of Education to investigate the Lawrence public schools' compli- 
ance with the state's bilingual education laws and regulations, and began negoti- 
ations with Lawrence on how the program could be brought into compliance. 

The Division represented the Department of Education in several special 
education cases in state and federal court. The Department's orders for special 
education programs have, for the most part, been upheld. 

D. HOUSING 

Lawyers from the Division, working with Bureau investigators, began an 
investigation of racial discrimination by apartment rental agencies in Greater 
Boston. As of the end of FY- 1982, the investigation was continuing. 

A consent judgment was entered in Attorney General v .Chart Realty. The 
defendant, a Brockton real estate office, is enjoined from discriminating against 
families with children or against recipients of public assistance, and is required 
to publish corrective advertising. This was one of a series of cases brought 
following an investigation of discrimination against families with children. 

In Commonwealth v. Gulliver, the Superior Court enjoined the operator of a 
migrant labor camp from housing workers without a Department of Public 
Health certificate of occupancy. 

Accessibility of apartments to the handicapped was the subject of Architec- 
tural Barriers Board v. Stasino's. We filed suit to enforce an order of the 
Architectural Barriers Board which required apartment buildings owned by the 
defendant to be made accessible. This case is pending. 



P.D. 12 51 

E. EMPLOYMENT 

In accordance with consent decrees entered in prior years in three class-action 
discrimination cases, we monitored compliance of three Boston publishing com- 
panies with affirmative action requirements. We also reviewed the compliance 
of construction contractors working on the large Copley Place development 
project with affirmative action requirements. No litigation was required. 

We filed comments on two sets of proposed regulations by the Office of 
Federal Contract Compliance Programs which would have virtually destroyed 
the long standing federal affirmative action program. The proposed rules to 
which we objected would have exempted 75% of all presently covered federal 
contractors from the affirmative action requirements, substantially loosened the 
substantive standards applicable to the remaining 25%, and limited the enforce- 
ment tools available. As of the end of FY- 1982, the OFCCP had not issued final 
regulations. 

We filed an administrative appeal with the OFCCP of their denial of our 
Freedom of Information request seeking the results of its compliance review of 
the John Hancock Mutual Life Insurance Company with affirmative action 
requirements. The appeal was still pending at the end of FY- 1982. 

In Holden v. Massachusetts Commission Against Discrimination, we are 
defending the M.C.A.D. against charges of discriminatory and wrongful dis- 
charge. This year, the First Circuit Court of Appeals affirmed the District 
Court's dismissal of plaintiffs case. A petition for certiorari was filed with the 
U.S. Supreme Court at the end of FY-1982. 

We investigated a number of employment discrimination complaints, which 
resulted in referrals or informal resolutions. Division attorneys also participated 
as speakers at a number of conferences concerning employment-related issues. 

F. TRANSPORTATION 

We obtained injunctions in several cases initiated in FY- 1981 and 1982 to 
enforce the right of mentally retarded adults under G.L. c. 19, §28 to transporta- 
tion to their day programs. A partial summary judgment issued by a single 
Justice of the Supreme Judicial Court in Attorney General v. Middleboro and 
Greenfield School Committees declared that under G.L. c. 19, §28, a mentally 
retarded person who lives in a community residence funded by the Department 
of Mental Health must be considered a resident of the community in which he or 
she physically lives; that the statute applies to privately, as well as publicly 
operated programs; and that the failure of the Commonwealth to fully reimburse 
cities and towns for these expenditures did not relieve them of that obligation. 

We argued before the Supreme Judicial Court, the case of Attorney General 
v. School Committee of the Town of Essex. This was an action to enforce the 
provisions of G.L. c. 76, §1, which requires school committees to provide 
students attending private schools the same transportation benefits afforded to 
public school students. 

G. PUBLIC ACCOMMODATIONS AND RELATED MATTERS 

We brought a contempt action against the owner-developer of Shawmut 
Plaza, a Bellingham shopping center, for violating a consent judgment in Archi- 
tectural Barriers Board v. Clark which had ordered him to comply with the 



52 P.D.12 

Board's order to make the plaza accessible to handicapped people. The plaza is 
nou in compliance. 

Two formerly all male activities are now available to women. Following 
negotiations with the Division. Winchester Youth Baseball agreed to open its 
teams to females, and the Chatham Band, which had been receiving town funds 
despite its "'males only" by-law. changed the by-law so that female musicians 
may participate. 

H. PRISOX AND J. ML COXDITIOXS 

We continued our efforts to ensure compliance with the order we obtained in 
FY-1981 that the Penal Commissioner improve conditions at the Deer Island 
House of Correction, and continued to monitor the situation at the John Con- 
nolly Detention Center in Roslindale. a Department of Youth Services facility, 
which had been the subject of a lawsuit against the Commonwealth. 

I. ELECTION AND YOTIXG RIGHTS 

In Batchelder v. Allied Stores International. Inc.. we filed an amicus brief in 
the Supreme Judicial Court in support of a candidate who was denied access to 
the common areas of a shopping center to speak, distribute literature, and solicit 
signatures for his nomination papers. We argued that these rights are protected 
by Article 16 of the Constitution of the Commonwealth, and the state Civil 
Rights Act. G.L. c. 12. §111. The case was still pending at the close of FY- 
1982. 

The City of Boston modified its formerly all "at-large"' method of electing its 
City Councillors and School Committee members. We reviewed the district 
lines that were drawn to insure compliance with the Constitution and Voting 
Rights Act. No further action was required. 

In cooperation with the Secretary of State's Office, we conducted a survey of 
all town clerks to determine the accessibility of polling places to handicapped 
voters. We are in the process of following up on the findings. 

We also spoke at conferences sponsored by Hispanic groups on the subject of 
voter registration, election day rights, and remedies. 

J. PUBLIC RECORDS 

We intervened in the case of Boston Globe v. Boston Retirement Board, 
arguing that there must be a balance between the privacy interests of individuals 
and the public's right to know . We supported the decision of the Supervisor of 
Public Records that the Retirement Board should disclose cursor, statements of 
the reasons for disability awards. The Supreme Judicial Court allowed the 
Globe's application for direct appellate review . and the case was pending at the 
end of the fiscal year. 

In Bellotti v. Milton Board of Appeals, the Superior Court ordered the Board 
to rum over a letter it received from town counsel to the Supervisor of Public 
Records for an in camera inspection, upholding the Supervisor's regulations on 
in camera inspections against their first challenge. The court rejected Milton's 
claim that the attorney-client privilege created a common law exception to the 
public records law. 



P.D. 12 53 

At the request of the Supervisor of Public Records, we sought compliance 
with the Freedom of Information regulations by over 300 local police depart- 
ments that had been charging excessive fees for copies of accident reports and 
other public records, or refusing to furnish copies by mail. The majority agreed 
to comply. We are continuing to seek compliance by the others. 

K. OPES MEETING LAW 

We filed suit in Attorney General v. M.B.T.A.. et al.. to enjoin the 
M.B.T.A. Board of Directors from future violations of the Open Meeting Law. 
The Complaint alleges that in illegally convened executive sessions, the 
M.B.T.A. has discussed issues of great public interest, including major service 
cutbacks and the issuance of bonds. The case is pending. 

We also prepared and distributed information on the Open Meeting Law. and. 
without litigation, resolved a number of complaints against local officials who 
were not complying with the law. 

L. OTHER MATTERS 

We filed an amicus brief in the L.S. Supreme Court on behalf of the Com- 
monwealth in Alfred Snapp and Sons. Inc. v. Commonwealth of Puerto Rico. 
arguing that Puerto Rico has standing as parens patriae to file suit under federal 
labor laws when the economic well-being of its labor force would be affected. 
The Court upheld our position, and adopted our argument that there should be 
less strict requirements for state standing in cases initiated in federal District 
Court, rather than the L.S. Supreme Court. The expansion of parens patriae 
standing may enable the Commonwealth to sue to enforce other federal statutes. 
including federal antidiscrimination laws, on behalf of its citizens. 

The Division participates in the Greater Boston Civil Rights Coalition, and 
this year helped develop programs on crime control, victim- witness support 
programs and reform of the criminal justice system: and a major conference on 
housing, employment and education. 

CONSUMER PROTECTION DIVISION 

A. ISTRODUCTIOS 

The priorities and accomplishments of the Consumer Protection Division this 
year reflect the economic pressure which the recession has placed on consumers 
and business people. Creative use of the Consumer Protection Statute. G.L. c. 
93 A. to resolve banking problems for hundreds of mortgage holders stands as 
the landmark accomplishment of the Division this year. In addition, the Divi- 
sion continued to target such traditional areas as odometer spinning, home 
improvement scams, patient abuse and mistreatment in nursing homes and 
hospitals, travel frauds and investment schemes for investigation and litigation. 

Two of the Division's major efforts highlighted the national import of our 
state's consumer protection effort. First, the Division initiated the development 
of the Northeast Regional Consumer Protection Committee. The purpose of this 
committee, composed of the New England states as well as New York. New 
Jersey, and Pennsylvania, is to centralize and share information and litigation 
efforts. Our litigation involving Subaru of America, one of the first to be 
brought as a result of the Committee's action, is discussed in the automobile 



54 P.D.12 

section below. Second, the Division, representing the National Association of 
Attorneys General, authored and presented testimony in the United States Con- 
giess in opposition to efforts to restrict §5 (a) of the Federal Trade Commission 
Act. 

B. STATISTICS 

During fiscal year 1981-1982. the Consumer Protection Division maintained 
an active litigation caseload of 140 lawsuits: the Division obtained 28 prelimi- 
nary injunctions. 24 judgments. 24 Assurances of Discontinuance, and initiated 
11 contempt of court proceedings. In addition, the Division obtained approxi- 
mately SI 2. 486. 323. in judgments, settlements and restitution for Massachu- 
setts consumers. 

C. MAJOR CASE AREAS 

1 . Automobiles: 

Odometer tampering, hidden and undisclosed defects, and deceptive advertis- 
ing constitute the central area of automobile-related litigation. 

Judgments against auto dealers permanently enjoining the practice of odome- 
ter spinning have been entered or sought in at least 10 cases filed during 1981- 
1982. In five of these cases, tentative settlements have been reached requiring 
dealers to pay more than fifty thousand dollars in restitution to consumers. 

The Division has continued to pursue cases against automobile manufacturers 
for their failure or refusal to notify consumers about defects in certain vehicles. 
These lawsuits, based on the manufacturers breach of implied and express 
warranties, continue to be the most sophisticated litigation in the auto area. For 
example, on December 17. the Division filed a complaint against Subaru of 
America for an alleged defect in the protective axle boots of certain two and four 
wheel drive vehicles manufactured in 1980 and 1981. Substantial and expensive 
repairs to the vehicles are often required when the defective boots break and 
crack under normal conditions and use. The complaint is part of a coordinated 
effort by the Northeast Regional Consumer Protection Committee. 

In addition, the Division initiated a major drive to enforce the Attorney 
General's automobile invoice pricing regulation. Because manufacturers often 
pay dealers "'holdbacks** of promotional fees upon the sale of a vehicle, the 
concept of "invoice price" is often misconstrued by dealers and misunderstood 
by consumers. The Attorney General's invoice price regulation provides a 
standard definition of "'invoice price" and requires that advertisements in this 
area contain specific cost disclosures. Over seventeen Assurances of Discontin- 
uance and six Judgments requiring dealers to comply with the invoice pricing 
regulation have been obtained in the past year. 

2. Banking and Credit: 

In 1981-1982 the major banking effort by the Consumer Protection Division 
involved settlements of mortgage disputes with Massachusetts banks, including 
the Bay State Savings Bank in Worcester, and the Bass River Savings Bank in 
Yarmouth. These cases involve short-term demand notes written on long-term 
amortization schedules, coupled with statements made by mortgage officers, 



P.D. 12 55 

correspondence by the banks and technically imperfect truth-in-lending disclo- 
sures, each of which indicated different mortgage terms. 

In the Bay State Savings Bank case, many homeowners were deceptively led 
to believe that they had entered into a 25 year mortgage, the rate of which might 
increase by Yi of \9c every 5 years. When the first of these mortgages became 
due in July. 1981. the bank began demanding repayment of the full outstanding 
balance of the loans. Homeowners would have had to borrow money from other 
banks at the current 17^-18^ rates to meet this demand, thus suddenly doub- 
ling their mortgage costs. After extensive negotiations with the bank, we 
reached a settlement agreement which represents a savings of approximately two 
million dollars to the Bay State Savings Bank consumers. 

In the Bass River case, approximately 1.400 homes and fifty million dollars 
in mortgages were involved. The settlement resulted in a savings to consumers 
of at least ten million dollars over the next twenty years. These cases illustrate 
the scope of the protection that the Consumer Protection Statute provides to 
consumers in their relations with the business world. 

The Division also continued to enforce truth-in-lending regulations in the 
context of bank advertising and loan applications. 

3. Contempt: 

Contempt actions continued to be used to enforce judgments and injunctions. 
In one ongoing action, the Division is seeking civil penalties against Nadine 
Gan db a Cooperative Investment Club. The penalties are for violations of an 
injunction enjoining her from advertising investment contracts without register- 
ing with the Securities Division, from concealing records relating to her invest- 
ment programs, and from transferring or disposing of assets of her investment 
program. 

In Commonwealth v. Sarah Cutler (I), the defendant was found in contempt 
of court for failing to make repairs on residential real estate required by the court 
pursuant to a preliminary injunction. A fine of SI. 000 and a continuing fine of 
S50 a day was imposed by the court until necessary repairs were completed. 

4. Health Care: 

Patient abuse in nursing homes and hospitals, deception in the unlicensed 
practice of medicine, and incompetent medical laboratories continue to be 
targets of the Division's litigation efforts. At least seven cases seeking injunc- 
tive relief against nursing homes for abuse, mistreatment and neglect were filed 
this year. Five health care facilities are in state court receivership at the request 
of Division attorneys because of abuse or neglect oi patients and or mismanage- 
ment of the facilities. Much of the Division's health litigation has centered 
around the developments in these complex receivership cases. In three of the 
receivership cases, after a great deal of work by the Division, the facilities, two 
hospitals and one nursing home were sold w ith court permission to new ow ners 
who meet state standards that are designed to ensure that ow ners are capable of 
adequately caring for patients. These sales were critical to the patients' well- 
being and. in two instances, a goal of our litigation. The transfer to new owners 
allowed the patients to avoid the trauma and medical risks associated with the 



56 P.D.12 

precipitous transfer of elderly and infirm patients from one institution to 
another. 

In addition, in Commonwealth v. Middlesex Fells Nursing Home, Inc., the 
Division obtained a Final Judgment barring the home from discriminatory 
actions against medicaid recipients and requiring the home to notify residents of 
their right to apply for and receive medicaid. 

Cooperative effort with the Department of Public Health to enforce the new 
patient abuse statute, G.L. c. Ill, §72K, resulted in several lawsuits against 
rest home and nursing home owners. For example, in the first Massachusetts 
case where civil penalties for neglect were obtained pursuant to G.L. c. Ill, 
Commonwealth v. Wellpine Rest Home, Inc., et al., the Division also obtained 
an injunction barring the defendants from operating a rest home or nursing home 
for ten years. 

In two cases. Commonwealth v. Hippocrates Health Institute and Common- 
wealth v. Green Pasture, Inn, the Division obtained injunctions barring individ- 
uals from practicing medicine without a license, and from misleading the public 
about the validity of certain tests and food products administered by the groups. 
In Hippocrates, the defendants were ordered to discontinue its practice of telling 
the public that their founder, Ann Wigmore, was a Nobel Prize winner. In 
addition, the defendants were ordered to discontinue claims that adherence to 
their program could result in the cure of cancer and diabetes. In the Green 
Pastures case, the defendant was ordered to discontinue making similar state- 
ments to the public. 

Massachusetts hearing aid statutes provide consumers with greater protection 
than the Food and Drug Administration regulations promulgated by the FDA. 
The Attorney General, therefore, applied to the Food and Drug Administration 
for an exemption from federal preemption for the Massachusetts statute. The 
Food and Drug Administration refused to give Massachusetts the exemption 
requested. We responded by challenging the federal preemption in FY- 1981. 
Because we were unsuccessful in the U.S. District Court, we entered an appeal 
to the U.S. Court of Appeals for the First Circuit in March. Argument is 
scheduled for September. 

In the insurance area, Travelers and Metropolitan Insurance Companies have 
appealed to the United States Supreme Court the Supreme Judicial Court's 
decision that both companies must provide mandatory psychiatric and psycho- 
logical benefits to Massachusetts consumers, as required by G.L. c. 176. 

5. Real Estate and Landlord-Tenant : 

In another major area of activity, the Division has brought lawsuits against 
companies which purport to locate apartments for consumers in exchange for a 
fee paid in advance of any services rendered. We have sued three companies for 
falsely advertising the nature of their services and for providing listings to 
consumers for apartments that are already rented or otherwise inappropriate for 
their needs. 

In the Ralston & Chilton Realty case, the Divsion entered a new field, tax 
abatements, and effected the return to consumers of tax abatements received by 
landlords who had previously passed that tax burden on to their tenants. We 



P.D. 12 57 

successfully sued and forced landlords to distribute over $5,500 in tax abate- 
ments for fiscal year 1978-1979 to approximately 100 tenants in Revere. 

In the home construction area, the Division continued to pursue its case 
against two builders, Starr and Kaplan, for questionable construction of new 
homes. 

6. Comprehensive Arson Prevention and Enforcement System: 

Since its merger into the Consumer Protection Division in June of 1981, the 
C.A.P.E.S. Unit (Comprehensive Arson Prevention and Enforcement System) 
has continued its arson prevention efforts in the City of Boston as mandated by 
its federal grant. During the past year, the C.A.P.E.S. Unit focused its efforts 
on three primary strategies to prevent fires in Boston. First, the unit continued to 
work with communities in specifically targeted neighborhoods located in 
Dorchester, Roxbury, and the South End to assist community groups, city 
agencies and the fire department in identifying and addressing arson problems. 
During this period, the Unit also had significant success in two particular Boston 
neighborhoods, Highland Park and the West End. The Highland Park neighbor- 
hood had suffered from a series of fires, many in vacant buildings, during 1981. 
In August of 1981 the C.A.P.E.S. Unit began working in the neighborhood and 
assisted the residents in communicating with police and other appropriate city 
agencies involved in investigating the causes of the fires and making vacant 
buildings secure. Within a short time after the Unit began working in this 
neighborhood, the incidence of fires was drastically reduced. In the West End, 
the Unit became involved at the time the City of Boston was beginning to notify 
owners of its plans to obtain title, through eminent domain, to numerous proper- 
ties as part of a large redevelopment program in the area. By working with 
insurance companies, residents and city agencies, the Unit helped to limit the 
occurrence of fires in this area during a period of transition. 

A second area of activity by the C.A.P.E.S. Unit involved civil litigation 
against landlords who failed to pay property taxes and correct violations of state 
sanitary code in residential rental units. In Commonwealth of Massachusetts v. 
Second Realty Corp., et al., the Unit continued its suit seeking to hold certain 
individuals responsible for thousands of dollars of property taxes and to correct 
code violations in property owned by a corporation controlled by these individu- 
als. In Commonwealth of Massachusetts v. Sarah Cutler (II), an injunction was 
obtained requiring the landlord to correct numerous state sanitary code viola- 
tions existing in her properties, apply all rents to repairs, and prohibiting 
transfer or acquisition of any properties until all repairs were made. 

In another important area, the Unit continued its ongoing cooperative efforts 
with numerous city and state government agencies to develop programs and 
strategies addressing the arson problem in Boston. As part of these efforts, the 
Unit has made numerous suggestions to these agencies concerning steps they 
could implement to prevent arson more effectively in the city. 

7. Miscellaneous: 

The Division continued to litigate in many traditional areas of consumer 
protection. In the debt-collection area, the Division successfully obtained an 
Assurance of Discontinuance, pursuant to §5 of c. 93 A, against a lawyer in 



58 P.D.12 

which the attorney agreed to stop using "forum abuse" in filing cases against 
consumers. The practice of forum abuse, in this case, involved the lawyer's 
instigation of legal actions against debtors in geographical locations far away 
from their homes. This case is particularly important because it stands as a 
recognition for the first time that the Consumer Protection Statute, G.L. c. 93A, 
applies to attorneys in the practice of their trade. 

In Burnham v. Mark IV Homes, the Attorney General filed an amicus brief in 
the Supreme Judicial Court. In this case, the SJC may issue the first reported 
decision on the meaning of the exemption language in §3 (1) (b) of c. 93A. 

In Commonwealth v. Fred Locke Stereo, the Division worked cooperatively 
with the Attorneys General of Connecticut and New York in the Bankruptcy 
Court of the U.S. District Court for the District of Connecticut and obtained the 
return of over $15,000 worth of consumer items from the bankruptcy trustee. 

Money brokers, that is, people who represent that they can locate loans for a 
fee, continue to be a source of litigation for the Division. In the FerulolLetson 
case, the Division obtained injunctive relief against a money broker who falsely 
claimed she could find loans for consumers by using her extensive computer 
data bank as a resource. 

The Division continues to work closely with the Division of Standards. We 
successfully sought a preliminary injunction against three Anchor Gas stations 
who were selling incorrectly labeled types of gasoline. In addition, we contin- 
ued to obtain injunctions against food sellers who short-weighted their products 
and wood sellers who short-measured the "cords" of wood delivered to their 
customers. Oil dealers who short-measure their home heating oil customers 
continue to face litigation. In the Paligno Oil case, restitution of $19,000 was 
distributed to consumers as a result of our lawsuit. 

D. CONCLUSION 

In FY- 1982, the Division continued its commitment to protect Massachusetts 
consumers in all areas of the marketplace through litigation based on the state 
Consumer Protection Act. In addition, our Division served as a strong national 
force in successfully preventing Congress from limiting the Federal Trade Com- 
mission Act, an act whose precedents and interpretations often stand as the basis 
for litigation in Massachusetts. 



P.D. 12 



59 



CONSUMER PROTECTION CASE LIST 



ADVERTISING 



Defendant 

AAA Rental TV Repair/RMB Sales 

Aarons Advert. Agency/ Aaron Glickman 

Amherst Radio-Electronics/Vidsign 

Anderson's Furniture 

Aqua-King Pool Co. 

Arkey Radio/Electronics 

Atlantis Sound, Inc. 

Audiosonics, Inc. 

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

B & G Industries, Inc. 

Booth Communications/Steve Stavis 

Boston Organ and Piano 

Botolph Assoc, Inc. 

Brands Mart, Inc. 

Bromfield Camera 

Building 19 

Castro Convertibles/Rinman, Inc. 

Columbia Research 

Comm. Builders Supply 

Consumer Audionics 

Crown Convertibles/Johema 

Cuomo 's Audio 

Discount Records 

Eardrum of New England 

Eclipse Sleep Products of New England 

Ed's Radio 

Edward's Wayside Furniture 

Emerson Rugs 

Figures & Fitness 

Furniture Gallery 

Gentlemen Warehouse Factory Outlet 

Goldstein's Hardware 

Golub Furniture 

B.F. Goodrich 

Graham Radio 

H.M. Fisk 

Hercules Trouser/Lesnaw Manufacturing 

Hi-Fi Buys/Leisure Distributors 

Indiana Merchandising Corp./Nassi Assoc. 

Jordan Marsh 

Kaplan's Furniture Co. 

Kavanaugh Furniture 

Labovitz, Stanley/ Andrew Furniture 

Lafayette Radio 

Lane Pools 

Macy's Liquors 

Mass. Camera Centers 

Miller's Furniture 



Status! Disposition 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Assurance of Discontinuance 
Assurance of Discontinuance 
Consent Judgment 
Assurance of Discontinuance 
Final Judgment 
Assurance of Discontinuance 
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 
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 
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 
Final Judgment 
Assurance of Discontinuance 
Assurance of Discontinuance 



60 



P.D.12 



Minute Man Radio Co. 
Nantucket Sound/Hyannis Hi-Fi 
National Business Directory 

New England Audio/Tweeter 

New England Group 

New England Photo 

Max Okun Furniture Co. 

Olde Colony Stereo 

Overseas Employment Research Bureau 

Paul's Furniture/Paul Doucette 

Precision Motor Rebuilders 

Professional Guild of America 

Puppy Center 

Railroad Salvage of Conn. 

James Rautio d/b/a/ Treas. Chest 

S & L Sales Corp./K & L Sound 

Seiden Sound 

Shaker's Workshops 

Sherman's 

Stanley Shuman 

Siesta Sleep Shop 

A. Smith/Wolfe & Sons 

Sound II 

Sound Co. 

Spartan Paint & Supply 

Starlander Beck 

Stereo Component Systems, Inc. 

Strawberries, Inc. 

Summerfield's 

Tech Hi-Fi/New England Sound Svc. 

Todd's World of Furniture 

Waltham Camera & Stereo 

Wholesale Furniture & Carpet 

Wholesale Marketing/Joanne Scheff 

Wilmington Ford 

Y.D.I. Corp. (You-Do-It Electronics) 



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



AUTOMOBILE 



Defendant 

Abe Kalil & Sons 

Abel Ford 

Allen Buick 

Allen Chevrolet 

Arthur E. Center, Inc. 

Atlantic Chrysler-Plymouth-Toyota 

Atlantic Savings Bank 

Auto Brokers, Inc./Jospeh Zagarella 

Auto Superman 

Autobam/Desgroseilliers 

Automotive Products 



Statusl Disposition 

Judgment 

Consent Judgment 

Consent Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Assurance of Discontinuance 

Final Judgment 

Assurance of Discontinuance 

Final Judgment 

Order 

Default Judgment 



P.D. 12 



61 



Avenue Auto Wholesalers/Brazel 

Baggatta Volkswagen 

Bart Auto Center/Rev-Ben Enterprises 

Beacon Auto Sales 

Beaulieu Chevrolet 

Belmont Auto Sales 

Victor Belotti, Inc. 

Big Beacon Chevrolet 

Boch Oldsmobile/Toyota 

Bonded Dodge 

Edward J. Borlen d/b/a City Auto 

Boston Imported Cars/Lotus/Wasil 

Bob Brest Buick 

Brigham-Gill Pontiac/AMC 

Brockton Auto Wholesalers/Elro Enterprise 

Brockton Dodge 

Budget Auto Sales 

Bug Hospital 

Cape Motors 

Car Finders 

Carl Chevrolet 

Central Berkshire Auto Dealers 

Central Chevrolet 

Century of Lawrence 

Chalet Motor Sales 

Charles Chevrolet 

Chestnut Hill Motors 

Chicopee Antique Auto Supply 

Clay Chevrolet 

Colonial Motor Sales/Bruce Milton 

Tom Connelly Pontiac 

Brian Connolly 

Cook Motor Sales, Inc. 

Joe Cullunan Ford, Inc. 

Dazell Volvo 

DeSautels, Wm. 

Kevin Delaney 

Deluxe Reconditioning/ Wm. Hardy 

Dino Buick 

Don's Getty Service Station 

Duddy Ford 

Eastfield Auto Sales 

Easthampton Motor Sales, Inc. 

Eck's Auto Sales 

English Chevrolet, Inc. 

Excellent Car Co. 

Falmouth Datsun 

Falmouth Dodge 

Fathers and Sons 

Walter Fife 

Fitchburg Ford/Fiat 

Fobert Fleischer/Bob's Auto Sales 



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

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

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

Assurance of Discontinuance 
Consent Judgment 



62 



P.D.12 



Foreign Auto Imports 

Freedom Motors 

The Garage/Eliot Schneider 

Gould Auto Sales 

H.E. Wood and Sons 

Haddon Lincoln-Mercury 

Hallissy Toyota 

Hallman Chevrolet 

Hellawell Cadillac & Olds, Inc. 

Holyoke Auto/Toyota of Holyoke 

Howard Chevrolet 

Imported Cars of Cape Cod 

Owen Infiorati. Inc. 

George Kalil 

Harold Kent Ford 

King B's Automart/Granese 

Lakeside Auto Sales 

Locke's (Chet) Auto Sales 

Lord Toyota 

Frank Lussier/Wakefield Motors 

Main Street Auto Sales & Services 

McCoy Auto Sales 

Medieros- Williams Chevrolet Co.. Inc. 

Middleboro Auto Sales 

Middlesex Subaru. Inc. 

Morris Motors Inc. 

Motor Mart of Maiden 

Mutual Ford 

Natick Auto Sales 

New England Auto Sales 

New England Toyota Dealers Advertising Assoc. 

Northshore Toyota 

Tom O'Brien Pontiac/Datsun 

O'Hara (Geo.) Chevrolet/Cadillac 

128 Imports 

128 Sales 

Perry Pontiac 

Pete's Chrysler Plymouth 

Peter's Auto Sales 

Peterson Ford 

Pierce Ford World 

Pioneer Toyota-Chrysler-Plymouth 

Regan and Stapleton 

Robert's Auto Sales 

Robichaud Auto Sales and Service 

Jerry Rome Chevrolet, Inc. 

Ryll Automotive Products 

Saab-Scania of America 

Scher Datsun/Bemard Sher 

Skaltisis, Peter/LaTulippo 

Smyly Buick 



Consent Judgment 

Final Judgment 

Final Judgment 

Judgment 

Assurance of Discontinuance 

Final Judgment 

Consent Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Consent Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Consent Judgment 

Judgment 

Consent Judgment 

Judgment 

Litigation 

Judgment 

Consent Judgment 

Assurance of Discontinuance 

Judgment 

Assurance of Discontinuance 

Final Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Preliminary Injunction 

Assurance of Discontinuance 

Assurance of Discontinuance 

Assurance of Discontinuance 

Assurance of Discontinuance 

Consent Judgment 

Consent Judgment 

Consent Judgment 

Consent Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Assurance of Discontinuance 

Consent Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Litigation 

Assurance of Discontinuance 

Assurance of Discontinuance 

Assurance of Discontinuance 

Consent Judgment 

Consent Judgment 

Consent Judgment 

Assurance of Discontinuance 

Consent Judgment 

Consent Judgment 

Litigation 

Assurance of Discontinuance 

Assurance of Discontinuance 



P.D. 12 



63 



Smyly Dodge 

Springfield Lincoln-Mercury 

Stop & Co. Transmissions of Lawrence 

Subaru 

Sun Motor Sales 

Taunton Sales, Inc. 

Tober Foreign Motors, Inc. /Ives Toyota 

Topor Motor Sales 

Toyota of Falmouth 

V.W. of America 

Woburn Foreign Motors 

United Auto Buyers/Dante Gregorie 

Valley Chevrolet 

Village Chevrolet 

West Country Motors 

West Springfield Chev. /Plymouth 

Westport Autorama 

Yenom Auto Sales 



Consent Judgment 

Assurance of Discontinuance 

Order 

Litigation 

Litigation 

Consent Judgment 

Assurance of Discontinuance 

Consent Judgment 

Assurance of Discontinuance 

Litigation 

Final Judgment - Contempt 

Consent Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Final Judgment 

Consent Judgment 

Consent Judgment 

Litigation 



BANKING AND CREDIT 



Defendant 

Aetna/St. Annes Credit Union 

Allied Bond & Collection 

Arlington Trust Co. 

Arthur Ind. 1st Safety National Bank 

Bass River Savings Bank 

Bay State Savings Bank 

Central Secret Service Bureau 

Chrysler Credit Corp. 

Enterprise Cooperative Bank 

Financial Ent. Corp. /Statewide Credit 

First National Bank of New England 

Ford Motor Credit Corp. 

General Motors Acceptance Corp. 

Hancock Bank & Trust 

Hull Cooperative 

Industrial National Bank of RI 

Legal Credit Counselors 

Leominster Savings Bank 

Merrimac Savings Bank 

New England Merchants Bank 

Security National Bank 

Stanton, Frank 

Tuck & Pozzi 

Van Ru Credit Corp. 



Status/Disposition 

Final Judgment 

Litigation 

Litigation 

Litigation 

Agreement 

Agreement 

Consent Judgment 

Consent Judgment 

Consent Judgment 

Litigation 

Assurance of Discontinuance 

Assurance of Discontinuance 

Assurance of Discontinuance 

Final Judgment 

Final Judgment 

Consent Judgment 

Litigation 

Consent Judgment 

Final Judgment 

Consent Judgment 

Litigation 

Assurance of Discontinuance 

Consent Judgment 

Consent Judgment 



CONTRACTS 



Defendant 

American International Holidays 

American International Leisure/Gene Paglia 



Status/Disposition 
Assurance of Discontinuance 
Assurance of Discontinuance 



64 



P.D.12 



Diamedic 

International Magazine Services 

Kiddy Photographers 

Northeast Marketing 

Selective Singles 

Slimtique 

United Marketing Corp. 

WAAF/A-OK Productions 

Walo & Levine 



Consent Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Litigation 

Litigation 

Litigation 

Litigation 

Final Judgment 

Consent Judgment 



EDUCATION 

Defendant 

Allied Construction Training Corp. 

Colonial Travel School 

Eastern Atlantic Tractor Trailor Training School 

Framingham Civil Service School 

Graham Junior College 

LaSalle Extension Univ. 

New England Academy 

New England Appliance School/Solari 

New England School of Culinary Arts 

New England Tractor Trailer Training School 

Solari Schools/Tech Age 

Evelyn Wood Reading Dynamics/Kilgo 



Status! D isposition 
Assurance of Discontinuance 
Final Judgment 
Judgment 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Preliminary Injunction 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Preliminary Injunction 
Assurance of Discontinuance 



ENERGY 

Defendant 

All Star Fuel Co. /Norman Marshall 

Atlantic Farm, Inc. 

J.T. Birch 

Rene (Frank) Brodeur 

C & C Oil Co./Issac Cohen 

Leonard Caporale 

Aenzo Cardelli 

Patrick Caswell/Pat's Fireplace 

Clene Heat/R.J. Holding Gas & Oil 

Barry Daigle 

Anthony DePalma/Hilltop Oil 

Jack DePalma/D. Oil Co. 

John DePalma 

Festino Fuel, Inc. 

Richard Forbes/Dick's Landscaping 

Global Oil 

Kero-Sun, Inc. 

King's Row Fireplace Shop 

Edward Levesque 

Ron Marchetta/Timberline Tree 

Robert Millian/Newton St. Gulf 

Orleans Coal & Oil Co. 



Status/Disposition 
Final Judgment 
Assurance of Discontinuance 
Assurance of Discontinuance 
Preliminary Injunction 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Final Judgment 
Consent Judgment 
Temporary Restraining Order 
Preliminary Injunction 
Assurance of Discontinuance 
Litigation 

Partial Final Judgment 
Assurance of Discontinuance 
Consent Judgment 
Final Judgment 
Consent Judgment 
Consent Judgment 
Contempt 



P.D. 12 



65 



Palingo Oil Co. 

William Perry 

Joseph Pigeon 

Seth Potter 

Russo Oil Co. 

Santucci (Paul D.) & Co. 

Simonelli Oil Co. 

Smith Farms/G.R. Smith 

Mark Smith/G & M Wood 

Tropicana Oil/Leonides Benzan 

Steve Wheeler/Saddleback Farms 
Julius Wilkensky 

Ronald Zion 



Final Judgment 
Assurance of Discontinuance 
Final Judgment 
Assurance of Discontinuance 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Assurance of Discontinuance 
Assurance of Discontinuance 
Temporary Restraining Order 
Preliminary Injunction 
Consent Judgment 
Consent Judgment 
Contempt 
Consent Judgment 



HOME IMPROVEMENT 

Defendant 

Air Temp Engineering, Inc. 

Alco Alum. Pool & Siding 

Aluminumville/Leonard Gerber 

Anderson (Ralph) Construction 

Associated Pool Distributors 

Batmasian, James 

Beacon Hill Roofing 

Bianco Construction Co. /Leonard Bianco 

Bird, Inc. /Chris Murphy 

Boston Chimney & Roofing/Hosea 

Builders Industries, Inc 

DC. Heath 

Factory Heating/Paul Johnson 

Hale/United Vinyl 

Home Insulating of New England 

Al Libman 

Paul Luisi, et al 

McCarthy Construction 

O'Connor Brothers 

Quincy Chimney and Roofing/Hosea 

Sentury Paving King of Hot Top/Stanley 

Chalres Stott/Waltham Roofing/Geo. Ward 

Suburban Lawn Services 

Supreme Remodeling/Al Libman 

Daniel Vassett 

Watertown Roofing/Leander Vlahakis 

Window Systems 



Status/Disposition 

Judgment 

Consent Judgment 

Litigation 

Contempt 

Consent Judgment 

Litigaton 

Litigation 

Final Judgment 

Consent Judgment 

Preliminary Injunction 

Litigation 

Assurance of Discontinuance 

Default Judgment 

Consent Judgment 

Litigation 

Litigation 

Judgment 

Consent Judgment 

Final Judgment 

Preliminary Injunction 

Preliminary Injunction 

Litigation 

Assurance of Discontinuance 

Judgment 

Judgment 

Consent Judgment 

Assurance of Discontinuance 



APPLIANCE REPAIR 

Defendant 

A-Z Appliance Co./Zellin 

Acme Power Vac/Ralph Rigione 



Statute/ Disposition 
Assurance of Discontinuance 
Consent Judgment 



66 



P.D.12 



Jacks Radio & TV John Debie 
King Appliance Service 
Manny's TV & Appliance 



Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 



HE.ALTH 

Defendant 

Lyoyd O. Appelton King's Mount 

Belton Hearing Aid Service 

E & S Enterprise 
Belton George Lucas 
Dimock Community Health Center 
ELM Medical Laboratory Baez-Giangreco 
Genesis Laboratory 
Green Pastures Inn 
Hippocrates Health Inst. 
Inter-Church Team Ministries 
Medical Home Care Services 



Status Disposition 
Assurance of Discontinuance 

Consent Judgment 
Consent Judgment 
Receivership 
Litigation 
Litigation 

Preliminary Injunction 
Consent Judgment 
Litigation 
Consent Judgment 



INSURANCE 

Defendant 

Balfour Federal Credit Union 

CUNA Mutual Insurance Society #1 

CUNA Mutual Insurance Socien &2 

Edwards. Allan G.. Jr. 

