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

Public Document 



No. 12 



allie (Eommonuiealtli of iHaaaaciiuBettB 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1983 




3LICATI0N OF THIS DOCUMENT AAPPROVED BY DANIEL D. CARTER, STATE PURCHASING AGENT 
-85-802201 Estimated Cost Per Copy $4.46 



COMMONWEALTH OF TMSSACHUSEnS 

MAY ? 1985 

MASSACHUSETTS STATE LIBRARY 



(Fl|E (Eommonuiealtii of 4Hafifiaci)usettB 



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, 1983. 

Respectfully submitted, 

FRANCIS X. BELLOTTI 

Attorney General 



DEPARTMENT OF THE ATTORNEY GENERAL 



P.D. 12 



AtlorncY General 
FRANCIS X. BELLOTTI 

First Assistani Attorney General 
Thomas R. Kiley 



Assistant Attornexs General 



James Aloisi 
John Amabile' 
Nicholas Arenella 
Donna Arzt 
Thomas Barnico 
Madeline Becker"^ 
Annette Benedetto 
Despena Billings 
Lee Bishop'^ 
Paul Bishop 
Kenneth Bowden 
Stephen Bowen 
Lee Breckenridge' 
Roberta Brown 
Craig Browne*" 
William Carroll 
Gerald Caruso 
James Caruso 
Andrew Cetlin'- 
Francis Chase 
Paul Cirel 
John Cratsley* 
Leah Crothers" 
John Curran 
Leo Cushing" 
Mary Dacey 
Richard Dalton 
George Dean 
Paula DeGiacomo 
Stephen Delinsky'" 
Elaine Denniston 
Ernest DeSimone 
Vincent DiCianni 
Carol Dietz 
Michael Dingle" 
John Donohue 
Elizabeth Donovan 
Raymond Dougan 
Irene Emerson^" 
Joan Entmacher 
Leslie Espinoza 
Michael Farrington' 
Peter Flynn 
Harriet Fordham'"' 
John Fox"" 
Maureen Fox 
Susan Frey*' 
Robert Gaines 
Dwight Golann 



Paula Gold'^'* 
James Gomes'*'' 
Paul Good 
John GracelTa 
Alexander Gray 
Mark Gray"^ 
John Grugan 
Catherine Hantzis 
Michael Hassett 
F. Timothy Hegarty 
David Hopwood 
Marilyn Hotch 
Andra Hotchkiss 
William Howell 
Edward Hughes 
Linda Irvin 
Ellen Janos 
Michelle Kaczynski" 
Richard Kanoff 
Jamie Katz- 
Linda Katz 
Thomas Keanev 
Sally Kelly 
Alan Kovacs 
Steven Kramer 
Raymond Lamb 
Paul Lazour 
Stephen Leonard 
Martin Levin 
James Lewis 
Stephen Limon" 
Maxine Lipeles-'" 
Maria Lopez 
William Luzier 
Alan Mandl*-" 
Bernard Manning'* 
Dana Mason 
George Matthews 
Paul Matthews 
Edward McLaughlin 
Georgianna McLoughlin 
William McVey 
Paul Merry 
William Mitchell 
Paul Muello 
Mark Muldoon'" 
Kim Murdock" 
Thomas Norton 
Henry O'Connell 



P.D. 12 



Carlo Obligate* 
Stephen Ostrach 
Christopher Palano 
Howard Palmer 
William Pardee 
Charles Peck'' 
Richard Rafferty 
T. David Raftery 
Frederick Riley 
John Roddy 
Ann Rogers 
James Ross 
Hilary Rowen 
Dennis Ryan 
Bernadette Sabra*^ 
Anthony Sager 
JoAnn Shotwell 
Roger Singer*- 
E. Michael Sloman 
Barbara Smith 
Carol Sneider" 
Dianne Solomon 



Donna Sorgi 
Joan Stoddard 
Kevin Suffern 
Christopher Sullivan' 
Diana Tanaka'- 
Terence Troyer*' 
Diane Tsoulas' 
Carl Valvo 
Sarah Wald** 
Charles Walker 
John Ward 
John White 
H. Reed Witherby 
Carolyn Wood 
Christopher Worthington 
Steven Wright 
Judith Yogman 
Andrew Zaikis 
Margaret Zaleski'^ 
Donald Zerendow 
Stephen Ziedman 



Assistant Attorneys General Assigned To Division of Employment Security 



Robert Lombard 
George J. Mahanna 



Chief Clerk 
Edward J. White 



Paul MoUoy 



Assistant Chief Clerk 
Marie Grassia 



APPOINTMENT DATE 

1. 7/6/82 

2. 7/12/82 

3. 9/27/82 

4. 1/31/83 

5. 2/22/83 

6. 3/8/83 

7. 4/1/83 

8. 4/11/83 

9. 4/18/83 

10. 5/9/83 

11. 5/16/83 

12. 5/20/83 

13. 5/23/83 

14. 6/8/83 

15. 6/20/83 

16. 6/30/83 



TERMINATION DATE 

50. 8/13/82 

51. 9/24/82 

52. 10/22/82 

53. 12/24/82 

54. 12/31/82 

55. 1/7/83 

56. 1/13/83 

57. 1/14/83 

58. 1/18/83 

59. 1/25/83 

60. 2/11/83 

61. 2/18/83 

62. 2/23/83 

63. 2/25/83 

64. 3/4/83 

65. 3/25/83 

66. 4/4/83 

67. 5/20/83 

68. 6/30/83 



P.D. 12 



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P.D. 12 11 

(Eommonuiealtl) of iMasBacl|UfiettB 

In accordance with the provisions of section 1 1 of chapter 12 and of section 32 
of chapter 30 of the General Laws, I hereby submit the Annual Report of the 
Department of the Attorney General for fiscal year 1983. This report is the ninth 
that I have filed as the Attorney General of the Commonwealth. It chronicles the 
efforts and accomplishments of a dedicated staff. 

When I assumed the office of Attorney General, I made a decision to use the 
full power and resources of the Department to try to affect and improve the qual- 
ity of life that we enjoy in this state. I soon learned that as the chief law officer 
of the Commonwealth, the Attorney General has an extraordinary amount of 
power. Increasingly citizens are attempting to resolve all their problems with their 
government through court actions. Cases which were once beyond the imagina- 
tion of even the most inventive attorney are now brought as a matter of routine. 
For instance, cases are now brought to challenge welfare benefit rates, to recover 
damages sustained from patients who were prematurely released from state men- 
tal institutions, or even to contest the propriety of gubernatorial appointments. The 
Attorney General is called upon to represent the state and its officers before the 
courts in all of these actions. The way in which such litigation is handled has an 
enormous impact on the course and direction of state government. 

But the powers of the Attorney General extend far beyond the walls of the court- 
room. Under various statutes the Attorney General has the formal power to issue 
regulations, and he also informally possesses an influential forum from which he 
may issue pronouncements, suggestions and directions for government which are 
generally heeded. Through formal opinions and rulemaking and informal com- 
munications, the office possesses all the necessary non-courtroom tools to forge 
a uniform and consistent legal policy for the numerous and diverse state agencies. 
These non-litigation tasks are often more effective at improving the quality of life 
than extended court batfles. 

During the past fiscal year, for instance, I promulgated regulations governing 
the phenomenon of charitable gambling. While gambling is basically unlawful in 
this Commonwealth, charities may utilize Las Vegas nights and other events to 
raise funds for their activities. In recent years, an industry characterized by sharp 
practices and large profits has grown up around these events. In fact, prior to the 
promulgafion of our regulations, the states legislative "no gambling" policy was 
imperilled by a proliferation of charitable gaming events. With the regulations, 
any real change in that policy will be left to the General Court. 

In past years I have utilized this introductory material to highlight the cases we 
have brought to combat arson for profit. Those cases made the Department's 
CAPES unit a national model for anti-arson programs. This year we took that effort 
outside the courtroom with the publication of an Arson Prevention Manual intended 
to demonstrate to state, county and local officials how they too can fight the costs 
and devastating effects of arson for profit. 

Yet another non-courtroom activity which was spawned by earlier cases involved 
election practices in the City of Boston. This year I interceded between the Secre- 
tary of the Commonwealth and the City to cause them to work cooperatively to 
improve the conduct of elections in that city. The effort resulted in hiring an elec- 
tions expert, answerable to me and to the Secretary, and placing her directly in 



12 P.D. 12 

the Boston Elections Department. Her suggestions and the resulting improvements 
that were made by the City will have a lasting effect on the conduct of all its future 
elections. 

A final example arises from the many cases we have handled over the years 
involving consumer protection matters. New England often constitutes a single 
consumer market, while state consumer protection enforcement efforts historically 
stopped at state borders. This past fiscal year I was able to bring together the other 
New England Attorneys General to form a Regional Consumer Protection Com- 
mittee to collectively work for the protection of consumers so that our efforts need 
not stop at a state border. 