Gallagher. Philip G. 

Hartford Ins. Co. 

Metropolitan Life Insurance 

Dan Potter Insurance 

Traveler's Insurance Co. 

Union Fidelity Ins. Co. 



Status/Disposition 

Litigation 

Litigation 

Litigation 

Assurance of Discontinuance 

Assurance of Discontinuance 

Litigation 

Litigation 

Consent Judgment 

Litigation 

Litigation 



MOBILE HOMES 

Defendant 

Bluebird Acres Mobile Home Park. Richard Grochmal 

Cranberry Village 

Cranbury Village 

Slogan's Mobile Home Park 
Suburban Estates Mobile Homes 



Status Disposition 
Consent Judgment 
Assurance of Discontinuance 
Litigation 
Consent Judgment 
Final Judgment 



NURSING HOMES REST HOMES 

Defendant 

Adams Nursing Home Alessandroni 

Algonquin Rest Home Hazel & Irving Witlow 

Almeida Lewis 

Ashmere Manor Nursing Home 

Berkshire Hills Nursing Home 

Big G Rest Home Gladys Oja 

Aldophus & Toni Bullock 



Status Disposition 
Partial Judgment 
Litigation 
Judgment 
Litigation 
Consent Judgment 
Preliminary Injunction 
Litigation 



P.D. 12 



67 



Harry Daley/Marshall Dranetz 

Fleetwood Nursing Home 

Hancock House of Beverly 

Harvard Manor Nursing Home QT Services 

Havolyn Management Ray Monahan 

Hellenic Nursing Home 

Heritage Hill Nursing Home 

Hodgdon Rest Home 

Jewish Nurs. Home of West. Mass. 

Kimwell Nursing Home 

Lewis Bay Convalescent Home 

Middlesex Manor Nursing Home 

New England Nursing Hm. Development 

Corporation Cape Ann 
Newburyport Manor Chronic Hospital 
Newburyport Manor NH Stephen S.. Inc. 

Stephen Shirair 
Gladys Oja Big G Rest Home 
Pentucket Manor Chronic Hospital 
People "s Church Nursing Home Kenneth Long 
Resthaven Nursing Home 
Six State Management Park Hill Manor 
Twin Pine Corp. Weston Manor NH 
Twomey Rest Home Wellpine Rest Home 



Litigation 
Litigation 
Litigation 
Judgment 
Contempt 
Litigation 
Litigation 
Litigation 
Litigation 
Judgment 
Litigation 
Judgment 

Judgment 
Litigation 

Litigation 

Preliminary Injunction 
Receiver 
Judgment 
Receivership 
Stipulation & Order 
Judgment 
Final Judgment 



REAL ESTATE' HOUSING 



Defendant 

Alan Realty/Alan Zuker 

Allen Realty 

Apex Apartment Rentals 

William Baker 

Battlegreen Construction 

Bluebird Realty Trust 

Harold Brown Hamilton Realty 

Cape Real Estate 

Albert Carista 

John and Carol Carroll 

City Real Estate 

Citywide Rentals 

Clarke-Jacob Realty Trust 

Co-Ree Real Estate 

Terry Cohen d b a Bulfinch Realty 

Colonial Realty 

Commonwealth Condo Trust 

Country side Realty 

Cutler. Sarah 

Delta Realty 

DiBiase Realty Corp. Ugo & Elio DiBiase 

Stephen DiSarro Summit Development 

E-Z Rentals 

Elmwood Park Realty Trust Stivalerte 

R.J. Ferioli. Inc. 



Status Disposition 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Litigation 
Litigation 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Final Judgment 
Preliminary Injunction 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 
Litigation 
Consent Judgment 
Consent Judgment 
Contempt-Prel. Injunction 
Consent Judgment 
Consent Judgment 
Final Judgment 
Consent Judgment 
Assurance of Discontinuance 
Consent Judament 



68 



P.D.12 



Gei-Ger Real Estate 

Gesner Construction Co. 

Gladstone Realty Trust 

Golden Eagle Apartments 

Gray Rental Properties 

H & F Realty 

Hamilton Realty 

John Harkey Realtor 

Hartwick Construction 

Fran. Holt Christine Anne Rlty 

Homes by Design 

Hub Realty 

Inun Kantor 

Kaufman & Broad 

Keith (John W.) Builders 

Land & Leisure 

Land Auction Bureau 

Ledgemere Farms Davis Farm Road 

Liberty Hill Management Corp. 

MacDonald Real Estate 

Marshfield Real Estate 

Randolph Messineo Randy's Realty 

Murphy & Murphy Drive-In Real Estate 

Park Avenue Realty Trust 

Parkwood Estates Realty 

Michael Perry 1st Bellvista 

Poulos Construction Poulos Family Trust 

Pyramid Construction 

Realty Sales Co. 

Rentell 

Second Realty 

Sergi Enterprises 

Bernard Shadrawy 

Sharonshire Starr &. Kaplan L.J.J. . Inc 

Edward Shibley. St. 

Simeone. Inc.. Realtors 

Southbrook Real Estate 

Town A: Country Real Estate 

Limed Resources 

Valley Publications Select-A-Home D. Dubosar 

Weight Loss Medical Center 

Sheila • 

Wish Realty Assoc.. Inc. 

Wood Real Estate 



Consent Judgment 
Consent Judgment 
Litigation 

Assurance of Discontinuance 
Assurance of Discontinuance 
Consent Judgment 
Judgment 
Consent Judgment 
Litigation 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Judgment 
Litigation 
Consent Judgment 
Judgment 
Litigation 
Judgment 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Litigation 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Preliminary Injunction 
Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 
Preliminary Injunction 
Summary Judgment 
Consent Judgment 
Dismissal Without Prejudice 
Preliminary' Injunction 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Final Judgment 
Preliminary Injunction 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 



S.\LES PRACTICES 

Defendant 

AAA Paving LeGrant Stanely 

Apartment Showcase 

Wm. E. AubinN.E. Land Realty 

Automotive Equipment Webb 



Status Disposition 
Litigation 
Judgment 
Consent Judgment 
Final Judgment 






P.D. 12 



69 



BIC's 

Bi-Lo Food Warehouse 

Bonney Rigg Camping Club 

Broadway Discount Furnitures 

Butcher's Pride 

Delta Electronics 

Dinner Tours/ Alfred Zimei 

Diversified Health Industries Roman Health Spa 

Edwin R. Sage Co. 

Farm Stand of Peabody 

Feelin' Great. Inc. Glen Turner 

Food Marts 

Foodmaster Supermarkets. Inc. 

General Investment & Development Co. 

Gloucester Dispatch. Inc. 

Stephen Guarino Kitchen Delight 

Hearing Dynamics of New England 

Homelike Apartments 

Hub Ticket Agency Seven's Inc. 

J & T Auto Repair 

Jewell Companies. Inc. 

Michael Konior Executive Dating 

Lamour. Inc. 

Lane's Furniture 

Liberty Park Equipment & Sales Grochmal 

Mansfield Mattress Corp. 

Mass. Business & Professional Directory 

Mass. Distributors Cushing 

Maynard Market 

Middlesex Vacuum 

Mold Specialists Vincent Hale 

Wayne Murphy 

New England Furniture Corp. 

Our House Furniture 

Out-Of-Town Ticket Agency 

Pat's Ticket Agency 

People's Furniture 

Pieroway Electric Co. 

Pioneer Pools 

Plymouth County Memorial Park 

Promotional Sales Consultants 

Puntan Barbos 

Rays IGA Store 

Rich of Falmouth Furniture Timothy Dow ling 

Rocola Manufacturing Co. 

Schultz Lubricants. Inc. 

Sen ice Merchandise 

Oren Showman 

Skyline Manor Dion Baker 

Supreme Furniture Co. 

Swim-Rite Pools. Walpole 

Town and Country Pools Leonard Paul 

Two Guys Antique & Auto Parts 



Consent Judgment 
Assurance of Discontinuance 
Assurance of Discontinuance 
Final Judgment 
Assurance of Discontinuance 
Final Judgment 
Litigation 
Litigation 
Consent Judgment 
Consent Judgment 
Litigation 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
On Appeal 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Assurance of Discontinuance 
Consent Judgment 
Preliminary injunction 
Consent Judgment 
Consent Judgment 
Assurance of Discontinuance 
Bankruptcy 
Consent Judgment 
Final Judgment 
Consent Judgment 
Assurance of Discontinuance 
Final Judgment 
Preliminary Injunction 
Assurance of Discontinuance 
Litigation 
Consent Judgment 
Preliminary Injunction 
Consent Judgment 
Assurance of Discontinuance 
Assurance of Discontinuance 
Assurance of Discontinuance 
Consent Judgment 
Consent Judgment 
Final Judgment 
Consent Judgment Supp. J. 
Final Judgment 



70 



P.D.12 



Tyson Ticket Agency 

Uniserv Int'l. Corporation 

Valenti Ticket Agency 

Variety International Publications 

Wheelers Enterprise (clothing) 

Paul Woods (swimming pools) 

World of Homes 

Young Enterprises/Neighborhood Reader Service 



Consent Judgment 
Litigation 
Consent Judgment 
Partial Judgment 
Assurance of Discontinuance 
Consent Judgment 
Assurance of Discontinuance 
Stipulation 



TRAVEL 

Defendant 

Associated Travel Service of Newton 

Carnival Cruise Lines 

Great American Travel/Southwind 

International Leisure Service/Berman 

Las Vega Executives 

Paragaon Travel Agency, Inc. 

Quality Tours/Gloria Patt 

Supersonic Tours 



Status! Disposition 

Assurance of Discontinuance 

Litigation 

Consent Judgment 

Final Judgment 

Final Judgment 

Assurance of Discontinuance 

Final Judgment 

Assurance of Discontinuance 



WEIGHTS AND MEASURES 

Defendant 

ACOMI Corp. /Anchor Gasoline Co. 

Aceite Tropical Oil Co./Benzan 

B & T Wood Products/Tarentino 

Blue Ribbon Dairy 

Peter Camarra/Dennis DeAngelis 

James and Michael Corrigan 

Family (Foods Market) Association 

J & J Market 

Lamusta's Auto Service 

Mr. Meat of Mattapoisett 

Louis Ricci (Wood Seller) 

Sage's Market 

Village Store 



Status/Disposition 

Preliminary Injunction 

Temporary Restraining Order 

Preliminary Injunction 

Final Judgment 

Final Judgment 

Final Judgment 

Assurance of Discontinuance 

Consent Judgment 

Assurance of Discontinuance 

Consent Judgment 

Final Judgment 

Temporary Restraining Order 

Final Judgment 

Final Judgment 



MISCELLANEOUS 

Defendant 

A & P/Great Atlantic & Pacific 

A & W Electronics 

A-D Financial Service/Doris Ferullo (Letson) 

Abel Rug Cleaners, Inc. 

Aqua Corporation 

Donald E. Anchutz 

Andrews Paint 

Artistic Typing Headquarters 

Henry Barry 

Big-Y-Foods, Inc. 



Status/Disposition 
Consent Judgment 
Assurance of Discontinuance 
Preliminary Injunction 
Assurance of Discontinuance 
Litigation 

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



P.D. 12 



71 



Blackstone Trading Co./Wm. Armstrong 

Richard Boisvert 

Boston Gold & Silver Exchange/Cercone 

Shirley Bragel 

Hy Brettman 

Brighams Ice Cream 

Brown & Finnegan, Inc. 

Chala Foods/Lawrence Drake 

Chalue 

Chatham Development Co. 

Wm. R. Clark/Educator's Emp Conslt 

Codman Company 

Ralph Coffman 

Comfort Comer 

Commercial Tow & Repair 

Louis Consigli 

Continental Cablevision of New Hampshire 

Continental Employment Agency 

Coordinators, Inc. 

Jeff Cushing/Mass. Distributors 

Datamarine International 

Dawn Figure Salon 

Daylight Dairy Products 

DeliSchoss 

Deltex 

Doggari 

Dorchester Wayport Trust 

Eck's Trucking/David Eck 

Fafco Division, VSI 

Anthony Famalette 

Feodoroff Agency 

First National Stores 

Fitness Plus 

Forbes Enterprises 

Framingham Housing Authority 

Daniel Gaeta 

Goldstein & Gurwite Auctioneers 

Gramatan Home Investor's Group 

Nadine Gan/Cooperative Investment Club/ 

New Horizon Club 
Harvest Ltd. 

Hearing Aids Petition/FDA 
Hewitt Assoc., Inc. 

Dominic Iaciafano/American Fold & Silver 
Joy Health Spa of Canton 
Juno, Inc. 

Raanan Katz/Victory Realty 
Arthur LaFranchise 
Robert Larkin 
Little & Company 
Fred Locke Stereo 
Loring Hills Assoc. 



Final Judgment 

Final Judgment 

Litigation 

Assurance of Discontinuance 

Consent Judgment 

Consent Judgment 

Preliminary Injunction 

Consent Judgment 

Default Judgment 

Consent Judgment 

Assurance of Discontinuance 

Consent Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Litigation 

Consent Judgment 

Final Judgment 

Assurance of Discontinuance 

Consent Judgment 

Assurance of Discontinuance 

Consent Judgment 

Litigation 

Consent Judgment 

Consent Judgment 

Bankruptcy 

Assurance of Discontinuance 

Assurance of Discontinuance 

Preliminary Injunction 

Consent Judgment 

Consent Judgment 

Consent Judgment 

Assurance of Discontinuance 

Litigation 

Bankruptcy 

Consent Judgment 

Consent Judgment 

Consent Judgment 

Assurance of Discontinuance 

Contempt 

Final Judgment 

On Appeal 

Assurance of Discontinuance 

Litigation 

Litigation 

Assurance of Discontinuance 

Judgment 

Consent Judgment 

Litigation 

Consent Judgment 

Litigation 

Consent Judgment 



72 



P.D.12 



Marquis Acceptance/Marquis China/ 

Harold Simons 
Mass. Rentals 
Ephram Miller 
Millis Commodity Ltd. 
Millis Trading System 
Moccasin Craft 
Money Search International 
N.I. Associates 

National Marketing Consultants 
New England Assoc. Ind. Home Dairy 

Distributors 
New England Studio Co. 
Northeastern Powerguard 
Norwell Trade Winds, Ltd. 
Frank H. Parks 
Pickwick International Corp. 
Publication Services, Inc. 
Purity Supreme 
Charles Quigley 
Frank Rafferty 
Roger Rao, Inc. 
Rollins Protective Services 
Rollins v. Bellotti 
Kenneth Ryan 
San-Mac Industries 

Scholbro Foods d/b/a Evergood Market 
William Siano, Jr. 
Silverman (Harry), Inc. 
Spray A Way/Map-O-Matic 
Stamps Information Associates 
Sunup 

Chawa Tash 

Valve Service International 
Vazza Properties 
Max Wasserman 
Charles Waystack, Jr. 
Windsor Meadows 
W.E. Withow Moving & Storage 
Women's World of Health Spa 



Order 

Consent Judgment 

Assurance of Discontinuance 

Litigation 

Litigation 

Final Judgment 

Consent Judgment 

Assurance of Discontinuance 

Litigation 

Assurance of Discontinuance 

Consent Judgment 

Consent Judgment 

Litigation 

Consent Judgment 

Consent Judgment 

Consent Judgment 

Final Judgment 

Consent Judgment 

Consent Judgment 

Assurance of Discontinuance 

Litigation 

Litigation 

Consent Judgment 

Consent Judgment 

Final Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Order 

Consent Judgment 

Assurance of Discontinuance 

Assurance of Discontinuance 

Consent Judgment 

Dismissal 

Consent Judgment 

Consent Judgment 

Assurance of Discontinuance 

Final Judgment 

Litigation 



ENVIRONMENTAL PROTECTION DIVISION 

General Laws c. 12, §1 ID establishes the Environmental Protection Division. 
The Division's responsibilities lie in two main areas. It is litigation counsel to 
all the agencies of the Commonwealth, principally those within the Executive 
Office of Environmental Affairs, that are charged with protecting the environ- 
ment. In this role the Division appears in court on matters such as air and water 
pollution, hazardous and solid waste control, wetlands protection and billboard 
control. In addition, and pursuant to its mandate under G.L. c. 12, § 1 ID, the 



P.D. 12 73 

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 the year, the Division continued its involvement with four issues of 
great significance to Massachusetts: hazardous waste disposal, the environmen- 
tal effects of offshore drilling, the rights of states to be involved in decisions 
regarding nuclear power, and acid rain/interstate transport of air pollutants. The 
hazardous waste enforcement efforts described in previous annual reports and 
involving interstate cooperation and interdepartmental coordination within Mas- 
sachusetts continued and resulted in several cases described below. In addition, 
the Division undertook the first defense of the Massachusetts Hazardous Waste 
Facility Siting Act in cases that are also described below. Upholding of the 
siting process is essential to the Commonwealth's ability to deal successfully 
with the hazardous waste problem over the long term. 

The Division has for some years been involved in efforts to mitigate the 
environmental effects of offshore oil drilling. Although this involvement arose 
out of a concern for the Georges Bank fishery offshore Massachusetts, it has led 
to our participation in litigation, some of which is described below, in several 
forums where issues concerning the rights of states to participate in offshore 
decision making and the proper structure of the nationwide drilling program 
were in issue. 

The Division continued its active involvement in cases concerning nuclear 
power. In both site-specific and generic proceedings, described below, we 
focused on the need to assure safe operation of nuclear facilities at all stages of 
their operation. 

With respect to the interstate transport of air pollutants and the problem of 
acid rain, the Division remained active. Several cases that were briefed and 
argued before this year are still pending. It became increasingly clear during the 
year, however, that the significant arena for this problem is legislative, not 
judicial, and the Division therefore has participated in a group of state officials 
from the Northeast that has worked toward having Congress adopt legislation to 
deal with the problem. 

As a result of its role in environmental enforcement the Division is the 
recipient of substantial grant money from the United States Environmental 
Protection Agency. In fiscal year 1982, the Division received one hundred and 
eighty-seven thousand dollars ($187,000) of such funds. 

The Division's enforcement policy includes seeking monetary penalties in 
appropriate cases. During the year such penalties accounted for approximately 
one hundred ninety thousand dollars ($190,000) in income to the General Fund. 

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. Ill, §42. 



P.D.12 

WATER 

Water pollution . . referred from the Department of Environmental 

Quality Engineering. Division of Water Pollution Control. Most of these . 
involve violat: ge ointly by the Division of Water 

Pollution Control and the Um:. - Environmental Protection Agency. 

Others seek t ended in cleaning up oil spills. The statutory 

authority is G.L. c. 21. J§26-52 

WETLANDS 

Wedand ; nerally referred from the Department oi Environmental 

. zement. Wetlands Section, or Department of Environmental Quality Engi- 
neers s -nds Division. The cases fall into two categories: those involving 
the permit program for altering of wetlands under G.L. c. 131. §40 and those 
challengir e ate imposes on inland and coastal 
wetlands pursuant to G.L. c. 130. §105 and G.L. c. 131. §4 

SOLID WASTE 

Solid w a 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. Tne statutory authority is G.L. c. 111. §150. 

HAZARDOUS WASTE 

Hazardous re referred by the Department of Environmental 

Quality Engineering. Division of Hazard.: . . They involve the transport 

::sposal of hazardous substances in violation of state regulations. The 
statutory authority is G.L. c. 21C. 

PESTICIDES 

Pe - : by the Pesticide Board of the Department of Food 

\ gricultu:. involve the improper application of pesticides in such a 

_s to pose a threat to human health. The statutory authority is G.L. c. 94B. 

BILLBOARD 

Billboar are referred by the Outdoor Advertising Board. A majority 

::ons for judicial review of decision of the Outdoor Advertis- 
ing Board. The statutory authority is G.L c 1 -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 con- 
cern, 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 state and federal, judicial and admin- 
istrative, forums. 



P.D. 12 

SIGNIFICANT CASES 

The following are significant cases in which the Division was involved during 

the year. 

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

This is a hazardous waste action brought to compel the defendants to clean up 
approximately 300 barrels of hazardous waste illegally buried on their property. 
They agreed in a consent judgment to perform the cleanup but failed to do so. 
The Division then brought a petition for contempt, and the court held both the 
defendants in civil contempt for violation of the cleanup schedule in the consent 
judgment. The contempt order set a new schedule requiring the ofs to 

liquidate their assets in order to raise money for the cleanup and then to perform 
the cleanup. When the defendants again failed to comply with the contempt 
order for cleanup, the Division moved for the forced sale of their assets to raise 
money for the cleanup. In a precedent- setting decision, the court ordered the 
defendants" property (four pieces of real estate t transferred to a nominee of the 
Attorney General, to have it sold at public auction, and to have the pro. 
used by the state to conduct the cleanup. 

McMahon v. Amoco, ei al. 

This case seeks the recover) of substantial costs incurred in remedying pollu- 
tion of the water supply in Provmcetown. One :ant moved to dismiss, 
arguing, inter alia, that the Attorney General had no authority to maintain a 
common law public nuisance action in an area covered by statute and that 
* "waters of the commonwealth"" as used in the statute does not include ground- 
water. The motion was denied in all respects. The case - -waiting trial. 

Department of Food and Agriculture v. Gulf ~ Western Corp. 

This case involved the aerial application .... - -here 

people were working. It was settled by a consent judgment providing spec 
guidelines for future spraying activity and for the payment of the maximum civil 
penally available under the statute. 

City of Haverhill, et al. v. The Hazardou r aciliry S ncil 

The Division defended two state agencies, the Hazarc . - cflity Site 

Safety Council and the Department of Environmental v s ent. in a suit 
brought by the City of Haverhill challenging certain actions taken anc . 
made pursuant to the state's new siting law. G.L. c. 2 ID. Th; 
missed by the Superior Court and the City has appealed. The Div 
represents these agencies in a similar suit filed by the Town of Wanen. 

Commonwealth of Massachusetts v. Cha r . . .imarion 

Trust 

The Charles George Land Reclamation Trus: si landfill in Tyngsboro. 

The landfill has been a source of many complaints about windblown litter and 
muddy road conditions. Recently, leachate from the landfill has become the 
chief suspect as the cause of contamir .. a nearby water supply. In A. 

of 1981. the Division filed a Petition for Contempt against the landfill for its 



76 P.D.12 

violation of a previous consent judgment. Negotiations led to a new consent 
judgment, entered in December, which requires the cover of inactive areas of 
the landfill, the installation and operation of a leachate collection and recircula- 
tion system and continued compliance with all applicable statutes and regula- 
tions. In May, 1982 the landfill sued Tyngsboro and DEQE over the town's 
suspension of the landfill's site assignment. DEQE and the Attorney General are 
monitoring the landfill's compliance with the December consent judgment. 

DEQE and the Attorney General v. Caporale 

This is a wetlands case in which a private developer was engaged in extensive 
dredging and filling in Billerica and Wilmington on a 130-acre tract in the 
watershed of the Ipswich River. The developer had not filed Notices of Intent 
for the work. The Division obtained a preliminary injunction halting the dredg- 
ing and filling pending a hearing on the merits. The developer has now agreed to 
submit notices of Intent with plans so that Orders of Condition may issue. 

Moskow v. Kendall 

This is the first case involving the Inland Wetlands Restriction Act decided by 
the Supreme Judicial Court. It reverses a trial court holding that a wetland 
restriction on a parcel in Newton constituted an unconstitutional taking. The 
court reviewed the important functions of wetlands — flood prevention, pollu- 
tion attenuation, habitat protection — and upheld the power of the Common- 
wealth to restrict their use. It then looked at the particular restriction at issue. 
Ruling that the owner's entire parcel, and not just the restricted area must be 
considered in a taking analysis, the court held that, because there was land 
outside the restricted area on which the owner could build a house (he had 
proposed to build eight), there was no taking. 

Callahan v. Outdoor Advertising Board 

This was the first Massachusetts appellate case decided after the Supreme 
Court decision in Metromedia v. City of San Diego, which cast serious doubt on 
the ability of municipalities to prohibit billboards. In defense of the Town of 
Lenox's ban we argued that a commercial advertiser could not raise the issues of 
non-commercial speech that had so troubled the Court in Metromedia. The 
Appeals Court sustained our position, and the Lenox by-law stands. 

Pennsylvania v. EPA, and Sierra Club and Natural Resource Defense 
Council v. EPA 

These consolidated cases challenge the "stack height regulations" promul- 
gated by EPA in February, 1982. These regulations will allow large sources of 
air pollution to build taller smoke stacks to disperse pollutants over a wider area 
rather than taking further steps to control pollutants. The Division has inter- 
vened in the cases on the side of petitioners on the grounds that the new 
regulations will increase the interstate transport of air pollutants from the mid- 
west to the Northeast and exacerbate the already serious acid precipitation 
problem, in violation of the Clean Air Act. We will be joining other affected 
states in filing a brief opposing the regulations. 



P.D. 12 77 

Offshore Oil Development 

The most significant and controversial issue between the federal government 
and the coastal states regarding offshore oil drilling is whether the federal 
government (Department of the Interior) must ensure that its offshore lease sales 
are consistent with the affected states' coastal zone management plans. Because 
of the vulnerability of Massachusetts coastal resources, particularly the Georges 
Bank fishery, Massachusetts has a large stake in this dispute. During the past 
year, we participated in two lawsuits where this issue was addressed. 

California v. Watt 

In this case, the State of California successfully sued to enjoin the Interior 
Department from proceeding with an offshore lease sale to the extent that some 
of the tracts to be offered were inconsistent, in California's view, with the 
California Coastal Zone Management Program. We filed amicus briefs in sup- 
port of California's motions for a preliminary injunction and for summary 
judgment. The District Court entered judgment in favor of California on the 
coastal zone issue, and we filed an amicus brief in the Ninth Circuit on behalf of 
seven coastal states in support of the District Court's decision. 

California v. Baldridge 

The Commonwealth intervened as plaintiff, joining the states of California 
and Alaska, in this action to challenge federal regulations regarding the applica- 
bility of the "consistency requirements" of the Coastal Zone Management Act 
to offshore lease sales. In a reversal of its previous position, the Department of 
Commerce, which is responsible for administering the CZMA, promulgated 
regulations adopting the Interior Department's view that offshore oil and gas 
lease sales are not subject to the consistency requirements of the CZMA. 
Following the filing of this suit, and the introduction in Congress of resolutions 
disapproving the regulations, the Commerce Department withdrew the regula- 
tions. The states then agreed to dismiss the case without prejudice. 

California v. Watt 

The Division, as amicus curiae, joined with the states of Alaska and Califor- 
nia in seeking a remand of the Five Year Offshore Leasing Program prepared by 
the Secretary of the Interior. The program, we argued, did not adequately 
protect such sensitive areas as the North Atlantic's Georges Bank. The Court of 
Appeals for the District of Columbia Circuit agreed with the challenge and 
returned the program to the Secretary for revision. 

Pacific Legal Foundation v. State Energy Commission 

The Division participated as amicus curiae on behalf of the State of California 
in this appeal from two federal court decisions invalidating the state's nuclear 
plant siting statute. The Ninth Circuit reversed the Decision, holding that a state 
may validly regulate the siting of nuclear power plants in furtherance of such 
traditional state interests as control of utility rates and assurance of adequate 
supply of energy. 



78 P.D.12 

Seabrook Operating License Proceeding 

The Divison has petitioned to intervene in the NRC's operating license pro- 
ceeding for the Seabrook Nuclear Power Station in Seabrook, New Hampshire, 
on the issue oi emergency planning. We have submitted initial contentions 
challenging the sufficiency of current evidence as to the feasibility of evacuating 
or sheltering the persons at risk in the event of a severe accident, the adequacy 
of the applicants* emergency plans, and the size of the area within which 
emergency plans are being developed for local communities. 

Pilgrim I 

In January. 1982. the Nuclear Regulatory Commission fined Boston Edison 
Company S550.0OO for breakdowns in its management of the Pilgrim I Nuclear 
Power Station that have led to unsafe conditions at the plant. At the same time, 
the NRC modified Boston Edison's operating license to require an independent 
assessment of management capabilities and the submission of a plan to improve 
management of the facility. The Division filed a Petition to intervene in the 
NRC's proceeding in February in order to protect the Commonwealth's interest 
in the safe operation of the plant. The NRC has yet to rule on our Petition. 

Pilgrim II Construction Permit Proceeding 

Prior to the cancellation of Boston Edison's plans to construct a second 
nuclear power station on the Pilgrim site in Plymouth, the Division was prepar- 
ing for a hearing before the Nuclear Regulatory Commission on the feasibility of 
evacuation or other emergency action in the event of a severe accident at the 
planned facility and the adequacy of existing plans for responding to such an 
accident. The Division was also asking the NRC to examine various aspects of 
the design of the facility for compliance with certain requirements imposed by 
the Commission on all licensees as a result of the accident at the Three Mile 
Island nuclear reactor. Discover, had been completed and preparation for the 
actual hearing had begun when Boston Edison announced that it was aban- 
doning the Pilgrim II project. 

Commonwealth of Massachusetts. Secretary of Environmental Affairs, and 
Attorney General v. Massachusetts Port Authority 

This case involved the proposal of the Massachusetts Port Authority (* "Mass- 
port") to undertake an airport and commercial development project at the Bird 
Island Flats portion of Logan Airport. Massport was required, prior to undertak- 
ing the project, to submit an environmental impact report to the Secretary of 
Environmental Affairs regarding the anticipated impacts of the proposed pro- 
ject. The Secretary determined that the final report was not adequate and did not 
comply with MEPA. The Secretary requested the Attorney General to file suit to 
seek to prevent the project from moving forward until Massport fully complied 
with its obligation under MEPA. Intensive negotiations took place among the 
Secretary of Environmental Affairs, the Secretary of Transportation and Con- 
struction, who had independent objections to the project and had filed a separate 
lawsuit, and Massport. A settlement was reached and the project, with modifi- 
cations alleviating the Secretary's environmental and transportation concerns, 
went forward. 



P.D. 12 79 

INSURANCE DIVISION 

The Insurance Division of the Public Protection Bureau represents the inter- 
ests of Massachusetts citizens who purchase insurance. Funding for the Divi- 
sion's activities is provided by G.L. c. 26. §8F. The Division has two areas of 
activity: Division attorneys intervene in administrative hearings held to consider 
insurance companies" requests for rate increases, and also brings affirmative 
litigation on behalf of victims of deceptive sales practices, fraud, and other 
illegal insurance activities. 

A. ADMINISTRATIVE 

1. Automobile Insurance 1982 Rate Hearing 

The Insurance Division intervened this past year in a major case involving 
industry requests to increase automobile insurance rates by 24%. Extensive 
commitments of personnel and financial resources by the Division resulted in 
the introduction of significant evidence which helped reduce the amount allowed 
by over one hundred million dollars. 

2. Blue Cross Blue Shield (Son-Group) 

The Division intervened in a hearing which reviewed the request of Blue 
Cross Blue Shield to increase non-group health and accident insurance rates by 
24.2*7 and 14.4*7 respectively. Despite opposition from many sources, the rates 
were approved as filed. 

3. Blue Cross Blue Shield (Medexi 

Senior citizens use Medex insurance to supplement other Medicare cot ar- 
ages. As a result of a requested 56. 9% increase in premium levels, the Division 
and representatives of the Public Charities Division intervened. .After an exten- 
sive hearing process the petitioners agreed to re-file their rate request. I: 
accepted and which resulted m a savings to consumers oi thirteen million 
dollars. 

4. Workers Compensation 

The Division has intervened in a major rate hearing resulting from insurers' 
request for an increase in Worker Compensation insurance premiums of ninety 
seven million dollars. The Division has urged that over seventy million dollars 
be slashed from this request. The Hearing officer's decision is pending. 

5. Automobile Insurance Competition 

Insurers providing automobile insurance again sought approval of the use 
competitively set rates for 1985. The Division appeared and presented expert 
testimony at that hearing urging that safeguards against e •• . . I insurers 

were as yet lacking. A decision against the insurers resulted. 

6. Massachusetts Reinsurance Facility 

The field of automobile insurance and reinsurance is in flux and the Division 
participated in a number of formal and informal hearings relating to operational 
matters of concern to insureds, agents and insurers within the Commonwealth. 
These included hearings before the Insurance Commissioners, the vari us 
boards of the Massachusetts Reinsurance Facilitv and the Merit Ratins Board. 



80 P.D.12 

7. Speakers Bureau For Elderly Issues 

The Division initiated a schedule of speaking engagements. Speakers from 
the Division presented information on topics of importance to citizens involving 
medicare, medicare supplements, life insurance, and dreaded disease insurance. 

8. Municipal Deferred Compensation 

The Division is continuing its examination of deferred compensation plans 
offered by insurance companies to many employees of state, city and municipal 
governments. A seminar including representatives of ten such plans was con- 
ducted by the Division to review appropriate duties of public employers' insur- 
ers and plan administrators with particular regard to prudent and prompt invest- 
ment of funds. 

B. LITIGATION 

1 . Tax-Deferred Annuities 

The Division has developed several significant cases against major life insur- 
ance companies involved in the sale of so-called "tax deferred" annuities. The 
cases are the first of their kind brought in the country by public law enforcement 
offices. Restitution and damages resulting from the erroneous representations 
concerning the tax consequences of these purchases is sought on behalf of 
thousands of Massachusetts citizens. These cases are pending. 

2. Insurance 93 A Cases 

Case Name Restitution 

1. Commonwealth v. Marquis et al. $285,000 

2. Commonwealth v. Scribner $5,000 

C. LEGISLATION 

1 . Group Health Insurance 

The Division authored several measures designed to provide greater protec- 
tion for employees insured through group health plans and so-called "self- 
insured" plans. 

2. Licensing of Insurance Agents 

Insurance agents were urged by the Division to file remedial legislation 
designed to resolve legal questions relating to licensing. A bill has been filed 
and actively supported. 

3. Auto Insurance 

In an effort to reduce automobile insurance rates, the Division proposed 
legislation designed to require use of a realistic tax rate in the insurance rate 
setting process to prevent companies from significantly over-estimating their tax 
burden. 

DIVISION OF PUBLIC CHARITIES 

The Division of Public Charities is one of seven divisions in the Public 
Protection Bureau. It is established by the Attorney General pursuant to G.L. c. 
12, §8B. Its activities fall into three main areas: 1) affirmative litigation aimed 
at protecting the public generally from misapplications of charitable funds and 



P.D. 12 81 

from fraudulent or deceptive solicitation; 2) participation in estates and trusts in 
which there is a charitable interest; and 3) various administrative functions 
mandated by G.L. c. 12, §8F and G.L. c. 68, §§19, 21 and 23. 

A. AFFIRMATIVE ENFORCEMENT ACTIVITIES 

1 . Registration and Audit Enforcement 

The Division continues to actively enforce the registration requirements of 
G.L. c. 12, §8F and G.L. c. 68, §19. In addition, it has expanded its audit 
enforcement program so that currently every report received by the Division is 
examined to see whether an audit is included if required. The registration and 
audit requirements are key elements of the Divisions's efforts to insure account- 
ability for charitable funds. In connection with these efforts the following 
lawsuits were filed: 

Failure To Register 

Defendant 

1 . Communications Theatre Group 

2. Cadmus School et al. 

3. Children in Crisis, Inc. 

4. Technology in Medicine 

5. Williams et al. 

Failure To Provide Audit 

Defendant 

1. Mass. Jaycees Charitable Trust 

2. Transporting the Handicapped Elderly in Mass., Inc. 

3. Victory House 

4. Memorial Square Citizens Council 

5. Friends of Laughing Brook 

6. South Area Jewish Community Center 

7. Jewish Community Center of Greater Boston 

8. Young Men's Hebrew Association 

9. Jewish Community Center of Brookline. Brighton & Newton 

10. Community Teamwork, Inc. 

11. Northeast Appropriate Technology, Inc. 

12. End Stage Renal Disease, Network #28, Inc. 

13. Greenfield Area Animal Shelter 

14. Mashpee Wampanoag Indian Tribal Council, Inc. 

15. Rockwood Day Care Center, Inc. 

16. Theatre at The Square, Inc. 

17. The Stephen Caldwell Memorial Convalescent Home 

18. Delta Projects, Inc. 

19. Chelsea Jewish Nursing Home 

In addition, the Division obtained audits from over 500 organizations which 
initially failed to provide them without the need to resort to litigation. 