Of all my non-litigation functions, perhaps the most productive is working with 
the General Court in seeking the enactment of laws advancing goals which emerge 
from our cases. During the past year we brought the first prosecutions ever under 
the newly enacted Medicaid False Claim Act. We were also able to press forward 
with criminal prosecutions under the heightened penalties for illegally dumping 
hazardous waste and under the recently amended state Civil Rights Act. Similarly, 
the legislatively initiated computer match system helped produce a series of cases 
against state employees who were fraudulently collecting welfare benefits while 
lying about their state employment. 

This past year's cases also enable me to suggest the need for new legislation to 
deal with social problems perhaps manifested to the General Court only through 
our litigation. The proliferation of child abuse cases, for instance, led me to file 
bills providing for the flow of information from line agencies such as the Depart- 
ment of Social Services to prosecutors. A rash of newly discovered building con- 
struction problems associated with buildings surveyed by the "Ward Commission" 
caused me to suggest the need for reconsideration of the limitations periods imposed 
by G.L. c. 260, §2B. Finally the spate of torts actions dealing with negligent treat- 
ment of patients and the ever-increasing number of Civil Rights Attorney's Fees 
Act cases, neither of which has yet resulted in significant adverse judgments against 
the Commonwealth but which both will undoubtedly have serious future finan- 
cial consequences for the state, caused me to suggest the need for legislative action 
of a budgetary nature. 

This is obviously not a full accounting of the work of this Department, but rather 
a brief overview of the many non-litigating ways in which the power of the Depart- 
ment of the Attorney General can be used to better the life we all enjoy. A fuller 
exposition of the work of this Department, with the more traditional focus on sig- 
nificant cases brought during the reporting period, is set forth in the following 
pages. 



P.D. 12 13 

MONEY RECOVERED AND SAVED 
FOR THE COMMONWEALTH AND ITS CITIZENS 

/. MONEY RECOVERED FOR THE COMMONWEALTH TREASURY 

Charitable Registrations and Certificate Fees $ 219,380.00 

Escheats 293,243.00 

Collections, Rent 97,731.67 

Collections, General 150,460.96 

Delinquent Unemployment Compensation Claims 2,280,727.70 

Fraudulent Unemployment Compensation 226,155.97 

Civil Penalties and Costs in Environmental 850,000.00 

Criminal Delinquent Tax Recovery 1,150,000.00 

TOTAL $ 5,267,699.30 

//. MONEY RECOVERED AND SAVED FOR COMMONWEALTH CITIZENS 

Hill-Burton FY 1983 ' $1,311,068.00 

Antitrust Recoveries 232,843.45 

Deposits to Antitrust Enforcement Fund 224,969.02 
Judgments, Settlements and Restitution In 

Consumer Protection Division Court Cases 12,911,756.00 

Consumer Recoveries, Non-court Cases 127,000.00 

Insurance Rate Savings 190,000,000.00 

Utility Rate Savings 135,000,000.00 

Medicaid Fraud Restitution 313,000.00 

TOTAL $340,120,636.47 
TOTAL TABLE I and II $345,388,335.77 

I. CIVIL BUREAU 

CONTRACTS DIVISION 

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

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 works construction disputes. Other typical cases in the Divi- 
sion involve claims arising from the interpretation of leases, employment contracts, 
statutes, rules, regulations, and surety bonds. 



14 P.D. 12 

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 restrain- 
ing orders and preliminary injunctions against the Commonwealth, its agencies 
and officers. The granting of such relief would delay the execution of contracts, 
increase contract costs, and result in additional claims for damages. During the 
fiscal year, Division attorneys successfully resisted all such attempts for injunc- 
tive relief 

Government contract disputes have become more complicated since there has 
been a tendency for consultant engineers, architects, 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 con- 
struction area. 

The impact of new legislation. Omnibus Bill "To Improve the System of Pub- 
lic Construction in the Commonwealth," C. 579, Acts of 1980, sponsored by the 
Special Commission Concerning State and County Buildings has become increas- 
ingly evident during the fiscal year. A number of actions, principally relating to 
the validity of the "set aside" provisions for minority and women-owned busi- 
ness enterprises, have been initiated. 

Contract disputes arising out of the regulations of various state agencies, such 
as the Department of Mental Health, have also been brought with increasing 
frequency. 

Trials of contract cases are often complex and involve long hearings before court- 
appointed masters. During the fiscal year, attorneys have successfully resisted 
references to masters, resulting in an increased frequency of trials before the court. 

Three significant appellate decisions relative to contract disputes were also ren- 
dered during the fiscal year: {\) James Welch & Co. , Inc. v. Deputy Commissioner 
of Capital Pkmning and Operations, 387 Mass. 662 (1982) (disallowance of 
expenses and profits arising out of substitution of filed sub-bid); (2) Manuel F. 
Spencer & Son, Inc. v. Commonwealth, 16 Mass. App. Ct. 290 (1983) (direct pay- 
ment claim, funds dispute between general and subcontractor); (3) Pelrine 's Tree 
and Landscaping Service v. Commissioner of the Metropolitan District Commis- 
sion, et al, 15 Mass. App. Ct. 1101 (1983) (tolling of contract Statute of 
Limitations). 

Sixty-four (64) new actions were commenced during the fiscal year. Forty-four 
(44) cases were closed. As of June 30, 1983, there were three hundred fifty-two 
(352) 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 Con- 
struction Legislation, c. 579. 



P.D. 12 15 

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

The Division also has an equivalent relationship with the Department of Public 
Works, the Metropolitan District Commission, the Secretary of Transportation, 
the Board of Regents of Higher Education, the Data Processing Bureau, the Depart- 
ment of Mental Health, the Department of Youth Services, the Department of 
Environmental Management, the State Lottery Commission, the Department of 
Public Welface, and Division of Capital Planning and Operations. 



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 main- 
tained. Contracts are assigned to the attorneys on a rotating basis; and the aver- 
age contract is approved within forty-eight hours of its submission to the Division. 

During the fiscal year, the Division received for approval as to form a total of 
1 ,750 contracts. Two hundred and fourteen (214) contracts were rejected and later 
approved after the deficiencies were corrected. 



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 result- 
ing 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 ease- 
ments. The Division deals primarily with the Department of Public Works, the 
Metropolitan District Commission, the Department of Environmental Affairs, var- 
ious state colleges, the University of Massachusetts, the Armory Commission and 
the Department of Food and Agriculture. 

The Division also provides legal advice to the Real Estate Review Board to assist 
in settling damage claims on takings of government-owned land for highway pur- 
poses. In some instances, the Division is called upon to testify before the Board 
will approve land damage payments. 

Informal advisory services, both written and oral, are rendered to practically 
every state agency, whether executive or legislative in nature. Every agency with 
an eminent domain or real estate question or problem either writes or calls the Divi- 
sion for consultation and advice. The Division also appears before legislative com- 
mittees to give advice on legislation of importance to this office as well as other 
state agencies. 

Chapter 79 of the General Laws prescribes the procedure in eminent domain 
proceedings. Under Chapter 79, when property is taken, the taking agency makes 
an offer of settlement known as a/?ro 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 monev. In the 



16 P.D. 12 

event of a finding by the court or jury, the pro tcmto 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 the 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 ca.ses and it was the prac- 
tice to refer cases to auditors for their findings. The auditor system was not satis- 
factory 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 waivers, 
in writing, waiving their right to a jury-waived trial. The statute 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 the Division to try the great majority of our cases 
in accord with Section 22 before a justice in a jury-waived session. In many 
instances, it was not necessary to retry the case because the findings usually con- 
tained a clear statement of the subsidiary facts to support the decision. Still the 
backlog continued as did efforts to make Chapter 79 more expeditious. 

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 on a full-time basis. He is under the direct super- 
vision 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 pend- 
ing, the Eminent Domain Division trial attorney assigned handles both matters at 
the time of trial. During the past fiscal year 1,983 rent cases were closed out and 
approximately $100,000.00 was collected and turned over to the State Treasurer. 

The Eminent Domain Division also has the responsibility of protecting the Com- 
monwealth'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 Common- 
wealth, 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 the Divi- 
sion 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. 

Land Court matters require the full-time attention of an Assistant Attorney 
General. Its jurisdiction covers every type of land transaction from foreclosure, 
tax takings to determination of title absolute and all the equity rights arising 
therefrom. 



P.D. 12 17 

More and more, the equity power ot the Court is being used along with the tem- 
porary restraining order and injunction process. Zoning cases are now being sent 
to the Land Court from the Superior Court and are also commenced in the Land 
Court. The Attorney General is involved in all these cases due to the declaratory 
nature and the constitutional issues involved therein. During fiscal year 1983, there 
were 302 new Land Court cases opened in the Division. 

This Department is involved in almost every petition to confirm or register title. 
The involvement requires the determination of all interests in state highways, the 
preservation of the taking lines, the determination of drainage and other easements 
and the assurance thaf the decree is entered subject to all of the above. 

Further, the Land Court determines so-called "water rights". As indicated in 
the reports of past years, this is becoming a new problem area as many rivers and 
streams have been cleaned and improved as a result of federally funded projects, 
bringing into question the Commonwealth's rights and responsibilities. Also, the 
tidal areas of the Commonwealth are creating continual litigation, particularly 
where the Colonial Ordinances are concerned. Litigation is developing whereby 
the public is asserting adverse possession and prescriptive rights in the flats of the 
tidelands and access to beaches. 

In addition, more claims are being made against the Insurance Fund and local 
probate courts are having an effect upon the land registration system as their deci- 
sions are causing an effect upon the land registration cases. 

Also new areas and dimensions are being added to the Land Registration Process. 
For instance, railroad rights of way are beginning to appear in registration cases. 
Serious questions are beginning to arise as to whether they have been abandoned 
and the effect upon the total railroad right of way. The Commonwealth, by way 
of the Secretary of Transportation, is acquiring railroad rights to be used not only 
for railroad passenger service but for recreational purposes as well. The rever- 
sionary rights and the effects upon Commonwealth title are important issues. 

The Commonwealth is becoming more and more involved with problems due 
to filling and dredging that have taken place along the shores and areas developed 
by beach associations, especially on the Cape and Islands. Dredging has been done, 
with the material dredged being put upon the shores, changing private access rights 
to and from the beaches. 

Considering current trends and statistics fiscal year 1984 portends to be even 
busier in discharging our Land Court responsibilities while protecting the rights 
of the citizens of the Commonwealth. 

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 past years, this Division is actively assisting the Department of 
Food and Agriculture to expedite and carry out the mandates of Chapter 780 of 
the Acts of 1977, known as the Agricultural Preservation Restriction Act. 

Fiscal 1984 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 1984. The Department of 
Environmental Management is still deeply committed and involved in the Heritage 
State Park Projects in Lowell, Lynn, Holyoke, North Andover and Lawrence. 



18 P.D. 12 

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. 

INDUSTRIAL ACCIDENT DIVISION 

The Industrial Accident Division serves as legal counsel to the Commonwealth 
in all workers" compensation cases involving state employees. Pursuant 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 compens- 
able cases. In contested cases the Division represents the Commonwealth before 
the Industrial Accident Board and in appellate matters before the Superior Court 
and the Supreme Judicial Court. 

There were 13,191 First Reports of Injury filed during the last fiscal year for 
state employees with the Division of Industrial Accidents, a decrease of 778 from 
the previous fiscal year. Of the lost time disability cases, the Division reviewed 
and approved 2.202 new claims for compensation and 168 claims for resumption 
of compensation. In addition, the Division worked on and disposed of 157 claims 
by lump sum agreements. 

The Division appeared for the Commonwealth on 1 .397 formal assignments 
before the Industrial Accident Board and before the courts on appellate matters. 
In addition to evaluating new cases, the 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 acci- 
dent claims, including accepted cases. Board and Court decisions and lump sum 
settlements, for the period July 1. 1982, to June 30. 1983. were as follows: 

General Appropriation 

(Appropriated to the Division of Industrial Accidents) 

Incapacity Compensation $ 8,281,588.04 

Medical Payments 2,457.640.00 

TOTAL DISBURSEMENTS $10,739,228.04 

Metropolitan District Commission 

(Appropriated to M. D. C. ) 

Incapacity Compensation 5696,921.40 

Medical Payments 244.267.79 

TOTAL DISBURSEMENTS S941.189.19 



P.D. 12 19 

The Industrial Accident Division also has the responsibility of defending the 
"Second Injury Fund" set up by G.L. c, 152, §65. against claims for reimburse- 
ment made under G.L. c. 152 §§37and37A. During the past fiscal year the Divi- 
sion appeared on 184 occasions to defend this fund against claims for 
reimbursement by private insurers. As of June 30. 1983, the financial status of 
this fund was: 

Unencumbered Balance S 13.183.95 

Invested in Securities 247.000.00 

TOTAL $250,183.95 

Payments Made to Fund S956.644.21 

Payments Made Out of Fund S943.460.26 

Pursuant to G.L. c.33. App. §§13-11 A. the Chief of this Division represents 
the Attorney General as a sitting member of the Civil Defense Claims Board. This 
involves reviewing and acting upon claims for compensation to unpaid civil volun- 
teers who were injured while in the course of their volunteer duties. 

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

During the past fiscal year, the attorneys of this Division were called u{X)n numer- 
ous times to assist workers in pri\ ate industr> who contacted this Dixision regarding 
problems the)' were having with their compensation claims against private indus- 
try and their insurers. Every effort was made to assist these employees in resolv- 
ing their difficulties or in referring them to appropriate persons or agencies. 

TORTS DIVISION 

The main activities of the Torts Division continued unchanged in fiscal year 1983 
from the previous year; the bulk of attorneys" time was focused on the defense 
of tort and civil rights suits brought against the Commonwealth and its employees, 
though the investigation and preparation of reports from the district court on Peti- 
tions for Compensation to Victims of Violent Crime also absorbed significant staff 
resources. Some general trends noticeable in the Division's work during this year 
were an increase in the number of cases being tried (35) and a growth in the num- 
ber of complex cases involving ver\ time-consuming discover} and entailing large 
expenditures for expert and investigative support. These factors were reflected in 
a significantly greater burden on attorneys. 

The overall caseload of the Division increased steadily over the year, continu- 
ing the growth spiral manifested the previous year. New cases totalled 278. while 
only 66 cases were terminated. Combined with the Fiscal 1982 increase, this meant 
the accrual of over 420 additional pending cases in two years. man>' of them involv- 
ing potentially large damage awards against the Commonwealth. Efforts to cope 
with the increase included greater use of the investigafive staff of the Civil Bureau 
and the spreading of the load to attorneys from the other divisions in the Bureau. 
Emphasis was also placed on finding a solution to the problem of the unavailabil- 
itv of funds for settlement of cases. 



20 P.D. 12 

A statistical breakdown ot the new tort cases brought against the Commonwealth 
or its employees opened in the Torts Division during the year indicates that there 
were 76 new cases involving civil rights or intentional torts. There were 29 new 
vsrongful death actions. 31 torts involving serious injuries and 54 involving damage 
to properiv . 

Some of the more significant new cases included several suits in\ol\ ing employ- 
ment discrimination or wrongful discharge, a suit against members of the insur- 
ance commission for actions taken in connection with the prohibition of sale of 
certain insurance policies, several suits against district attorneys challenging actions 
taken during investigations, a number of suits claiming injuries or death as a result 
of negligent placement of clients by the Department of Youth Services and Social 
Services, more new cases involving a failure to supervise and treat psychiatric 
patients in state hospitals, several suits challenging the release of dangerous patients 
from Commonwealth facilities, and an increased number of cases involving alleged 
defects in highway planning and design. 

The Division attorneys obtained mixed results, as is to be expected, from cases 
tried to conclusion during fiscal year 1983. Two serious cases alleging negligent 
supervision of patients at state hospitals were tried, one resulting in a verdict in 
favor of the defendants, the other resulting in a judgment of S50.000 against the 
Commonwealth. Verdicts for the state were obtained in several serious injury and 
wrongful death cases: the judgments awarded against the state totalled approxi- 
mately SI 12.000 at the end of the year. Nine cases were settled without trial, while 
dismissals or summarv' judgments were obtained against plaintiffs in 50 cases. 

There were 506 new Petitions for Compensation to Victims of Violent Crime 
forwarded to the Torts Division for investigation, and. if necessary, litigation, a 
number which constituted a slight increase over the previous year's filings. Roughly 
SI. 008. 000 was pai^ out by the district court during this period, for an average 
of $3,985 per claim. Court hearings were required in 75 of the petitions processed 
by Civil Bureau attorneys. There were 252 violent crime cases closed out by the 
Division in the course of the year. 

The total amount of money collected on debts due to state agencies throughout 
the Torts Division in Fiscal 1983 was S 150.460.96; 137 claims were processed. 
Twenty-five new cases seeking damages for tortious injury to Commonwealth 
property were brought during the year. 

II. CRIMINAL BUREAU 

The Criminal Bureau of the Department of the Attorney General is composed 
of four Divisions: (1) the Trial Division: (2) the Appellate Division: (3) the Crimi- 
nal Investigations Division: and (4) the Division of Employment Security. Several 
special task forces also operate within the Bureau: the Tax and Insurance Prose- 
cution Task Force: the Government Integrity Unit: and the Organized Crime Infor- 
mation Section. 