Ad Books 

In the last year the Division has received increasing numbers of complaints 
from the public concerning telephone solicitations. Typically these complaints 
involve for-profit businesses which solicit small businessmen to purchase adver- 
tising in an organization's year book. Violations include failure to register and 
post bond as required by G.L. c. 68, excessive compensation usually in the 



82 P.D.12 

range of 65-85%, and deceptive sales presentations. Certain of these solicita- 
tions were made on behalf of police groups with solicitors suggesting that 
donations would result in favored treatment from police on parking and traffic 
violations. Suits were filed against the following defendants: 

Defendant Status 

O.S.C. Corporation et al. Open 

G.M.C. Corporation et al. Open 

WRG Enterprises Open 

George Leavitt et al. Open 

John Hanafin Open 

In addition, the Division criminally prosecuted one ad book scheme in Dis- 
trict Court. 

2. Charitable Gambling 

During the past fiscal year, more and more charitable organizations resorted 
to raffles and bazaars (authorized by G.L. c. 271, §7A) as a fund-raising device. 

The Division continued its efforts to enforce the provision of G.L. c. 271, 
§7 A, which permits only members to promote or operate the events, against 
suppliers of casino equipment providing paid dealers. In this connection cases 
were filed against the following suppliers of casino equipment: 

Defendant Status! Disposition 

Frank Fitzgerald and Clayton Ritchie 

d/b/a Monte Carlo Associates Consent Judgment 

Joseph D/Amico d/b/a Casino Royal Consent Judgment 

Ravera Games. Inc. Consent Judgment 

James DiPaoli d/b/a Happy Knights 

Precise Las Vegas Equipment Consent Judgment 

In addition the Division has an active program of monitoring these judgments 
and those entered in prior years for compliance. 

The Division also focused its efforts on the phenomenon of house raffles. Its 
main concerns were whether ticket purchasers were given fair disclosure of the 
terms of the raffle and that third parties — builders and realtors — were not the 
real beneficiaries of the privilege extended to charitable organizations to sponsor 
gambling events. In this connection over 45 investigations were opened and two 
lawsuits were filed: 

Defendant Status 

Milford Whitinsville Regional Hospital Closed 

Hudson Boys Club Closed 

In addition, the following three suits were filed in the area of charitable 
gambling: 

Bellotti v. Easton Lions Club and Easton Jaycees 

This was a suit filed to enjoin a "poker championship" which violated the 
$25 cash prize limit in G.L. c. 271, §7A. In Bellotti v. Solas, et al., and Bellotti 
v. Christodlous we filed suits to enjoin unlicensed raffles. Both were settled by 
consent judgments requiring repayment of over $5,000 in raffle proceeds. 






P.D. 12 83 

Information received as a result of investigation and litigation with suppliers 
coupled with numerous complaints from organizations and individuals concern- 
ing Las Vegas Nights and house raffles suggested the need for a more compre- 
hensive enforcement approach to charitable gambling. In January, 1982 the 
Attorney General held public hearings on the subject of charitable gambling. In 
addition, the Division conducted a five month study of organizations conducting 
Las Vegas events. The Division also surveyed twenty-five organizations which 
held Las Vegas Nights by personally interviewing the member in charge of the 
event. In May, 1982 the Division submitted a Report of Charitable Gambling 
which presented the first broad-based and reliable information concerning Las 
Vegas-type gambling and house raffles. Transmitted with the Report were 
regulations the Division had drafted in response to the findings of the Report. 
The Regulations governing raffles, 940 CMR 12.00, and the Regulations gov- 
erning bazaars, 940 CMR 13.00 were promulgated by the Attorney General on 
May 6, 1982. 

3. Dissolutions 

The Division continues its efforts to dissolve inactive charitable organiza- 
tions. This involves an investigation to discover any corporate assets as well as 
legal proceedings. In 1982 involuntary dissolution petitions were filed against 
the following organizations: 

Defendant Status 

Air-O-Limited Open 

Amherst Youth Center, Inc. Open 

Atlantic Wind Ensemble, Inc. Closed 

Bruce J. Anderson Foundation, Inc. Open 

Area Cooperative Team, Inc. Open 

Arlington Women's Center, Inc. Closed 

Berkshire County Chapter, National Society for Autistic Children, Inc. Closed 

Bicentennial at the Junction, Inc. Open 

Books for People, Inc. Open 

Boston Area Self Education Committee Open 

Boston Committee to Save Ethiopian Jews Open 

Bradston Client Counsel, Inc. Closed 

Canalside Community Association, Inc. Open 

Cape Cod Horticulture Study Group, Inc. Open 

Cape Community Exchange, Inc. Closed 

Captain S. Wood Company of Minuteman Inc. Open 

C.H.U.M.'s, Inc. Closed 

Citizens Alert for All Retarded Persons in Mass. Open 

N.J. Cole Memorial Fund for Children with Specific Needs Open 

Community Counsel of Marion, Inc. Open 

Community Research Center Open 

Credit Bureau of Fall River Open 

Crusaders of Beverly Drum & Bugle Corp. Open 

Eckankar Commonwealth Satsang Society Open 

Energies Alternative Group Open 

Essex Photographic Workshop, Inc. Open 

Experimental Aircraft Association, Inc. Open 

Extended Hand, Inc. Open 



84 



P.D.12 



Family Center for the Handicapped 

Fisherman Foundation, Inc. 

4-Cs in the Berkshires, Inc. 

Friends of Ashodt Yaacov Hakibbutz Hameuchad 

Friends of Odwin School 

Friends of the Seekonk Bicentennial 

Friends of the Society for Medicine & Law in Israel 

Friends of Wakefield Senior Citizens 

Dr. C. Benjamin Fuller Home and Infirmary 

Full Gospel Fellowship Interdenominational 

Harvard Elm Project, Inc. 

Holyoke Family Service Society 

Ices Users Group 

I.L. Charitable Foundation, Inc. 

International Marine Archivers, Inc. 

Intertown Meals on Wheels, Inc. 

Job Placement Project, Inc. 

Henry P. Kendall Foundation, Inc. 

Latvian Song Festival 

Lexington Child Care Cooperative, Inc. 

Littleton Nature Daycamp, Inc. 

Living & Learning Institute for Teachers of Young Children 

Marblehead Dance Workshop 

Mass. Association of Service Station Dealers 

Methuen Playhouse, Inc. 

Millerville Firefighters Benevolent Assoc, Inc 

Mission Guild of Our Lady of Perpetual Help 

Mountain Laurel, Inc. 

Music Ministries 

New England Artisan's Guild 

Newton Interfaith Life Care Center 

Newton Youth Foundation 

Nikki Hu Dancers, Inc. 

Nutrition and Heath Systems, Inc. 

100-Aker-Wood, Inc. 

Peabody Terrace Nursery School 

Pierce School Extended Day Kindergarten Program 

Roxbury-Dorchester Community Beautification Program, Inc. 

Rutland Committee on Drug Abuse, Inc. 

St. Michael's School Association of North Hampton 

Saval Foundation, Inc. 

Secondary School Research Program 

Serono Research Foundation U.S.A., Inc. 

Sheriffs Commission of Concerned Citizens of Berkshire County 

Silver Lancers Junior Drum & Bugle Corps 

Somerville Community Day Care 

Sound Side Counseling Center 

Suffolk County Community Fair, Inc. 

Edward Hood Taplin Institute, Inc. 

TNT Workshops 

20th Century Association 

United American Arab Appeal, Inc. 

United Cerebral Palsy Association of Worcester, Inc. 



Open 
Open 
Open 
Open 
Open 
Open 
Open 
Open 
Open 

Closed 
Open 
Open 
Open 

Closed 
Open 
Open 
Open 

Closed 
Open 

Closed 
Open 
Open 
Open 
Open 

Closed 
Open 
Open 
Open 
Open 
Open 

Closed 
Open 

Closed 

Closed 
Open 
Open 
Open 

Closed 
Open 
Open 
Open 
Open 
Open 
Open 
Open 
Open 
Open 

Closed 
Open 
Open 
Open 
Open 
Open 



P.D. 12 



85 



Valley Adult Counseling Services 
Vineyard Land Use 
Walden III, Inc. 

Westhampton Fine Arts Guild, Inc. 
West Newton Garden Club, Inc. 
West Roxbury Catholic Women's Club 
West Side Workshop, Inc. 
Worcester Open Door, Inc. 
Wrentham Cultural Exchange, Inc. 



Open 
Open 
Open 
Closed 
Closed 
Open 
Open 
Open 
Open 



In addition, organizations may dissolve voluntarily by filing an action against 
the Atttorney General. While the division assents to most dissolutions, it is 
necessary in each case to be sure that there has been a proper disposition of 
assets. During the past year the division has been involved in the following 
dissolutions: 



Defendant 

Arrowhead Sportsmen's Club, Inc. 

Braintree Y.M.C.A. 

Cambridge-Somerville Community Residences, Inc. 

Camping Associates of Roslindale & Milton, Inc. 

C.A.R.P. 

Charlestown Community Center, Inc. 

Chelmsford Scout House, Inc. 

Drug Abuse Foundation of Pioneer Valley, Inc. 

Eastern Middlesex Opportunities Council, Inc. 

Family and Personal Counseling of Brockton, Inc. 

First Church of Christ Science, Inc. 

French American Club, Inc. 

Gamma Eta Alumni, Inc. 

Governor's Management Task Force, Inc. 

Haskell Home Corporation 

Haverhill Union Mission, Inc. 

Institute for Continued Education and Child Psychiatry, Inc. 

Ipswich Hospital, Inc. 

Join Our Band, Inc. 

Keniticompany, Inc. 

Living Folks Records & Concerts, Inc. 

LNS Associates 

Mass. Bay Federation Council 

Massachusetts Chapter of the National Commission 

for Prevention of Child Abuse 
Mill Arts, Inc. 
Project Independence, Inc. 
Project Independence Residential Homes, Inc. 
Project Local, Inc. 
Salem Young Women's Association 
South Shore Mental Health Association 
Town of Townsend Police Ambulance Association, Inc. 
Unis Outdoor Education Program, Inc. 
Visiting Nurse Association of Dover & Medfield 
Wahcanoh Music Association, Inc. 



Status 

Open 
Closed 
Closed 

Open 
Closed 

Open 
Closed 
Closed 

Open 
Closed 
Closed 
Closed 

Open 
Closed 
Closed 
Closed 
Closed 

Open 
Closed 
Closed 
Closed 
Closed 

Open 

Open 

Open 

Open 

Open 

Closed 

Closed 

Closed 

Open 

Open 

Closed 

Closed 



86 P.D.12 

4. Miscellaneous 
Bellotti v. Callahan et al. 

Suit filed against the sole officer and director of a charitable organization 
alleging waste, mismanagement and related party transactions. 

Bellotti v. Tri-City Council, 823, United Commercial Travelers of America 

Complaint and consent judgment filed enjoining defendant from failing to 
make a timely application for real estate tax abatements. 

Bellotti v. People Against Cancer 

Complaint and consent judgment filed against a for-profit business requiring 
that all its literature disclose its for-profit non-charitable status. 

Bellotti v. Salvation Rehabilitation Center, Inc. 

Default judgment entered in case regarding deceptive solicitations. 
Bellotti v. Brockton Agricultural Society 

Case is currently on appeal from the Superior Court's denial of a motion to 
intervene brought on behalf of the corporation's shareholders. 

Bellotti v. The New Assembly of Saint Cecilia 

Suit filed to obtain an accounting and restitution from defendant charitable 
organization and its Board of Directors of $154,000 of charitable assets 
expended for non-charitable purposes. 

Bellotti v. B.A. Langan dlbla Ron Ton Productions 

Suit filed to compel defendant to comply with registration requirement for 
professional solicitors and to enjoin the use of paid telephone solicitors. 

Bellotti v. Matt son et al 

Suit filed to compel defendants to comply with registration requirements of 
G.L. c. 12, §8F and with the requirements of G.L. c. 271, §7A governing 
charitable raffles. 

In re: Dimock Community Health Center 

Receivership continues of this financially troubled health center. This case is 
being jointly handled with attorneys from the Consumer Protection Division. 

Commonwealth v. Col umbo et al 

Suit was filed to enjoin defendants from failing to disclose that the use of a 
tax avoidance scheme which they sell for $3,900 subjects purchasers to substan- 
tial risks of criminal and civil prosecution by the Internal Revenue Service. 

In Re: Medex Rate Hearing 

The Division, together with the Division of Insurance, intervened in hearings 
before the Commissioner of Insurance concerning Blue Cross' and Blue Shield's 
request for a 36% increase in Medex premiums The Commissioner denied the 
companies' request and instead ordered a 21% increase. 

Bellotti v. Downey Side, Inc. 

Complaint and consent judgment filed enjoining the defendant from failing to 
make timely application for real estate tax abatement. 






P.D. 12 87 

Bellotti v. Williams et al 

Suit filed to enforce a request for documents pursuant to G.L. c. 12, §8L. 

B. PARTICIPATION IN ESTATES AND TRUSTS WITH CHARITABLE 
INTERESTS 

The Attorney General is an interested party in the probate of an estate in 
which there is a charitable interest. This fiscal year, 2,536 new wills were 
received. Each of these wills was reviewed and it was determined that the 
Attorney General had an interest in 1 ,425 of these estates. 

Probate accounts were reviewed and approved as follows: 

Executor Accounts 1488 

Trustee Accounts 2294 

Total 3782 

In addition the division approved 133 petitions for the sale of real estate and 
34 petitions for appointment of trustees, and was involved in 1 10 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 FY- 1982, 603 estates had been 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. 

In addition to these routine matters, the Division handled 193 actions on cases 
in litigation. The most significant cases in this area are as follows. 

First National Bank of Maiden v. John Martin et al 

The Division's participation in this action regarding the interpretation of a 
will saved a $140,000 charitable remainder interest. 

Admiral Byrd Foundation 

The Division of Public Charities in an action in Probate Court in 1979 
effected the appointment of five individual trustees in the Foundation, three of 
whom were independent and were able to control the Foundation. The original 
trust agreement establishing the Foundation provided for three trustees, one of 
whom was Commander Byrd, Admiral Byrd's son. Commander Byrd controlled 
the trust. He was also living in the trust's main asset — the Byrd family house 
on Brimmer Street, Beacon Hill. During 1982, the independent trustees pre- 
vailed in an eviction proceeding against the Commander. Those assets of the 
trust will now be used for the purposes delineated in the original trust 
agreement. 

Estate of George Cowen 

Action was brought to compel trustees under the will of George Cowen to 
proceed with the construction of a $1.5 million home for the aged in Rochester, 

Mass. 



88 P.D.12 

Cole v. Bellotti 

Through the Division's efforts, the probate court after trial, ordered a plan for 
administration of a long dormant charitable trust. It is estimated that under this 
plan the trust will yield $100,000 per year for educational purposes in Barnst- 
able and Hyannis. 

Society for the Preservation of New England Antiquities 
(SPNEA) v. Bellotti 

Suit was filed by SPNEA to obtain authorization to sell the oldest brick house 
in America located in Medford to private parties with preservation restrictions. 
The Division was instrumental in a settlement which allowed the house to be 
sold to the Medford Historical Society. 

Chase v. Pevear 

This case was remanded to the Probate Court by the Supreme Judicial Court 
for a determination of the amounts of attorneys fees to be awarded. Time 
charges by all counsel in the case were $675,000. After twenty five days of trial 
the Attorney General recommended that the aggregate fee award be limited to 
$132,000, the amount in controversy. 

C. ADMINISTRATIVE FUNCTIONS 

The Division has numerous administrative and routine responsibilities 
including: 

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

2. Administering the state's charitable solicitation act (G.L. c. 68, §§18- 
33); 

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

4. Representing the State Treasurer in the public administration of estates 
escheating to the Commonwealth. 

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

The Division has completed the process of computerizing registration infor- 
mation. Together with an increased level of enforcement, this has resulted in a 
dramatic (48%) increase in registrations over FY-1981. 

1981 1982 1982 Fees 

8925 $223,125 

152 2,280 

$225,405 

After many years of effort, the states' plan to achieve uniform reporting for 
charitable organizations has become a reality. All states will now accept the 
revised Internal Revenue Service form 990 together with certain supplementary 
schedules. It is hoped that this development will substantially ease the burden on 
charitable organizations imposed by state reporting requirements. 

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 requirements. 



Form PC - $25.00 fee 


6028 


Form PC - $15.00 fee 


325 




Total Amount 



P.D. 12 89 

For the period from July 1, 1981 to June 30, 1982, some 1,692 applications 
were received. Certificate fees received were $16,920. 

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, 1982, 44 registrations were received and approved and 
total fees collected were $440. 

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

New Estates 142 

Estates Closed 184 

With Escheat 85 

Without Escheat 99 

Total Amount of Escheats Received $505,597.32 

UTILITIES DIVISION 

The Attorney General has been involved in utility matters since 1973 by 
virtue of G.L. c. 12, §1 IE. The Division continues to operate as the major, and 
in most instances the only representative of consumer interests in gas, electric 
and telephone rate setting and related matters affecting Massachusetts residents. 
These matters are heard and decided by the Department of Public Utilities 
(D.P.U.). The budget allocated to the Utilities Division pursuant to G.L. c. 6A, 
§9A has remained at $250,000 since 1973. Seventy-five thousand dollars in 
additional funding was authorized solely for greatly expanded responsibility 
under St. 1981, c. 375, the new state fuel adjustment statute, and is not 
available for use in any other proceedings. The effects of inflation upon the 
original assessment and the growing complexity and number of rate cases have 
created major resource problems for the Division. Lawyers have been working 
concurrently on two major rate cases on a consistent basis. Notwithstanding 
these severe constraints, the staff of seven attorneys, two utility rate analysts, 
two secretaries, and an administrator, have strived to effectively represent resi- 
dential customer interests in utility rate cases. 

A. RATE CASES 

During the fiscal year, the Utilities Division intervened in each of the 22 gas, 
electric or telephone rate matters before the Department of Pulbic Utilities. A 
total of approximately 411 million dollars in rate increases were requested by 
companies. Of those 15 cases decided at this writing, 108 million has been 
granted out of 257 million requested. 

The following chart shows the rate cases which were filed, heard and/or 
decided this past fiscal year. It should be noted while reviewing this chart, that 
the Department of the Attorney General has no control over the schedule of rate 
cases. Companies may file for a rate increase annually and many do so. The 
D.P. U. sets the schedule based on the timing of these filings. There is a six- 
month statutory time limit in which each rate case must be heard and judged. 



90 P.D.12 

The Utilities Division staff reviews requested increases critically. It examines 
profit margins, operation and maintenance expenses, property taxes, deprecia- 
tion, and utility plant in service. Through this exhaustive review and question- 
ing of company witnesses the Attorney General challenges questionable num- 
bers and recommends what he believes are just and reasonable rates. The 
D.P.U. often asks few, if any questions of the utilities and rarely asks for any 
information other than what a company has filed. The factual basis for allowing 
rates less than those requested by a utility is developed almost entirely by the 
Attorney General's Utilities Division. 

An example of effective rate case work was the Boston Edison rate case, 
[D.P.U. 906]. The Company asked for $98.3 million, half of which related to 
Pilgrim IPs cancellation. The Company received about $25 million for Pilgrim 
II (each year for 13 years) and about $6.5 million out of $49 million on non- 
Pilgrim II issues. 

B. ELECTRIC FUEL CLAUSE INTERVENTION 

In August 1981, a new law went into effect regarding the right of electric 
utilities to collect from ratepayers the cost of fuel and purchase power (Chapter 
375, Acts of 1981, amending G.L. c. 164, §94G). The new law eliminated the 
virtually automatic pass-through of fuel costs to consumers through the fuel 
clause and required that the utility bear the burden of proving the reasonableness 
of all such expenses. The statute further required that the Department of Public 
Utilities establish performance standards for each electric utility against which 
the utility's actual generating efficiency in performance would be measured. 
Now, failure to operate in conformity with performance standards could result 
in the denial of the utility's right to recover fuel and purchased power expenses 
from ratepayers. 

The new fuel clause statute was developed by a task force comprised of 
consumer representatives, the utility companies, and the Department of the 
Attorney General. The new law provided seventy-five thousand dollars 
($75,000) in funding for intervention by the Attorney General on behalf of 
consumers in fuel clause and performance standard proceedings. This funding 
was initially opposed by the utilities but was subsequently included in the 
amended legislation. 

Since passage of this legislation the Attorney General has intervened in two 
major fuel clause proceedings where the prudence of costs resulting from the 
outage of Pilgrim Unit I was considered. The Attorney General has also inter- 
vened in the performance standard case of Boston Edison Company. The Attor- 
ney General, through the newly-available funding, has not only participated in 
these hearings but has sponsored the expert testimony of four witnesses in the 
presentation of a direct case on behalf of consumers. 

The Attorney General's intervention in fuel clause proceedings has already 
produced substantial benefits for ratepayers. In the fuel clause hearings regard- 
ing Boston Edison's right to collect replacement power costs from consumers as 
a result of the outage of Pilgrim Unit I [D.P.U. 1009-F], the Attorney General 
argued that the Company should be required to refund certain imprudently 
incurred costs to its ratepayers associated with that outage. The D.P.U. subse- 
quently ordered a refund of over five million dollars ($5,400,000) which has 



P.D. 12 91 

been passed through to consumers by a reduction in the fuel adjustment factor 
which constitutes a major portion of consumers' electric bills. 

The Division was also involved in fuel adjustment hearings regarding Boston 
Edison's right to collect over a two-year period, $53 million in deferred fuel 
costs. A group of industrial intervenors sponsored a witness and argued against 
such collection. The Attorney General supported the position of the industrial 
intervenors. The collection of the $53 million will be completed during the 1983 
fiscal year and to date no decision has been rendered by the DPU. 

C. GAS SHORTAGE INVESTIGATION — D.P.U. 555 

In January 1981, the Attorney General intervened in what became a very 
lengthy and detailed investigation into the reasons and causes for the shortage of 
natural gas experienced by certain gas companies during the Winter of 1980-81. 
Hearings were convened by the Department of Public Utilities and, despite the 
Attorney General's urging that the hearings be treated as adjudication, the 
D.P.U. determined that all hearings would be in the nature of an investigation. 
Hearings in this matter involving all gas companies continued until November 
12, 1981, totalling 56 days of hearings. The Attorney General cross-examined 
witnesses from the pipeline supply companies, the major LNG supplier for 
companies in the Commonwealth and gas company official representing all of 
the gas utilities of the Commonwealth. Additionally, at the request of the 
Attorney General, the President of the parent company of Boston Gas, Eastern 
Gas & Fuel Associates, appeared and was cross-examined. On December 16, 
1981 the Attorney General filed his initial brief and advocated that the D.P.U. 
deny the right of Boston Gas Company to collect approximately 46 million 
dollars in emergency gas supply expenses from ratepayers. The Attorney Gen- 
eral argued that these expenses were incurred because of imprudent and unrea- 
sonable conduct on the part of Boston Gas Company, in pursuit of extraordinary 
profits which were available to the Company from the sale of gas to interruptible 
customers. The Attorney General also advocated that the Department deny the 
right of Lowell Gas Company to collect 2.7 million dollars from its ratepayers, 
arguing that those costs have been incurred through unreasonable actions on the 
part of that Company. 

In the early stages of this proceeding the Attorney General made a motion that 
the D.P.U. deny Boston Gas Company the right to collect from its consumers, 
subject to refund, expenses which were being contested in the ongoing investi- 
gation. The Department denied the Attorney General's motion and ruled that 
Boston Gas could, in fact, begin collecting through its cost of gas adjustment 
clause costs associated with emergency gas purchases. The Legislature, how- 
ever, subsequently passed a law prohibiting the Company to collect any of the 
contested expenses from its ratepayers pending the outcome of the Department's 
investigation into the gas crisis. The Department has not yet issued its findings 
in this proceeding. 

D. MISCELLANEOUS 

During the fiscal year the Utilities Division intervened in several other signifi- 
cant proceedings. First, in D.P.U. 662, Boston Gas sought to begin collecting 
unrecovered gas costs from the 1980-1981 winter in April, 1981. In August of 



92 P.D.12 

1981, the D.P.U. barred the pass through based upon the Division's argument 
that good cause had not been shown to permit an accelerated pass through. 
Those same gas costs were later allowed to pass through by the D.P.U. over 
protest by the Utilities Division and then blocked by legislative action pending 
the outcome of the D.P.U. 555 investigation. 

The Attorney General has also commissioned and received an analysis of the 
fuel factors of the major electric companies along with a handbook providing 
suggested methods of analysis and strategies which may be employed for effec- 
tive intervention in future fuel clause proceedings. The Attorney General plans 
to continue to be actively involved representing consumers before the Depart- 
ment of Public Utilities in these proceedings. 

The Division intervened in two corporate reorganization proceedings, D.P.U. 
515 (Colonial Gas Company) and D.P.U. 850 (Boston Edison). In July, 1981, 
Colonial Gas Company greatly simplified itself by eliminating its holding com- 
pany structure and dissolving a number of non-utility affiliates. Boston Edison 
has sought to form a holding company structure with the electric company 
wholly-owned by a parent known as Boston Industries. The Division has 
opposed this reorganization, as did the City of Boston. The hearings in this case 
were concluded nearly a year ago and no decision has been rendered by the 
D.P.U. to date. 

At the beginning of this fiscal year, the U.S. Supreme Court ordered the State 
of Louisiana to refund all First Use Tax payments which it had collected. 
Massachusetts and seven other states led the challenge to the constitutionality of 
the tax and as a result, $14.5 million in refunds are being returned to Massachu- 
setts gas companies. The bulk of these refunds will flow back to consumers. In 
August 1981, the Utilities Division petitioned the D.P.U. to require that all First 
Use Tax refunds flow back to consumers. Hearings were held during the fall of 
1981, but the D.P.U. has not issued any decision to date. 

The Utilities Division was also an active participant in rulemaking proceed- 
ings involving telephone company billing and termination regulations, amend- 
ments to the D.P.U. Annual Return, standard rate case filing format, amend- 
ment to the Uniform System of Accounts for Electric Companies and accounting 
for advertising expenses of utilities. It also intervened in several matters where 
utilities sought D.P.U. approval to issue new securities. 

Wholesale rate case activity at the FERC in Washington was limited to two 
electric rate cases, New England Power Company and Montaup Electric Com- 
pany. As a result of a settlement reached in the former case, consumers were 
saved millions. Due to the failure of the Legislature to authorize additional 
funding, wholesale rate case intervention by this office will be eliminated 
entirely. Expert witnesses are necessary to litigate FERC cases and funds do not 
exist to expand the number of staff witnesses or hire outside consultants. By 
contrast, Rhode Island has authorized a special fund for wholesale rate case 
intervention by its Attorney General. 

While the Utilities Division is not established to handle individual consumer 
complaints, a large number of complaints have been received and efforts are 
made to deal with them. In some cases, the consumer has already tried to 
resolve their problems with the D.P.U. A measure of success has been achieved 
in resolving such complaints, and in some instances customers whose utilities 



P.D. 12 93 

have been shut off have had service restored, potential shutoffs were averted and 
billing adjustments were made. 

E. CONCLUSION 

While the Utilities Division has been making an extensive effort to protect 
strongly consumer interests in reasonable utility rates, it has a critical need for 
additional resources for expert staff witnesses, computer capability and attorney 
staffing of rate proceedings. 



94 



P.D.12 



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P.D. 12 97 

VI. SPRINGFIELD OFFICE 

The Springfield Office of the Department of the Attorney General continues 
to be responsible for matters of concern to the Attorney General in the four 
western counties of the Commonwealth: 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. Only consumer protection matters 
originate in the Springfield Office. 

In addition to the usual types of cases referred by the various divisions during 
the fiscal year, the Springfield Division also handles Department of Employ- 
ment Security and Department of Public Welfare criminal prosecutions relating 
to recipient fraud, Chapter 123 A section 9 hearings and the 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 

Collection 
Contracts 
Eminent Domain 
Victim of 

Violent Crimes 
Torts 
Industrial Accidents 

CRIMINAL BUREAU 

Chapter 123 A 

Section 9 hearings 
Employment Security 
Welfare Fraud 

Investigation 03 00 03 

GOVERNMENT BUREAU 

Defense of State Agencies 47 10 37 

PUBLIC PROTECTION BUREAU 

Consumer Protection 18 

Assurance of Discontinuance 
Restitution, Penalties, Recoveries 

In addition to the above cases, attorneys in the Springfield Office responded 
to 58 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 the above, attorneys from the Springfield Office will appear 
Ln court on that particular assignment but not handle the entire case. During the 
:ourse of the year over 100 man-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. 

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



Assigned 


Closed 


Pending 


12 





12 


6 


1 


5 


23 


3 


20 


52 


10 


42 


41 


18 


23 


03 


02 


01 


07 


07 


00 


11 


09 


02 



06 


12 


20 






$39,863.44 



98 P.D.12 

The Consumer Protection section of the Springfield Office continues to 
actively pursue enforcement of consumer protection statutes and regulations. 
Additionally, the office provided assistance and information to the local con- 
sumer groups in the four western counties and aided individual consumers 
where no local consumer group exists. 

Investigators assigned to the consumer protection section conducted numer- 
ous investigations of firms or individuals suspected of unfair and deceptive 
practices. The investigations covered a wide range of businesses including but 
not limited to automobile sales and service, career schools, employment ser- 
vices, consumer savings booklets, business franchise sales, rental listing firms 
advertising practices, an investment scheme and firewood sales. 

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 new and used car dealerships throughout the four western coun- 
ties. 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 the investigation are being analyzed and a 
determination is being made of the type of action to be taken against the 
dealerships found in violation of the law. It is expected that both civil and 
criminal action will be taken. 

During a review of advertisements in local newspapers it was noted that there 
were widespread violations of the advertising regulations dealing with the use of 
the term "Below Dealer Cost" or "Below Invoice Price". This led to 16 
automobile dealers entering into Assurances of Discontinuance and paying 
$100.00 each in investigative costs. 

The consumer protection section also took action against an individual who 
was operating two investment programs known as the Cooperative Investment 
Club and New Horizon Club. This office commenced its suit on July 17, 1981, 
at which time a Temporary Restraining Order was obtained prohibiting the 
individual from continuing to operate her investment scheme in violation of the 
Consumer Protection Act, c. 93A and the Uniform Securities Act, c. 271, §6A. 
The defendant's numerous misrepresentations, including statements that each 
consumer's investment was guaranteed and would earn between 50% and 80% 
over a thirty or forty-five day period, induced consumers to pay the defendants 
amounts which ranged from $300.00 to $62,100.00. The program was operated 
without having ever registered either the securities or the defendants with the 
Securities and Exchange Division of the Secretary of State as required by the 
Uniform Securities Act. Further, the defendant offered a bonus of 10% to 
consumers who solicited new customers to invest with her. At the height of 
activity from the Winter of 1978 through the Spring of 1981, records obtained 
from Western Massachusetts banks documented that approximately two million 
dollars had been deposited and withdrawn from these accounts by the defendant. 
Currently this office is proceeding with a petition for Contempt filed against the 
defendant for continuing the operation of the defendants club and for failing to 
make disclosures required by the Court in its Order for Accounting. 

In November of 1981 the Consumer Protection section filed a Complaint 
against Valley Publications, Inc. d/b/a Select-A-Home, an apartment rental 



?.D. 12 99 

isting service; alleging violations of the Consumer Protection Act, c. 93A and 
:. 271, §45 which regulates the operation of such listing services. 

The defendants placed newspaper advertisements representing that consumers 
;ould rent the advertised apartments by calling the defendants' telephone num- 
)er. When consumers called the defendants, they were told they could obtain 
he information necessary to identify the advertised- apartment and numerous 
)ther apartments which met their needs only by paying the defendants a fee of 
560.00. After payment of such fee, consumers were provided with listings 
vhich did not meet the requirements they disclosed to the defendants. Numer- 
>us listings contained incorrect telephone numbers or were for apartments which 
lad been previously rented. Consumers also were often unable to locate the 
idvertised apartment through the defendants' service. A Preliminary Injunction 
vas obtained prohibiting the defendants from continuing to misrepresent ser- 
vices provided and to comply with the requirements of c. 271, §45. 

Additionally, personnnel from the consumer protection section gave testi- 
nony on behalf of the Attorney General at three hearings held by the Depart- 
nent of Public Utilities in Western Massachusetts and fulfilled speaking engage- 
nents for numerous groups. 

The Medicaid Fraud Investigators assigned to the Springfield Office con- 
lucted several investigations. One of these investigations culminated in the 
ndictment of two individuals in the largest case of Medicaid fraud by single 
wovider in Massachusetts. Indictments were returned against a psychologist and 
lis interpreter alleging that they falsely billed the Department of Public Welfare 
or services supposedly administered to patients. These services were not in fact 
endered. In one month alone the psychologist billed and was paid $131,944. In 
i civil suit filed in conjunction with the criminal matter it is alleged that the 
>sychologist illegally received $510,883 during a thirteen month period. This 
natter is still pending before the Court. 

CONCLUSION 

During the fiscal year, the Springfield Office continued to provide a high 
evel of service to the various divisions of the Department of the Attorney 
jeneral and the citizens of Western Massachusetts. 

jfll. GOVERNMENT BUREAU 

The Government Bureau has four functions: 

(1) Defense of state officials and state agencies; principally in lawsuits rais- 
ing 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 of each of those functions follows. 



100 P.D.12 



DEFENSE OF STATE AGENCIES 

The Government Bureau represents the Commonwealth and its officials and 
agencies in defensive litigation in state and federal courts, and, in certain cases, 
before federal administrative agencies. These proceedings typically involve 
issues of administrative and constitutional law in diverse subject-matter areas. 

During fiscal year 1982, the Bureau opened 486 new cases and concluded a 
total of 248 previously active cases. By subject matter or client, the new cases 
fell into the following general categories: 

Type of Case I Client Number 

Automobile Insurance Surcharge 52 

Department of Public Welfare 4 1 

Civil Service Commission 40 

Judges and Court Personnel (excluding Chief 39 

Administrative Justice of the Trial Court) 

Alcoholic Beverages Control Commission 25 

Special Education 24 

Department of Social Services 23 

Department of Revenue 22 

Motor Vehicle (excluding automobile 22 

insurance surcharge appeals) 

Boards of Registration 20 

Division of Personnel Administration 20 

Department of Public Utilities 16 

Department of Public Safety 13 

Education (excluding special education) 10 

Department of Mental Health 10 

Rate Setting Commission 10 

Communities and Development 10 

Secretary of the Commonwealth 8 

Department of Public Health 7 

Division of Insurance 7 

Treasurer & Receiver General 7 

Attorney General 6 

Retirement Board 6 

Racing Commission 5 

Governor 5 

Administration & Finance 4 

Division of Employment Security 4 

Trial Court Administration 4 

Rehabilitation Commission 2 

Commerce 2 

Labor & Industries 2 

MDC 2 

Board of Conciliation & Arbitration 2 
Transportation 
National Guard 
Corrections 
Energy Resources 
Manpower Affairs 



P.D. 12 101 

Department of Banking 1 

Division of Youth Services 1 

Others 9 

TOTAL 486 

The relative time spent representing specific agencies cannot be measured 
simply by the number of cases. The representation of certain agencies involved 
a significant commitment to complex litigation, although the total number of 
such lawsuits brought against agencies was relatively small. For example, as in 
the previous five years, substantial Government Bureau resources were devoted 
to six cases in which consent decrees had previously entered seeking improve- 
ment in the conditions and treatment of residents at state institutions for the 
retarded and mentally ill. A substantial amount of time, not fully reflected in the 
above statistics, was also spent advising the various boards of registration in 
administrative proceedings which did not always result in litigation. Also, a 
rapidly growing portion of Government Bureau time is spent in connection with 
claims for attorneys' fees under 42 U.S.C. §1988. These claims arise in both 
state and federal court and often involve substantial amounts of state money 
(e.g., as of the beginning of FY 1982, plaintiffs' attorneys in Rogers v. Okin 
claimed over $1.5 million in fees; in Brewster v. Dukakis, the claim exceeded 
$1.2 million). 

This was an unusually active year for the Government Bureau in the United 
States Supreme Court. In addition to Commonwealth v. New Hampshire, (see, 
Affirmative Litigation, below), the Government Bureau was before the Supreme 
Court in three cases which were decided during FY 1982. In Globe Newspaper 
Co. v. Superior Court for the County of Norfolk, the Court struck down a 
Massachusetts statute which required the exclusion of the public from trials for 
certain sex offenses involving victims under the age of eighteen. The statute was 
held to violate the First Amendment right of access to criminal trials. In 
Rendell-Baker v. Kohn, the Court agreed with the Commonwealth's position 
that the firing of a teacher by a private, "special needs" school was not "state 
action" for purposes of the Fourteenth Amendment despite the substantial state 
funding and regulation of the school. Finally, in a unanimous decision, in 
Schweiker v. Hogan, the Supreme Court reversed a judgment of the federal 
district court which had invalidated a Medicaid statute and regulation. 