During fiscal year 1983. the Bureau continued to prosecute a variety of cases 
developed by its own Investigations Division, as well as those referred by other 
government agencies or the offices of the district attorneys. The Bureau also 
actively carried out the mandate of the Department of the Attorney General to con- 
centrate resources on certain classes of crime, not the least of which are white collar 
crime, arson-for-profit and the disposal of hazardous waste. 



P.D. 12 21 

TRIAL DIVISION 

The following cases are a sampling of the criminal litigation in which the Bureau 
has been involved in pursuit of the goal of keeping the Commonwealth safe for 
all of its citizens. 

Three men were arrested and indicted after a search warrant was executed rev- 
ealing over one hundred drums of various volatile and dangerous chemicals which 
had been secreted in a remote area in Worcester County. 

The owner of a discotheque was convicted of lighting candles and turning on 
the gas jets in the cellar of his establishment in an attempt to burn the building and 
collect the insurance proceeds after the fire. Although the defendant was not suc- 
cessful, he was convicted of attempted arson and sentenced to a substantial jail term. 

A landlord and a property manager were indicted for conspiracy to commit arson 
after an Allston apartment burned, leaving several tenants homeless. 

A former insurance agent was convicted of larceny and making false statements 
on insurance applications resulting in tangible personal gain. As part of the sen- 
tence, the Court ordered restitution of the fraudulently obtained funds. 

A woman was indicted in two counties on allegations of implication in a com- 
plicated insurance fraud scheme involving payment of per diem hospitalization 
benefits. Ten insurance companies claimed a loss of over S200,000 as a result of 
this scheme. 

In a continuing effort to protect consumers from unscrupulous business prac- 
tices, the Bureau obtained convictions of two men for bilking fuel oil consumers 
by means of an illegal device installed on an oil delivery truck which diverted the 
oil back into the truck, thus charging the customers for oil they never received. 

In a joint effort with the Springfield Bureau, a Chicopee used car dealer was 
convicted of larceny after allegations were presented showing that the defendant 
had bought late model, high-mileage automobiles, turned back the odometers, and 
sold the same autos as low-mileage cars to other dealers. The defendant was given 
a suspended sentence to Walpole State Prison. 

Nine persons were arrested for conspiring to misuse credit cards in a scam in 
which credit card receipt carbon paper was retrieved from retail outlets and the 
information on the carbons was used to manufacture counterfeit cards. Those cards 
were then used to purchase expensive goods and services across the country. 

After an investigation of the Chelsea Housing Authority, two landlords were 
convicted of receiving rent subsidies and simultaneously charging the tenants for 
the rent being subsidized. 

A supervisory accountant for G.T.E. Sylvania was indicted and con\icted for 
embezzlement of S30.000 from his emplo_\er. 

Tw o truck drivers employed by the Cardox corporation were indicted for steal- 
ing carbon dioxide, selling it at a discount rate, and keeping the proceeds. 

After intensive investigation, a counselor for the Department of Youth Serv- 
ices was arrested for statutory rape, and accused of illicit sexual conduct with a 
girl who was committed to a detention facility in his charge. 

A bookkeeper at the state bookstore was convicted of embezzling SI 6.000 from 
the bookstore receipts, and a data entry clerk working at Boston State College was 
indicted for stealing S 10,000 from her employer. 



22 P.D. 12 

In a continuing investigation, at least seven persons, including 3 employees of 
the Department of Public Welfare, were charged with stealing welfare checks and 
food stamp vouchers from the Welfare Department. 

Mentally ill women living in a halfway house in Franklin County were the vic- 
tims in a larcenous scheme evolved by a provider to the Department of Mental 
Health who was convicted of the larceny. 

In an ongoing effort to detect instances of government employees illegally col- 
lecting welfare payments while remaining on the public payroll, employees of the 
Department of Public Welfare, the M.B.T.A., Boston City Hospital, Middlesex 
County Hospital, the Department of Youth Services, the Criminal History Sys- 
tems Board, the Boston Housing Court and the Department of Environmental 
Management were indicted for larceny and making false statements to obtain wel- 
fare benefits. Additionally, highly paid employees of Gillette and Mary Kay Cos- 
metics were similarly charged. 

Three persons were convicted of attempting to bribe a corporate analyst of the 
Department of Revenue. The $3,000 bribe was promptly reported to authorities. 

An attorney in the compliance section of the Department of Revenue was indi- 
cated on conflict of interest charges after receiving favors from, and acting as an 
agent for, a tax delinquent whose taxes he was charged with collecting. 

The Tax Prosecution Task Force, in cooperation with the Department of 
Revenue, indicted forty individuals and corporations during the fiscal year and 
was successful in recovering $1 , 150,000 in delinquent taxes from intransigent tax- 
payers, a substantial increase in convictions over previous years. 



CRIMINAL INVESTIGATIONS DIVISION 

The Criminal Investigation Division is the investigative arm of the Criminal 
Bureau. As such, it serves in various capacities. It is a centralized state-wide 
authority within the Department of the Attorney General that maintains an ongoing 
coordinated effort with the individual district attorneys' offices and state and local 
police in the investigation and prosecution of criminal matters. In such capacity, 
during fiscal year 1983, the Division gathered and disseminated criminal intelli- 
gence information to other law enforcement agencies on a carefully screened need- 
to-know basis, and provided other support services to these agencies in the inves- 
tigation of criminal activities. The Division supplied photographic and technical 
expertise to other prosecutorial units and maintained systems for the collection and 
distribution of computerized information designed to enhance the ability of the 
police to understand and to protect against the sophistication of criminal schemes 
and complex unlawful commercial enterprises. 

In addition to serving in a coordinating capacity with other law enforcement agen- 
cies, the Criminal Investigations Division continues to be fully involved in an inves- 
tigative capacity in a number of diverse areas of concentration, the most prevalent 
being: hazardous waste, political corruption, narcotics, and organized and white 
collar crime activities. In addition, the Division reviews and investigates refer- 
rals from the Office of the Inspector General concerning fraud, waste, and abuse 
in government, and referrals from the state Ethics Commission involving various 
allegations of violations of the Commonwealth's Conflict of Interest statute. 



P.D. 12 23 

As an investigative unit, during the past year, the Division utilized statutorily 
authorized auditory and visual surveillances in a number of investigations. As a 
result, sufficient evidence was amassed to indict numerous state and local officials 
for bribery and other violations of the Conflict of Interest statute. 

Another area of increased activity in which investigations proved very success- 
ful was welfare fraud, where investigative techniques resulted in the arrest of public 
officials for larceny from the state's welfare system. 

Furthermore, the Division's efforts in the investigation of the Commonwealth's 
Revenue Department resulted in numerous arrests and indictments of individuals 
and corporations and the collection of hundreds of thousands of dollars owed to 
the Commonwealth of Massachusetts. 

The record of fifty-four (54) arrests by the Division in the past fiscal year, 
coupled with the assistance and countless referrals to other law enforcement agen- 
cies, demonstrates the unqualified success that a unified command within the 
Department of the Attorney General can have in coordinating and working with 
other individual law enforcement agencies in the war against crime, and at the same 
time avoiding costly duplications of efforts and resources which only result in 
unnecessary waste. 

CRIMINAL APPELLATE DIVISION 

The caseload of the Criminal Appellate Division increased slightly over the 
previous fiscal year. The Division opened 296 new cases, 22 more than the previous 
year. Approximately 291 cases are presently active. The majority of the cases 
involve civil litigation arising from underlying criminal convictions. Of the 1 1 1 
cases filed in the various state courts, 98 constituted inmate suits challenging some 
aspect of sentences, prison conditions, regulations or treatment. ' During a mara- 
thon one month session held at M.C.I. Walpole, approximately 60 previously dor- 
mant inmate civil suits were disposed of. 

Thirty-seven new petitions for review of sexually dangerous person status pur- 
suant to G.L. c. 123 A were filed. Three unified trial sessions were held during 
fiscal year 1983 during which 16 of these cases were resolved. 

Ninety-seven cases were filed in the Federal District Court, 53 petitions for writ 
of habeas corpus, 44 civil rights actions or requests for declaratory or injunctive 
relief. 

Twenty-five cases were argued in the Court of Appeals for the First Circuit. 
Seven cases were argued in the Massachusetts Supreme Judicial Court and 6 in 
the State Appeals Court. 

Eight petitions for writ of certiorari were successfully opposed in the Supreme 
Court of the United States. Six petitions for writ of certiorari were filed by this 
division; two were denied, with dissenting opinions; two are still pending. Two 
petitions were granted: Commonwealth v. Sheppard (good faith exception to the 
exclusionary rule) and Justices of the Boston Municipal Court v. Lydon (scope of 
habeas corpus jurisdiction), and will be argued in January, 1984. 



This figure does nol reflect the increasing number of inmate suits referred to the Department of Correction 



24 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 is rendered on the legality of 
each demand. One hundred and sixty-seven such opinions were rendered in fiscal 
1983. 



EMPLOYMENT SECURITY DIVISION 

The purpose and intent of the Employment Security Division is to provide the 
Director of Employment Security with whatever legal assistance and representa- 
tion is necessary to enforce the Employment Security Law, otherwise known as 
G.L. C.151A. 

The Employment Security law is highly complex and its language is technical 
as well as legal. Under the law, employers with one or more employees become 
subject to it and are expected to comply with its provisions. The efficient and eco- 
nomical administration of the employment security program in Massachusetts 
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 individuals who 
become unemployed through no fault of their own a weekly benefit check paid 
on a claim filed with the Division of Employment Security. 

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. 

The Assistant Attorneys General make every effort to fully inform the employers 
of their rights and obligations under the law. As a result, a certain percentage of 
the tax matters are settled immediately, thereby avoiding the expense of prosecuting 
the offender and collecting the taxes owed through court action, creating a sav- 
ings to the Commonwealth and its taxpayers. 

During the fiscal year 1983, 1 ,638 employer tax cases were handled by the Divi- 
sion. As of July 1, 1982 1,290 cases were on hand, 348 additional cases were 
received during the fiscal year, and 40 cases were closed leaving a balance of 1 ,598 
employer tax cases on June 30, 1983. 

Criminal complaints were brought in the Boston Municipal Court charging 135 
individuals with 1 ,968 counts of tax delinquencies totaling $2, 156,794.05 in monies 
owed the Commonwealth's agency by the 103 employer tax accounts. During the 
fiscal year 1983, $2,280,727.70 in overdue taxes was collected. Monies collected 
were deposited to the Massachusetts Unemployment Compensation Fund. 

Whenever individuals are found to be collecting unemployment benefits fraudu- 
lently on claims they have filed while gainfully employed and earning wages, the 
fraudulent matters are referred to the Attorney General for prosecution. Criminal 
complaints are brought only when the facts surrounding the offense have been 
investigated, reviewed with the individual involved, and criminal intent has been 
found. The criminal action is brought in the court holding jurisdiction over the 
offense, for larcency under G.L. c.266, §30or under G.L. c. 151A, §41, in order 
that monies stolen from the Massachusetts Division of Employment Security may 
be reclaimed and the criminal punished. 



P.D. 12 25 

During the fiscal year ending June 30, 1983, 1 , 154 fraudulent claims of unem- 
ployment benefits were handled by this Division. On July 1 , 1982, 814 cases were 
on hand, 340 additional cases were received during the fiscal year, and 26 were 
closed leaving a balance of 1 , 128 fraudulent cases as of June 30, 1983. Criminal 
complaints were brought in various courts of jurisdiction over the offenses 
involved, charging 39 individuals with larceny of $69,554.00 in unemployment 
benefits fraudulently collected from the Commonwealth's agency. 

The amount of $226,155.97 was collected from the fraudulent claimants dur- 
ing the fiscal year ending June 30, 1983, and has been restored to the Unemploy- 
ment Compensation Fund of the Massachusetts Division of Employment Security. 

During the past fiscal year there were 20 additional actions brought against or 
by the director of the Massachusetts Division of Employment Security. 

The Division has also been involved in rendering opinions both formal and infor- 
mal on various aspects of Chapter 151 A and related laws. 

The Employment Security Division handled 25 actions in the Supreme Judicial 
Court during the fiscal year ending June 30, 1983. Six of the cases were argued 
and closed, reducing the balance on hand to 19. 



III. MEDICAID FRAUD CONTROL UNIT 

The Medicaid Fraud Control Unit, now in its fifth year of existence, has estab- 
lished itself as a mature and effective prosecutorial agency in the area of white 
collar crime. Through the investigation and prosecution of cases of provider fraud 
in the Medicaid program, the Unit has continued to focus public attention in an 
area that once received scant notice. Identifying fraud and abuse on the part of 
providers is increasingly seen as an area to which more resources must be allo- 
cated to assure the integrity of the ever-increasing Medicaid budget. The Unit can 
claim a measure of success in helping to make this a priority. 

The Unit has also continued to be active in its other major area of responsibil- 
ity, the investigation and prosecution of physical abuse in long-term care facili- 
ties. Three patient abuse cases were successfully prosecuted during the year while 
scores of others were investigated but resolved short of criminal proceedings. The 
Unit has sought to make known the fact that allegations of intentional harm visited 
upon elderly and infirm residents of nursing homes and other long-term facilities 
will be investigated quickly and, if the facts warrant, prosecuted vigorously. 

During fiscal year 1983, the Medicaid Fraud Control Unit opened 137 new cases 
and closed 276. A total of 213 cases had been carried forward from the previous 
year. The balance of cases pending as of July 1, 1983 stands at 74. 

A total of 34 indictments were returned by the Unit during this fiscal period. 
The number of convictions secured was 51.^ 

During this year, the unit obtained the conviction of two individuals for a lar- 
cenous scheme that netted them over half a million Medicaid dollars in a thirteen 
month period. A psychologist from Springfield pleaded guilty to charges of larceny, 
conspiracy and Medicaid false claims for his part as a principal in the theft of 
$510,883 between November, 1980, and November 1981. The stolen money 



- Includes iniiiclnicnts returned in previous fiscal years. 



26 P.D. 12 

represents payments for psychological testing services that he billed, but never 
rendered to Hispanic Medicaid patients. The provider was sentenced to concur- 
rent four to five year jail sentences. An accomplice, who had supplied the psy- 
chologist with the names and Medicaid identification card numbers of patients to 
facilitate his phony billings, was convicted as an accessory before the fact and sen- 
tenced to serve a period of three to five years. 

During fiscal year 1982, an investigation by the Unit into the purchase and sale 
of used X-ray film and other silver-bearing materials from hospitals across the state 
culminated in the indictment of 37 persons and two corporations on various charges 
including larceny, conspiracy and receiving stolen goods. Included in the num- 
ber of persons indicted were 29 present or former hospital radiology technicians 
and eight principals of junkyard/refiner corporations who were charged in con- 
nection with purchases of silver from the hospitals. The investigation revealed that 
the technicians who were charged had been selling hospital material containing 
silver to the refining companies for salvage value and pocketing all or some of 
the proceeds from those sales without being authorized by the hospitals to do so. 
The theft of these materials from the hospitals amounted to larcenies of more than 
$300,000. 

During this fiscal year, all charges brought from this investigation have now 
been disposed of. Of the 39 cases, 32 were resolved by pleas of guilty offered by 
the defendants to one or more of the charges brought against them. Suspended jail 
sentences were imposed in 12 of the cases, ranging from a three to five year sen- 
tence in the state prison to lesser sentences in the various Houses of Correction. 
Those found guilty were placed under the supervision of the Court's Probation 
Department and most were ordered to pay restitution to the hospital from which 
the theft occurred. Cumulatively, as a result of the dispositions, over $200,000 
of restitution has been ordered to be repaid and in excess of $30,000 in court costs 
and fines assessed. Additionally, some of those convicted were required to per- 
form a period of community service as a condition of their probation. In total, that 
community service amounted to 2.450 hours. 

One noteworthy result of the investigation has been the implementation on the 
part of many of the hospitals that were victimized by these thefts of more detailed 
and stringent policies and procedures that will govern the sale of hospital proper- 
ties in the future. This will undoubtedly have the effect of deterring future diver- 
sions of hospital income and in the long run. help to reduce the cost of health care 
to the public. 

During the past fiscal year a principal of a taxi firm providing services to 
Medicaid recipients was convicted of the crime of Medicaid False Claims for having 
knowingly submitted bills to the Department of Public Welfare containing false 
statements. Of significance is the fact that the indictment against this principal was 
the first ever brought in the Commonwealth under the Medicaid False Claims Act. 
That statute (G.L. c. 1 18E. §21 A) was drafted by this Department and was enacted 
by the Legislature in the 1980 session. It punishes as a felony the intentional sub- 
mission for Medicaid reimbursement of a claim that contains a false statement. 
This obviates the need to prosecute on common law notions of theft which would 
require the documentation and authentication of inordinate numbers of false bills 
to prove a substantial crime. 



P.D. 12 27 

The provider in this case was assessed a fine of $5,000 on this charge and as 
part of a disposition on other charges was ordered to repay the Commonwealth 
$100,000 in restitution. 