Government Bureau lawyers argued ten cases before the United States Court 
of Appeals for the First Circuit which resulted in reported decisions this year. ' 
The Legislature's delay in enacting a budget at the outset of fiscal year 1982 
resulted in an action brought by welfare recipients seeking to require the Com- 
monwealth to issue their checks for the month of July despite the absence of an 
appropriation. In that case, Coalition for Basic Human Needs v. King, the First 
Circuit ordered the Commonwealth to take all steps necessary to ensure that the 
i checks issue promptly; however, the Legislature enacted an interim budget 
; covering those checks before the court's order took effect. Brewster v. Dukakis, 
another of the First Circuit cases decided this year also arose from an absence of 



As in the Supreme Judicial Court and the Massachusetts Appeals Court, the Government Bureau briefs and argues many more 
appeals than result in reported decisions. Although briefing and argument of these cases requires the same professional effort as 
any others, the issues presented in such cases are relatively insignificant or are already settled and, consequently, are disposed of in 
unreported summary decisions or by rescript opinion. Such cases are not included in the Government Bureau's roster of appellate 
decisions this fiscal year. 



102 P.D.12 

legislative appropriations for funds required to implement a consent decree 
previously entered into by state mental health officials. In that case, the First 
Circuit vacated or modified certain district court orders requiring that the con- 
sent decree programs required be fully funded. In the Brewster decision, which 
has important ramifications for other consent decree cases, the First Circuit held 
that the district court could not require the defendants to go beyond what their 
good faith professional best efforts could reasonably be expected to achieve. In 
Massachusetts Association For Retarded Children v. King, the First Circuit 
dissolved a district court order which had enjoined the defendants from imple- 
menting a state statute requiring residents of the state schools for the mentally 
retarded who are financially ineligible for Medicaid to pay for their own care. 
That decision enabled the Commonwealth to increase its federal Medicaid reve- 
nues by substantial amounts for fiscal years 1981 and 1982. 

Other significant Government Bureau cases decided by the First Circuit this 
year include the following: Town of Burlington v. Department of Education, the 
first case under the Education for All Handicapped Children Act to be decided 
by the First Circuit, in which the Court held that the standard of judicial review 
contained in the federal Education for All Handicapped Children Act preempts 
the state-law standard; and. Costa v. Markey, in which height requirements for 
female police officers were upheld against a claim of sex discrimination under 
Title VII. The First Circuit rendered two decisions in FY 1982 in which Govern- 
ment Bureau attorneys have obtained further review in the United States 
Supreme Court. In Grendel's Den, Inc. v. Larkin, the First Circuit held that a 
state statute, G.L. c. 138, §16C, providing that premises may not be licensed to 
sell alcoholic beverages if a nearby church or school objects, violates the 
Establishment Clause of the First Amendment. In Boston Chapter, NAACP v. 
Beecher, the court held that prior orders to remedy discrimination in hiring may 
be modified to require a layoff procedure which maintains certain percentages of 
minorities in the Boston police and fire departments despite a valid state statute 
prescribing layoffs by seniority. Both Grendel's Den and Boston Chapter will 
be argued before and decided by the Supreme Court during FY 1983. 

A substantial portion of the Government Bureau's resources in fiscal 1982 
were devoted to the litigation of numerous cases in the United States District 
Court for the District of Massachusetts. In addition to the consent decree issues 
discussed above, many of these cases involved special education (e.g., Town of 
Burlington v. Department of Education); the rights of institutionalized elderly, 
retarded, and, mentally ill persons to treatment in the least restrictive environ- 
ment (e.g., Linden v. King; Gustafson v. Mahoney); the rights of emotionally 
disturbed juveniles to community-based residential placements (e.g., Jose T. v. 
Okin); the standards governing the award of attorney's fees to prevailing parties 
under the Civil Rights Attorney's Fees Act (e.g., Ingerson v. Hogan; Wescott v. 
Secretary of Health and Human Services; Coalition for Basic Human Needs v. 
King); the amount of reimbursement to be paid to providers of Medicaid ser- 
vices by the Commonwealth (e.g., Massachusetts Hospital Association v. Sec- 
retary of Health and Human Services); and questions relating to compliance 
with various consent decrees entered into by state defendants during the 1970's 
(e.g., Brewster v. Dukakis, Ricci v. Okin and four consolidated cases, and 
Fortin v. Spirito). In addition, the Government Bureau was actively involved in 



P.D. 12 103 

a number of proceedings before the United States Bankruptcy Court, in which 
Medicaid providers filed for bankruptcy. The 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 this fiscal year, Government Bureau lawyers were involved in 28 
cases decided by the Supreme Judicial Court. Several of these cases involved 
the timely issues of property taxation and financial aid to cities and towns. In 
Massachusetts Teachers Association v. Secretary of the Commonwealth, Bureau 
attorneys successfully defended the constitutionality of "Proposition 2 , /2," an 
initiative petition limiting the levels of municipal property and excise taxes. In 
another property tax case, City of Newton v. Commissioner of Revenue, the 
court upheld guidelines issued by the Commissioner of Revenue for determining 
the limitation of Newton's property tax levy for fiscal year 1982. In Mayor of 
Boston v. Treasurer and Receiver General, a legislative proviso restricting 
Boston's use of state aid was held to violate the Home Rule Amendment of the 
Massachusetts Constitution. 

Two important insurance cases were handled by Bureau attorneys before the 
Supreme Judicial Court this year. In Massachusetts Auto Rating and Accident 
Prevention Bureau v. Commissioner of Insurance, a team of Bureau attorneys 
successfully defended the 1981 auto insurance rates established by the Commis- 
sioner of Insurance. In Kartell v. Blue Shield of Massachusetts, Inc., in which a 
Bureau attorney represented the Commissioner of Insurance, the court 
responded to questions of law certified to it by the United States District Court 
concerning the rights and duties of Blue Cross and Blue Shield under state law. 
In several cases, Bureau attorneys were called upon to defend the validity of 
state statutes and regulations. Those cases included: Massachusetts Council of 
Construction Employers, Inc. v. Mayor of Boston, in which the court held that 
3.L. c. 149, §26, giving employment preference to Massachusetts residents for 
positions in state-funded construction projects, is unconstitutional (the City has 
ippealed to the Supreme Court the portion of that decision affecting a mayoral 
executive order); Guaranty Mortgage Corporation v. Town of Burlington, in 
vhich a Bureau attorney successfully defended a procedural due process chal- 
enge to the constitutionality of G.L. c. 60, §79, governing the sale of low-value 
and for non-payment of taxes; and Zoning Board of Appeals of Wellesley v. 
dousing Appeals Committee, in which the court upheld the validity of a state 
egulation defining low or moderate income housing. 

Several of the cases handled by the government Bureau before the Supreme 
udicial Court this year concerned the administrative powers of judges. In 
ittorney General v. Administrative Justice of the Boston Municipal Court, the 
ourt ruled that, due to the effective Governor's veto of certain line items in the 
982 budget, the Administrative Justice of the Boston Municipal Court does not 
lso hold the position of Administrative Justice of the Housing Court. In Brach 
. Chief Justice of the District Court Department, the court struck down a 
egulation promulgated by the defendant requiring persons convicted of certain 
lotor vehicle offenses to surrender their drivers' licenses to the court. In Clerk 
f the Superior Court for the County of Middlesex v. Treasurer and Receiver 



104 P.D.12 

General, the court upheld the validity of a centralized bank account system 
adopted by the Chief Administrative Justice of the Trial Court. 

During fiscal year 1982, Government Bureau attorneys represented the Com- 
missioner of Revenue in six appeals to the Supreme Judicial Court from deci- 
sions of the Appellate Tax Board. In Commisssioner of Revenue v. Massachu- 
setts Mutual Life Insurance Co. , the court upheld the constitutionality of G.L. c. 
63 A, §22 A, which governs the assessment of excise taxes to be paid by domes- 
tic insurance companies. In Seller Corp. v. Commissioner of Revenue, the court 
upheld the Commissioner's imposition of a meals tax on certain items sold 
through vending machines. In Southeastern Sand & Gravel, Inc. v. Commis- 
sioner of Revenue, the count held that a corporation engaged in quarrying and 
crushing stone is not a "manufacturing" corporation entitled to a tax 
exemption. 

Two other significant Government Bureau cases decided by the Supreme 
Judicial Court this year are Draper v. Town Clerk of Greenfield, the first 
attorneys fees case decided by the Supreme Judicial Court under 42 U.S.C. 
§1988, and Bradley v. Commissioner of Mental Health, in which the court held 
that the trial court's order requiring the defendant to provide a less secure mental 
health facility for the plaintiff exceeded the court's authority and amounted to a 
usurpation of executive and legislative functions. 

Bureau lawyers also participated in eighteen cases decided by the state 
Appeals Court this year. Among the most significant of those cases was Robin- 
son v. Secretary of Administration and Finance, in which the Appeals Court 
vacated a preliminary injunction entered by the Superior Court, thereby enabling 
the Secretary to implement a $4 semi-annual fee for the inspection of motor 
vehicles. Other Government Bureau cases decided by the Appeals Court this 
year involved issues of termination of parental rights (e.g., Custody of a Minor 
(No. 2); Petition of the Department of Public Welfare to Dispense with Consent 
to Adoption); personnel and civil service matters (e.g., Commissioner of the 
MDC v. Civil Service Commission; Young v. Commissioner of Public Safety); 
taxation (e.g., Board of Assessors of Provincetown v. Commissioner of Reve- 
nue); and suspension of licenses (Rao v. Board of Registration of Real Estate 
Brokers; Griffin's Brant Rock Packaging Store Inc. v. ABCC). 



AFFIRMATIVE LITIGATION DIVISION 

The Attorney General has established the Affirmative Litigation Division in 
the Government Bureau in order to represent the Commonwealth and its officers 
and agencies when performance of their official duties or protection of their 
interests require resort to the state or federal courts. 

The affirmative litigation cases which the Government Bureau brings may be 
divided into three broad, and sometimes over-lapping, categories: (1) advocacy 
litigation; (2) federal program litigation; and (3) enforcement litigation. The first 
category includes cases which the Attorney General commences on behalf of a 
state agency with an advocacy responsibility or in the furtherance of his own 
obligation to advance the public interest or to protect the interest of the Com- 
monwealth as a sovereign. The second category, litigation related to federal 



P.D. 12 105 

programs continues to account for a substantial portion of the Bureau's affirma- 
tive litigation efforts. These cases also tend to be the most significant ones in 
terms of financial value since federal government programs involve hundreds of 
millions of dollars due to the Commonwealth and its citizens. Finally, in cases 
of the third category, the Bureau performs the traditional enforcement function 
of the Attorney General by commencing suit on behalf of state regulatory and 
licensing agencies. The following paragraphs contain brief descriptions of sig- 
nificant or representative cases litigated during the reporting year. 

In Commonwealth v. New Hampshire, the Bureau 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 hydro- 
electric power by the New England Power Company. The cost of that decision 
to Massachusetts consumers was estimated to be in excess of one hundred 
million dollars annually. Following the New Hampshire Supreme Court's 
affirmance of the PUC order, the Government Bureau sought further review in 
the United States Supreme Court. After granting review, the Supreme Court 
reversed the New Hampshire decision, agreeing with the Attorney General's 
argument that the decision amounted to unconstitutional interference with inter- 
state commerce and discrimination against the Commonwealth and its citizens. 
The ultimate result of this action is to prevent a significant rise in electric rates 
across the entire Commonwealth. 

In another example of advocacy litigation, the Attorney General directed the 
Government Bureau, together with the Consumer Protection Division, to com- 
mence actions against nursing homes and other health care institutions to obtain 
appointment of receivers to take over their operation. In Commonwealth v. 
Newburyport Manor Chronic Hospital, Inc., et al., the Department proceeded 
under G.L. c. Ill, §56, and obtained the appointment of a receiver to manage 
two chronic care facilities with over 200 patients when the owners and mortgag- 
ees refused to continue their operation. Both facilities were subsequently sold to 
a third party. In Bellotti v. Steven S., Inc. dlbla Newburyport Manor Nursing 
Home, Government Bureau attorneys sought and obtained the appointment of 
the first receiver pursuant to the newly enacted G.L. c. Ill, §§72M, when the 
failure of the owner to provide essential services had created an emergency in 
the facility potentially threatening the health and safety of the patients. 

Occasionally, the Government Bureau is called upon to litigate against politi- 
cal subdivisions of the Commonwealth to vindicate the Commonwealth's and 
the public's interest. For example, in Commonwealth v. County of Suffolk, the 
Government Bureau, on behalf of the Trial Court of the Commonwealth, sued 
Suffolk County, the Mayor of Boston, and others, to stop an effort to terminate 
or reduce the level of services provided at the Suffolk County Courthouse. The 
defendants' actions created a significant threat to the Trial Court's ability to 
continue the effective administration of justice in Suffolk County and the 
Supreme Judicial Court entered an injunction requiring the defendants to con- 
tinue to provide necessary services and facilities at the courthouse. 

An example of federal program litigation is Ambach, et al. v. Bell, an action 
commenced by Government Bureau attorneys in concert with nine other states 
against the Secretary of Education seeking to require him to use 1980 census 
data as the basis for allocating Title I/Chapter I funds to the states and local 



106 P.D.12 

school districts. The Secretary insisted on attempting to allocate the funds on the 
basis of 1970 census data. The use of 1970 census data would have resulted in 
the loss of over $9 million in federal Title I aid to the Commonwealth. Late in 
FY 1982 the district court entered a preliminary injunction which prohibited the 
Secretary from distributing Title I funds on the basis of 1970 census data. 
Although the Court of Appeals vacated that injunction, the Congress has since 
enacted legislation which restores the funds which Massachusetts would receive 
under the 1980 census data. 

In another example of federal program litigation, the Government Bureau 
initiated litigation on behalf of the Department of Public Welfare against the 
Federal Department of Health and Human Services, seeking to compel that 
agency to contribute its share of financial participation for the cost of Medicaid 
abortions paid for by Massachusetts in compliance with orders of the Court of 
Appeals for the First Circuit in Preterm, Inc. v. Dukakis. The disallowance 
covers the period August, 1978, through June, 1980, and will amount to over 
$700,000 in federal funds. The Bureau argues that the Commonwealth is enti- 
tled to receive federal reimbursement for the payment of Medicaid abortions for 
which it was ordered to pay solely because of its participation in the federal 
Medicaid program, the restrictions of the so-called Hyde Amendment notwith- 
standing. The case is in the initial stages of litigation before the United States 
District Court. 

The Government Bureau also filed two separate actions on behalf of the 
Department of Public Welfare in the United States District Court against the 
Secretary of Health and Human Services relating to an ongoing dispute over 
payment of federal reimbursement to the Commonwealth under the Medicaid 
program when long-term care facilities which received Medicaid payments from 
the state are later adjudicated bankrupt or cease business. These cases have been 
argued and are pending decision in the First Circuit. 

As in past years, the Government Bureau commenced many lawsuits to 
enforce the licensure requirements, regulations, and orders of state agencies. 
For example, in Commonwealth v. Yamilkowski, the Bureau obtained a prelimi- 
nary injunction against an individual who was installing formaldehyde insula- 
tion, a substance banned by the Commissioner of Public Health as creating a 
health hazard. This case represents one of the many situations in which the 
Bureau must bring suit to enforce decisions and orders issued by state agencies 
which, without aggressive enforcement, would fail to achieve their intended 
effect. 

OPINIONS AND BY-LAW 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 Gen- 
eral, the Attorney General gives opinions only to state agencies, departments 
and the officials who head those entities. The Attorney General does not render 
opinions to individual employees of a state agency. He does not answer legal 



P.D. 12 107 

questions posed by county or municipal officials or by private persons or 
organizations. 

The questions which the Attorney General considers in legal opinions must 
have an immediate, concrete relation to the official duties of the state agency or 
officers requesting the opinion. In other words, hypothetical or abstract ques- 
tions or questions which ask generally about the meaning of a particular statute, 
lacking a factual underpinning, will not be answered. 

The Attorney General does not render opinions on questions raising legal 
issues which are or soon will be the subject of litigation or that will 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 constru- 
ing federal statutes or the constitutionality of proposed state or federal 
legislation. 

(2) Procedures for Requesting an Opinion 

In an effort to make the Attorney General's opinion rendering function as 
effective, helpful and efficient as possible, the Opinions Division has estab- 
lished a number of procedural guidelines to govern opinion requests. 

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

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 inappro- 
priate 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 in addition to the 
requestor, the Opinions Division will solicit the views of such interested parties 
before rendering an opinion. In this way, the Attorney General seeks to make 
sure that he does not overlook significant and relevant considerations. 

The Attorney General strongly discourages the issuance of informal opinions. 
Informal opinions are often relied upon as though they are formal opinions of 
the Attorney General. In a number of instances, this reliance has been seriously 



108 P.D.12 

misplaced. As a result, the Attorney General is intent upon limiting the issuance 
of informal opinions to situations of absolute necessity. 

(3) Synopses of Opinion Requests 

Approximately 130 requests for an opinion of the Attorney General were 
received during FY 1982. Seventeen formal opinions of the Attorney General 
were rendered, some of which are summarized below. 

Most of these opinions concerned questions of statutory construction neces- 
sary to the daily functioning of various state agencies. One such opinion request 
came from the Secretary of Administration and Finance who asked whether the 
Chairman of the State Ballot Law Commission, a retired judge receiving a 
pension, might receive additional compensation for his services as chairman 
without waiving his pension benefits. The Attorney General determined that the 
Chairman might receive both compensation and a pension as long as he did not 
serve as Chairman for more than 90 days and the total amount of both were not 
more than the amount of his salary before retirement. 

The Commissioner of Public Safety asked whether the Chief of Inspections 
within his Department has police powers such that the Commissioner would be 
required to report him to the Board of Retirement along with other employees 
possessing police powers. The Attorney General concluded that, unlike the 
police powers specifically given to other inspectors, the conferring of police 
powers upon the Chief of Inspectors is within the discretion of the Commis- 
sioner; until such power is given, the Chief does not come under the statutory 
requirement that he be reported by the Commissioner to the Retirement Board. 

The Chief Administrative Justice of the Trial Court asked whether the Clerk 
of Court might receive compensation for duties performed as a part-time court 
librarian outside his normal working hours. The Attorney General concluded 
that although a state employee may not receive more than one annual salary 
from the Commonwealth, this does not preclude his receiving additional "com- 
pensation" for special services performed outside the ususal working hours of 
his position. 

The District Attorney for Berkshire County asked whether he was authorized 
to defend the county sheriff in a civil action under the federal civil rights act, 42 
U.S.C. §1983 (1976). The Attorney General concluded that notwithstanding a 
provision in G.L. c. 258, §9, which authorizes public employers to indemnify 
public employees for violations of the federal civil rights laws, the District 
Attorney in his capacity as "public attorney" is only empowered to defend civil 
actions brought against the county pursuant to G.L. c. 258, §2, and not those 
actions brought against its officers or employees. 

The District Attorney for Middlesex County asked whether the use of record- 
ing equipment by the City of Cambridge on its emergency, business, and 
internal phone lines constitutes an "interception" as proscribed by the eaves- 
dropping statute, G.L. c. 272, §99 (B) (4), and whether the "beep" on the line 
is sufficient to signal to the calling party that the conversation is being recorded, 
thereby removing the practice from the statutory prohibition. The Attorney 
General concluded that the "beep" does not give the caller the requisite "actual 
knowledge" of the recording and, therefore, use of business or emergency lines 
with or without the "beep" is statutorily impermissible. 



P.D. 12 109 

The Director of Employment Security asked whether a decision remanded to 
the Director by the Board of Review for the purpose of taking additional 
evidence requires the Director to issue a new decision and if not, whether the 
Director is required to make new findings of fact regarding the remanded case. 
The Attorney General concluded that the Director was not authorized to issue a 
new decision, but was required to make new findings of fact when the evidence 
at the remand hearing differs in any way from that at the original hearing. 

Four other opinion requests focused upon the financial administration of the 
Commonwealth. The Commissioner of Education asked whether under the 
School Building Assistance Act, st. 1948,. c. 645, the Department of Education 
is required to continue to make reimbursement payments to cities and towns for 
buildings which are no longer used for school purposes. The Attorney General 
concluded that the statute had to be read strictly; since it did not contain an 
express provision for discontinuance of reimbursment payment, the discontinu- 
ance is unauthorized. 

The Treasurer and Receiver General inquired regarding the amount of pension 
to be paid to the widow of a firefighter or police or corrections officer killed in 
the performance of his duties. The Attorney General concluded that the amount 
of pension should be the amount of the officer's salary at the time of his death, 
plus whatever salary increments he would have received thereafter. 

The Chairman of the Arts Lottery Council asked whether the deduction from 
the Arts Lottery Fund for arts lottery expenses for fiscal year 1981 is limited to 
15% of the total arts lottery revenues for that year. The Attorney General 
concluded that the Arts Lottery Fund is comprised of revenues from lottery 
tickets, minus prizes and the expenses of the State Lottery Commission in 
administering the arts lottery. Since such expenses are not limited by statute, all 
related expenses of the Commission may be deducted. 

The State Librarian inquired whether it is within the powers of the Board of 
Trustees of the State Library to dispose of books unsuitable for state library 
purposes and whether the proceeds from their sale might be placed in trust to be 
used for the needs of the library. Although the Attorney General opined that 
disposal of the books is within the discretion of the Library Board of Trustees, 
he concluded that the proceeds must be deposited in the state treasury. 

Other requests centered around the question of whether certain individuals 
meet the statutory qualifications for appointment to the positions they seek. In 
response to the Inspector General's question whether, pursuant to chapter 388 of 
the Acts of 1981 , he might hire individuals who were temporarily assigned from 
other state agencies to the Special Commission Concerning State and County 
Buildings, the Attorney General concluded that such appointment was precluded 
by the broad statutory prohibitions against appointment within the Inspector 
General's Office of any person, paid or volunteer, who served with the Special 
Commission. 

In his capacity as Chairman of the Commission organized under G.L. c. 55, 
§3, for the purpose of selecting the director of campaigns and political finance, 
the Secretary of State asked whether he might appoint a current member of the 
General Court to the Office of Director of Campaign and Political Finance. The 
question required the application of Article 65 of the Amendments to the 



110 P.D.12 

Massachusetts Constitution which provides that "no person elected to the gen- 
eral court shall during the term for which he was elected be appointed to any 
office created or the emoluments whereof are increased during such term." The 
Attorney General concluded that Article 65 would not prohibit such an 
appointment. 

The District Attorney of Middlesex County asked whether he might crimi- 
nally prosecute individuals who make false police reports as a common law 
crime since there is no specific statutory prohibition. The Attorney General 
concluded that although there is no specific criminal liability for false reports to 
police offficers, they may still be liable for the common law offense of obstruc- 
tion of justice. 

The Commissioner of Education asked which veterans employed by the 
Department are included within the Veteran's Tenure Act so as to require a 
hearing before being laid off due to lack of funds. The Attorney General 
determined that as long as a veteran has served three consecutive years in the 
same position, he or she is covered by the Act regardless whether he or she is on 
a part-time payroll. 

The Director of the Division of Standards asked whether G.L. c. 94, §303F, 
prohibits oil dealers from, selling home heating oil by the gallon on a tempera- 
ture-compensated basis. The Attorney General concluded that although a stan- 
dard temperature for a gallon of oil at the time of delivery might be a better 
approach for retail oil sales, the statute requires that the statement of quantity of 
retail oil be expressed in gallons at ambient temperatures. 

The Commissioner of Public Health asked two questions concerning his 
responsibilities to license certain health care facilities. The first concerned 
whether a building constructed as a motel might be renovated, remodeled, and 
licensed as a hospital under G.L. c. 111. The Attorney General concluded that 
licensure under G.L. c. Ill would require that the building have been originally 
constructed as a hospital, even when a conversion would enable the building to 
meet construction standards. The Commissioner also asked whether a profes- 
sional corporation which does not use the term "clinic," "dispensary," or 
"institute" in its name and which submits documents showing one physician as 
its sole shareholder, director, and officer, is exempt from the "clinic" licensure 
requirements of G.L. c. Ill, §51, because of the "solo or group practice" 
exception to those requirements. The Attorney General concluded that such a 
determination is within the purview of the Department itself, may require a 
factual evaluation, and offered guidelines for the Department in making these 
determinations. 

(4) By-Laws 

Town by-laws, home rule charters, and amendments thereto are reviewed and 
must receive approval of the Attorney General prior to becoming effective. The 
review function is performed by attorneys in the Government Bureau. During 
the fiscal year ending June 30, 1982, the Bureau reviewed over 1500 by-laws 
and a half dozen home rule charter actions. 

The regulation of pesticides, hazardous and radioactive waste, and the dis- 
charge of firearms were frequent subjects of by-laws reviewed during the past 
year. Also, the Attorney General considered and disapproved several by-laws 



P.D. 12 111 

which sought to regulate condominium conversions without proper enabling 
legislation. 

Many towns have increased their fees in response to a legislative change 
allowing them to do so. Some by-laws increasing fees were disapproved on the 
grounds that the charge exceeded the cost of the service to be rendered. 

August 4, 1981 
Number 1. 

Gregory R. Anrig, Commissioner 
Department of Education 
31 St. James Avenue 
Boston, Massachusetts 02116 

Dear Commissioner Anrig: 

You have requested my opinion whether the Board of Education must con- 
tinue to make reimbursement payments to cities and towns pursuant to the 
School Building Assistance Act, Chapter 645 of the Acts of 1948, as amended 
(hereafter, "Chapter 645"), if the building for which the payments were author- 
ized is no longer used for school purposes. Your request derives from your 
responsibilities to the Board of Education concerning its 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 Chapter 645 requires 
the Board of Education to continue to make payments to cities and towns even if 
the building for which the payments were authorized is no longer used for 
school purposes. 

The School Building Assistance Act created a program of finite duration 
whereby state financial assistance was extended to political subdivisions 
involved in eligible school building projects. Originally scheduled to expire at 
the conclusion of fiscal year 1951 , it has been extended by a series of legislative 
enactments through the end of the fiscal year just passed. By the express terms 
of the statute, however, the payments provided by section nine are to be 
continued thereafter by the state Treasurer, subject to appropriation, in accor- 
dance with the provisions of said section, on certification by the Commissioner 
of Education. St. 1948, c. 645, §10, as amended by St. 1976, c. 302, §7. 

Chapter 645 is a mechanism for providing financial assistance to cities and 
towns for the construction of school buildings. With amendments over the years 
since its initial passage, Chapter 645 remains the primary statute for this pur- 
pose. Each school building project undergoes a chronology of development and 
financing. After a need for the project is established and plans developed, the 
Board of Education approves the project. The locality issues bonds or notes, 
usually of 20-year duration, builds the project, with payment to contractors for 
work accomplished, and accepts the completed project. The Board of Education 
then approves its final cost. The locality repays the bonds or notes, and the 
Commonwealth, by the Board of Education, reimburses a percentage of the 
cost. (St. 1948, c. 645, §§6, 7, 8, 8A, 9, as amended.) 

Upon an earlier request from you, I had an opportunity to opine on this 
statute. 1974/75 Op. Atty. Gen. No. 60, Rep. A.G., Pub. Doc. No. 12 at 141 



112 P.D.12 

(1975). At that time you requested an opinion whether the Board of Education 
could elect to make bond or note reimbursement payments to local authorities 
according to alternative payment schedules. I concluded that the Board could 
not. At that time I noted the language of Chapter 645 to be plain and unambigu- 
ous and that any alternatives to the mandatory language of the statute must come 
through legislative change. 

My predecessor has also advised you regarding Chapter 645 and has con- 
cluded that because the statute does not expressly so provide, the board may not 
rescind its approval of a proposed project. 1974/75 Op. Atty. Gen. No. 30, 
Rep. A.G., Pub. Doc. No. 12 at 74 (1974). In so concluding, then Attorney 
General Quinn opined: 

A Board refusal to honor a request for funds for an approved 
project would so contradict the express direction of the Legislature . 
. . that it would be unlawful. Furthermore, approval by the Board is 
a significant event; when a locality receives notice of approval, 
substantial legal consequences immediately ensue: the city then pos- 
sesses the authority to borrow an amount equal to the estimated 
grant. See St. 1948, c. 645, as amended, §8 (fourth paragraph). 1 
A review of Chapter 645, as amended, similarly reveals no express provision 
for the discontinuance of reimbursement payments even if the building for 
which the payments were authorized is no longer used for school purposes. 2 
Based upon the prior opinions of the Attorney General and the governing rules 
of statutory construction, I must conclude that the Board has no authority to 
discontinue payments. While I am mindful of the practical implications of this 
conclusion, including the apparent contravention of the program's purpose' , the 
scope of the operation of the statute cannot be extended by any construction 
beyond its apparent limits. Worcester v. Quinn, 304 Mass. 276, 280 (1939). 
The unambiguous language of a statute is not susceptible to a construction to 
avoid hardship. Rosenbloom v. Kokofsky, 373 Mass. 778, 781 (1977); Milton v. 
Metropolitan District Commission, 342 Mass. 222, 227 (1961). Moreover, 
despite administrative temptation, a statute must be interpreted "without 
enlargement or restriction and without regard to one's own ideas of expedi- 
ency". See v. Building Com'r of Springfield, 246 Mass. 340, 343 (1923). 
Statutes are to be construed as written, and contingencies for which no provi- 
sions are made do not justify judicial legislation. Prudential Ins. Co. of America 
v. City of Boston, 369 Mass. 542, 547 (1976). 

As my predecessor has noted, "[T]he Legislature has not been unwilling to 
modify Chapter 645 of the Acts of 1948 where the same was required." 



The legal consequences referred to by my predecessor are nol insignificant. The statute requires bonds or notes issued by the 
municipality to "bear on their face the words, (name of city or town) School Project Loan, Act of 1948". St. 1948, c. 645, §8. 
Where the approval of a project allows a municipality to borrow in excess of its statutory limit, the purchasers of the notes and 
bonds are unquestionably acting in reliance upon the Commonwealth's commitment to the reimburse the municipality according to 
the schedule of payments set forth in section 9(d) of Chapter 645. Should reimbursement be discontinued, the detrimental reliance 
of both the municipality and the bondholder may well allow recovery against the Commonwealth. See generally Loranger Const. 
Corp. v. E.F. Hanserman Co.. 6 Mass. App. Ct. 152. 154-57 (1978). aff'd 376 Mass. 757 (1978). 

a As you correctly note. Massachusetts law assigns to the municipality, rather than to the school committee, the responsibility for 
providing school buildings and the right to control those buildings if the municipality chooses to exercise that control or if the 
buildings are not needed by the school committee. G.L. c. 71, §68; G.L. c. 40. §15A. Control of school buildings includes the 
power to sell or lease the premises. G.L. c. 40, S3. 

' That express purpose is "[t)o promote the planning and construction of school buildings an the establishment of consolidated and 
regional schools, in order to insure safe and adequate plant facilities for the public schools, and to assist towns in meeting the costs 
thereof ..." St. 1948. c. 645, §1. 



P.D. 12 113 

1972/73 Op. Atty. Gen. No. 15, Rep. A.G., Pub. Doc. No. 12 at 67, 69 
(1973). Each amendment has given the Legislature ample opportunity to address 
previous oversights in the Act. I do not express my view as to the value or 
wisdom of pursuing a legislative amendment which would permit withholding 
reimbursements from cities and towns if the building for which the payments 
were authorized is no longer used for school purposes. I simply conclude that 
the controlling law presently does not permit such a withholding. 
For the foregoing reasons, I answer your question in the negative. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

October 9, 1981 
Number 2. 

Robert Q. Crane 

Treasurer and Receiver General 

State House 

Room 227 

Boston, Massachusetts 02133 

Dear Mr. Crane: 

You have requested my opinion as to the amount of pension under G.L. c. 
32, §100, to be paid to the widow of a firefighter, police officer or correction 
officer who is killed in the performance of his duties. More specifically, you ask 
whether the amount of the widow's pension may increase periodically or 
whether it remains fixed at the maximum salary set for the officer's position at 
the time of his death. 

For the reasons set forth below, I am of the opinion that the amount of 
pension immediately payable shall be the maximum salary set for the deceased 
officer's position at the time of death and that thereafter the widow is entitled to 
whatever increases in salary the officer would have received had he remained in 
that position. 

The receipt of pensions by widows of firefighters, police officers or correc- 
tions officers who are killed in the performance of their duties is governed by 
G.L. c. 32, §100, as amended,' which provides, in pertinent part: 

[T]here shall be paid to the widow of such firefighter, police 
officer or corrections officer an annual amount of pension which 
shall be equal to the amount of salary which would have been paid 
to such firefighter, police officer or corrections officer had he con- 
tinued in service in the position held by him at the time of his death; 
provided, however, that the amount of pension immediately payable 
shall be equal to the maximum salary set for the position whether or 



General Laws chapter 32, section 100, has been subject to numerous amendments in recent years. For example, in 1970, the 
Legislature amended the first sentence thereof by adding the present words which establish the amount of the widow's benefits. St. 
1970, c. 318. In 1971, the Legislature amended the statute to provide benefits for the widows of police officers of the 
Massachusetts Bay Transportation Authority, St 1971. c. 1012. and in 1973, for widows of corrections officers, St. 1973, c. 685. 



114 P.D.12 

not such firefighter, police officer or corrections officer had reached 
the maximum at the time of his death. (Emphasis supplied). 

Where, as here, the language of a statute is plain, it must be interpreted in 
accordance with the usual and natural meaning of the words, Gurley v. Com- 
monwealth, 363 Mass. 595, 598 (1973); Burke v. Chief of Police of Newton, 
374 Mass. 450, 452 (1978), and so as to fulfill the legislative intent, Industrial 
Finance Corporation v. State Tax Commission, 367 Mass. 360, 364 (1975). 
While legislative intent must be ascertained by an examination of the language 
used, in connection with its legislative history and the system of law of which it 
is a part, Commonwealth v. Welosky, 276 Mass. 398, 401 (1931), the first tool 
of statutory construction is a literal reading of the words which comprise the 
subject statute. 

By the very terms of section 100, the widow shall be paid what the officer 
"would have been paid . . . had he continued in service in the position held by 
him at the time of his death." Accordingly, if the officer in the continuation of 
his service was to receive periodic pay increases, a literal application of the 
statutory terms requires that those increases be reflected in the widow's pension. 
The statute provides that the amount "immediately" payable shall be the maxi- 
mum salary set for the position of the deceased. The use of this terminology also 
indicates that the amounts of benefits payable under the statute may vary over 
time. 

This construction also fulfills its legislative intent, as reflected in the legisla- 
tive history of this provision. Prior to 1970, General Laws chapter 32, section 
100, had provided that on the date the deceased firefighter or police officer 
would have reached the maximum retirement age, the widow's pension was 
"reduced to an amount equal to the amount such firefighter or police officer 
would have received had he lived and been retired at his maximum retirement 
age." The 1970 amendment struck entirely the language which attempted to 
permanently fix the amount of the widow's pension. See St. 1970, c. 318. This 
amendment evidences the legislative aim to provide full pension benefits to 
these widows. See St. 1970, c. 318. 

An examination of the overall pension law of the Commonwealth, of which 
this provision is a part, further supports my conclusion. Various amendments to 
chapter 32 "evidence an increasing recognition of the obligation of the public 
toward those who enter its service in occupations involving risk of injury and 
death." Acford v. Auditor of Cambridge, 300 Mass. 391, 393-94 (1938). I must 
presume, for example, that the Legislature was aware at the time of the 1970 
amendment of the specific provisions regarding retirement and pension benefits 
for widows and dependents contained in G.L. c. 32. 2 Condon v. Haitsma, 325 
Mass. 371, 373 (1950). Because of this presumption and because these provi- 
sions are part of an overall statutory scheme, see Registrar of Motor Vehicles v. 
Board of Appeal on Motor Vehicle Liability Policies and Bonds, Mass. Adv. 



- General Laws chapter 32, section 9. for example, governing accidental death benefits for the dependent of the deceased 
beneficiary, fixes the yearly amount of pension at 72% of the deceased's annual rate of compensation on the date such injury was 
sustained or at 72% of the average rale of compensation for the prior twelve month period Similiarly, under G.L. c. 32, 589B, 
widows of police officers or firefighters may receive "an accidental death benefit allowance to consist of a yearly amount of 
annuity equal to two thirds of the annual rate of regular compensation of such police officer or firefighter on the date such injury 
was sustained or such hazard was undergone ..." On the other hand. General Laws chapter 32, section 100, reflects a legislative 
determination that widows of employees of fire and police departments and corrections agencies who are killed while undergoing 
the risks inherent in their positions are to receive greater benefits. 



P.D. 12 115 

Sh. (1981) 415, 420, I must conclude that these distinctions are intentional. 
Thus, if the Legislature has intended to fix the widow's pension at the maximum 
salary of the officer at the time of his death, it would have so specified. 

I note that my conclusion is consistent with my construction of this statute in 
a previous opinion which I have rendered to you. See 1975/76 Op. Att. Gen. 
No. 7, Rep. A.G., Pub. Doc. No. 12 at 76 (1975). In that opinion I had 
occasion to comment upon the purpose of section 100, as follows: 

An analysis of the language and history of §100 indicates that its 
purpose is to give a full pension to widows of those employees of 
the fire department, police department, and corrections agencies 
who, as a result of their duties, are exposed to the risk of danger on 
a day-to-day basis. In this regard, it is important to note that the 
amending legislation to G.L. c. 32, §100 has been expansive in 
nature. Id. 
For the foregoing reasons, it is therefore my opinion that the amount of 
benefits payable to widows under G.L. c. 32, §100, is not fixed at the maximum 
salary for the respective position at the time her spouse is killed in the perform- 
ance of his duties, but, rather, must increase each year as if the deceased 
firefighter, police officer or corrections officer remained in that position. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

October 13, 1981 
Number 3. 