The Unit completed a lengthy undercover operation that investigated Medicaid 
provider pharmacies in the greater Boston area. The "Shopping Program" as it 
became known, was designed to detect the practice of generic substitution, that 
is. tilling a prescription calling for a brand-name drug with a lesser-priced generic 
drug and billing Medicaid the brand-name charge. 

With the co-operation of the Department of Public Welfare, a number of recipient 
Medicaid cards were obtained utilizing various assumed names. Unit investiga- 
tors using these cards and written prescriptions which had been furnished to them, 
"shopped" selected pharmacies posing as Medicaid recipients. Drugs which were 
purchased were inventoried, examined and retained, where necessary, as physi- 
cal evidence. Comparisons were made in each case between the type of drug that 
was dispensed and what the provider billed, so as to identify those providers who 
were routinely engaging in a pattern of substitution. 

As a result of that investigation, indictments were returned against eight phar- 
macy corporations and eight individual pharmacists. To date, six of the eight cases 
have been disposed of. each resulting in a conviction. While no conviction has yet 
resulted in jail time being served, four of the six resulted in jail sentences which 
were later suspended. Five of the six dispositions included fines ranging from 
$7,500 to $13,125. In one instance. $13,000 of restitution was ordered and col- 
lected. The remaining cases are scheduled for trial at a later date. In addition to 
the eight cases resulting in indictments twenty-five cases were referred to the 
Department of Public Welfare for appropriate administrative action where bill- 
ing and/or dispensing irregularities occurred, but without sufficient supporting evi- 
dence to warrant charges of criminal fraud. 

This type of "Shopping Program" was done with the anticipation that it will 
receive notice in the pharmacy provider community and that it will make those 
who are otherwise inclined to engage in some type of deceptive and fraudulent 
practice aware that their behavior will not go unnoticed. Although the value of 
deterrence can not be quantified in terms of dollars, it is believed that these highly 
visible prosecutions will deter future significant dollar losses to the Medicaid 
system. 

The Unit continued to work in concert with other state agencies, primarily the 
Department of Public Welfare, in attempting to improve the administrative mechan- 
ism of the Medicaid Program. Meetings were held with Department personnel on 
a regular basis to discuss ways in which to upgrade the generation and referral 
of cases of suspected fraudulent providers. 

IV. EXECUTIVE BUREAU 

ELECTIONS DIVISION 

A. Campaign and Political Finance 

One of the primary functions of the Elections Division is to enforce compliance 
with the state's campaign finance law by candidates and political committees. (G.L. 



28 P.D. 12 

C.55). In fiscal year 1983. the Office of Campaign and Political Finance reported 
145 individual candidates or treasurers who had failed to file the required finan- 
cial disclosure reports. Through administrati\e action taken by the Division, com- 
pliance was obtained in 120 instances. The Division brought civil suit against 25 
individuals; 8 of whom have since complied with the disclosures statute. In addi- 
tion, city and town clerks throughout the Commonwealth reported 31 local can- 
didates or political committee treasurers who had not complied with the filing 
requirements. The Di\ ision has obtained compliance with the law in all but four 
instances by administrative action: civil law suits are pending against those 
individuals who have yet to comply. 

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 
1983. 56 violations of these sections were reported by the Secretary. As a result 
of administrative action taken by this Division, the required statements were filed 
by all reported violators. 



C. Litigation 

During fiscal year 1983 the Elections Division was engaged in numerous civil 
law suits defending decisions of the State Ballot Law Commission and the Secre- 
tary of State. Of particular concern were challenges to the op)eration of G.L. c.53, 
§§34 and 35 governing what past experience candidates can have printed beside 
their names on the official ballots. The Division also successfully defended the 
actions of the Governer in recalling the State Legislature directly into constitu- 
tional convention to complete their consideration of a pending constitutional amend- 
ment providing for the death penalty. Backman v. Connolly. 

D. Administrative Action 

During the course of the year, the Elections Division investigated the conduct 
of local elections in the Town of Dudley after a petition for an election inquest 
was filed in the District Court alleging that state laws were not being followed. 
The investigation revealed that there was no deliberate misfeasance, however, a 
representative from the Secretary of State's office observed the next town elec- 
tion to suggest improvements in the election procedures. 

The Division also investigated the manner in which the City of Boston planned 
for and managed the primary election in 1982. By working directly with city offi- 
cials and the Secretary of State, many improvements were made enabling the final 
election to be run in an efficient and appropriate manner. Further cooperation 
resulted in the unprecedented action of the Secretary and the Attorney General hir- 
ing an election expert to work with the City and to monitor preparations for the 
1983 municipal election. 



P.D. 12 29 

VETERANS DIVISION 

The Veterans Division serves primarily as an informational agency referring 
private citizens to appropriate Federal and State offices for assistance in veterans 
matters. The Division serves as litigation counsel to the Commissioner of Vete- 
rans Services and the Veterans Affairs Division of the Department of the Treas- 
ury. The Division handles civil litigation concerning appeals of agency decisions 
granting or terminating veterans benefits. During fiscal 1983 the division continued 
efforts to require towns to employ full-time veterans agents in compliance with 
St. 1972, C.471. 



V. PUBLIC PROTECTION BUREAU 

The Public Protection Bureau is the largest of the Bureaus in the Attorney 
Generafs Office. Its work is carried out by seven divisions: Antitrust, Civil Rights, 
Consumer Protection, Environmental Protection. Insurance. Utilities and Public 
Charities, as well as a Complaint Section (including Local Consumer Groups) and 
an Investigative Section. The Bureau brings affirmative litigation on behalf of the 
public, and represents the public in insurance and utility rate hearings. The Bureau 
also represents several state agencies and boards whose duties involve actions in 
the public interest. These include the Division of Environmental Quality Engineer- 
ing, the Outdoor Advertising Board, the Pesticide Control Board, and the Architec- 
tural Barriers Board. 

The work of the Bureau includes educational programs, conferences and litiga- 
tion support activities such as mock trial exercises, moot courts, and case critiques. 
The Bureau staff provided assistance on many cases, including: Bellotti v. Inter- 
national Marathons, Inc. (Public Charities Division). Boston Edison, "Pilgrim 
IF' case (Utilities Division), Local Division 589 v. Commonwealth and MBTA 
(Consumer Division), and insurance annuity cases (Insurance Division). 

Reports of the Bureau'c divisions and sections follow. 

COMPLAINT SECTION 

During fiscal year 1983, the Public Protection Bureau's Complaint Section 
opened 4,956 cases and closed 3,242 cases. The section recovered for consumers 
$278,440.75 in refunds, savings and the value of goods or services they would 
not have received but for the intervention of this Department. In addition, 4,676 
written complaints were referred to agencies of other states, or other Massachusetts 
or federal agencies, or to local consumer groups. 

The Bureau's information line staff received a total of 1 16,940 calls during the 
past year. As a result of these calls, 12,896 citizens were sent Complaint/Inquiry 
Forms. 18, 100 citizens were given information and 85.944 calls were referred to 
local consumer groups or other state or federal agencies. The staff also received 
465 calls concerning civil rights issues. As a result of these calls, 263 citizens were 
sent Complaint/Inquiry Forms and 202 citizens were given information relating 
to civil rights inquiries. 



30 P.D. 12 

In addition to the normal investigating and litigation-generating functions, the 
Complaint Section staff participated in a civil rights auditing project, in which the 
staff applied for apartments to determine whether discrimination was being prac- 
ticed by the landlords and/or realty companies. 

Two important changes have occurred in the Complaint Section this year. The 
Attorney General's telephone bank (727-8400) has been physically relocated to 
the Complaint Section. A new computer system began in early June. Eventually 
local consumer groups will be trained and made part of this computer system. The 
system will track all open customer complaints in the Commonwealth and will pro- 
vide a variety of historical information. This new system will facilitate the detec- 
tion of consumer fraud trends and will monitor the impact of various practices. 



INVESTIGATIVE SECTION 

In fiscal year 1983, the high quality of the Investigative Section's work resulted 
in a continued demand for its services. However, federal grant cutbacks and budg- 
eting constraints led to attrition from twenty-four to seventeen investigators requir- 
ing that investigations be carefully prioritized. 

Investigative personnel produced an Arson Manual which serves as the basis 
for all related investigations and arson prevention programs throughout the state. 
Unfortunately, the federal arson grant funds were not renewed and the Section's 
arson squad was required to disband. 

The services of the Investigative Section are now used by all Bureaus of the 
Department. The investigators have continued to produce considerable impact in 
many areas. The close interaction of the Antitrust Division attorneys with inves- 
tigators continued to produce rapid results in an area traditionally viewed as slow 
moving. One such example would be the investigations in support of a suit involving 
the state's newly enacted bottle deposit law. Commonwealth v. Mass. CRINC. 

In the civil rights area, investigations uncovered overt violations against Asian 
peoples, located violators, and led to successful prosecution of civil and criminal 
actions. 

As the economy produced an increase in the need for used motor vehicles, inves- 
tigations of "odometer spinning" resulted in legal actions which benefited con- 
sumers and most vehicle dealers as well. 

To use the reduced number of investigators more effectively, the position of 
Assistant Chief Investigator was established. In spite of the reduction in staff size 
the quality of the work has not suffered. The investigators continued to work closely 
with FBI, Postal and U.S. Attorneys and local police. In one instance, section per- 
sonnel located a subject who had been sought by the U.S. Attorney and F.B.I. 



LOCAL CONSUMER AID FUND 

For the fiscal year 1983, the Massachusetts Legislature appropriated $300,700 
to provide regional consumer groups throughout the Commonwealth with sup- 
plemental funding for consumer complaint mediation. These funds are distributed 
through the Local Consumer Aid Fund and are administrated by the Public Pro- 
tection Bureau of the Department of the Attorney General. 



P.D. 12 31 

Through this program, 13,500 consumer complaints from 90% of the cities and 
towns in the Commonwealth are now handled at the local level. Handling com- 
plaints at the local level has proven beneficial to both consumers and businesses 
because complaints are handled quickly and in a workable manner between the 
merchants and citizens. Due to their familiarity with local merchants, the groups 
are able to recognize patterns of unfair and deceptive practices at an early stage. 
This has resulted in an expedited curbing of these practices. 

The 1983 appropriation was distributed among twenty-five agencies in the 
following manner: 



AMOUNT 

GRANT RECIPIENT AWARDED 

Agawam Consumer Advisory Commission $ 4,000 

Arlington Office of Consumer Affairs 9,500 

Berkshire County Consumer Advocates, Inc. 18,000 

Brockton Consumer Advisory Commission 1 1 ,500 

Cambridge Consumer Council 10,700 

Cape Cod Consumer's Assistance Council, Inc. 8,500 

Duxbury Consumer Advisors 1,750 

Fall River Consumer Service Office 11,500 

Greater Lawrence Community Action, Inc. 11,500 

Hampshire-Franklin Consumer Protection Agency 10,500 

Haverhill Community Action Commission 1 1 ,500 

Lowell Community Teamwork, Inc. 11,500 

Mayor's Office of Consumer Affairs and Licensing (Boston) 21,500 

Medford Consumers Council 21,000 

Newton Department of Human Services 16,000 

North Shore Community Action Program, Inc. 12,700 

Quincy Consumers' Council 9,000 

Revere Consumer Affairs Office 16,000 

Somerville Multi-Service Center * 4,000 

South Middlesex Consumer Protection Office 19,500 

Southeastern Massachusetts Consumer Action Center 11,500 

Southeastern Massachusetts Legal Assistance Corporation 13,000 

Springfield Consumer Action Center 18,100 

Worcester County Consumer Rights Project 2 1 ,000 

ANTITRUST DIVISION 

A. Introduction 

During fiscal year 1983, the Antitrust Division continued its vigorous enforce- 
ment of state and federal antitrust laws. The Division continues to place priority 
upon pursuing those violations which most directly impact upon the state, its cities, 
towns, schools, and consumers, namely bid rigging, price fixing and resale price 
maintenance. 



32 P.D. 12 

The Division hani.llcd cases in various stages of litigation in both the federal and 
state court systems including a suit against 37 major producers of chicken in the 
United States which charged 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. The Department of the Attorney 
General serves on the Settlement Administration Committee as representative of 
all states participating in this litigation. During 1983. Massachusetts received a 
distribution of approximately $120,000 and an award of attorneys fees and expenses 
of $12,722 supplementing a previous award of fees in the amount of $58,725. Also, 
along with New Jersey, Massachusetts was responsible for distributing approxi- 
mately $1,050,000 to fourteen other states which did not submit their own distri- 
bution plans. 



B. Litigation 

On March 7, 1983, the Antitrust Division charged MASS. CRINC and 13 beer 
wholesalers with price fixing, boycotting, monopolization and violations of the 
Massachusetts bottle deposit law in a complaint filed in Suffolk Superior Court. 

The suit alleges that the beer wholesalers unlawfully agreed to increase the prices 
of beer and charge deposits for cardboard containers in which beer is sold, unlaw- 
fully agreed as to the handling charge which would be paid to retailers, and unlaw- 
fully agreed as to the time when deposits and handling fees would be returned to 
retailers. It also alleges that the defendants attempted to monopolize the bottle return 
industry by establishing MASS. CRINC and that they have unlawfully refused to 
deal with other persons who sought to operate beverage container collection busi- 
nesses. The complaint further declares that the defendants violated various provi- 
sions of the consumer protection act and the bottle deposit law by requiring retailers 
to deal with MASS. CRINC and not otherwise accept empty cans and bottles. 

In addition to requesting preliminary injunctive relief, the complaint asks the 
Superior Court to: (1) enter civil penalties of $25,000 against each of the defen- 
dants for each violation of the Massachusetts Antitrust Act; (2) award damages 
to all natural persons residing within the Commonwealth who purchased beer since 
implementation of the bottle bill; (3) assess civil penalties of $1 ,000 against each 
of the defendants for each violation of the Massachusetts bottle deposit law; (4) 
enjoin the defendants from other price fixing activities, boycotting, monopoliza- 
tion and violations of the bottle deposit law; and (5) require that the wholesalers 
divest themselves of all interests in MASS. CRINC. 

In April, 1983, a preliminary injunction was granted against all defendants who 
then appealed to the Appeals Court. The trial judge entered a stay of his prelimi- 
nary injunction pending the appeal. Thereafter, defendant's motion to dismiss the 
claims under the Massachusetts Consumer Protection Act were denied. However, 
their motions to dismiss claims for consumer damages were granted. Cross appeals 
on the preliminary injunction and the stay will be heard in the Appeals Court in 
the Fall of 1983. 



P.D. 12 33 

In April, 1983, the Division was granted leave to intervene in the Stripper Well 
Exemption litigation in the United States District Court for the District of Kansas. 
This suit seeks distribution to the Commonwealth of approximately 40 million 
dollars. 

The Stripper Well Exemption litigation involves challenges to regulations issued 
by the United States Department of Energy with respect to low production oil wells, 
commonly called stripper wells, and the certification of crude oil from such wells 
for higher prices. The United States District Court for the District of Kansas issued 
a number of preliminary injunctions requiring the oil companies to deposit in 
escrow the difference between stripper and non-stripper well oil prices until the 
merits of the case are resolved. As of October 31 , 1982, the escrow account, includ- 
ing interest, contained in excess of one billion dollars. The issue presently pend- 
ing before the District Court is how the money in escrow is to be distributed. 

During fiscal 1983 the Commonwealth received final distribution in a case against 
seven sugar refineries alleging a conspiracy to fix prices. Additionally, the Depart- 
ment received an award of $30,927.45 in fees and expenses in this case. 

In 1983, the Commonwealth was awarded and received attorneys fees and 
expenses in the amount of $28,244.00 in a case that alleged that 15 major paper 
manufacturers had conspired to fix the prices of five paper products. The com- 
monwealth is awaiting award of its share of the total settlement fund to be based 
on claims submitted. 

The Division took over responsibility for coordinating all of the plaintiffs' dis- 
covery in the multi-party suit against the four major manufacturers of art supplies 
in the country. 

In May of 1983, the Court granted preliminary approval of a proposed settle- 
ment in a case brought against Cuisinarts, Inc. alleging vertical price fixing. The 
settlement provides that residents of Massachusetts who purchased a Cuisinarts 
Food Processor between December 31, 1981 and January 1, 1973, will be able 
to purchase certain other Cuisinarts products at 50% of the suggested retail price. 
Hearing on final approval of the proposed settlement is scheduled for September, 
1983. 

The Antitrust Division continued to press its claim 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 Boston and its 
northern environs. During fiscal 1983, a federal Magistrate recommended denial 
of defendants' motion to dismiss the Commonwealth's unitary plaintiff claim, but 
also recommended the granting of defendants' motion to dismiss the claims for 
damages incurred more than four years prior to the filing of the action. The Magis- 
trate's recommendations must now be accepted or rejected by the District Court 
Judge. 

In a separate action 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 Boston and its southern environs an agreement 
was reached with one of the defendants. Old Colony Crushed Stone and Construc- 
tion Company, Inc.. Old Colony agreed to the payment of $240,000 in full settle- 
ment of its liability in the litigation. Furthermore, a Consent Decree was filed in 
Federal District Court prohibiting Old Colony from entering into an agreement 
with any other road paving company to establish prices for bituminous concrete 
or road paving work, to allocate customers, or to rig bids. 