Edward T. Hanley, Secretary 

Executive Office for Administration and Finance 

State House 

Boston, Massachusetts 02133 

Dear Secretary Hanley: 

You have requested my opinion whether the chairman of the State Ballot Law 
Commission, a retired judge receiving a judicial pension, may receive additional 
compensation for his service as chairman. You have requested this opinion 
because the present chairman has asked you whether he may receive compensa- 
tion at the rate set by the Governor' without waiving his pension benefits. 

For the reasons discussed below, it is my opinion that the chairman may 
receive both his judicial pension and also his compensation as chairman, but 
only (1) if his services actually rendered as chairman do not exceed ninety days 
or seven hundred and twenty hours (720) in the aggregate in any calendar year 
and (2) his earnings as chairman, when added to his pension, do not exceed the 
salary which is being paid for the position from which he was retired. If these 



By letter of March 19, 1980, you informed the present chairman that the Governor has determined the rate of compensation for 
members of the State Ballot Law Commission to be $150 00 per day per member, not to exceed $2500., plus reimbursement for 
expenses. Prior to that time, however, you had already informed the chairman that he may not accept compensation for his services 
without waiving pension benefits. 



116 P.D.12 

two conditions are not met, he may not receive compensation without waiving 
his pension benefits. He can. at any rate, be reimbursed for his expenses 
incurred in rendering such services. 

The chairman's claim to entitlement to compensation arises under General 
Laws chapter fifty-five B, sections one and three. That former section provides 
in pertinent part as follows: 

There shall be a state ballot law commission consisting of five 
persons to be appointed by the governor, one of whom shall be a 
retired justice of the supreme judicial court, appeals court, superior 
court or district courts of the commonwealth who shall be chairman. 

Section three sets forth, inter alia, the compensation to be paid members of the 
commission and provides that: 

The members . . . shall each be paid such compensation for their 
services not exceeding twenty-five hundred dollars annually, as the 
governor may determine, and shall be reimbursed for expenses 
necessarily incurred in the performance of their duties . . . 

Because the chairman is to be a "retired justice," these statutory provisions 
must be read in conjunction with General Laws chapter 32, section 91. which 
sets forth the circumstances under which a retired government employee may 
receive both pension benefits and compensation for government service during 
the period of retirement. See 1978/79 Op. Arty. Gen. No. 27, Rep. A.G.. Pub. 
Doc. No. 12 at 152, 154 (1979). General Laws chapter 32, section 91(a) begins 
with the general prohibition that: 

[n]o person while receiving a pension or retirement allowance 
from the commonwealth . . . shall, after the date of his retirement be 
paid for any service rendered to the commonwealth . . . 

This provision goes on to enumerate fifteen (15) specific exceptions to the 
general "no compensation" rule, none of which are relevant to the instant 
situation.- Each of these exceptions is both severely delimited and attaches only 
to a specific situation. No specific exception comprehends the service of a 
retired justice who serves as the chairman of the State Ballot Law Commission. 
The fact, however, that there are fifteen exceptions to the general rule, four of 
which may apply to retired justices, indicates a legislative intent to carefully 
proscribe the general prohibition of the statute. Cf. Brady v. Brady, Mass. Adv. 
Sh. (1980) 1053, 1056; Harboniew Residents Comm., Inc. v. Quincy Housing 
Authority, 368 Mass. 425, 432 (1975) (express mention of one matter in a 
statute indicates legislative intent to exclude by implication other similar matters 
not mentioned). 

General Laws chapter 32. section 91(a), goes on to provide a waiver proce- 
dure whereby an "apointed official" shall receive compensation if he waives 



2 Of these fifteen exceptions, four (4) apply directly to different forms of services which may be rendered bv retired justices, that is. 
services under the provisions of section twenty-four of chapter two hundred and eleven, section sixteen of chapter two hundred and 
eleven A. and section fourteen of chapter two hundred and eleven B. and for services rendered as an auditor or master by 
appointment of the probate court, the superior court or the supreme judicial court. See St 1978. c. 478. §15. 



P.D. 12 117 

his retirement rights during the same period. 3 As an official appointed by the 
Governor for a term of years. 4 the retired justice who serves as chairman of the 
State Ballot Law Commission falls directly within this waiver section. There- 
fore, of course, the retired justice may receive compensation as chairman of the 
State Ballot Law Commission if he files the proper waiver documentation with 
the treasurer of the Commonwealth and thereby waives his pension rights 5 
during his statutory term. 

In addition. General Laws chapter 32. section 91(b). sets forth the conditions 
by which compensation may be paid to retirees for limited government sen ice. 
That subsection provides in pertinent part: 

In addition to and notwithstanding the foregoing provisions of 
this section or similar provisions of any special law. any person who 
has been retired and who is receiving a pension or retirement allow- 
ance, under the provisions of this chapter or any other general or 
special law. from the commonwealth . . . may. subject to all laws, 
rules and regulations, governing the employment of persons in the 
commonwealth ... be employed in the service of the common- 
wealth . . . for not more than ninety days, or seven hundred and 
twenty hours in the aggregate, in any calendar year, provided that 
the earnings therefrom when added to any pension or retirement 
allowance he is receiving do not exceed the salary that is being paid 
for the position from which he was retired . . . (Emphasis added). 

Thus, by a specific and narrow exception to the broad prohibition of section 91 
(a), the Legislature has clearly provided a means whereby the chairman, even 
though appointed by the Governor for a term of years, may be compensated for 
temporarily providing his services. 7 See 1978/79 Op. Attv. Gen. No. 27. Rep. 
A.G., Pub. Doc. No. 12 at 152. 154 (1979). 

Finally. I conclude that the chairman may be reimbursed for his necessary 
expenses incurred in serving in that capacity. This is so because the general 
prohibition contained in G.L. c. 32. 91(a). is directed to payment ""for any 
services rendered" and does not proscribe reimbursement for expenses incurred 
in rendering such services. 1964/65 Op. Arty. Gen.. Rep. A.G.. Pub. Doc. No. 
12 at 230 (1965). 



3 The relevant language is as follows: 

Notwithstanding the foregoing provisions of this section or similar provisions of any special law. a person who. while 
receiving such a pension or retirement allowance, is appointed for a term of years to a position by the governor . . shall be 
paid the compensation attached to such position: provided, that he files with the treasurer of the governmental unit paying 
such pension or allowance, a written statement wherein he waives and renounces . . . his right to receive the same for the 
period during which such compensation is payable 

' General Laws chapter 55B. section 1. provides in part that: 

The chairman shall serve for a term of one year from February first of the year in which he was appointed and may be 
reappointed for further terms. The other members of said commission shall serve for terms of two years from February first 
of the sear in which they were appointed and may be reappointed for further terms. 

J The pension benefits for retired justices of the Trial Court of the Commonwealth who have been appointed prior to January 2. 
1975, are set forth in G.L. c. 32. §65A. Pension benefits for those appointed on or after that date are set forth in G.L. c. 32. §65D. 

6 G.L. c. 32. §91(bl was inserted by St. 1968. c. 676. "An Act Permitting Persons Retired From Public Service To Be Employed 
Therein For Not More Than Ninety Days In The Aggregate In An) Calendar Year.*' The manifest intent of this subsection is to 
permit retirees to return to service on a limited, part-time basis without waiving pension benefits It applies, regardless of the 
duration of a particular appointment, whenever the retiree's service is actually limited to ninety days or seven hundred and twenty 
hours in the aggregate, in any calendar vear Compare. G.L. C.268A. §4 (service "on not more than sixty dass "i 

' I note that at the current rate of compensation for members of the Commission, as established by the Governor, the chairman, in 
any event, will be compensated for only 16 2 3 days' service, and in an amount not to exceed S2500. 



118 P.D.12 

It is my opinion, therefore, that the chairman of the State Ballot Law Com- 
mission may receive his judicial pension during the tenure of his paid appoint- 
ment as chairman, but only in the manner provided by G.L. c. 32, §91(b). 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

November 10, 1981 

Number 4. 

John J. Droney, District Attorney 

Middlesex County 

Superior Courthouse 

East Cambridge, Massachusetts 02141 

Dear Mr. Droney: 

You have requested my opinion, pursuant to G.L. c. 12, §6, whether you 
may prosecute an individual for voluntarily making false reports to police 
officers, thereby compelling them to expend important amounts of time, 
resources and energy in futile efforts at verification. Specifically, in the absence 
of a statute explicitly making such conduct punishable as a crime, 1 you ask 
whether the making of false reports may be prosecuted in Massachusetts as a 
common law crime. For the reasons set forth below and although the question is 
ultimately one for the courts of the Commonwealth, I conclude that an individ- 
ual who voluntarily makes reports to the police which he knows to be false may 
be prosecuted in Massachusetts for the common law offense of obstruction of 
justice. 

As an initial matter, I note that there is no statute in the Commonwealth 
which makes conduct of this sort punishable as a crime. 2 The absence of any 
reference to such a crime in the General Laws 3 focuses our inquiry upon whether 
the conduct is punishable at common law in Massachusetts. See Commonwealth 
v. Jarrett, 359 Mass. 491, 494-95 (1971), and cases cited; Commonwealth v. 
Lopes, 318 Mass. 453, 457 (1945). See also G.L. c. 279, §5. Such an inquiry 
necessarily requires a review of early Massachusetts cases and the rich heritage 



A review of the general laws reveals several statutes which establish criminal liability for specific instance of false reporting . See 
G.L. c. 268, §§6 and 6A (false reports by and to certain state agencies); G.L. c. 268. §32 (false alarms); G.L. c. 269. §13 and §14 
(false reports of fires and locations of explosives). These statutes, while indicative of a general legislative aversion to false 
reporting in specific egregious circumstances, do not have a direct bearing on the specific question you have asked. The absence of 
an explicit reference in this statutory scheme to the particular conduct about which you inquire does not. however, indicate a 
legislative intent to insulate false reporting from criminal prosecution. Rather, in the absence of such a reference, the proper mode 
of analysis is to turn to the common law. Commonwealth v. Jarretl. 359 Mass. 491,495 (1971). 

2 The crime of making false reports to law enforcement officials was included in the 1972 proposed Massachusetts criminal code see 
Proposed Criminal Code of Massachusetts, c. 268, §4 (1972) ], but the Legislature has not yet seen fit to implement needed 
reforms in the many criminal statutes which may be found scattered throughout the General Laws. A federal statute, 18 U.S.C. 
§1001, has been construed to permit such conduct to be prosecuted as a federal crime. See, e.g.. United States v. Massey. 550 
F.2d 300, 305 (5th Cir. 1977) (federal statute is intended "to cover situations in which a person voluntarily seeks out a 
government agency with a statement which he knows to be false and which he has every reason to expect the agency to pursue"). 
Neither of these provisions, however, enables a district attorney to prosecute an individual for making false reports to police 
officers. 

5 But see G.L. c. 274, §4, setting forth the penalties for being an accessory after the fact of the commission of a felony. This section 
may provide for prosecution in certain circumstances of those who provide false information "with intent that [the principal felon] 
shall avoid or escape detention, arrest, trial or punishment ..." 



P.D. 12 119 

of our jurisprudential forefathers in England. Chief Justice Shaw explained the 
process succinctly in Commonwealth v. Webster, 5 Cush. 295, 303-04 (1850): 

[W]e resort to that great repository of rules, principles, and 
forms, the common law. This we commonly designate as the com- 
mon law of England; but it might now be properly called the com- 
mon law of Massachusetts. It was adopted when our ancestors first 
settled here, by general consent. It was adopted and confirmed by an 
early act of the provincial government, and was formally confirmed 
by the provision of the constitution (ch. 6, art. 6,) declaring that all 
laws which had theretofore been adopted, used, approved, in the 
province or state of Massachusetts bay, and usually practised on in 
the courts of law, should still remain and be in full force until 
altered or repealed by the legislature. So far, therefore, as the rules 
and principles of the common law are applicable to the administra- 
tion of criminal law, and have not been altered and modified by acts 
of the colonial or provincial government or by the state legislature, 
they have the same force and effect as laws formally enacted. 

See also Cassidy v. Truscott, 287 Mass. 515, 519 (1934) (the "Puritan 
colonists . . . claimed the common law as their birthright, and brought it with 
them, except such parts as were judged inapplicable to their new state and 
condition"). 

In England, an individual who voluntarily makes a report which he knows to 
be false to the police is susceptible to prosecution for the common law misde- 
meanor of "committing an act tending to the public mischief." King v. Manley, 
1 K.B. 529, 534 (1932). In Manley, a woman was successfully prosecuted on a 
charge of having effected a public mischief on the basis that she made false 
reports to the local police, requiring them "to devote their time and services to 
the investigation of false allegations, thereby temporarily depriving the public of 
the services of these public officers . . . "Id. at 529. This conduct was deemed 
actionable because at common law, "[a]ll offences of a public nature, that is, all 
such acts or attempts as tend to the prejudice of the community, are indictable." 
ID. at 534, quoting King v. Higgins, 2 East. 5, 21, (Laurence, J.). See also 
King v. Porter, 1 K.B. 369, 372 (1910) (recognizing the crime of public 
mischief). 

In America, the notion of public mischief is linked to the crime of obstruction 
of justice. See R. Perkins, Criminal Law (2nd Ed. 1969) at 494-498. Obstruc- 
tion of justice is a generic term for a category of offenses against the state. See, 
e.g., Commonwealth v. Russo, 177 Pa. Super. 470, 111 A. 2d 359, 366 (1955) 
(obstruction of justice "is a common law offense which may take a variety of 
forms"); 4 Wharton's Criminal Law, §592 (14th Ed.) 1981. See also Common- 
wealth \McKarski, 208 Pa. Super. 376, 222 A. 2d 411, 414 (1966) (linking 
obstruction of justice with the common law notion that an individual may be 
prosecuted for an offense "against the public police or economy"). In this 
respect, courts have determined that "[t]he common law is sufficiently broad to 
punish as a misdemeanor . . . any act which directly injures or tends to injure 
the public . . . . " Commonwealth v. Mochan, 111 Pa. Super. 454, 110 A. 2d 
788. 790 (1955). 



120 P.D.12 

Massachusetts appears to recognize the common law offense of obstruction of 
justice, see Commonwealth v. Reynolds, 14 Gray 87, 91 (1859), but the range 
of indictable offenses under that rubric is unclear. See, e.g., Commonwealth v. 
Devlin, 366 Mass. 132, 138 (1974), where the court refused to consider whether 
an individual charged with removing fingerprints from a knife could be prose- 
cuted at common law for obstruction of justice. In Commonwealth v. Reynolds, 
supra, the Court, while finding that a person may be prosecuted for attempting 
to deter a witness from testifying in court, noted the broad parameters of the 
crime of obstruction of justice. The Court stated that "obstruction of the due 
course of justice . . . means the due course of proceedings in the administration 
of justice. By obstructing those proceedings, public justice is obstructed." Id. at 
91. 

An individual who makes what he knows to be false reports to law enforce- 
ment officials, and whose conduct consequently requires those officials to 
expend valuable amounts of time and resources in a futile effort to verify those 
reports, is obstructing the due course of justice. Such conduct cannot be consid- 
ered as a mere prank or harmless gesture. Rather, making false reports causes 
direct injury to the general public by causing law enforcement officials to 
squander public resources which ought to be devoted to genuine public needs. 
Diverting such resources from legitimate areas of criminal investigation directly 
impedes the orderly administration of justice. In the two specific instances to 
which you refer in your opinion request, it is evident that false reporting has had 
a seriously harmful effect upon the administration of justice in Middlesex 
County/ Such disruptions should not go unchecked. 

In short, it appears that, as District Attorney for Middlesex County, you have 
the authority to prosecute for the common law crime of obstruction of justice 5 
those individuals who knowingly make false reports to law enforcement offi- 
cials. While this specific issue has never, to my knowledge, been tested in a 
Massachusetts court, 6 "[t]he test is not whether precedents can be found . . . but 
whether the alleged crimes could have been prosecuted and the offenders pun- 
ished under the common law." Commonwealth v. Mochan, supra at 790. I 
believe an indictment on a charge of obstruction of justice will lie, and that 
prosecution on this basis would be based on colorable legal grounds. Ulti- 
mately, of course, this issue is one which must be resolved by the courts of this 
Commonwealth. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



1 In one case, the false report led police astray in their investigation of a homicide. In another instance, witnesses apparently made 
false reports to an Assistant District Attorney and later recanted their testimony during preparation for trial. These instances 
graphically illustrate the serious ramifications of false reporting for the business of law enforcement in the Commonwealth. 

° An issue which may arise in the context of a common law prosecution for false reporting is the degree to which such a prosecution, 
without prior notice, infringes on a defendant's right to due process. While this is essentially an open question which must 
ultimately be resolved by the court, it would appear that colorable arguments could be fashioned to resist such a constitutional 
challenge. See. e.g.. Commonwealth v. Gallo. 275 Mass. 320, 333-334 (1931) (changed conditions "require that the common law 
within the limits of the Constitution shall adapt its principles to meet present needs"). Cf. Shoppers' World. Inc v. Board of 
Assessors of Framingham. 348 Mass. 366, 376 n.9 (1965) (re-examination of the scope of remedies is not unusual, and may be 
essential, to meet evolving constitutional interpretations). 

6 But see Commonwealth v. Lopes, 318 Mass. 453 (1945). There the Court found that the conviction of the defendants upon a count 
of conspiracy "to make false statements to the law enforcement officers, to the interference and obstruction of the due course of 
justice" was not warranted because of the lack of evidence of any conspiracy. Id. at 455. 



P.D. 12 121 

November 12, 1981 
Number 5. 

Michael J. Daly 
Acting Commissioner 
Department of Education 
31 St. James Avenue 
Boston, Massachusetts 02116 

Dear Mr. Daly: 

You have requested my opinion concerning the applicability of the Veterans' 
Tenure Act, G.L. c. 30, §9 A, to various employees within the Department of 
Education (the Department). You have requested this opinion at this time since 
the Department is being required to lay off employees due to federal and state 
funding cuts.' First, you have asked whether the Department has the "power" 
to decide that a particular position is not covered by G.L. c. 30, §9A, based 
upon the appointment and removal statutes governing that position and the 
degree of discretion exercised by one in that position. Second, you have asked 
whether, in computing the length of service of a person whose position is 
otherwise covered by the Veterans' Tenure Act, time served in a temporary 
("02") position 2 should be included. 

For the reasons discussed below, it is my opinion that the Department, acting 
through its Board of Education (hereafter, "the Board") and pursuant to its 
authority to appoint and remove employees, has the authority and responsibility 
to determine in the first instance whether such employees are covered by G.L. 
c. 30A, §9 A. In response to your second question, it is my opinion that in 
computing the length of service for purposes of the Veterans' Tenure Act, it is 
irrelevant whether for all or a portion of that service, the position has been 
funded under the "01" or "02" subsidiary accounts. 

My conclusion that the Board has the authority to determine whether particu- 
lar positions are covered by G.L. c. 30, §9A, is based upon the Board's 
statutory authority to appoint and remove employees. See, e.g., G.L. c. 15, 
§§ IF, IN, 10, 4A, 6B. 3 In exercising that authority, the Board must comply 
with other general statutes limiting the power to remove state employees, 
including G.L. c. 30, §9A, which provides, in part, as follows: 

A veteran . . . who holds an office or position in the service of the 
commonwealth not classified under . . . chapter thirty-one . . . and 



General Laws chapter 30, seclion 9A. provides thai a veteran who has held for three years a position not governed by the civil 
service laws may not be involuntarily separated without a hearing before the appointing authority, pursuant to G.L. c. 31, §§41- 
43. Furthermore, if a tenured veteran is laid off for lack of funds, such lay offs must be made in reverse order of seniority, 
pursuant to G.L. c. 31, §39. 

' "02" refers to the subsidiary account in the Department's budget covering compensation to those in positions characterized by the 
General Court as temporary. It should be noted that while the positions covered by "02" accounts are temporary, the individuals 
holding such positions may be permanent, provisional, or temporary employees as those terms are used in civil service law. G.L. 
c. 31, §§7, 8, 12. 13. 14, 15. Similarly, the "01" subsidiary account covers compensation to those in permanent approved 
positions, whether the incumbent of such a position is on a permanent, provisional, or temporary appointment See Subsidiary 
Accounts and Expenditure Code Numbers for Budgetary Control at 3. In some agencies there is a direct correlation between the 
number of permanent positions authorized by the general appropriation act and the number of authorized, permanent civil service 
positions. However, since there is not necessarily a direct correlation, I attempt to refrain from using civil service terms. 

1 Although some of these statutes expressly refer only to appointment and not removal, it is well-settled that the power to remove 
can be inferred from the power to appoint. Furlong v. Avers, 305 Mass. 455, 456-57 (1940); Adie v. Mayor of Holvoke, 303 
Mass. 295, 300 (1939); Barkin v. Milk Control Commission Mass. App. Ct. Adv. Sh. (1979) 2069, 2075. 



122 P.D.12 

has held such office or position for not less than three years, shall 
not be involuntarily separated from such office or position except 
subject to and in acccordance with the provisions of sections forty- 
one to forty-five, inclusive, of said chapter thirty-one . . . 

In order to comply with this provision, it is necessary for the Board to 
determine whether a position from which an employee is about to be separated 
is covered by the Veterans' Tenure Act. The Board's power to make such a 
determination, while not expressly granted by statute, may therefore by inferred 
as "reasonably necessary for the full exercise of [its] power and for the faithful 
performance of [its] duty." 4 Town Taxi, Inc. v. Police Commissioner of Boston, 
377 Mass. 576, 586 (1979), quoting from Bureau of Old Age Assistance v. 
Commissioner of Public Welfare, 326 Mass. 121, 124 (1950). 

In exercising its authority to determine whether a particular position is cov- 
ered by G.L. c. 30, §9A, the Board should follow the guidelines established by 
the courts and by my predecessors in construing this statute. It has long been 
established that the protection of the Veterans' Tenure Act "does not necessa- 
rily extend to every position which is not excluded from its provisions." Cieri 
v. Commissioner of Insurance, 343 Mass. 181, 185 (1961). See also Hanley v. 
Commissioner of Insurance, 355 Mass. 784 (1969); Barkin v. Milk Control 
Commission, Mass. App. Ct. Adv. Sh. (1979) 2069, 2072-73; 1975/76 Op. 
Atty. Gen. No. 28, Rep. A.G., Pub. Doc. No. 12 at 104, 105; 1966/67 Op. 
Atty. Gen. No. 66, Rep. A.G., Pub. Doc. No. 12 at 129, 130. Therefore, 
assuming that a position does not fall within the express exemptions contained 
in G.L. c. 30, §9A, 3 an exemption may still be inferred "[w]here it is apparent 
the Legislature has not intended to extend the protection of this statute to certain 
positions . . . "1966/67 Op. Atty. Gen. No. 66, at 130. See also Barkin v. Milk 
Control Commission, Mass. App. Ct. Adv. Sh. (1979) at 2074. 

A legislative intent to exclude certain positions may be inferred from the 
language of the statutes concerning appointment to and removal from the posi- 
tion in question. See, e.g., Dwyer v. Commissioner of Insurance, 375 Mass. 
227, 232 (1978); Hanley v. Commissioner of Insurance, 355 Mass. at 784; Cieri 
v. Commissioner of Insurance , 343 Mass. at 185; 1966/67 Op. Atty. Gen. No. 
66 at 130. Where such statutes give an employing agency "free administrative 
discretion" with respect to removal of employees in a particular position, that 
position is not covered by the Veterans' Tenure Act. Dwyer v. Commissioner of 
Insurance, 375 Mass. at 231 n.8. Furthermore, even if the statute in question is 
silent with respect to removal, a legislative intent to afford "free administrative 
discretion" can be inferred from the nature of the position itself. For example, 
where the position is a high-level one in which the incumbent must work closely 
with the top administrators of the agency in carrying out agency policies, it is 



The board's determination that a particular position is not covered by G.L. c. 30, §9A, is not unreviewable. Rather, an employee 
(not holding a civil service position) who is separated without the procedural protections provided by G.L. c 30, §9A, and who 
claims a right to tenure under that provision could seek a determination by the Civil Service Commission (the Commission) as to 
whether his removal was proper. In determining its jurisdiction to grant such review, the Commission would have to decide 
whether the position involved was covered by G.L. c. 30, §9A. See. e.g.. Chairman of the Stale Housing Board v. Civil Service 
Commission. 332 Mass 241, 242 (1955). The Commission's decision would then be subject to judicial review. See id. See also 
Dtxyer v. Commissioner of Insurance. 375 Mass. 227, 228 (1978) (judicial review of applicability of G.L. c. 30, §9A, by a civil 
action in the nature of mandamus). 

The exemptions expressly listed in G.L. c. 30, §9A, are: "an elective office, an appointive office for a fixed term or an office or 
position under section seven of this chapter [confidential secretary] . . ." 



P.D. 12 123 

improbable that the legislature intended such position to be tenured. See, e.g., 
Barkin v. Milk Control Commission, Mass. App. Ct. Adv. Sh. (1979) at 2074; 
Cieriv. Commissioner of Insurance, 343 Mass. at 186; 1975/76 Op. Atty. Gen. 
No. 28 at 105. 

Since you have not specified which positions within the Department may be 
affected by lay offs due to funding cuts, I will not attempt to apply these 
guidelines to specific positions within your Department. 6 Furthermore, even 
where I have attempted to determine whether a particular position is covered by 
G.L. c. 30, §9A, I have advised the agency, in a close case, to follow the 
conservative course of granting a hearing of the type referred to in G.L. c. 31, 
§43, even though it may not be legally required. See 1975/76 Op. Atty. Gen. 
No. 28 at 105. See also Chairman of the State Housing Board v. Civil Service 
Commission, 332 Mass. 241, 245 (1955). 

With respect to your inquiry whether time served in an "02" or temporarily 
authorized position should be included in computing an employee's length of 
service for purposes of the Veterans' Tenure Act, I refer you to an earlier 
opinion of mine, in which I stated as follows: 

[W]here a veteran has served for three years or more in the same 
position, and where the position in which he or she serves is, at the 
end of three years, classified as a permanent position, it is my 
opinion that the veteran qualifies under G.L. c. 30, §9A . . . 

1975/76 Op. Atty. Gen. No. 50, Rep. A.G., Pub. Doc. No. 12 at 141, 142. 

Because the facts underlying that opinion request did not require it, I did not 
express an opinion at that time whether a veteran would qualify under c. 30, 
§9 A, if, after three years' service, the veteran occupied a position which was 
temporarily authorized. Id. at 142. The same reasoning and authority which 
supported my earlier opinion, however, also supports my present opinion that as 
long as a veteran serves for three consecutive years 7 in the same position, he or 
she is covered by the Veterans' Tenure Act, regardless whether the compensa- 
tion for part or all of that time was paid from "02" funds: 

The language of §9A makes no distinction between temporary 
and permanent positions, only requiring three years of service in an 
office or position . . . 

There is no court opinion which distinguishes between temporary 
and permanent positions, except to the extent that service in such 
positions will not be tacked on for tenure purposes if the temporary 
and permanent positions are not the same. 

1975/76 Op. Atty. Gen. No. 50 at 141-42. See Chairman of the State Housing 
Board v. Civil Service Commission, 332 Mass. at 245; 1960/61 Op. Atty. Gen., 
Rep. A.G., Pub. Doc. No. 12, at 96, 97. 

Factors relevant to a determination whether the positions in question are the 
same or different include the names of the positions, the payroll codes, the 



The application of the guidelines will necessarily involve factual determinations which are more appropriately made by the Board. 
Cf. 1979/80 Op. Atty. Gen. No. 10, Rep. AG., Pub. Doc. No 12 at 116. 118 (1980) (noting limitations upon the Attorney 
General's authority to render opinions). 

Cf. 1965/66 Op. Atty. Gen., Rep. AG., Pub. Doc. No. 12 at 216. 217 (tenure not acquired by veteran whose service in a 
particular position was temporarily interrupted by service in another, different position). 



124 P.D.12 

relative status of the positions in the agency structure, and the duties per- 
formed/ See Commissioner of Administration v. Kelley, 351 Mass. 686, 691 
(1967); Chairman of the State Housing Board v. Civil Service Commission, 332 
Mass. at 245; 1975/76 Op. Atty. Gen. No. 50 at 141. 

In sum, it is my opinion that the Board of Education has the authority to 
determine, in the first instance, whether a particular position is covered by G.L. 
c. 30, §9 A. If such a position is covered, and a veteran has served in that same 
position for three consecutive years, it is immaterial whether all or part of that 
time was served in a permanent ("01") or temporary ("02") position. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

November 13, 1981 
Number 6. 

Frank J. Trabucco, Commissioner 
Department of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 02215 

Dear Commissioner Trabucco: 

You have asked my opinion whether the chief of inspections within the 
Department of Public Safety (hereafter, "the Department") has police powers. 
Your question results from your duty as Commissioner to appoint the chief of 
inspections, G.L. c. 22, §4A, and your general administrative duties over the 
Department, G.L. c. 22, §3. One of these duties pertains to state retirement 
laws. General Laws chapter 32, section 3 (g), provides in pertinent part: 
Department heads shall furnish to the [State Board of Retirement] 
within thirty days after the receipt of a written request therefor, a 
statement giving the name, title, rate of regular compensation, 
duties, date of birth and length and class of service of each 
employee in his department and thereupon the board shall classify 
each member in one of the following groups: 
Group 1: Officials and general employees including clerical, admin- 
istrative and technical workers, laborers, mechanics and all others 
not otherwise classified. 

Group 2: [Officials and employees of the department of public 
safety having police powers . . . (Emphasis supplied). 
A reading of this statute indicates that whether the chief of inspections has 
police powers will determine his classification in group one or two. This in turn 
determines events such as retirement age. G.L. c. 32, §1 (maximum age 



It should be noted, however, that a person who merely performs the duties of a particular position without being permanently 
appointed to that position does not thereby accrue tenure in that position. See. e.g.. O'Dell v. Commissioner of Banks, 3 Mass. 
App. Ct. 709 (1975) (acting director did not acquire tenure as permanent director); 1957/58 Op. Atty. Gen., Rep AG. Pub. Doc. 
12 at 39,40 (acting Assistant Superintendent of state hospital did not acquire tenure as Assistant Superintendent). The distinction in 
such cases is between permanent and temporary appointments rather than, as here, between permanent and temporary positions. 
See note 2. supra. 



P.D. 12 125 

defined). See also G.L. c. 32, §5.' Although department heads provide informa- 
tion upon which the State Board of Retirement bases its classification, it is the 
Board itself which classifies the member. Maddocks v. Contributory Retirement 
Appeals Board, 369 Mass. 488 (1976). Thus I answer the question which you 
pose in order to assist you in providing information to the Board. To the extent 
that your request pertains to the specific classification of the chief of inspec- 
tions, I must, of course, respectfully decline to make a determination which has 
been conferred by statute upon the Board. Cf. 1961/62 Op. Atty. Gen., Rep. 
A.G., Pub. Doc. No. 12 at 199 (it is not the function of the Attorney General to 
pass upon questions of fact, policy or discretion). 

After a review of the relevant statutes, it is my conclusion that the chief of 
inspections does not have police powers unless they are specifically conferred 
by the commissioner. 2 

Certain personnel within the department have police powers expressly con- 
ferred by statute. General Laws chapter 147, section 2, provides: 

All officers and inspectors of the department shall have and exer- 
cise throughout the commonwealth the powers of constables, police 
officers and watchmen, except as to service of civil process. The 
governor may command their services in suppressing riots and in 
preserving the peace. The commissioner may detail any officer or 
inspector in the division of inspection or in the division of fire 
prevention for temporary service in the division of state police. He 
may from time to time appoint employees of the department to serve 
at his pleasure as special state police officers and may invest them 
with such of the powers of state police as he may deem advisable. . 
. (Emphasis supplied). 

See also G.L. c. 22, §9A (additional officers appointed to the division of state 
police pursuant to that section are granted same powers). 

The answer to your question depends in part upon whether the position of 
chief of inspections comes within the phrase in G.L. c. 147, §2: "all officers 
and inspectors of the department." If so, the holder of the position may have 
police powers. For the reasons set forth below, I conclude that the position does 
not come within that phrase. 

The chief of inspections is appointed pursuant to G.L. c. 22, §4A. Because 
he directs the Division of Inspection within the Department, see G.L. c. 22, §3, 
the chief of inspections is an "officer" in the sense that the term means "public 
officer." See Sherman v. Town of Swansea, 261 Mass. 407. 409 (1927) (high- 
way surveyors are public officers whose powers and duties are defined by 
statute); Attorney General v. Tillinghast, 203 Mass. 539, 543-544 (1909) (pub- 
lic officer is one whose duties are public in their nature and involve the exercise 
of some portion of the sovereign power). I conclude, however, that the termi- 
nology "all officers and inspectors of the department," as used in G.L. c. 147, 



While General Laws chapter 32. section 5. requires that members of group 2 retire at age sixty-five, chapter 46 of the Acts of 1980 
provides an exception for district engineering inspectors, state building inspectors and state elevator inspectors. Because I conclude 
that the chief of inspections is not an "inspector" within the Division of Inspection and because this statute omits from its terms 
the chief of inspections, cf.. General Electric Co. v. Commonwealth. 329 Mass. 661 , 664 (19531 (express mention of one matter 
in a statute excludes by implication other similar matters not mentioned), this statutory exemption does not apply to this position. 

I am informed by the State Board of Retirement that the current and most recent holders of the position of chief of inspections have 
received written grants of police powers from the commissioner. 



126 P.D.12 

§2, includes the word "officers" in a narrower sense, i.e., to designate those 
persons appointed to the Department pursuant to G.L. c. 22, §6. 3 

I so conclude, first, because application of the rules of statutory construction 
requires that words and phrases which "have acquired a peculiar and appropri- 
ate meaning in law" are to be "construed and understood according to such 
meaning." G.L. c. 4, §6. Second, General Laws chapter 147, which defines in 
part the duties of the Department, cannot be read in isolation, but must be read 
in conjunction with General Laws chapter 22, which establishes the Depart- 
ment. See Registrar of Motor Vehicles v. Board of Appeal, Mass. Adv. Sh. 
(1981) 415, 421 ; Board of Education v. Assessors of Worcester, 368 Mass. 511, 
513-514 (1975); Pereira v. New England LNG Co., Inc., 364 Mass. 109, 115 
(1973) (where two or more statutes relate to the same subject matter, they 
should be construed together so as to constitute a harmonious whole consistent 
with the legislative purpose). 

The term "officers and inspectors" occurs frequently in General Laws chap- 
ter 22, and in each occurrence it is clearly related to officers and inspectors who 
have been appointed pursuant to G.L. c. 22, §6.^ Additionally, General Laws 
chapter 22, section 6, provides that the number of "officers and inspectors" 
appointed pursuant to that section may be increased only with the approval of 
the Governor and Council, except as provided in G.L. c. 22, §§9 and 9A 
(Governor alone may authorize commissioner to make additional appointments 
to state police) and G.L. c. 147, §2 (the commissioner may detail officers or 
inspectors from division of inspections and fire prevention for temporary service 
in division of state police, and may appoint department employees as special 
state police officers). Thus the word "officers" in G.L. c. 22, §§6, 9, and 9A, 
refers to state police officers. I must conclude, also, that the word "officers" in 
G.L. c. 147, §2, is being used in the narrower sense referred to above. Because 
the chief of inspections is clearly not an officer appointed pursuant to G.L. c. 
22, §6, but an administrator appointed pursuant to G.L. c. 22, §4A, that 
position is not intended to be included in the term "officers" in "all officers 
and inspectors" in G.L. c. 147, §2. 

For similar reasons, I conclude that the term "inspectors" as used in G.L. c. 
147, §2, does not include the chief of inspections, but refers only to "inspec- 
tors" appointed pursuant to G.L. c. 22, §6. The Legislature has dealt with the 
appointment of the chief of inspections separate from the appointment of other 
inspectors. See G.L. c. 22, §§4A, 6. Indeed, throughout the public safety 
statutes, the position of chief of inspections is treated as a wholly separate 
position from that of inspector. See, e.g., G.L. c. 143, §§1, 50; G.L. c. 146, 
§§1, 10, 13, 17, 45A, 50A, 62, 67, 67A, 70, 77; G.L. c. 148, §1. I have not 
found a single instance where the term "inspector" is used in a way that even 
arguably is meant to include the chief of inspections. I conclude, therefore, that 
as used in G.L. c. 147, §2, "inspectors" does not include the chief of 
inspections. 



General Laws chapter 22. section 6. provides: "The commissioner may appoint, transfer and remove officers, inspectors, experts, 
clerks and other assistants ..." (Emphasis supplied). 

See. e.g., G.L. c. 22, §6A (no person who has been convicted of a felony shall be appointed as an officer or inspector); §7 (each 
officer and inspector receives traveling and necessary expenses when on duty); §7A (injuries in line of duty); §7B (injuries or death 
in line of duty); §8 (officers and inspectors must take oath of office within ten days after date of appointment i 



P.D. 12 127 

The chief of inspections, for the reasons given above, is not one of the 
officers or inspectors of the department upon whom police powers are expressly 
conferred by G.L. c. 147, §2. For the purposes of that provision, however, the 
chief of inspections is an "employee of the department" 3 who may be invested 
with police powers at the discretion of the commissioner. G.L. c. 147, §2. This 
conclusion is consistent with the broad discretion granted to the commissioner 
by G.L. c. 147, §1. 6 See also G.L. c. 22, §3. 

In summary, it is my opinion that the chief of inspections is not expressly 
granted police powers by statute. If necessary to insure the public safety, 
however, the commissioner may appoint any employee of the department as a 
special state police officer and invest that employee with such police powers "as 
he may deem advisable." G.L. c. 147, §2. This includes the chief of 
inspections. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

January 26, 1982 
Number 7. 

Honorable Arthur M. Mason 
Chief Administrative Justice 
The Trial Court 

Commonwealth of Massachusetts 
317 New Court House 
Boston, Massachusetts 02108 

Dear Judge Mason: 

You have requested my opinion whether a Clerk of Court may receive 
compensation, in addition to his usual salary, from the treasury of the Common- 
wealth for duties performed outside of normal working hours as a part-time 
librarian for the court library. For the reasons set forth below, and on the basis 
of the facts which you have presented, I believe you could correctly conclude' 
that a Clerk may receive compensation in addition to his usual salary for his 
part-time work as a law librarian. 

The starting point for analysis is G.L. c. 30, §21, which provides that: 

[A] person shall not at the same time receive more than one salary 
from the treasury of the commonwealth. 



For other purposes he might not be so classified. See . e.g.. Attorney General v . Tillinghast, 203 Mass. 539. 543 ( 1 909) (where a 
public officer is distinguished from a "mere employee." whose duties are merely clerical, or an agent or servant). See also 
McGrath v. Mass. Port Authority . 350 Mass 762 (1966). 

6 General Laws chapter 147. section 1, provides: 

The commissioner of public safety . . shall have charge of the administration and enforcement of all laws, rules and 
regulations which it is the duty of the department .to administer and enforce, and shall, except as is otherwise provided, 
direct all inspections and investigations. He shall, subject to the approval of the governor, make all necessary rules for the 
government of his department, for reports to be made by officers under him and for the performance of their duties .... 

1 Although your request concerned a particular court clerk. I must respectfully decline to make an individual determination based 
upon a specific case, since such a venture necessarily involves a determination of facts, which the Attorney General has 
traditionally refrained from making See 1961 62 Op Atty Gen . Rep AG.. Pub. Doc. No. 12 at 199. 



128 P.D.12 

That general proscription has been the subject of much review over the years 
and has been interpreted by the courts and my predecessors in a manner which 
produces logical and practical results. E.g., County Commissioners of Bristol v. 
Conservation Commission of Dartmouth, Mass. Adv. Sh. (1980) 1289, 1295 
n.6; Massachusetts Mutual Life Insurance Company v. Commissioner of Corpo- 
rations and Taxation, 363 Mass. 685, 691 (1973) and cases cited. See generally 
1980/1981 Op. Atty. Gen. No. 3, Rep. A.G., Pub. Doc. No. 12 (1980). 

The determination of a statutory violation depends upon whether the compen- 
sation being paid is a "salary" or a "wage". 1980/81 Op. Atty. Gen. No. 3, 
Rep. A.G., Pub. Doc. No. 12 at 100. As a general matter, a salary "shall mean 
annual salary." G.L. c. 4, §7, Twenty-seventh. See also Maynard v. Royal 
Worcester Corset Co., 200 Mass. 1, 4 (1908) [salary] is perhaps more fre- 
quently applied to annual employment than to any other, and its use may import 
a factor of permanency). In making this determination, a great deal rests on the 
nature of the services for which compensation is sought. If the services are 
special services performed from time to time, or services performed outside the 
usual duties of an individual, compensation is generally looked upon as a 
"wage" and not a salary. 1980/81 Op. Atty. Gen. No. 3, Rep. A.G., Pub. 
Doc. No. 12 at 101. Thus a predecessor of mine noted, in a frequently cited 
passage, that 

[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 case 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 700 (1920). 

While an individual "may not accept another salaried position from the 
Commonwealth, even though the work of the second office might be done 
outside of the usual hours of employment of the first office," 7 Op. Atty. Gen. 
at 330 (1924), he may nonetheless "receive from the Commonwealth additional 
compensation for special services performed outside of the usual working hours 
of his position and not required in the performance of the duties of his posi- 
tion." Id. See also 2 Op. Atty. Gen. at 310 (1902) (statutory predecessor to 
G.L. c. 30, §21, "does not prevent the payment of compensation for extra 
services not rendered during the usual hours of employment in the position for 
which the person is employed"). 2 

Here, a Clerk of Court, duly elected to his office and performing the usual 
duties of that office, is also performing the duties of librarian for the court 
library. The Clerk is paid for these additional services what appears to be a fixed 
sum on an annual basis. While the manner of payment on its face suggests that 
the payment is in the nature of a salary, see 5 Op. Atty. Gen. at 700 (1920), 



2 A related statute. G.L. c. 29, §31, provides in relevant part that "(s)alaries payable by the commonwealth . . shall be in lull lor 
all services rendered to the commonwealth by the persons to whom they are paid." Although you have not put the question 
directly to me, lor the reasons outlined above I am of the opinion that compensation to the Clerk for his part-time duties as law 
librarian does not violate G.L. c. 29, §31. See 5 Op. Atty. Gen. at 698 (1920) (provision in statutory predecessor to G.L. c. 29, 
§31 "by immemorial custom does not forbid extra compensation for overtime service"). 



P.D. 12 129 

other factors argue in favor of a different conclusion. The Clerk's duties, as you 
have described them, are performed on a part-time basis and on the Clerk's 
personal time, usually before or after normal working hours. There duties are 
therefore special duties, not a traditional or usual part of the Clerk's role. They 
are performed by him from time to time on his own personal time and, as you 
have described them, do not appear to interfere with his usual duties as Clerk in 
any way. These factors suggest that the payments made for these additional 
services are in the nature of wages and do not constitute a second "salary" for 
purposes of G.L. c. 30, §21. See 1980/81 Op. Atty. Gen. No. 3, Rep. A.G., 
Pub. Doc. No. 12 at 102. 

On the basis of these facts and the previously cited authority, you may 
properly conclude that the Clerk may receive compensation for the work he 
performs as a part-time law librarian and that such compensation does not 
violate G.L. c. 30, §21. 3 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

February 3, 1982 
Number 8. 

Joseph R. Barresi 
Inspector General 
One Ashburton Place 
Boston, Massachusetts 02108 

Dear Mr. Barresi: 

You have requested my opinion whether Chapter 388 of the Acts of 1980 
prohibits the Office of the Inspector General from hiring two individuals who 
were temporarily assigned from other state agencies to the Special Commission 
Concerning State and County Buildings (hereafter, "the Special Commis- 
sion"). 1 You inform me that while on loan to the Special Commission, each of 
these individuals filled out weekly time sheets to, drew their salaries from, and, 
in one situation, attended a job-related training program at the expense of, the 
state agency from which each was assigned. You further inform me that while 
these individuals worked under the direction of the Special Commission, they 
had no responsibilities for formulating or drafting legislation establishing the 
Office of the Inspector General. Consequently, you ask whether these individu- 
als "served in the employ of" the Special Commission for purposes of the 
statutory prohibition set forth in St. 1980, c. 388, §3. 



I express no opinion with respect to whether certain provisions of G.L. c. 268A apply to the facts you have presented to me, nor do 
I possess the authority to do so. The clerk, however, may wish to request the opinion of the State Ethics Commission, pursuant to 
G.L. c. 268A, §10, whether his receipt of compensation for the work he performs as a part-time law librarian for the court violates 
any provision of that chapter. 

The Special Commission was created by Chapter 5 of the Resolves of 1978 to investigate and study, as a basis for legislative 
action, the existence and extent of Corrupt practices and maladministration concerning contracts awarded for the construction of 
state and county buildings. 



130 P.D.12 

For the reasons set forth below, I conclude that it is a violation of St. 1980, c. 
388, §3, for the Office of the Inspector General to employ any person who 
worked under the control and supervision of the Special Commission, even if 
that person drew his salary from another state agency. 2 

The answer to your question requires a close analysis of the hiring prohibition 
imposed upon the Office of the Inspector General by Chapter 388 of the Acts of 
1980. Section 3 of that act provides: 

[N]o person who has served as a member of the special commission 
concerning state and county buildings, established by chapter five of 
the resolves of nineteen hundred and seventy-eight, with the excep- 
tion of the attorney general, or any person who has served in the 
employ of said commission, on either a paid or volunteer basis, 
shall be eligible for appointment to any positions created as a result 
of the establishment of the office of inspector general. 
Where, as here, the language of a statute is plain, it must be interpreted in 
accordance with the usual and natural meaning of the words, Gurley v. Com- 
monwealth, 363 Mass. 595, 598 (1973); Burke v. Chief of Police of Newton, 
374 Mass. 450, 452 (1978), and so as to fulfill the legislative intent, Industrial 
Finance Corporation v. State Tax Commission, 367 Mass. 360, 364 (1975). 
While legislative intent must be ascertained by an examination of the language 
used, in connection with its legislative history and the system of law of which it 
is a part, Commonwealth v. Welosky, 276 Mass. 398, 401 (1931), the first tool 
of statutory construction is a literal reading of the words which comprise the 
subject statute. 

The plain words of this statute are clear and unambiguous. By the very terms 
of section 3, appointment of "any person who has served in the employ of said 
commission, on either a paid or volunteer basis" to any position in your office 
is prohibited. The use of the terminology "paid or volunteer basis" suggests 
that the Legislature intended that the word "employ" be construed in its 
broadest sense. Accordingly, whether a person was on the payroll of the Special 
Commission is clearly not decisive. It is my opinion that this language indicates 
a legislative objective to prohibit the appointment of any person who performed 
services under the control and supervision of the Special Commission, regard- 
less of the capacity in which he was associated, probably to ensure that the 
office of the Inspector General not be perceived as an attempt to perpetuate the 
Special Commission.' 

My literal reading of the statute is supported by the principle that statutes are 
to be construed in the light of pre-existing common law. See Ferullo's Case, 
331 Mass. 635, 637 (1954). It has long been settled at common law that one 
who is a general employee of another may be loaned to or hired by a third 
person for some special service and may, as to that special service, become the 



2 Although your request included the names of two persons whose services were loaned to the Special Commission, I must 
respectfully decline to make individual determinations based upon specific cases, since this necessarily involves determination of 
facts, which my predecessors and I have traditionally refrained from making in the opinion-writing process. See 1961/62 Op. Atty. 
Gen., Rep. AG, Pub. Doc No. 12 at 199. 

1 This interpretation of the word "employ" is consistent with the definition of employment found in other provisions of the General 
Laws. For example, G L c 151 A, §2, which governs the area of employment security, defines employment as follows: 
[S]ervice performed by an individual shall be deemed to be employment . . . unless . . . such individual has been and 
will continue to be free from control and direction in connection with the performance of such services 
. . . (emphasis supplied). 



P.D. 12 131 

employee of the third party. Galloway's Case, 354 Mass. 427, 430 (1968). The 
fact that the employee is paid by his general employer and not by the person for 
whom the services are performed is not decisive. See Chisholm's Case, 238 
Mass. 412, 419 (1921). The essential test is whether the person is under the 
control and supervision of the latter and is bound to obey his instructions, not 
only as to the result to be accomplished, but also as to the means and methods 
which are to be utilized in the performance of the work. Griswold v. Director, 
Division of Employment Security, 315 Mass. 371 (1944). These considerations 
require the conclusion that the word "employ/' as it appears in section 3, 
would include persons on loan from other agencies to the Special Commission, 
regardless from whom they drew their salary, provided that they were under the 
control and supervision of the Commission. 

That this interpretation of section 3 is consistent with the legislative purpose 
may also be ascertained by analysis of the history of the statute. As originally 
introduced, the bill seeking to establish the office of Inspector General con- 
tained no prohibition against the appointment of persons associated with the 
Special Commission. Mass. H. Doc. No. 5619 (1980). The bill was later 
amended to include the prohibition presently contained in section 3. Mass. H. 
Doc. No. 6557 (1980). Subsequently, the bill was once again amended, but the 
Legislature retained the prohibition as it presently appears. Mass. H. Doc. No. 
6755 (1980). There were repeated attempts to alter that prohibition in both the 
House and Senate, all of which were ultimately rejected. In the House a 
proposed amendment to strike out section 3 and insert in its place a new section 
3, which would have prohibited appointment of Special Commission personnel 
only until 1985, was overwhelmingly rejected on a roll call vote. House Journal 
1296-1297 (1980). Section 3 was successfully amended in the Senate by striking 
the words "on either a paid or volunteer basis" and replacing them with "as 
Chief Counsel or Executive Director." Senate Journal 1019-1020 (1980). The 
House of Representatives rejected this amendment, insisting upon the original 
wording of section 3. House Journal 1441 (1980). After a Committee of Confer- 
ence was apppointed by both branches, the Senate receded from the amendment 
and adopted the bill with section 3 in its present form. St. 1980, c. 388, §3. 

Based on the plain language of the statute, the common law of employment 
and the legislative history of Chapter 388, it is therefore my opinion that the 
Office of the Inspector General is prohibited from hiring persons who were 
temporarily loaned to the Special Commission from other state agencies, pro- 
vided that the services they performed were under the control and supervision of 
the Special Commission.' 

While I am mindful that this conclusion may appear to constitute a hardship 
as to the particular persons whom you mention, the words of a statute are not to 
be stretched beyond their fair meaning in order to avoid hardship. Rosenbloom 



This intent to exclude all persons who worked under the Special Commission, regardless of the capacity in which they served, is 
further evidenced by the fact that the Legislature provided a specific exemption from the prohibition. The statute provides that the 
prohibition applies to all members of the Commission "with the exception of the Attorney General." Here the legislature has 
provided a specific exemption to the general prohibition, although concededly the exception specifically applies to the phrase 
dealing with members of the Commission rather than its employees. Nevertheless, where the legislature has provided an express 
exemption from an overall exclusion, it must be construed to be the only exemption that the legislature meant to apply to the rule. 
See McAnhur Brothers Co. v. Commonwealth, 197 Mass. 137, 139 (1908). Cf. Brady v. Brady. Mass. Adv. Sh. (1980) 1053, 
1056; Harboniew Residents Committee. Inc. v. Quincy Housing Authority, 368 Mass. 425, 432 ( 1975) (statutory expression of 
one thing is an implied exclusion of other things omitted from the statute). 



132 P.D.12 

v. Kokofsky, 373 Mass. 778, 781 (1977); Milton v. Metropolitan District Com- 
mission, 342 Mass. 222, 227 (1961); Boston Five Cents Savings Bank v. 
Assessors of Boston, 317 Mass. 694, 703 (1945). 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

February 11, 1982 
Number 9. 

Donald B. Falvey, Director 
Division of Standards 
One Ashburton Place 
Boston, Massachusetts 02108 

Dear Mr. Falvey: 

You have asked my opinion whether General Laws chapter 94, section 303F, 
prohibits retail oil dealers from selling or delivering home heating oil by the 
gallon on a temperature-compensated basis. 1 It is my opinion that retail oil 
dealers may not adopt this practice in the sale or delivery of oil for heating or 
cooking purposes, nor do you have the authority to require such dealers to use 
temperature compensation devices. 

You have informed me that, generally speaking, retail dealers in home heat- 
ing oil sell or deliver oil at an ambient temperature below that at which they 
receive delivery. This is so because dealers usually purchase their supplies 
during the warm months and sell them during the cold months.-' Because oil 
occupies less volume at lower temperatures, a gallon of oil delivered during the 
heating season will contain more oil (by weight) than a gallon delivered during 
the warm season. Although the difference is small, 5 it is significant for whole- 
salers, who deal in large volumes, and it has become significant at the retail 
level because of the rise in oil prices over the past four years. It can be expected 
that retailers may no longer absorb the cost of this difference, as they have 
previously done. 

One method of compensating for expansion or contraction of volume is to 
adjust the actual volume of oil to the volume it would occupy at a temperature 
constant. That is, instead of expressing volume in terms of the actual volume at 
the ambient temperature, volume could be expressed in terms of the volume 
which the oil would occupy at sixty degrees Farenheit. Transactions in certain 
types of fuels, such as bunker oil and liquefied petroleum gas, are now 
expressed in terms of volume at a standard temperature. So, too, wholesale 



Temperature compensation in this context refers to an adjustment by which volume is expressed in terms of gallons at a standard 
temperature — here, sixty degrees — rather than gallons at the actual (ambient) temperature of the oil. 

In some cases, the retailer purchases his supplies by the gallon compensated to sixty degrees. Even so, because the oil will be 
delivered to the consumer during the heating season, the temperature at which it is delivered will usually be lower. 

I am informed that (he coefficient of expansion for home heating oil is .00045. A thousand gallons of oil at 60 degrees Farenheit 
will occupy 987.5 gallons at 30 degrees. According to your studies, the total gallons of home heating oil delivered during 1978 
would have been 16,122 higher if il had been compensaled to 60 degrees instead of being sold by the gallon at the ambient 
temperature 



P.D. 12 133 

transactions in home heating oil are often expressed in terms of gallons at sixty 
degrees. 4 Your question, then, is whether sales at retail may be expressed in the 
same terms. 

The answer to this question requires an analysis of G.L. c. 94, §303F, which 
governs the delivery and retail sale of fuel oil. "[A] statute must be interpreted 
according to the intent of the Legislature ascertained from all its words con- 
strued 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." Registrar of Motor Vehicles v. Board of 
Appeal on Motor Vehicle Liability Policies & Bonds, Mass. Adv. Sh. (1981) 
415, 420, quoting Board of Education v. Assessor of Worcester, 368 Mass. 
511, 513 (1975). Guided by this principle, analysis of the statute yields a 
straightforward answer to your question. 

I begin with the language of the statute. General Laws chapter 94, section 
303F, provides in part as follows: 

[W]hoever sells or delivers fuel oil in quantities of twenty gallons or 
over for heating or cooking purposes shall cause a delivery ticket, 
which shall consist of an original and at least one carbon copy 
thereof, to be issued. Said ticket shall be serially numbered for the 
purpose of identification and shall have the date of delivery as well 
as the names and addresses of the seller and of the purchaser legibly 
recorded on the ticket prior to delivery of the fuel oil. A statement of 
quantity of oil delivered, in terms of gallons and fractions thereof, if 
any, the price per gallon, the grade of fuel, and the identity of the 
person making such delivery, shall also appear on the ticket . . . 
The director or inspector of standards . . . shall, at the time of 
delivery of fuel oil, be authorized to enter and go into or upon, 
without warrant, any such vehicle to inspect or examine the meter- 
ing system, vehicle tank compartments and delivery tickets then in 
the actual possession or under the control of the person making the 
delivery and may seize, without warrant, any such delivery tickets 
suspected of constituting a deceptive or fraudulent practice .... 

Who ever violates any provision of this section shall be punished for 
the first offense by a fine of fifty dollars, for the second offense by a 
fine of two hundred dollars and for each subsequent offense by a 
fine of five hundred dollars. Whoever alters or substitutes a delivery 
ticket for fraudulent or deceptive purposes shall be punished by a 
fine of not more than one thousand dollars or by imprisonment for 
not more than one year or both (emphasis supplied). 

Thus, the statute requires, on pain of a fine or imprisonment, that dealers in 
fuel oil for heating or cooking purposes must issue a delivery ticket stating, 
among other things, the "quantity of oil delivered, in terms of gallons and 
fractions thereof. ' ' This provision has appeared in this section since it was first 
enacted in 1935. See St. 1935, c. 95; St. 1952, c. 107; St. 1967, c. 92; St. 



4 You have established standards governing the devices which make these adjustments. 202 C.M.R. 4.00. 



134 P.D.12 

1972, c. 597; St. 1978, c. 444. It is one of many provisions in chapter 94 
designed to protect the consumer from fraudulent or misleading practices, and 
honest dealers from unfair competition, by regulating the measure by which a 
product may be sold. See, e.g., G.L. c. 94, §7 (bread), §77F (fish), §84 (fish by 
the quintal), §90B (eggs), §92B (meats, poultry, fish), §96 (fruits, vegetables, 
nuts), §115 (cranberry barrels and crates), §174A (flour, meal, grits), §§240-42 
(coal), §298 (cordwood, firewood, and kindling). See generally. Burns Baking 
Co. v. Bryan, 264 U.S. 504, 517 (1924) (Brandeis & Holmes! JJ., dissenting) 
(discussing regulation requiring sales of bread by standard weights). The heart 
of all such provisions is the establishment of a standard measure to govern 
transactions in a product or commodity. 5 

The Legislature has provided that home heating oil is to be sold by the gallon. 
In my opinion, there is no ambiquity in this provision, and no leeway to impose 
additional requirements, such as the requirement that the actual volume is to be 
compensated to sixty degrees. Under our laws, a gallon is a measure of volume 
equal to a standard established and maintained by the national government. See 
G.L. c. 98, §3. It does not vary with the ambient temperature; it is 231 cubic 
inches, whether at thirty degrees or at eighty degrees. See Nichols v. Beard, 15, 
F. 435, 436-37 (C.C. Mass. 1883) (gallon of commerce in United States is wine 
gallon, i.e., gallon of 231 cubic inches); State v. Standard Oil Co. of Louisiana, 
188 La. 978, 178 So. 601 (1937). Because the words of a statute are to be given 
their usual and ordinary meaning, Nantucket Conservation Foundation, Inc. v. 
Russell Management, Inc., Mass. Adv. Sh. (1980) 781, 783, and because the 
same word used in different sections of a statute relating to the same subject 
matter is ordinarily to be given a uniform meaning, Insurance Rating Board v. 
Commissioner of Insurance, 356 Mass. 184, 188-89 (1969), General Laws 
chapter 94, section 303F, must be understood in this sense. 

You have stated your agreement with this interpretation of the statute, but you 
ask whether you may, consistently with this view, require retail dealers to use 
temperature compensation devices, pursuant to your authority under G.L. c. 98, 
§29." The merit of the suggestion is that the dealer who chooses to adjust his 
prices to compensate for contraction would not need to estimate the size of the 
adjustment or to vary his price according to the ambient temperature. 7 Thus, 
greater certainty might be promoted in such transactions. Nevertheless, I con- 
clude that you are not authorized to make this innovation. 

The Division of Standards is not an agency having a broad charter to imple- 
ment a program of reform or social welfare/ The Director's principal functions 



: ' The recent change relating to the measurement of cordwood and firewood illustrates this point. General Laws chapter 94. section 
298. formerly provided that the standard unit of measure for cordwood and firewood was the cord. i.e.. 128 cubic feet of wood, 
closely stacked. The general failure of vendors to adhere to this definition caused much confusion and even deception of 
consumers, as is well known. To remedy this situation, the Legislature banned the use oi the terms "cord", "face cord", "pile", 
"truckload". and similar words. Cordwood and firewood must now be sold by the cubic foot or meter of closely stacked wood. 
St. 1979, c.253, amending G.L. c. 94. §298. 

6 It is clear that dealers may not. consistently with the legislative purpose, choose for themselves whether or not to employ 
temperature compensation devices at the retail level. That course would effectively establish two standard measures where the 
Legislature has prescribed only one and would, arguably, constitute a deceptive practice under G.L. c. 93A. 

7 At the present, the price of home heating oil docs not appear to be the subject of regulation, either at the federal or at the state 
level. Thus, oil dealers might elect to adjust their prices according to the ambient temperature, whether or not the use of 
temperature compensating devices was permitted If puces were tied to the ambient temperature by some other means, I assume 
that the device employed would be subject to your regulation 

8 Compare G.L. c. 98, §29. with G.L. c. 13, §9 and G I. c. 112, §5 See Lev) v. Board of Registration and Discipline in Medicine, 

378 Mass. 519, 524-25 ( 1979) (in keeping with its broad role. Board may establish grounds for discipline not specifically provided 
by statute I 



P.D. 12 135 

are to establish standards of accuracy and reliability in weighing and measuring 
devices, and to "enforce the laws relating to the use of weighing and measuring 
devices and the giving of false or insufficient weight or measure . . ." G.L. c. 
98, §29. He has custody of the state standards, and in relation thereto, his duty 
is to ensure that they agree with the standards maintained by the United States 
government and to supply accurate sets of standards to the cities and towns. 
G.L. c. 98, §§3, 5. I find nothing in these provisions to authorize the Director to 
vary the legislatively prescribed measure by which goods and commodities are 
sold. Nor does General Laws chapter 94, section 303F, contain a grant of 
discretionary authority to the Director. Especially because the section imposes a 
criminal penalty, it should be construed to avoid not create ambiquity. See 
Director of the Division of Milk Control v. Haseotes, 351 Mass. 372, 373-74 
(1966). 

For the foregoing reasons, I conclude that General Laws chapter 94, section 
303F, requires that the statement of quantity on the retail delivery ticket for fuel 
oil must be expressed in gallons at the ambient temperature, thus reflecting the 
actual volume of oil delivered rather than the hypothetical volume at a standard 
temperature. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

March 11, 1982 

Number 10 

Alfred L. Frechette, M.D., M.P.H. 

Commissioner 

Department of Public Health 

600 Washington Street 

Boston, Massachusetts 02111 

Dear Commissioner Frechette: 

You have asked my opinion on two questions relating to the licensure of 
clinics by the Department of Public Health pursuant to G.L. c. Ill, §§51-56. 
First, you raise a question regarding the construction of the phrase "solo or 
group practice" as used in the definition of "clinic" in G.L. c. Ill, §52, §3, as 
amended by St. 1979, c. 674, §1. Specifically, you ask whether a professional 
corporation which does not use the terms "clinic," "dispensary," or "insti- 
tute" in its name and which has submitted documents showing that one physi- 
cian is its sole shareholder, director and officer, is exempted from the clinic 
licensure requirement of G.L. c. Ill, §51, by the "solo or group practice" 
proviso contained in the statutory definition of a clinic. Second, you ask 
whether the Department may use any standards to construe the phrase "solo or 
group practice" other than the statutory language, the legislative history, the 



136 P.D.12 

Department's interpretation of the statute, and its understanding of other appli- 
cable principles of law, all of which you state constitute the standards currently 
being used by the Department. 

Your questions arise out of the legislative scheme for the regulation and 
licensure of medical facilities which provide care outside of the hospital setting. 
See G.L. c. Ill, §§51-56. Since 1918, the Legislature has provided for the 
Department of Public Health to inspect and license "dispensaries" and "clin- 
ics" and has made operation of such facilities without a license illegal. See St. 
1918, c. 131, §§2 and 3. Key to that system is the definition of "clinic" now 
contained in G.L. c. Ill, §52, §3. Prior to 1979 the term "clinic" was defined 
to include: 

any institution or place, however named, conducted for charity or 
profit, which is advertised, announced, established or maintained 
under the name of a clinic for the purpose of providing medical, 
surgical, dental, restorative or mental hygiene services to persons 
not residing therein. Clinic shall include such places as "medical 
associates", "dispensary", "medical center", "medical institute", 
"rehabilitation center", "rehabilitation institute", "memorial", 
"association", or such other designation of like import but not 
necessarily limited to the above mentioned. It shall not include a 
clinic conducted by a hospital licensed under section fifty-one, or a 
clinic conducted under the authority of the United States govern- 
ment, or under the authority of the commonwealth or a local health 
department. Clinics shall not provide overnight care. 

However, as noted above, that definition was amended by Chapter 674 of the 
Acts of 1979 which changed the definition of "clinic" to include: 

any entity, however organized, whether conducted for profit or not 
for profit, which is advertised, announced, established, or main- 
tained for the purpose of providing ambulatory medical, surgical, 
dental, physical rehabilitation, or mental health services. In addi- 
tion, "clinic" shall include any entity, however organized, whether 
conducted for profit or not for profit, which is advertised, 
announced, established, or maintained under a name which includes 
the word "clinic," "dispensary," or "institute," and which sug- 
gests that ambulatory medical, surgical, dental, physical rehabilita- 
tion, or mental health services are rendered therein. With respect to 
any entity which is not advertised, announced, established, or main- 
tained under one of the names in the preceding sentence, "clinic" 
shall not include a medical office building, or one or more practi- 
tioners engaged in a solo or group practice, whether conducted for 
profit or not for profit, and however organized, so long as such 
practice is wholly owned and controlled by one or more of the 
practitioners so associated, or, in the case of a not for profit organi- 
zation, its only members are one or more of the practitioners so 
associated or a clinic established solely to provide service to 
employees or students of such corporation or institution. No matter 



P.D. 12 137 

how the clinic is named, ''clinic" shall not include a clinic con- 
ducted by a hospital licensed under section fifty-one or by the 
federal government, the commonwealth, or a local health depart- 
ment. St. 1979, c. 674, §1. 

That Act also added for the first time a definition of the term "practitioner" as 
follows: 

any individual who may diagnose and treat medical, surgical, den- 
tal, physical rehabilitation, or mental health problems without limi- 
tation within the confines of his profession. 
St. 1979, c. 674, §2. 

In your letter you informed me that H. 6077, which was the bill which 
ultimately became chapter 674 (and which replaced the previously filed S. 466 
and H. 2754), was filed at the request of the Department of Public Health, the 
Massachusetts Medical Society, and the Board of Registration in Medicine. You 
further inform me that your Department has consistently interpreted the lan- 
guage in the manner indicated in your request for my opinion. Under such 
circumstances your interpretation of the meaning of the statutory language must 
be given considerable deference. Cf. Metropolitan Property & Liability Ins. Co. 
v. Commissioner of Insurance, Mass. Adv. Sh. (1981) 347, 356-57; Xtra, Inc. 
v. Commissioner of Revenue, Mass. Adv. Sh. (1980) 849, 853-55. 

In order to answer the questions which you have posed, I must first analyze 
the statutory language in question. In this case the relevant language of G.L. c. 
Ill, §52, is contained in the third sentence of the definition of "clinic." There, 
the Legislature narrowed the scope of that definition from "one or more practi- 
tioners engaged in a solo or group practice" to exclude any entity which did not 
use the words "clinic," "dispensary," or "institute" in its name and which "is 
wholly owned and controlled by one or more of the practitioners so associated." 

To respond to your first question, I believe your construction of the phrase 
"solo or group practice" is based upon appropriate criteria and reaches a result 
which does not appear to be inconsistent with the statutory language and intent. 
I believe, however, that in deciding whether any particular medical practice is or 
is not exempt from licensure, the general principles you listed in your letter may 
be supplemented by a factual investigation aimed at determining whether, in 
fact, that particular practice meets the statutory test for exemption. While this 
aspect of the licensure decision thus depends upon the particulars of each case 
and so cannot be resolved in the abstract, I list below several factors which you 
could consider in connection with that factual investigation. With these qualifi- 
cations I can state that the interpretation you have adopted is based upon sound 
principles of statutory construction and is well within your authority. In the 
terms of your request, therefore, it is a legally "correct standard for the Depart- 
ment to use." 

The principal basis for my opinion is the specific statutory language. Where, 
as here, the language of a statute is not technical or complex, it must be 
interpreted in accordance with the usual and natural meaning of the words 
actually used by the legislature. Registrar v. Board of Appeal on Motor Veh. 
Liability Policies & Bonds, Mass. Adv. Sh. (1981) 415; Burke v. Chief of 
Police of Newton, 374 Mass. 450, 452 (1978), and so as to fulfill the legislative 



138 P.D.12 

intent. Industrial Finance Corp. v. State Tax Commission, 367 Mass. 360, 364 
(1975). While legislative intent must normally be ascertained by an examination 
of the language used, in the context of its legislative history and the system of 
law of which it is a part, Commonwealth v. Welosky, 276 Mass. 398, 401 
(1931), the first tool of statutory construction is a literal reading of the words 
which comprise the subject statute. From such a literal reading it appears that in 
this case the legislature intended the focus of investigation to be on the actual 
facts of ownership and control. 

This result is consistent with application and construction of those terms in 
other statutory contexts. Unless there is strong legislative history to the con- 
trary, similar language in other statutory schemes is normally given such an 
interpretation. See, e.g., Northgate Construction Co., Inc. v. State Tax Com- 
mission, 377 Mass. 205, 208 (1979); 15 U.S.C. §77b (11) ("controlling or 
controlled by" in federal Securities Act); United States v. Corr, 543 F. 2d 
1042, 1050 (2nd Cir. 1976) ("control" ... "is a question of fact which 
depends upon the totality of the circumstances"); Gilberrville Trucking Co. v. 
U.S., 371 U.S. 115, 125 (1962) ("control" is to be defined in light of the 
"actualities and current practices of the industry involved"), affg in part, 196 
F. Supp. 351 (D. Mass. 1961) (ICC case); cf. Commonwealth v. One 1978 Ford 
Van, Mass. App. Ct. Adv. Sh. (1981) 880,882-84 (analysis of explicit legisla- 
tive history of statutory reference to "ownership"). The legislative history of H. 
6077 does not show that this provision as enacted was modified or amended in 
the legislative process. Since there is nothing in the legislative history of chapter 
674 to indicate that the legislature wished the Department to do otherwise, I 
conclude that in applying "ownership" and "control" to specific cases, the 
Department should focus on the individual facts of the case at hand. 

It is also necessary to consider how the statutory language in question applies 
to a medical practice by a professional corporation incorporated under G.L. c. 
156A. Under normal principles of corporate law, the "owners" of a corporation 
are its shareholders. 13A Massachusetts Practice, C.A. Peairs Business Corpo- 
rations, §443 at 155 (1971). The "controllers" or managers of the corporation 
are its directors and officers. Id. , §461 at 193 and §441 at 148. See also Henn, 
Law of Corporations (2nd ed. 1970). These general principles are embodied in 
the Massachusetts Business Corporation Law codified at G.L. c. 156B. Pursu- 
ant to G.L. c. 156A, §3, the provisions of that chapter apply to professional 
corporations organized under G.L. c. 156A. The sole owner, director, and 
officer of a professional corporation does "own and control" that corporation. 

Against this background, I conclude that in applying the standards of G.L. c. 
Ill, §52, to a medical practice carried on by such a corporation, there should be 
a strong presumption that a professional corporation whose sole officer, direc- 
tor, and shareholder is a licensed physician who actually practices at the facility 
in quesiton is a "solo or group practice . . . wholly owned and controlled by one 
or more of the practitioners so associated." Thus, assuming none of the names 
enumerated in section 52 is used, the practice would be presumed to be exempt 
from clinic licensure. In view of the essentially factual nature of the ultimate 
inquiry, however, that presumption could be rebutted upon a sufficient factual 
showing. 



P.D. 12 139 

The statute refers to ownership and control of the "practice" and a medical 
practice may be viewed as an entity distinct from the professional corporation 
that carries it out. A medical practice is normally understood to be more than an 
ordinary business. A medical practice carried out by a professional corporation 
is not, therefore, the exact analog of an ordinary commercial business conducted 
by a business corporation. Although for most purposes a commercial business 
and a business corporation are considered interchangeable or even identical, that 
does not mean that for purposes of clinic licensure the Legislature intended the 
Department to assume a similar interchangeablility between a medical practice 
and a professional corporation under which it operates. Many, if not most, 
medical practices have no corporate organization connected to them in any 
fashion and, of course, medical practices, both solo and joint, existed for 
centuries before the adoption of the Professional Corporations Act. It seems 
clear that that Act was designed for limited purposes and it was not intended to 
"alter any law applicable to the relationship between a person rendering profes- 
sional services and a person receiving such services." G.L. c. 156A, §10. 
Therefore, analysis of the ownership and control of the corporation cannot 
necessarily resolve the question of the ownership and control of the medical 
practice. To make a rigid rule that the corporation is the practice for all purposes 
would not be consistent with the common understanding of a "medical prac- 
tice" and might lead to an undesirable limitation of liability and responsibility 
on the parts of the professionals or other individuals who are the real persons 
who constitute both the practice and the corporation. See G.L. c. 156A, §10. 

The factual investigation necessary to determine whether a practice carried 
out by a wholly owned professional corporation is exempt from licensure could 
only be performed by your Department and is beyond the scope of the Attorney 
General's opinion rendering function. See 1961/62 Op. Atty. Gen., Rep. A.G., 
Pub. Doc. No. 12 at 199. In conducting such a factual inquiry you might look to 
such factors as the history of the medical practice in question, the terms by 
which any property is owned or leased by the practice or the corporation and 
from whom, the terms of any management or service contracts entered into by 
the corporation on behalf of the practice, the professional background of corpo- 
ration's owners and officers, particularly in light of the nature of the type of 
medical services the practice furnishes, the person or persons who actually make 
treatment decisions for the practice, and the relative amount of the actual work 
of the practice performed by the corporation's owners and officers. These 
factors are not intended to be inclusive and should be supplemented by any 
additional inquiries which you believe would aid you in determining whether the 
corporation, or its owners and officers, actually "own and control" the prac- 
tice. It is the answer to that latter question which is decisive in determining the 
availability of exemption from clinic licensure. 

Thus in some future case you might, for example, conclude that the purpose 
underlying the "ownership and control" requirement in section 52 requires the 
Department's consideration to go beyond the formal indicia of ownership and 
control of the corporate entity which operates a medical practice in order to 
explore the substance of the relationship among an entity, the practitioners 
associated with it, and third persons. Such an investigation would be in some 
ways akin to "piercing the corporate veil" in ordinary corporate law. See My 



140 P.D.12 

Bread Baking Co. v. Cumberland Farms Inc., 353 Mass. 614 (1968); C.A. 
Peairs, supra, §§646 at 565, et seg. While that type of investigation might be 
reserved for rare and unusual cases, it might be a potentially valuable tool for an 
administrator charged with assuring the integrity of a licensure system and so 
should not be foresworn unnecessarily in view of the enforcement and adminis- 
tration responsibilities in the clinic licensure statute which are confided to the 
Department of Public Health. See, e.g., G.L. c. Ill, §§53, 56. 

You have also asked what standards the Department could use in construing 
the statutory phrase "solo or group practice' ' in other contexts. In particular, 
you asked whether it is "beyond the authority of the Department" to use any 
standard of construction other than the language of section 52, its legislative 
history, the Department's implementation of that section and the corporation 
statutes and corporate law generally. I believe you have correctly identified the 
tools available to assist your factual inquiry and that the discussion above makes 
it unnecessary to provide a separate additional answer for this question. 

In summary, it is my opinion that in determining whether a professional 
corporation without a clinic name is a solo practice of medicine, the Department 
must consider the language of G.L. c. Ill, §52, its legislative history and the 
Department's interpretation of the statute. While the documents of incorporation 
may demonstrate that one physician is the sole shareholder, director and officer, 
the Department may in its discretion consider all the relevant facts to ascertain 
whether the medical practice is "wholly owned and controlled by that 
physician." 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

March 11, 1982 
Number 1 1 . 

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

Dear Commissioner Frechette: 

You have requested my opinion whether a building erected and formerly used 
as a motel may be licensed by the Department of Public Health as a hospital 
pursuant to G.L. c. Ill, §51. Specifically you ask whether General Laws 
chapter 111, section 51, can be interpreted to include conversion, renovation 
and reconstruction of a building to meet the construction standards specified in 
the statute or whether the building in question must have been originally con- 
structed as a hospital. 

For the reasons set forth below, I am of the opinion that General Laws chapter 
111, section 51, requires that a hospital license may be issued only for a 
building which was originally constructed as a hospital. 



P.D. 12 141 

The answer to your question requires an analysis of the third paragraph of 
G.L. c. Ill, §51, which provides that: 

[N]o original license shall be issued to establish a hospital, except a 
college and school infirmary, unless it complies with the construc- 
tion standards of the state building code, is of at least type 1-B 
fireproof construction, and shall have been constructed for the 
purpose. 
This language was placed in G.L. c. 1 1 1, §51, by St. 1977, c. 868, §1. Under 
the prior enactment, St. 1967, c. 891, §1, this paragraph provided as follows: 
[N]o original license shall be issued to establish a hospital, except a 
college and school infirmary, unless it is of at least Class 2 construc- 
tion and shall have been constructed for the purpose. Class 2 con- 
struction shall be no less than the standards set forth in rules and 
regulations of the department of public safety applicable to 
buildings. 
In answering your question, I am guided by the principle that the meaning of 
a statute must be determined first by examining its plain language, Burke v. 
Chief of Police of Newton, 374 Mass. 450, 452 (1978); Boston v. Massachusetts 
Port Authority, 364 Mass. 639, 657 (1974), construed so as to fulfill the 
legislative intent. Industrial Finance Corp. v. State Tax Commission, 367 Mass. 
360 (1975). Moreover, the words and phrases contained in a statute are to be 
given their ordinary meaning and to be construed according to their natural 
import and approved usage. Burke v. Chief of Police of Newton, 374 Mass. 450, 
452 (1978). 

Applying these principles here, it is plain that the phrase "constructed for the 
purpose" in G.L. c. Ill, §51, cannot be interpreted to include the conversion, 
renovation, or reconstruction of a building for the purpose of meeting the 
construction standards specified in that section. The Supreme Judicial Court has 
had occasion to define "construction", finding it to be the "erection of a new 
building or addition to an old building." Commonwealth v. Hayden, 21 1 Mass. 
296, 297 (1912). Accord, D'Ambra v. Zoning Board of Appeal of Attleborough, 
324 Mass. 61, 62 (1949). The Court has also distinguished "alteration" from 
"construction" and has defined alteration as "a change or substitution made in 
a particular part of a structure of such a substantial nature as to make the 
structure itself or an important part thereof materially different from what it 
formerly was." Boston & Albany R.R v. Dept. of Pub. Utilities, 314 Mass. 
634, 637 (1943). Accord, Commonwealth v. Hayden, supra. Thus, as these 
cases indicate, the procedure involved in renovating or reconstructing a building 
in order to meet the construction standards specified in section 51 is more 
properly characterized as "alteration" as opposed to construction. 1 I must 
presume that in enacting St. 1977, c. 868, the Legislature was aware of pre- 
existing law and the decisions of the Supreme Judicial Court. Selectment of 



My conclusion is not changed by the phrase "new construction" which appears in the fourth paragraph of §51 . It might be argued 
that the specific reference to "new construction" in paragraph four demonstrates that the legislature intended the more general 
term "constructed" in paragraph three to have a broader meaning than that described above including renovation or reconstruc- 
tion. It is my opinion however, that this was not the case An examination of paragraph four indicates, instead, that the legislature 
intended to distinguish between the construction of a new hospital and alterations to an existing hospital, rather than between 
construction of a new hospital and renovation or reconstruction of a building, originally constructed for another purpose, so as to 
convert it into a hospital. 



142 P.D.12 

Topsfield v. State Racing Commission, 324 Mass. 309, (1949). I conclude 
therefore that the Legislature intended the phrase "shall have been constructed 
for the purpose" to serve as a requirement that only buildings originally con- 
structed as hospitals may be licensed under section 5 1 . 

This conclusion is supported by a comparison of the provision at issue with 
the corresponding provision regarding the licensure of convalescent and nursing 
homes contained in the fifteenth paragraph of G.L. c. Ill, §71. This latter 
provision was also amended by the Legislature by the same enactment which 
amended section 51 to provide in pertinent part: 

no original license for the establishment or maintenance of a conva- 
lescent or nursing home shall be issued by the department unless the 
applicant for such license submits to the department a certificate of 
an inspector of the division of inspection of the department of public 
safety that each building to be occupied by patients of such conva- 
lescent or nursing home . . . meets the construction standards of the 
State building code, and is of at least type 1-B fireproof 
construction. 

St. 1977, c. 868, §2 (G.L. c. Ill, §71). I must conclude that this differing 
statutory treatment of related subjects in the same legislative enactment was 
intentional. Cf. School Committee of Springfield v. Board of Education, 362 
Mass. 417, 433 (1972) (statutes enacted as part of same bill must be construed 
together); 1980/81 Op. Atty. Gen. No. 17, Rep. A.G. Pub. Doc. No. 12 at 147 
(1981) (differing treatment by Legislature of two subjects within one statutory 
scheme is intentional). Thus, the Legislature, while not desiring to impose a 
corresponding requirement on convalescent and nursing homes, plainly intended 
to require that only buildings originally constructed as hospitals were eligible for 
licensure under section 51. 2 

Any other interpretation would render the phrase "constructed for the pur- 
pose" superfluous in contradiction to the basic principle of statutory interpreta- 
tion that "[n]one of the words of a statute is to be regarded as superfluous, but 
each is to be given its ordinary meaning without overemphasing its effect upon 
the other terms appearing in the statute, so that the enactment considered as a 
whole shall constitute a consistent and harmonious statutory provision capable 
of effectuating the presumed intention of the Legislature." Milton v. Metropol- 
itan District Commission, 342 Mass. 222, 225 (1961) quoting Bolster v. Com- 
missioner of Corporations and Taxation, 319 Mass. 81, 84-85 (1946). Thus, if 
the Legislature intended only to require hospitals to meet the construction 
standards of the state building code and to be of type 1-B fireproof construction, 
it could have simply said so, and the phrase in section 51 "shall have been 
constructed for the purpose" would have been unnecessary. Since the Legisla- 
ture chose to include the phrase in question when dealing with hospitals in St. 
1977, c. 868, §2, yet omitted it when dealing with convalescent or nursing 
homes in section 2 of the bill, it must be presumed that the Legislature intended 



This construction also fulfills the legislative intent to ensure that the needs of the public in general, and hospital patients in 
particular are protected, not only with regard to safety of construction, but also with regard to architectural and design considera- 
tions that may be uniquely applicable to hospitals. This intent is further demonstrated by the provisions of paragraph four of 
section 51, which require that both the preliminary and final architectural plans for the new construction of a hospital and the 
alteration or addition to an existing hospital be submitted to the Department for approval. 



P.D. 12 143 

for the phrase to have purpose and meaning. Insurance Rating Board v. Com- 
missioner of Insurance, 356 Mass. 184, 189 (1969); Selectmen of Topsfield v. 
State Racing Commission, 324 Mass. 309, 314 (1949). 

Finally, it is my understanding that the Department has interpreted the provi- 
sion in question in the manner discussed above. It is my further understanding 
that this interpretation has been consistently applied since the time of the 
provision's enactment, and that the Department in fact participated in the draft- 
ing of this legislation. In light of these considerations, the interpretation of the 
Department, the agency charged with the administration and enforcement of the 
statute, is entitled to some weight in resolving any possible ambiguity in the 
provision. Devlin v. Commissioner of Correction, 364 Mass. 435, 438-39 
(1973). See also 1981/82 Op. Atty. Gen. No. 10, Rep. A.G., Pub. Doc. No. 12 
at (1982). 

For the foregoing reasons, it is therefore my opinion that General Laws 
chapter 111, section 5 1 , permits the issuance of licenses only for those buildings 
which were originally constructed as hospitals and prohibits the conversion, 
renovation or reconstruction of a building which was constructed for some other 
purpose even if such conversion, renovation or reconstruction enables it to meet 
the specified construction standards. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



March 15, 1982 

Number 12. 

Jacqueline D. O'Reilly, Chairman 
Massachusetts Arts Lottery Council 
State House, Room 212M 
Boston, Massachusetts 02133 

Dear Ms. O'Reilly: 

In your capacity as Chairman of the Arts Lottery Council you have requested 
my opinion concerning the determination of the amount of arts lottery funds 
available for distribution to local and regional arts councils from the operation of 
the Arts Lottery for fiscal year 1981. 

Specifically, you ask whether the deduction from the Arts Lottery Fund for 
the fiscal year 1981 of arts lottery expenses of the Lottery Commission is 
limited to 15% of total arts lottery revenues for that year. You have also asked 
me questions regarding the form of certification of these expenses and the 
necessity of further action by the Council, e.g., promulgation of a "supplemen- 
tal regulation," issuance of a "formal interpretative ruling" or "some other 
action" to "resolve any uncertainty" surrounding the issues you have raised. 

For the reasons set forth below, I am of the opinion that the deduction from 
the Arts Lottery Fund for the expenses incurred by the Lottery Commission in 



144 P.D.12 

operating the arts lottery in fiscal year 1981 is not limited to fifteen percent of 
the fiscal year 1981 arts lottery revenues. Since I reach this conclusion, I need 
not answer the remaining two questions you have posed. 

The answer to your first question requires an interpretation of the statutory 
scheme which governs operation of the state lottery and the state arts lottery, as 
well as an analysis of a previous opinion rendered by me regarding the two 
lotteries. 1 

I note at the outset that the amount of monies to be distributed to the local and 
regional arts councils is that contained in the State Arts Lottery Fund less the 
Arts Lottery Council's administrative expenses, which are limited to 3% of the 
State Arts Lottery Fund. G.L. c. 10, §35A. See 1980-81 Op. Atty. Gen. No. 
17, Rep. A.G. Pub. Doc. No. 12 at 102 (1981). The Arts Lottery Fund is 
defined by St. 1979, c. 790, §2, which inserted G.L. c. 10, §35A, and 
established: 

a separate fund to be known as the State Arts 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 
(emphasis added). 

In construing the word "expenses" in this statute I must be guided by its plain 
meaning. Burke v. Chief of Police of Newton, 374 Mass. 450, 452 (1978); 
Boston v. Massachusetts Port Authority, 364 Mass. 639, 657 (1974). By the 
terms of section 35 A, prizes and "expenses" must be deducted from gross 
revenues to ascertain the balance in the "State Arts Lottery Fund" and thus the 
amount distributable to local and regional arts councils. Section 35A, by its 
terms, imposes no limit on the deduction which must be made for "expenses" 
for fiscal year 1980-1981. Certainly the Legislature could have inserted such a 
limit in the statute. I must presume, in the absence of such language, that no 
limit is intended. Cf. Prudential Insurance Co. of America v. Boston, 369 
Mass. 542, 546-47 (1976) (statute must be construed as written, and an event or 
contingency for which no provision is made does not justify judicial legislation). 
Accordingly, I conclude that the deduction mandated by section 35 A for 
"expenses" encompasses all expenses of the Lottery Commission incurred in 
the operation and administration of the state arts lottery. My conclusion is 
supported by my previous comparison of G.L. c. 10, §35, and G.L. c. 10, 
§35A. See 1980/81 Op. Atty. Gen. No. 17, Rep. A.G., Pub. Doc. No. 12 at 
102 (1981). As I noted in that opinion to the Treasurer and Receiver General, 
the language in section 35 A is distinguishable from that of G.L. c. 10, §35, 
establishing the general State Lottery Fund. 2 Because these two provisions are 



In my opinion, your question is properly answered without reference to St 1981 , c. 351, §294, which deleted G.L. c. 10, §35 A, 
and inserted in its place three new sections: §§35A, 35B and 35C. These amendments took effect on July 1 , 1981 , the first day of 
fiscal year 1982. St. 1981, c. 351, 5299. Your questions relate to the previous fiscal year, and no provision mandating retroactive 
application of these amendments to G.L. c. 10 is apparent on the face of St. 1981, c. 351 . In the absence of such language, I rely 
on the presumption that statutes are prospective in their operation "unless an intention that they shall be retrospective appears by 
necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state 
of the law and the effect upon existent rights, remedies and obligations . " Hanscom v. Maiden and Melrose Gas Light Co.. 220 
Mass. 1, 3 (1914). Accord, Welch v. Mayor of Taunton, 343 Mass. 485, 487 ( 1962); Goes v. Feldman, Mass. App. Ct. Adv. Sh. 
(1979) 1456, 1460. 

2 General Laws chapter 10, section 35, provides in pertinent part: 

[S]aid 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. 



P.D. 12 145 

contained within the overall state lottery statute, see Registrar of Motor Vehicles 
v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, Mass. Adv. 
Sh. (1981) 415, 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 
then concluded that this distinction is intentional. Thus, if the Legislature had 
intended to limit the amount of expenses deductible from the Arts Lottery Fund, 
it would have so specified by an explicit provision so limiting deductions, or by 
a reference to the fifteen percent limitation contained in G.L. c. 10, §25. 

Further, while the arts lottery is to be conducted and the revenues therefrom 
distributed in accordance with the general provisions of the state lottery law, 3 
this provision is expressly made "[s Jubject to the provisions of section 35A." 
G.L. c. 10, §24. Upon review of §35A, I conclude that the fifteen percent 
limitation upon the expenses of the State Lottery Commission imposed by G.L. 
c. 10, §25, has no application to the distribution of fiscal 1981 arts lottery 
funds. 4 

Because I find the language in G.L. c. 10, §35A, clear and unambiguous, and 
distinguishable by its terms from G.L. c. 10, §35, 1 must decline your invitation 
to draw inferences from language contained in G.L. c. 10, §25, or in the acts of 
1980 which appropriated monies for the operation and administration of the 
state lottery (St. 1980, c. 329, §2, item 0640-0000). See Department of Commu- 
nity Affairs v. Massachusetts State College Building Authority, 378 Mass. 418, 
427 (1979) (a court cannot resort to extrinsic sources to vary the plain meaning 
of an unambiguous statute). The plain language of G.L. c. 10, §35A, reveals, in 
my opinion, a legislative intent that the arts lottery, like the state lottery, be self- 
supporting. The differences in budgetary language do not compel a different 
conclusion. 

For the foregoing reasons, I answer your first question in the negative and 
respectfully decline to answer the remaining questions which you pose. 



Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



As I have previously opined, the State Lottery Commission is to conduct the arts lottery and must do so in acccordance with the 
state lottery law. 1980/81 Op. Atty. Gen. No. 4, Rep. A.G., Pub. Doc. No. 12 at 102 (1981) 

1 G.L. c. 10. §25, states: 

The apportionment of the total revenues accruing from the sale of lottery tickets or shares and from all other sources shall be 
as follows: — (a ) the payment of prizes to the holders of winning tickets or shares which in any case shall be no less than 
forty-five per cent of the total revenues accruing from the sale of lottery tickets; (b) the payment of costs incurred in the 
operation and administration of the lottery, including the expenses of the commission and the costs resulting from any 
contract or contracts entered into for promotional, advertising or operational services or for the purchase or lease of lottery 
equipment and materials which in no case shall exceed fifteen per cent of the total revenues accruing from the sale of lottery 
tickets, subject to appropriation; and (c) the balance to be used for the purposes set forth in clause (c) of section thirty-five. 

Thus the State Lottery Commission may not incur expenses of operation and administration in excess of fifteen per cent of total 
revenues from the sale of lottery tickets. 



146 P.D.12 

March 16, 1982 
Number 13. 

Anthony J. Ruberto, Jr. 
Berkeshire District Attorney 
Bank Row 
Pittsfield, Massachusetts 01201 

Dear District Attorney Ruberto: 

You have requested my opinion pursuant to G.L. c. 12, §6, whether you, as 
District Attorney, have the authority to represent the Sheriff of Berkshire 
County in a civil action under the federal civil rights act codified at 42 U.S. C. 
§1983 (1976). The facts, as you have informed me, are the following: The 
Sheriff of Berkshire County has recently been named a defendant in an action 
filed in the United States District Court in Springfield, Massachusetts. The 
plaintiff in this litigation is a former employee at the Berkshire County House of 
Correction and is alleging that he was wrongfully discharged from his employ- 
ment on account of race. A cause of action is alleged to arise under the federal 
civil rights act. The Berkshire County Commissioners have requested that you 
represent the Sheriff in this suit. 

For the reasons discussed below, it is my opinion that the district attorney, as 
the "public attorney", as that term is defined by G.L. c. 258, §1, may only 
defend actions brought against the "public employer" pursuant to G.L. c. 258. 
Thus, the district attorney is to represent the county when it is sued pursuant to 
G.L. c. 258. G.L. c. 258, §§1, 6. He is not authorized by that chapter 1 to 
represent the sheriff as a county officer in the defense of a federal civil rights 
action. 

Your request involves the construction of G.L. c. 258, §9, as added by St. 
1978, c. 512, § 1 5 , 2 and specifically, requires a determination whether the 
indemnification of public employees provided by that section vests the district 
attorney with the authority to defend an action not arising under that chapter. 

The authority of the district attorney in this area is explicit. G.L. c. 258, §1, 
§3 establishes the position of "public attorney." He is 

the attorney who shall defend all civil actions brought against a 
public employer pursuant to this chapter. In the case of the com- 
monwealth he shall be the attorney general; in the case of any 
county he shall be the district attorney as designated in sections 
twelve and thirteen of chapter twelve (emphasis supplied). 

Each district attorney is the "public attorney" in his respective district. General 
Laws chapter 258, section 6, reiterates this duty: 



I have treated your question as one arising under G.L c. 258. By so doing, I express no opinion as to whether you, as a district 
attorney, pursuant to G.L. c. 12. §27, or otheruise, possess the inherent authority to represent the Sheriff in such an action. 

2 Chapter 512 of the Acts of 1978 abrogated the doctrine of sovereign immunity by adding to the general laws "An Act Establishing 
A Claims and Indemnity Procedure for the Commonwealth, its Municipalities. Counties and Districts and the Officers and 
Employees Thereof." This act has come to be known as the "Massachusetts Tort Claims Act." See generally. Glannon, Joseph. 
W., "Governmental Tort Liability under the Massachusetts Ton Claims Act of 1978" 66 Mass. Law Review 1 at 7-22 (Winter, 
1981). By St. 1978, c. 512, §15, that act struck out the old G.L. c. 258 and inserted in place the present General Laws chapter 
258. sections 1-13. 



P.D. 12 147 

[t]he public attorney shall defend all civil actions brought against a 
public employer pursuant to this chapter (emphasis supplied). 

In short, the express provisions of G.L. c. 258, §§1 and 6, limit the role of the 
"public attorney" to the defense of actions brought pursuant to the provisions of 
that same chapter. An express and unambiguous statement by the legislature 
concerning the scope of a statute is ordinarily regarded as conclusive. See 
United States v. Turkette, U.S. , 101 S. Ct. 2524, 2527 (1981). 

In addition, the authority of the district attorney as set out in G.L. c. 12, §§12 
and 13, was expanded by chapter 512 of the Acts of 1978* to include defense of 
actions brought pursuant to the provisions of G.L. c. 258. These amendments to 
the district attorney's authority dovetail precisely with that of the "public 
attorney" as set forth in G.L. c. 258, §§1 and 6. These two statutes should be 
construed together so as to constitute a harmonious whole consistent with the 
legislative purpose. See Registrar of Motor Vehicles v. Board of Appeal on 
Motor Vehicle Liability Policies and Bonds, Mass. Adv. Sh. (1981)415, 420. A 
district attorney, when acting as the "public attorney" as defined in G.L. c. 
258, §1, may only defend civil actions brought pursuant to G.L. c. 258. 

In your request you suggested that General Laws chapter 258, section 9, 
which provides, inter alia, for indemnification of public employees for viola- 
tions of the federal civil rights law, may also afford protection of public employ- 
ers as to claims not brought under G.L. c. 258. If this were true, then the 
"public attorney" would defend such claims. General Laws chapter 258, sec- 
tion 9, does not, however, establish any basis for bringing a federal civil rights 
claim pursuant to that chapter. This section merely provides that: 

[PJublic employers may indemnify public employees from personal 
financial loss and expenses, including legal fees and costs, if any, in 
an amount not to exceed one million dollars arising out of any 
claim, action, award, compromise, settlement or judgment by rea- 
son of an intentional tort, or by reason of any act or omission which 
constitutes a violation of the civil rights of any person under any 
federal or state law. 

This section permits indemnification of a public employee if he is sued directly 
in circumstances where the public employer cannot be sued pursuant to G.L. c. 
258, that is, for an intentional tort 4 or for a federal or state civil rights violation. 5 



- Sections 3 and 4 of chapter 12 of the Acts of 1978 amended and expanded the jurisdiction of the district attorney by adding the 
following two paragraphs to G.L. c 12. "The district attorney shall appear for a county constituting such district in all civil 
actions in which such county is a party under the provisions of chapter two hundred and fifty-eight." G.L. c. 12, §12 (as amended 
by St. 1978. c. 512. §3|. And further. "[FJor the administration of the criminal law. or for the defense of civil actions brought 
pursuant to chapter two hundred fifty-eight. Suffolk County shall constitute the Suffolk District." G.L. c. 12. §13 (amended by 
St. 1978. c. 512. §4). 



General Laws chapter 258 generally abrogated the doctrine of sovereign immunity However. G.L c. 258, §10, provides that 
"sections one to eight, inclusive, shall not apply to . . . (c) any claim arising out of an intentional tort " Even so, G.L. c. 258, §9. 
allows for indemnification in any "claim, action, award, compromise, settlement or judgement by reason of an intentional tort " 



148 P.D.12 

The statute clearly distinguishes between the provision of an exclusive rem- 
edy for tortious conduct by governmental employees, G.L. c. 258, §2," and the 
possible indemnification of governmental employees in certain circumstances, 
G.L. c. 258, §9. The inclusion of a clause allowing possible indemnification of 
a public employee for a federal civil rights violation does not convert that into a 
G.L. c. 258 action to ultimately be defended by the public attorney. 7 

Therefore, it is my opinion that the district attorney, acting in the capacity of 
public attorney pursuant to G.L. c. 258, §§1 and 6, may defend only civil 
actions brought pursuant to G.L. c. 258, §2. An action brought under 42 U.S.C. 
§1983 for race discrimination is not an action encompassed in G.L. c. 258, §2. 
Further, the fact that General Laws chapter 258, section 9, allows indemnifica- 
tion by a public employer of certain federal civil rights violations does not bring 
this cause of action within G.L. c. 258. Thus, the district attorney may not rely 
upon G.L. c. 258 as authority to defend the Sheriff in the action filed under the 
federal civil rights act codified at 42 U.S.C. §1983 (1976) in the United States 
District Court. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

April 8, 1982 
Number 14. 

John J. Droney, District Attorney 

Middlesex County 

Superior Courthouse 

East Cambridge, Massachusetts 02141 

Dear District Attorney Droney: 

Acting pursuant to G.L. c. 12, §6, you have asked my opinion whether the 
use of recording equipment by the police department of the City of Cambridge 
on its emergency, business and "internal" telephone lines constitutes an "inter- 
ception" as that term is defined in G.L. c. 272, §99 B 4. You further ask 
whether an electronic "beep" on the line at the commencement of a telephone 
conversation is sufficient to give the caller knowledge that the communication is 
being recorded so that a prohibited "interception" does not occur. I conclude 



3 A claim brought under 42 U.S.C. §1983 is nol a claim wilhin the ambit of G.L. c. 258, although General Laws chapter 258, 
section 9, allows indemnification of a public employee for a federal civil rights violation. As one commentator has recently 
pointed out, "|A]lthough they are not expressly excepted from the scope of the Massachusetts Tort Claims Act. it is clear as a 
matter of constitutional law that civil rights actions arising under federal law are not affected by the statute Public employers are 
authorized, however, under G.L. c. 258, §9, to indemnify employees for losses resulting from such actions in some circum- 
stances." Glannon, Joseph W., "Governmental Tort Liability under the Massachusetts Tort Claims Act of 1978," supra, at 1 1 

s General Laws chapter 258, section 2, provides, inter alia, that "(t]he remedies provided by this chapter shall be exclusive of any 
other civil action or proceeding by reason of the same subject matter against the public employer or. the public employee." See 
Perkins School for the Blind v. Rate Setting Commission, Mass. Adv. Sh. (1981) 1510. 1515-1516, n. 4 (G.L. c. 258, §1, is 
procedural in purpose and is not in itself the source of any new rights against the Commonwealth," quoting Smith v. Common- 
wealth. 347 Mass. 453, 456 (1964)). 

7 This conclusion is supported by the fact that the Legislature in 1979 added a new section 3E to G.L. c. 12 providing for 
representation by the Attorney General of certain state officers and employees in civil rights actions. St. 1979, c. 806, §2. This 
statute would have been unnecessary if General Laws chapter 258 already provided for representation in such actions by the public 
attorney . 



P.D. 12 149 

that such use on emergency or business lines, with or without an accompanying 
electronic "beep," constitutes an "interception" under the statute.' The use of 
recording devices on "internal" lines may constitute an "interception," 
depending upon the specific use. I therefore reserve opinion on the portion of 
your question related to internal use in the absence of a detailed description of 
such use. 

The answer to your first question follows inexorably from the literal words of 
the statute. General Laws chapter 272, section 99 B 4, which is but one part of 
the Commonwealth's comprehensive eavesdropping statute, defines an "inter- 
ception" as follows: 

[T]he term "interception" means to secretly hear, secretly record, 
or aid another to secretly hear or secretly record the contents of any 
wire or oral communication through the use of any intercepting 
device by any person other than a person given prior authority by all 
parties to such communication; provided that it shall not constitute 
an interception for an investigative or law enforcement officer, as 
defined in this section, to record or transmit a wire or oral communi- 
cation if the officer is a party to such communication or has been 
given prior authorization to record or transmit the communication by 
such a party and if recorded or transmitted in the course of an 
investigation of a designated offense as defined herein. 

The Massachusetts statute thus imposes the requirement of two-party consent 
not found in the federal wiretap statute, 18 U.S.C. §§2510, et seg., or the 
majority of the statutes of other states. Compare N.Y. Penal Law §250.00 
(McKinney, 1967). The Supreme Judicial Court in Commonwealth v. Jackson, 
370 Mass. 502, 506 n. 6 (1976) has remarked in this regard: 

we note that the [Special Commission on Electronic Eavesdrop- 
ping]. . . . rejected the prevalent approach of permitting wiretapping 
and eavesdropping in cases of one-party consent .... One-party 
consent had been the operative standard in this Commonwealth prior 
to the 1968 amendment of G.L. c. 272, §99. [Citations omitted.] 

See also District Attorney for the Plymouth District v. New England Telephone 
& Telegraph Company, Mass. Adv. Sh. (1980) 197, 203-04 n. 6 ("in certain 
respects our statute imposes more stringent restrictions on the use of electronic 
surveillance devices than exist in certain other jurisdictions"). 

Indeed, two-party consent represents but one demanding provision in an 
exceedingly stringent statute. The restrictive nature of G.L. c. 272, §99, was 
recently noted by the Supreme Judicial Court in Commonwealth v. Thorpe, 
Mass. Adv. Sh. (1981) 1827. In Thorpe, the Court examined the "organized 
crime" exception contained in section 99 B 4. (See also G.L. c. 272, §99 B 7.) 



Your request states that the "logger-recorder" in question falls within the definition of an "intercepting device" under G.L. c. 
272, §99 B 3. and is not furnished to the police department by the New England Telephone and Telegraph Company under its 
tariff. Therefore, for purposes of this opinion. I assume that the common carrier equipment exemption contained in G.L. c. 272, 
§99 B 12, is inapplicable to these facts. 



150 P.D.12 

It described the statute as "framed largely in negative terms: clandestine over- 
hearing or recording of communications is prohibited except as otherwise spe- 
cifically provided." Id. at 1831. The Court noted the legislative preamble to the 
eavesdropping statute, G.L. c. 272, §99A, which states: 

[T]he general court further finds that the uncontrolled development 
and unrestricted use of modern electronic surveillance devices pose 
grave dangers to the privacy of all citizens of the commonwealth. 
Therefore, the secret use of such devices by private individuals must 
be prohibited. The use of such devices by law enforcement officials 
must be conducted under strict judicial supervison and should be 
limited to the investigation of organized crime. 

Id. at 1833, n. 5. The Court stated further: "As evidenced by the statutory 
preamble and the legislative history, the Legislature proceeded on the premise 
that electronic surveillance is anathema except within certain narrowly pre- 
scribed boundaries." Id. at 1835. 

This restrictive interpretation of section 99 comports with the well-settled 
principle of statutory construction that where the legislature has provided 
express exemptions to a general rule, these exemptions must be construed to be 
the only exemptions that the legislature intended to create. See Mc Arthur Broth- 
ers Co. v. Commonwealth, 197 Mass. 137, 139 (1980). See also Harborview 
Residents' Committee, Inc. v. Quincy Housing Authority, 368 Mass. 425, 432 
(1975) (statutory expression of one thing represents implied exclusion of others 
omitted from the statute). The only express exemption for the use of an "inter- 
cepting device," see G.L. c. 272, §99 B 3, without a warrant 2 by state and local 
investigative or law enforcement officers who are parties to a communication is 
when the communication is "recorded or transmitted in the course of an investi- 
gation of a designated offense as defined herein." G.L. c. 272, §99 B 4. The 
statute defines a "designated offense" to include a wide variety of crimes "in 
connection with organized crime as defined in the preamble." G.L. c. 272, §99 
B 7. There is no express exemption contained in the statute for the routine use of 
"logger recorders" by the police on emergency and business lines, except 
insofar as such recordings come under the "designated offense" exemption. 3 

Moreover, as the court in Thorpe has made clear, there is no implicit exemp- 
tion for the use of an intercepting device without a warrant by law enforcement 
officers. See Commonwealth v. Thorpe, supra, at 1835. 

You have also asked me whether the use of an electronic "beep" by the 
police recorders is sufficient to remove the surveillance from the purview of the 
statute. As the Supreme Judicial Court has held, if the caller has "actual 
knowledge" that the recording is taking place, then the recording is not being 
made "secretly" and does not, therefore, constitute an "interception" as 
defined by G.L. c. 272, §99 B 4. See Commonwealth v. Jackson, 370 Mass. 
502, 505 (1976). 



2 The statute specifically exempts from its term surveillance by "any person duly authorized to make specified interception by a 
warrant issued pursuant to this section." G.L. c. 272, §99 D 1 d. See G.L. c. 272, §99 E 

3 As the Court in Thorpe noted, however, "the Commonwealth may not rely on evidence of organized criminal activity gathered 
from the warrantless surveillance itself. There must be some showing of an organized crime connection before the surveillance, not 
afterward." Commonwealth v. Thorpe. Mass. Adv. Sh. (1981) at 1834-35. 



P.D. 12 151 

In Jackson, the Court expressly rejected a subjective "state of mind" test for 
actual knowledge. Id. at 507. It also rejected the notion that the statute requires 
that the caller be informed that the conversation is being recorded. Id. Instead, it 
held that the caller needs to have "actual knowledge of the recording, but . . . 
that actual knowledge is proved where there are clear and unequivocal objective 
manifestations of knowledge, for such indicia are sufficiently probative of a 
person's state of mind as to allow an inference of knowledge." (Emphasis 
added). Id. 

I must conclude that an electronic "beep" at the commencement of the 
conversation is not a sufficient basis in and of itself to draw an inference of 
actual knowledge. 4 To conclude otherwise would be inconsistent with the 
Court's direction that one must "look to the caller's words and conduct to 
determine if a conversation is being intercepted unbeknown to him." Id. at 507. 
Thus, I conclude that use of the "logger- recorder" with an electronic "beep" 
may well constitute an "interception" under G.L. c. 272, §99 B 4. 

To the extent that your request requires a factual determination whether the 
public in general is actually aware of the import of such a "beep," I am, of 
course, unable to make such a determination. Cf. 1961/62 Op. Atty. Gen., Rep. 
A.G., Pub. Doc. No. 12 at 199, 200 (1962) (Attorney General traditionally 
refrains from making factual determinations in the course of rendering an opin- 
ion). In some instances, a beep may sufficiently give the caller "actual knowl- 
edge" that the conversation is being recorded. Given the broad prohibitions 
against warrantless surveillance contained in the statute and the strong legisla- 
tive policy of protecting the privacy of the citizens of Massachusetts, however, I 
must conclude that one cannot presume on a routine basis that the electronic 
beep conveys such knowledge. See Campiti v. Walonis, 61 1 F. 2d 387, 396 (1st 
Cir. 1979), affirming 453 F. Supp. 819 (1978) (Massachusetts eavesdropping 
statute contains no implied knowledge exemption). 

Based on the language of the statute and the cited authorities I conclude, 
therefore, that there exists no explicit or implicit exemption for the use of 
recording equipment by police on their emergency or business lines. Nor may 
the police rely upon the presence of an electronic beep on the line to convey to 
each caller an actual awareness that his conversation is being recorded. The lack 
of a specific exemption, the restrictive language of the statute, the broad prohi- 
bition against unexempted police interceptions expressed in the legislative pre- 
amble and finally the case law all independently compel this conclusion. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



In my view, the dictum in Commonwealth v. Douglas, 354 Mass. 212 (1968), published prior to the extensive rewriting of c. 272, 
§99, later that year, see St. 1968, c 738. and before Jackson, represents a weak reed for support of the proposition that the 
"beep" satisfies Jackson's actual knowledge requirement. 



152 P.D.12 

April 21, 1982 
Number 15. 

James H. Fish, State Librarian 
George Fingold State Library 
State House 
Boston, Massachusetts 02133 

Dear Mr. Fish: 

You have requested my opinion, on behalf of the Board of Trustees of the 
State Library (the Trustees), concerning the scope of the Trustees' power, 
pursuant to G.L. c. 6, §34, to "sell or otherwise dispose of such books 
belonging to the [state] library as they consider unsuitable for its purposes." 
Specifically, you have asked (1) what procedures the Trustees must follow in 
selling or otherwise disposing of such books and (2) whether the proceeds of the 
sale of such books may be placed in a trust fund to be established and used by 
the Trustees for the purposes of the State Library. 

For the reasons set forth below, it is my opinion that the precise manner of 
selling or otherwise disposing of books which the Trusteees consider unsuitable 
for the purposes of the State Library is largely within the discretion of the 
Trustees, within the general parameters established by certain statutes and regu- 
lations referred to below. With respect to your second question, it is my opinion 
that the Trustees may not place the proceeds of such sales in a trust fund to be 
used for the purposes of the State Library. Instead, the Trustees must turn over 
such proceeds to the state treasurer to be paid into the treasury in compliance 
with Article 63 of the Amendments to the Massachusetts Constitution. 

General Laws c. 6, §34, authorizes the Trustees to "sell or otherwise dispose 
of such books belonging to the Library as they consider unsuitable for its 
purposes." Although that statute does not expressly authorize the Trustees to 
establish procedures for selling or otherwise disposing of such books, 1 such 
authority can be inferred from the general authorization to sell or dispose of 
books. See, e.g., Town Taxi, Inc. v. Police Commissioner of Boston, 377 Mass. 
576, 586 (1979), quoting from Bureau of Old Age Assistance of Natick v. 
Commissioner of Pub. Welfare, 326 Mass. 121 , 124 (1950) ("[w]here a grant of 
power is expressly conferred by statute upon an administrative officer or board . 
. . they in the absence of some statutory limitation have authority to employ all 
ordinary means reasonably necessary for the full exercise of the power"). In 
exercising their authority to sell or otherwise dispose of books, however, the 
Trustees must act in accordance with the rules and regulations established by the 
Commissioner of Administration, pursuant to G.L. c. 7, §22 (12), concerning 
the [djisposal of obsolete, excess and unsuitable supplies . . . and other prop- 
erty" which requires that such property be sold or otherwise disposed of "to the 
best interests of the State." 802 C.M.R. 2.00 (12). See 1961/62 Op. Atty. 
Gen., Rep. A.G., Pub. Doc. No. 12 at 168 (1962); 7 Op. Atty. Gen. at 129, 
131 (1923). 



Procedures for the sale or disposal of books and other records kept in the state archives are set forth at G.L. c. 30, §42. I am 
assuming for the purpose of this opinion that you are not referring to such books. 



P.D. 12 153 

My opinion that the proceeds of such sales must be paid into the treasury 
rather than placed in a trust fund established by the Trustees for the purposes of 
the State Library is based on Article 63, §1, of the Amendments to the Massa- 
chusetts Constitution. It provides: "[A]ll money received on account of the 
commonwealth from any source whatsoever shall be paid into the treasury 
thereof. ' ' 

The underlying purpose of Article 63, as often stated by the Supreme Judicial 
Court, is "to centralize, and improve control of, the Commonwealth's funds 
and to insure careful consideration of their expenditure." Opinion of the Jus- 
tices, 349 Mass. 804, 807 (9165). See also Town of Manchester v. Department 
of Environmental Quality Engineering, Mass. Adv. Sh. (1980) 1753, 1761; 
Opinion of the Justices, 334 Mass. 716, 718 (1956); Baker v. Commonwealth, 
312 Mass. 490, 493 (1942); Opinion of the Justices, 297 Mass. 577, 580 
(1937). In accordance with its purpose and its literal language, this amendment 
has been broadly construed to cover not only tax revenues, see, e.g., Oakley 
Country Club v. Long, 325 Mass. 109, 111 (1949), but money received from 
"any source whatsoever," including court fines, 2 fees, 1 rental income/ park- 
ing fines,' profits,* 1 and payments of penalty bonds. 7 Of particular relevance to 
the Trustees' proposed sale of books, my predecessors and I have repeatedly 
rendered opinions that money received from the sale of government property is 
"money received on account of the commonwealth" within the meaning of 
Article 63. 1979/80 Op. Atty. Gen. No. 13, Rep. A.G., Pub. Doc. No. 12 
(1980); 1961/62 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 168 (1962); 7 
Op. Atty. Gen. at 129 (1923); 6 Op. Atty. Gen. at 320-21 (1921). 

The facts of the present situation do not fall within the limited circumstances 
in which courts and prior attorneys general have ruled that certain funds fall 
outside the ambit of Article 63 because they are not received on account of the 
Commonwealth. Such holdings have been limited to situations where the funds 
are received by a private or quasi-private entity rather than by a state agency, 
see, e.g., Opinion of the Justices, 309 Mass. 609, 622-23 (1941) (money 
received by company in private ownership, although managed by public 
officers, not subject to Article 63); Opinion of the Justices, 334 Mass. 721, 734 
(1956) (funds received by Massachusetts Port Authority, an entity in itself, 
distinct from the Commonwealth, not subject to Article 63); or where the funds 
are impressed with a trust by the legislature, see, e.g., Howes Bros. Co. v. 
Unemployment Comp. Com., 296 Mass. 275, 289 (1936) (Unemployment Com- 
pensation Fund); 1979/80 Op. Atty. Gen. No. 13, Rep. A.G., Pub. Doc. No. 
12 at 124 (1980), (Inland Fisheries and Game Fund); 1972/73 Op. Atty. Gen. 
No. 34, Rep. A.G., Pub. Doc. No. 12 at 114, 117-18 (1973) (Lottery Commis- 
sion Fund). Cf. Town of Manchester v. Department of Environmental Quality 



Town of Manchester v. Department of Environmental Quality Engineering, supra, at 1761. 

3 Robinson \Secretary of Administration. Mass. App. Ct. Adv. Sh. (1981) 1634, 1642. 

4 1961/62 Op. Atty. Gen., Rep. AG., Pub. Doc No. 12 at 154. 157 (1962). 

5 1961/62 Op. Atty Gen., Rep AG Pub. Doc. No. 12 at 143, 145 (1962). 

6 1958/59 Op. Atty. Gen., Rep. AG, Pub. Doc. No. 12 at 48 (1959). 

7 5 Op. Atty. Gen at 524 (1920). 



154 P.D.12 

Engineering, supra, at 1763-64, or by the donor. 8 See, e.g., Opinion of the 
Justices, 375 Mass. 851, 854 (1978) (federal funds received by state agencies 
on express condition that such funds be spent for a particular purpose, not 
subject to Article 63). 

For the Trustees themselves to impose such a trust upon money received from 
the sale of state property and to thereafter expend the funds in such a trust 
without appropriation by the legislature would defeat the purpose of Article 63. 
See Opinion of the Justices, supra, 334 Mass. at 718. Furthermore, any infer- 
ence that the Trustees are empowered to spend money without appropriation is 
precluded by the express language of the Trustees' enabling statutes, which 
authorize the Trustees to manage and control the state library and "the moneys 
appropriated therefore," G.L. c. 6, §34, and to "expend such sums annually as 
the general court may appropriate." G.L. c. 6, §36. The exercise of such power 
would violate Article 30 of the Declaration of Rights, relating to separation of 
powers, since it would constitute appropriation by the executive, rather than the 
legislative, branch. See Opinion of the Justices, supra, 334 Mass. at 720; 
Opinion of the Justices, supra, 375 Mass. at 853; Opinion of the Justices, 302 
Mass. 605, 612, 614 (1939); Robinson v. Secretary of Administration, supra, at 
1642. 

In sum, for the reasons discussed above, it is my opinion that the Trustees 
may employ any reasonable procedures to sell or dispose of books they consider 
unsuitable for the purposes of the State Library, consistent with the rules 
established by the Secretary of Administration pursuant to G.L. c. 7, §22. 
However, the proceeds of such sales must be turned over to the state treasurer 
for payment into the treasury and cannot be expended by the Trustees without 
appropriation by the General Court. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

April 29, 1982 
Number 16. 

Honorable Michael Joseph Connolly 

Secretary of State 

Room 340 

State House 

Boston, Massachusetts 02133 

Dear Secretary Connolly: 

Acting in your capacity as chairman of the commission established by G.L. c. 
55, §3, as most recently amended by St. 1981, c. 699, §79, you have asked me 



8 The Trustees do have the statutory authority to receive gifts and bequests in trust for any purpose incident to the uses of the state 
library. G.L. c. 6, §37A. Cf. 6 Op. Atty. Gen at 636. 638 (1922) (Division of Fisheries and Game not so authorized). It is my 
opinion that this provision cannot be construed to authorize the Trustees themselves to impose a trust on money received from a 
sale of state property. See 6 Op. Atty. Gen. at 320. 321 (1921) Furthermore, even money received in trust by gift or bequest must 
be transferred to the state treasurer and cannot be disbursed without the prior approval of the house and senate committees on ways 
and means. G.L. c. 6, §37A; G.L. c. 10, §16. 



P.D. 12 155 

to opine as to the legality of the appointment of a current member of the General 
Court to the Office of Director of Campaign and Political Finance. Assuming 
that such an appointment is made and is valid, you also inquire when the 
commission may properly increase the salary of the director. 

Your questions arise under Article 65 of the Amendments to the Massachu- 
setts Constitution, which provides in part "[n]o person elected to the general 
court shall during the term for which he was elected be appointed to any office 
created or the emoluments whereof are increased during such term." The Office 
of Director of Campaign and Political Finance was created by St. 1973, c. 1 173, 
§1, which took effect on January 1, 1974. St. 1973, c. 1173, §17. The current 
term of members of the general court commenced in January, 1981 and will 
expire in January, 1983. There is, therefore, no argument that the Office of 
Director was created during the term being served by current legislators. 

This past year the Legislature acted concerning the salary of the director, 
deleting that portion of G.L. c. 55, §3, which had previously set his salary and 
providing instead for the director's salary to be fixed by the commission' which 
you chair. St. 1981, c. 699, §79. You inform me that the commission has not 
yet increased that salary, but that you contemplate doing so in the future. Thus, 
the focus of your inquiry is on the meaning of that portion of Article 65 which 
provides that a legislator shall not be appointed to an office "the emoluments 
whereof are increased during [his] term." The twin concerns raised by this 
phrase are whether the change worked by St. 1981, c. 699, §79, is itself an 
increase in emoluments and whether an increase in salary after the appointment 
is duly made would violate Article 65. With the qualifications expressed below, 
I answer each of the questions in the negative. 

In construing this phrase, I am guided by the maxim that the words of an 
Amendment to the Constitution "should be interpreted in the sense most obvi- 
ous to the common intelligence, because a matter proposed for public adoption 
must be understood by all entitled to vote." Lincoln v. Secretary of the Com- 
monwealth, 326 Mass. 313, 317 (1950). See also Opinion of the Justices, Mass. 
Adv. Sh. (1981) 2071, 2074-5; Opinion of the Justices, 365 Mass. 655, 657 
(1974). Similarly, I must read the amendment so as to achieve a reasonable 
result in light of its dominating purpose. In seeking to ascertain the dominating 
purpose the framers of Article 65 were seeking to serve, I have been guided 
primarily by the Debates of the Constitutional Convention of 1917, which reveal 
that Article 65 was modeled upon Article I, Section 6, of the United States 
Constitution and, like the federal provision, "was generated out of a fear that 
corruption would result if the legislature multiplied the number or increased the 
salaries of public offices for the benefit of its own members." Atkins v. United 
States, 556 F. 2d 1028, 1070 (Ct. CI. 1977). See generally 3 Debates in the 
Massachusetts Constitutional Convention 1917-1918 (1920). 

In 1976, the Supreme Court of Alaska considered a similar constitutional 
provision of that state which was also modeled upon the federal provision 
contained in Article I, Section 6. The court examined similar provisions of 



This commission is comprised of the chairman of the two leading political parties, the State Secretary and a dean of a law school 
located in the Commonwealth The function of the commission is to appoint the Director of the Office of Campaign and Political 
Finance. G.L. c. 55, §3 



156 P.D.12 

numerous other states, including Massachusetts, and articulated their purpose as 
follows: 

[TJhere is little disagreement as to the purpose of the type of consti- 
tutional provision under consideration here. Although the exact lan- 
guage varies from state to state, all such provisions are aimed at a 
common goal: to remove improper motives from considerations of 
legislators in voting for increased salaries or the creation of new 
offices (footnotes ommitted). 
Warwick v. Chance, Alaska , 548 P. 2d. 284, 288 (1976). 

Turning to the first question presented by your request, I begin with a literal 
reading of Article 65 construing its words in their ordinary sense. The word 
"emolument" is defined in Black's Law Dictionary as the "profit arising from 
office or employment . . . any perquisite, advantage, profit or gain arising from 
the possession of an office." In construing constitutional provisions like Article 
65, the courts have consistently ascribed this ordinary meaning to the term and 
have accordingly held that the word implies an "actual pecuniary gain, rather 
than some imponderable and contingent benefit," State v. Reeves, Wash. 
82 P. 2d 173, 175 (1938). Thus, a change in the manner of payment has been 
held not to be an increase in emoluments, even though it rendered payment 
more secure. State v. Nye, 148 Wis. 659, 135 N.W. 126 (1912). Similarly the 
highest court of Maryland has ruled that a statute authorizing a board to estab- 
lish the salary for a position is not the equivalent of an increase in emoluments, 
even where the authority is exercised and an increase granted. Mayor and 
Commissioners of Westernport v. Green, 144 Md. 85, 124A. 403 (1923). 

Utilizing the approach of these cases, I conclude that the change worked by 
St. 1981, c. 699, §79, was not in itself an increase in the emoluments of the 
office of director. It altered the mechanism for establishing the director's salary, 
but that is precisely the type of "imponderable and contingent benefit" the 
courts have declined to identify as "emoluments." See State v. Reeves, Wash, 
at , 82 P. 2d at 175. 

Recalling the purpose of Article 65, it is clear that the recent amendment to 
G.L. c. 55, §3, was not the type of legislation contemplated by the framers. 
That recent amendment merely divests the Legislature of the ability to set the 
salary of the director and confers that power, instead, upon an independent 
commission. Your commission is able to reduce or increase the director's 
salary. Therefore, it cannot be said that in enacting St. 1981, c. 699, §79, the 
Legislature has acted to increase the emoluments of the office or could have 
been influenced by such a consideration. I conclude that this legislative action 
does not increase the emoluments of the office of director. 

The second question which you pose asks, in effect, whether, if your com- 
mission does increase the director's salary, the appointment of a legislator 
elected for the current term is invalidated by the provisions of Article 65. To be 
answered, this question necessarily requires a determination when the disquali- 
fying event under Article 65 — here, an increase in salary — must occur in 
order for the legislator to be rendered ineligible for office. For the following 
reasons, I conclude that the increase in salary must have taken place prior to the 



P.D. 12 157 

appointment of the legislator in order to bring the case within the prohibition of 
Article 65. 

My conclusion derives in part from the fact that while Article 65 is an 
"ineligibility" clause, the Massachusetts Constitution, like the federal Constitu- 
tion, contains a separate provision governing incompatibility of offices.- An 
ineligibility clause focuses on one's qualifications for office at the time of 
appointment, i.e., whether an individual "shall ... be appointed." An incom- 
patibility provision, on the other hand, speaks to one's ongoing authority to hold 
a particular office. The authorities construing ineligibility clauses uniformly 
conclude that events which occur after appointment do not vitiate an originally 
valid selection. 

Thus, the Supreme Judicial Court offered an opinion to the Governor and 
Council in 1964 concerning the operation of Article 65. Opinion of the Justices, 
348 Mass. 803 (1964). It was the opinion of the Justices that an increase in the 
salary of an office during the term of a member of the General Court, and prior 
to the appointment of that member to the office, invalidated the legislator's 
appointment. The fact that the salary was reduced subsequent to the appoint- 
ment was without significance. Id. at 805. Courts of other jurisdictions have 
also looked to the time of the questioned appointment to determine whether the 
emoluments of the office had been increased so as to make a member of the 
state's legislature ineligible for appointment. See Student Public Int. Research 
Group v. Byrne, 86 N.J. 592, 432 A. 2d 507 (1981) (appointment of member of 
general assembly to position emoluments of which were increased by law 
passed on the day of her appointment, but effective one week later, does not 
violate state constitutional "ineligibility clause"); Ryan v. Boyd, 21 Wis. 208 
(1866) (election of state legislator to judicial office not violative of state consti- 
tution even though salary increase voted by state legislature after the election but 
during legislator's elective term). See also 42 Op. U.S. Atty. Gen. 381 (1969) 
(appointment of Congressman to position of Secretary of Defense does not 
offend federal constitution's ineligibility clause when at the time of appointment 
salary increase had not yet received final approval). 

Based upon a literal reading of Article 65, I too conclude that if an appoint- 
ment of a legislator is valid when made, subsequent events will not in them- 
selves render it unlawful for the legislator to continue to hold appointive office. 
That is not to say, however, that subsequent events are irrelevant in determining 
whether Article 65 has been violated. Any device to circumvent Article 65 could 
not be upheld. See, e.g., Opinion of the Justices, 348 Mass. 803 (1964) (fact 
that salary for position raised during legislator's term was reduced following 
legislator's appointment to position is of no constitutional significance); Haw- 
thorne v. Wiseheart, 158 Fla. 267, 28 So. 2d 589 (1946) (resignation from 



The "incompatibility" provision is contained in the Massachusetts Constitution. Pt 2, C. 6, Art. 2. which provides that 
individuals holding certain ennumerated public offices may not hold certain other public offices at the same time. This 
prohibition specifically provides that 

[N]o person holding the office of judge of the supreme judicial court — secretary — attorney-general — solicitor-general — 
treasurer or receiver-general — judge of probate — sheriff — clerk of the house of representatives — register of probate — 
register of deeds — clerk of the supreme judicial court — clerk of the inferior court of common pleas — or officer of the 
customs, including in this description naval officers — shall at the same time have a seat in the senate or house of 
representatives; but their being chosen or appointed to, and accepting the same, shall operate as a resignation of their seat in 
the senate or house of representatives; and the place so vacated shall be filled up. 

The United States Constitution, Art. I. sec. 6, provides the following "incompatibility" provision: 

no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. 



158 P.D.12 

legislative branch prior to appointment insufficient to insulate such appointment 
from scrutiny). If an increase in salary had in fact been granted prior to appoint- 
ment, but deferred until after the legislator had assumed office as an attempt to 
avoid the strictures of Article 65, such subterfuge would be set aside and the 
appointment would be invalid. 

It is apparent that there is, therefore, no specific date after which you may 
grant a salary increase to a former legislator serving as Director of the Office of 
Campaign and Political Finance. It it clear, however, that no increase may be 
made prior to the appointment. 

For the foregoing reasons and based upon the facts you have provided me, I 
conclude that Article 65 does not prohibit the appointment of a legislator to the 
Office of Director of Campaign and Political Finance and that once such an 
appointment has been duly made, Article 65 does not preclude the commission 
you chair from increasing the salary of the position. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

June 2, 1982 
Number 17. 

Eugene J. Doody, Director 
Division of Employment Security 
Charles F. Hurley Employment 

Security Building 
Government Center 
Boston, Massachusetts 02114 

Dear Mr. Doody: 

You have requested my opinion on a question relating to that portion of G.L. 
c. 151 A, §41 (b), which permits the Board of Review 1 (hereafter, "the Board") 
"[bjefore rendering its decision . . . [to] remand [a ] case to the director for 
taking such additional evidence as the board deems necessary or [to] itself take 
evidence at a hearing." You ask whether this provision authorizes the Director 
of the Division of Employment Security (hereafter, the "Division"), after 
taking additional evidence when a case is remanded by the Board, to issue a new 
decision with new appellate rights for the aggrieved party. If the Director is not 
authorized by G.L. c. 151 A, §41 (b), to issue a new decision, you wish to know 
whether the Director is required to make new findings of fact after taking 
additional evidence when a case has been remanded to him by the Board. For 
the reasons stated below, it is my opinion that General Laws chapter 151 A, 
section 41 (b), does not authorize the Director to issue a new decision when a 
case is remanded by the Board for the purpose of taking additional evidence. 
The Director, however, is required to make new subsidiary findings of fact 



The Board of Review in ihe Division of Employment Security is established by G.L. c. 23, §9N (b). as added by St. 1981, c. 699, 
§44; its duties are set forth in G.L. c. 1 51 A, §41, 



P.D. 12 159 

when the evidence taken at the remand hearing is different in any significant 
respect from the evidence taken at the original hearing. 

Section 41 of Chapter 151 A of the General Laws was completely revised by 
the General Court through its enactment of St. 1976, c. 473, §14. 2 This provi- 
sion creates an administrative procedure for determining the merits of an appli- 
cation for review filed by a party aggrieved by the Director's determination 
under G.L. c. 151 A, §39, of a claimant's eligibility for unemployment compen- 
sation.' The Board must first conduct a preliminary examination of the record 
of the hearing held by the Director or his designee along with the Director's 
findings of fact and decision. Based upon this evaluation, the Board must either 
grant or deny the application for review within twenty-one days from the date 
the application is filed. 4 If the Board determines that review of the Director's 
decision is warranted, the Board is directed to determine "whether the director's 
decision was founded on the evidence in the record and was free from any error 
of law affecting substantial rights." G.L. c. 151 A, §41 (b). If in the process of 
ascertaining whether the Director's decision satisfies this standard, the Board 
determines that it requires additional evidence, the Board "may remand the case 
to the director for taking of such additional evidence as the board deems 
necessary or may itself take evidence at a hearing." 5 

Answers to your questions require careful interpretation of section 41 (b). The 
Massachusetts rule of statutory interpretation has been concisely stated by Chief 
Justice Rugg in Hanlon v. Rollins, 286 Mass. 444 (1934): 

[T]he general and familiar rule is that a statute must be interpreted 
according to the intent of the Legislature ascertained from all its 
words construed by the ordinary and approved usage of the lan- 
guage, 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. 

Id. at 447. 

The language of the statute itself must be the starting point for determining its 
meaning, as well as the principal source of insight into the legislative purpose 



On April 1 , 1976. the Governor sent a message to the Legislature which set forth a series of recommendations for major changes in 
the Massachusetts employment security system. Along with his message to the Legislature, (he Governor submitted a legislative 
package designed to reform various provisions of chapter 151 A. Several of these suggested revisions in the employment security 
law encompassed changes in the administrative appeals procedure of the Division of Employment Security, including a provision 
authorizing the Board, prior to issuing its final decision, to remand a case to the Director "for the taking of such additional 
evidence as the board deems necessary." The legislative package submitted by the Governor became House Bill No. 4624. 

This measure, along with several other House and Senate petitions to revise various sections of chapter 151 A, was referred to 
the House Committee on Commerce and Labor. Based upon its review and consideration of the serious problems affecting the 
employment security system and the various proposals for comprehensive restructuring of the program, the Committee reported 
out House Bill No. 5413, which adopted much of the Governor's original proposal as a framework for the new legislation. House 
No. 5413, however, did not rely exclusively upon the Governor's proposal; it also contained language which originated in the 
Committee or was adopted from other legislative petitions and the recommendations of the Division and other interested parties. 
After an emergency preamble was attached to the measure. House Bill No. 5413 was enacted by the Legislature without significant 
revision and signed by the Governor. 

3 General Laws chapter 15 1 A, section 39 (b), permits the Director to designate a hearing examiner to conduct a fair hearing in a case 
where a claimant's eligibility for unemployment compensation is disputed. The Director's determination of eligibility for 
unemployment compensation must be based solely upon evidence introduced at the fair hearing. 

1 The Board may appoint an examiner in accordance with G L. c. 23. §9K. to conduct the preliminary examination and recommend 
an appropriate disposition of the application for review. 

3 Whether the case is remanded to the Director for a supplementary evidentiary hearing or such a hearing is conducted by the Board, 
the procedures used during the hearing must conform with the provisions of G.L. c. 151A, §39 (b), which sets the procedural 
format for all hearings conducted by the Director or his designee. See Walker v. Director of the Division of Employment Security, 
Mass. Adv. Sh. (1981) 190, 192-93, for a general description of the remand procedure. 



160 P.D.12 

for its enactment. Globe Newspaper Co. v. Superior Court, Mass. Adv. Sh. 
(1980) 485, 489; Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977). 

The language of section 41 (b) is unambiguous. It provides a limited right of 
remand that arises only when the Board determines that it is necessary to take 
additional evidence before it can decide all the issues raised by a claim for 
unemployment compensation. The provision goes on to give the Board two 
alternatives for obtaining the supplementary evidence. The Board may choose to 
take the evidence itself at a hearing or it may remand the case to the Director 
with instructions to take certain additional evidence. Nevertheless, the authority 
to decide the merits of an application for review rests exclusively with the 
Board. There is nothing in the language of the statute nor in its legislative 
history to indicate that the Legislature intended to authorize the Director to issue 
a new decision after taking additional evidence when a case is remanded to the 
Director by the Board. 6 

Both the statute and the history of its development reflect the legislative 
purpose for revising section 4 1 . The framers of the 1 976 amendment focused 
their attention on designing a procedure that would expedite the Division's 
adjudicatory process, as well as protect and enhance its fundamental fairness. 7 
Message of the Governor submitted with Mass. H. 4624 (1976) at 2. Cf. 
DaLomba v. Director of Division of Employment Security, 369 Mass. 92, 96 
(1975) (proceedings for determinations regarding unemployment compensation 
benefits must be simple and prompt). The Director's issuance of a new decision 
in a case remanded by the Board would advance neither of the Legislature's 
primary objectives for amending section 41 (b). Rather, it would serve merely to 
delay final action on an unemployment compensation claim by introducing 
another level of administrative decision-making. Similarly, such added step in 
the adjudicatory process is unnecessary to enhance the fairness of that process. 

Finally, had the Legislature considered such a procedure advisable to guaran- 
tee procedural fairness, it could have easily made the option available. 8 In the 
State Administrative Procedure Act, for example, the Legislature provided such 
an option to administrative agencies which are directed by the Superior Court to 
take additional evidence relating to specific issues raised in an action for judicial 
review of an agency decision. After conducting an evidentiary hearing on 
remand, the agency is authorized to modify its final decision on the basis of the 



The final language of the second sentence of section 41 (b) differs from the language used in the Governor's initial proposal in one 
important respect. The House Committee on Commerce and Labor added the concluding phrase to that sentence which authorizes 
the Board to take additional evidence if necessary as an alternative to remanding the case to the Director for the purpose of taking 
such evidence. Mass. H. 4624 (1976); Mass. H. 5413 (1976). 

In addition to providing a measure of flexibility to the Division's adjudicatory process, this addition evinces the Legislature's 
intention to give the Board all the tools it would require to fulfill its duty to decide applications for review. 

7 To accomplish the objective of insuring prompt action on all unemployment compensation claims, the Legislature established a 
series of time limitations which govern the processing of such claims. G.L. c. 1 5 1 A, §§39-42. For example, the Board is 
instructed by section 41 (b) to "make every reasonable effort to issue a decision within forty-five days after granting an application 
for review." This forty-five day period applies whether or not the case is remanded to the Director for the taking of additional 
evidence. 

8 In slightly different circumstances, the Legislature has authorized the Board through section 41 (d) to modify the findings of fact 
and determinations made by the Director pursuant to section 39 (d). This is a clear indication that when the Legislature intends to 
authorize an administrative body to modify its adjudicatory decisions or those of its agency subordinates, the Legislature will do so 
explicitly. 



P.D. 12 161 

evidence received at the hearing. G.L. 30 A, §41(6). 9 The absence of such a 
procedure in section 41 (b) is a firm acknowledgement of the Legislature's 
intention to limit the scope of the Director's authority when a case is remanded 
by the Board. 10 

For these reasons, I conclude that the Director is not authorized by section 41 
(b) to issue a new decision when a case is remanded to the Director by the Board 
for the purpose of taking additional evidence. 

Your second question addresses a related but different issue: whether, on 
remand, the Director is required to make new findings of fact after conducting 
an evidentiary hearing. The answer to this question cannot be stated in absolute 
terms because the need to make new subsidiary findings will depend upon the 
circumstances of each case. If the additional evidence taken at the remand 
hearing differs in any significant respect from the original evidence upon which 
the Director's initial decision was based, new subsidiary findings should be 
made by the Director and reported to the Board. 

New subsidiary findings may become necessary for several reasons. First, 
General Laws chapter 151 A, section 39 (b), which governs the conduct of 
evidentiary hearings on remand to the Director, see G.L. c. 151A, §41 (b), 
requires that such hearings "shall be in accordance with chapter 30A." General 
Laws chapter 30A, section 11(8), directs that every agency decision "shall be 
accompanied by a statement of reasons for the decision, including determination 
of each issue of fact or law necessary to the decision." Massachusetts courts 
have consistently enforced this requirement. The Supreme Judicial Court has 
often "stressed the importance of specific, clear, and complete subsidiary find- 
ings of fact." Smith v. Director of the Division of Employment Security, 376 
Mass. 563, 566 (1978), and cases cited. The Court routinely has refused to 
exercise its appellate function in the absence of specific findings on all material 
issues raised by a claim for unemployment compensation. Graves v. Director 
of the Division of Employment Security, Mass. Adv. Sh. (1981) 2405, 2408; 
Walker v. Director of the Division of Employment Security, Mass. Adv. Sh. 
(1981) 190, 193-194; Smith v. Director of the Division of Employment Security, 
supra at 566. 

Although most agencies experience no procedural impediments to fulfilling 
this obligation, the adjudicatory process created by section 41 (b) does not 
always permit the Board to follow a direct path in its effort to satisfy the 
requirement that a full statement of reasons accompany its final decision. The 
difficulty arises when the Board remands a case to the Director to conduct a 



' G.L. 30A. §14(6) provides: 

If application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court 
that the additional evidence is material to the issues in the case, and that there was good reason for failure to present it in the 
proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such 
conditions as the court deems proper The agency may modify its findings and decision by reason of such additional 
evidence and shall file with the reviewing court, to become part of the record, the additional evidence, together with any 
modified or new findings or decision. 

1 Section 42 (b), by referencing section 39 (b), directs that evidentiary hearings on remand and before the Board must be conducted 
in accordance with G.L. c. 30A. This reference to the Administrative Procedure Act is specifically limited to the procedural format 
for conducting adjudicatory hearings. In light of this explicit limitation, the reference in section 39 (b) to chapter 30A cannot be 
interpreted broadly to include authority for the Director to modify his decision after a hearing on remand, as may be done by an 
agency under G.L c. 30A. §14 when a case is remanded in accordance with that provision. The highly specific reference to the 
Administrative Procedure Act in section 39 (b) restricts application of the provisions of chapter 30A in the context of those 
unemployment compensation matters to the manner in which adjudicatory hearings are conducted. It provides no basis for 
concluding that the Legislature intended to authorize the Director to issue a new decision after taking additional evidence in a case 
remanded by the Board. 



162 P.D.12 

supplementary hearing and does not itself take the additional evidence it consid- 
ers necessary to decide the merits of an application for review. In these circum- 
stances, when the Board does not conduct the evidentiary hearing, it may not 
make independent findings of fact. Boston Mutual Life Insurance Company v. 
Director of the Division of Employment Security, Mass . Adv . Sh . ( 1 98 1 ) 2 1 3 1 ; 
Director of the Division of Employment Security v. Fingerman, 378 Mass. 461, 
463 (1979). The Board, therefore, must rely upon the subsidiary findings made 
by the Director following a remand hearing as the basis for its final decision and 
accompanying statement of reasons. Because the Board is powerless to make 
independent findings of fact in a case that it has remanded to the Director, if 
section 41 (b) were interpreted to preclude the Director from making new 
subsidiary findings, the remand procedure would serve no useful function. 

"An intention to enact a barren and ineffective provision is not lightly to be 
imputed to the Legislature." Insurance Rating Board v. Commissioner of Insur- 
ance, 356 Mass. 184, 189 (1969) quoted in Baystate Medical Center v. Blue 
Cross of Massachusetts, Inc., Mass. Adv. Sh. (1981) 317, 323. A statutory 
construction will not be adopted "when that construction would be inconsistent 
with other material provisions of the statute and would defeat the aim and object 
of the legislation." Town of Lexington v. Town of Bedford, 378 Mass. 562, 570 
(1979). Rather, when the draftmanship of a statute lacks precision, it must be 
given a reasonable construction which will effectuate the legislative purpose for 
its enactment. School Committee of Greenfield v. Greenfield Education Associ- 
ation, 385 Mass. 70, 80 (1982); Massachusetts Commission Against Discrimi- 
nation v. Liberty Mutual Insurance Co., 371 Mass. 186, 190 (1976). 

Reasonable construction of section 41 (b) must preserve the flexibility the 
Legislature intended to accord the Board when it determines that additional 
evidence is required before it can issue a final decision on an application for 
review. Therefore, when the Board remands a case to the Director for the 
purpose of taking additional evidence and the Director determines that the 
evidence taken on remand will necessitate new subsidiary findings of fact, the 
Director should make appropriate findings and report to the Board these findings 
along with the additional evidence taken at the hearing." Although the Director 
is not empowered to revise his original decision based upon the new subsidiary 
findings, these findings form an essential basis for the Board's final decision on 
the merits of a disputed claim for unemployment compensation. 

The legislative objective of expediting the Division's adjudicatory process 
and ensuring its procedural fairness will best be effectuated through consistent 
application of this procedure when the Board decides to remand a case to the 
Director for the purpose of taking additional evidence. Use of the remand 
procedure in this manner will afford all parties a fair and prompt resolution of 
unemployment compensation claims. 



' ' The Supreme Judicial Court appears to approve this procedure in Graves v Director of the Division of Employment Security. Mass. 
Adv. Sh. (1981) 2405. There the hearing examiner failed lo make subsidiary findings on a central issue in the case. The Court 
observed thai ihe Board could employ the remand procedure to send the case back to the hearing examiner for a determination of 
the undecided issue on the evidence in the record or for an evidentiary hearing at which the issue could be addressed. Id. at 2408. 



P.D. 12 

163 

For the foregoing reasons, I answer your first question in the negative but 
your second question in the affirmative. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



164 P.D.12 

INDEX OF OPINIONS 

TOPICS OPINION PAGE 

Abortion 

Construction of phrase "solo or group practice" 10 135 

Administrative Procedure 

Authority to issue new decision after taking additional 
evidence 

Appropriations 

Disposition of surplus books and disbursement of proceeds . . . 

Arts and Humanities 

Determination of amount of funds available for distribution 
to arts councils 

Certificate of Need 

1) Construction of phrase "solo or group practice" 

2) Hospital license for building converted from another 
purpose 

Clerks 

Additional compensation for extra services 

Clinics 

Construction of phrase "solo or group practice" 

Constitutional Amendments 

Appointment of legislator to public office and determination 

of salary 

Crimes Against Government 

Prosecution for false reports to police 

District Attorneys 

1) Authority to represent public employer 

2) Use of telephone recording devices by police 

Elections 

Appointment of legislator to public office and determination 

of salary 16 154 

Employees, public 

1) Application of Veterans' Tenure Act 

2) Police powers of chief of inspections 

3) Additional compensation for extra services 

4) Hiring prohibition upon Office of Inspector 
General 

Employers, Public 

Authority to represent public employer 

False Reports 

Prosecution for false reports to police 

Fuel 

Retail sale of heating oil on temperature-compensated basis . . 
Hospitals 

Hospital license for building converted from another 

purpose 11 140 



17 


158 


15 


152 


12 


143 


10 


135 


11 


140 


7 


127 


10 


135 


16 


154 


4 


118 


13 


146 


14 


148 



5 


121 


6 


124 


7 


127 


8 


129 


13 


146 


4 


118 


9 


132 



16 


154 


7 


127 


15 


152 



P.D.12 165 

INDEX OF OPINIONS (Cont.) 

TOPICS OPINION PAGE 

Judges 

Compensation for retired justice serving as chairman of 

State Ballot Law Commission 3 115 

Legislators 

Appointment of legislator to public office and determination 

of salary 

Libraries 

1) Additional compensation for extra services 

2) Disposition of surplus books and disbursement of 
proceeds 

Lotteries 

Determination of amount of funds available for 

distribution to arts councils 12 143 

Pensions 

Pensions for widows of firefighters, police officers or 

correction officers killed in performance of duties 2 113 

Police 

1 ) Prosecution for false reports to police 4 118 

2) Use of telephone recording devices by police 14 148 

Police Powers 

Police powers of chief of inspections 6 124 

Property, State 

Disposition of surplus books and disbursement of 

proceeds 15 152 

Retail Sales 

Retail sale of heating oil on temperature-compensated 

basis 9 132 

Retirement 

1 ) Compensation for retired justice serving as chairman of 

State Ballot Law Commission 

2) Police powers of chief of inspections 

Retirement Systems 

Pensions for widows of firefighters, police officers or correction 

officers killed in performance of duties 

Salaries 

1) Additional compensation for extra services 

2) Appointment of legislator to public office and determination 
of salary 

Schools - State Assistance 

Reimbursement for buildings no longer used for school 

purposes 1 111 

Sheriffs 

Authority to represent public employer 13 146 

Special Legislative Commissions 

Hiring prohibition upon Office of Inspector General 8 129 



3 


115 


6 


124 


2 


113 


7 


127 


16 


154 



166 

INDEX OF OPINIONS (Cont.) 
TOPICS 

State Aid 

Reimbursement for buildings no longer used for school 
purposes 

Statutes - Administrative Interpretation 

1) Retail sale of heating oil on temperature-compensated basis 

2) Hospital license for building converted from another 
purpose 

Statutes - Construction - Reasonable Rule 

Authority to issue new decision after taking additional 
evidence 

Statutory Construction 

1) Applicability of Veterans' Tenure Act 

2) Determination of amount of funds available for distribution 
to arts councils 

Statutory Revision 

Determination of amount of funds available for distribution 
to arts councils 

Trust Funds 

Disposition of surplus books and disbursement of 

proceeds 

Veterans 

Applicability of Veterans' Tenure Act 

Widows 

Pensions for widows of firefighters, police officers or correction 
officers killed in performance of duties 

Wiretapping 

Use of telephone recording devices by police 



P.D.12 



OPINION PAGE 



1 


111 


9 


132 


11 


140 


17 


158 


5 


121 


12 


143 



12 



143 



5 


152 


5 


121 


2 


113 


4 


148 



P.D. 12 167 

INDEX OF REQUESTING AGENCIES 

AGENCY OPINION PAGE 

Administration and Finance, Executive 

Office for 

Arts Lottery Council 

Berkshire County, District Attorney 

Education, Department of 

Employment Security, Division of 

George Fingold State Library 

Inspector General 

Middlesex County, District Attorney 

Public Health, Department of 

Public Safety, Department of 

Secretary of State 

Standards, Division of 

Treasurer and Receiver General 

Trial Court, Chief Administrative Justice 



3 


115 


12 


143 


13 


146 


1,5 


111,121 


17 


158 


15 


152 


8 


129 


4,14 


118,148 


10,11 


135,140 


6 


124 


16 


154 


9 


132 


2 


113 


7 


127