34 P.D. 12 

A criminal action was transferred by the Middlesex District Attorney's Office 
to the Antitrust Division in April, 1983. Commonwealth v. Victor Scoppe, et al. 
(Middlesex Superior Court). The indictment charges the defendants, an inspec- 
tor with the Medord Home Improvement Program and three contractors, with 
larceny, conspiracy to commit larceny and conspiracy in unreasonable restraint 
of trade in violation of G.L. c.93. The charges stem from an alleged conspiracy 
to rig bids submitted to, and contracts awarded by, the Medford Home Improve- 
ment Project. One defendant is also charged with bribery. 



C. Additional Proceedings and Activities 

In addition to the above cases, the Antitrust Division was, during fiscal year 1983, 
involved in the following proceedings and activities: 

On August 2, 1982, the Division filed a consent decree in Suffolk Superior Court 
concluding its lengthy investigation of the Boston Survey Group. 

The Boston Survey Group (BSG) is an unincorporated association which con- 
sists of 34 companies operating in and around Boston. Through the BSG these com- 
panies had exchanged wage information pertaining to their employees. The 
information was provided in surveys on a company-by-company basis with each 
member having available the wage information of all other members. The con- 
cern which triggered the investigation was whether this exchange of wage infor- 
mation artificially reduced employee wages and therefore constituted a violation 
of Massachusetts or federal antitrust laws prohibiting certain joint conduct by 
competitors. 

The consent decree, entered without the finding of any violation, provides among 
other things, that: (1) surveys will no longer identify the companies to which par- 
ticular wage information pertains; (2) each company's information will only be 
reported in the aggregate and will not disclose wage information on an employee- 
by-employee basis; (3) wages will not be reported for any employee classifica- 
tion for which there are fewer than ten employees among members of the BSG; 
(4) wage information will not be reported on an "industry-by-industry" basis; (5) 
BSG's by-laws will require all members to disclose their membership in the BSG 
upon reasonable request; (6) BSG's by-laws will permit each member to disclose 
to an employee aggregate weighted average salary data for all reporting compa- 
nies relating to the pertinent job category. 

Additionally, the BSG provided a Letter of Assurance to the Department of the 
Attorney General which states that it is, and has been, its policy not to exchange 
future wage or salary intentions where such an exchange would be illegal under 
the Massachusetts Antitrust Act. The by-laws of the Group have been supplemented 
to confirm this policy. 

On September 21 , 1982, the Division entered into a Settlement Agreement with 
Saxon Theatre Corporation of Boston concluding an investigation of alleged 
antitrust violations by that company. Saxon operates the Sack Theatre chain. 

The investigation focused upon incidents occurring in December 1981 and Janu- 
ary 1982 when the Assembly Square Theatre in Somerville exhibited more first- 
run motion pictures than there were movie screens in the complex. Such overbook- 
ing prevented neighborhood theatres in the area from effectively competing with 
the chains. 



P.D. 12 35 

A consent judgment filed in Suffolk Superior Court provides that Sack Theatres 
will not generally exhibit more first-run motion pictures than it has movie screens, 
and that Sack will not advertise exhibition of motion pictures when it has reason 
to believe they will not be exhibited at the advertised time. It also stipulates that 
the firm "will not knowingly communicate false or misleading informafion to film 
distributors" and that Sack Theatres will not "move-over" or transfer a motion 
picture from one theatre to another operated by Saxon before completion of the 
first week of showing. Sack also agreed to the payment of $20,000 to the Com- 
monwealth as reimbursement of costs and expenses incurred by the Division in 
conducting its investigation. 

On October 1 , 1982, the Division filed consent decrees in Suffolk Superior Court 
against five Fenway Park parking lots all located on Boylston Street in Boston. 
The court filing concluded an investigation which focused on allegations that park- 
ing lot operators in the Fenway Park area had engaged in unlawful price fixing 
after the City of Boston issued citations in July to various lot owners for overcrowd- 
ing their parking lots. 

The consent decree prohibits the defendants "from directly or indirectly, entering 
into any contract, combination or conspiracy to fix, determine, maintain or stabi- 
lize the prices" charged for ball park parking and "communicafing to or exchang- 
ing with any of their competitors any information relating to prices which have 
been charged, allowed to be charged, or are to be charged for ball park parking. " 
The defendants also agreed to pay the Attorney General $7,000 to cover costs and 
expenses, while denying any violation of the law. 

On November 30, 1982, the Division filed a consent decree in Suffolk Superior 
Court against thirteen (13) bowling centers operating in western Massachusetts. 
The consent decree prohibits the bowling centers from agreeing to fix bowling 
prices, to interfere with other bowling centers independent setting of bowling prices 
or to exchange informafion about bowling prices. The companies also agreed to 
pay the Commonwealth a total of $9,750.00. 

A consent decree was filed on January 2 1 , 1983 in Suffolk Superior Court con- 
cluding an investigation by the Division into the William Bayley Co. and its deal- 
ings with Masiello Associates, the Worcester architectural firm. This matter was 
referred to the Department by the Special Commission ("Ward" Commission). 
The Division's investigation focused on allegations that certain contracts for secu- 
rity windows on public construction jobs were unlawfully granted to the William 
Bayley Company by Masiello Associates in exchange for "kickbacks" of funds 
derived from the contract. 

The consent decree prohibits the William Bayley Co. from entering into any 
agreement with any architect which requires that bid specifications for any Mas- 
sachusetts public construction project specify that only products manufactured by 
the William Bayley Company be used to the absolute exclusion of all others. The 
company also agreed to pay the Department of the Attorney General $4,200 as 
reimbursement of costs and expenses. 



D. New England Bid Monitoring Project 

In the summer of 1978, the Commonwealth began a pilot program to determine 
the feasibility of collecting and analyzing masses of bid data from municipalities 



36 P.D. 12 

in order to determine whether antitrust violations were occurring in the sale of cer- 
tain specified products. As part of the project the Antitrust Division collected bid 
data from over 100 towns and cities in Massachusetts and commenced develop- 
ment of computer programs for analysis of the data. 

During fiscal 1983, data collection continued to insure that the project remained 
current. Additionally, software was further improved to permit more efficient 
management of data collected and analysis of project bids in addition to product 
bids. 

Most importantly, computer analysis generated by the project played a signifi- 
cant part in the investigation leading to the filing of the two road paving cases men- 
tioned earlier. 



CIVIL RIGHTS AND LIBERTIES DIVISION 

A. Introduction \ 

The work of the Civil Rights and Liberties Division during fiscal year 1983 
reflects the priority given to combatting racial violence. Creative and effective use 
of the injunctive provisions of the Massachusetts Civil Rights Act, G.L. c.l2, 
§11H, represents one of the major accomplishments of the Division this year. 

Housing was another priority area. The Division challenged patterns and prac- 
tices of racial discrimination that interfered with access to low and moderate cost 
housing. 

There was continued need for authority to issue a Civil Investigative Demand 
in civil rights cases. For the second year, a bill which would have given the Divi- 
sion greater investigative powers failed to pass the Legislature. 

B. Major Case Areas 

1 . Enforcement of the Massachusetts Civil Rights Act 

The Division brought the first action for injunctive relief under the Massachusetts 
Civil Rights Act in Commonwealth v. Gilligan, etal. , concerning an alleged inter- 
ference with fair housing rights through threats, intimidation, and coercion. Fol- 
lowing the presentation of the Commonwealth's case, an injunction was entered 
upon consent, prohibiting the eight defendants from in any way harassing blacks 
in the Ross Field area of Hyde Park, entering onto their property, or congregat- 
ing in certain areas. Three days after judgment was entered, one the defendants 
violated the injunction. Following the criminal contempt trial of Commonwealth 
V. Gaine, the defendant was sentenced to 60 days in jail. Neighbors reported that 
thereafter, the neighborhood was more peaceful than it had been in years. 

In Commonwealth v. Meagher, the defendant agreed to the entry of an order 
prohibiting him from threatening or harassing teachers, students, or administra- 
tors at Boston Technical High School on racial, ethnic, or religious grounds. In 
Commonwealth v. Silva, the Division obtained a preliminary injunction against 
an individual who had harassed, then assaulted, a Vietnamese co-worker because 
of his national origin. 



P.D. 12 37 

The criminal case of Commonwealth v. Williams, a prosecution for interference 
with the civil rights of a black family in a Weymouth housing project by breaking 
windows and shouting racial slurs and threats, was tried before a jury of six fol- 
lowing the defendant's appeal. The defendant was convicted of violating the Civil 
Rights Act, G.L. c.265, §37, and sentenced to the maximum one year term. 

Recognizing that effective implementation of the Civil Rights Act requires the 
coordinated effort of all parts of the legal system, the Division organized a work- 
shop about the Act for assistant district attorneys; participated in several police 
training sessions; and spoke to the annual conferences of the Justices of the Superior 
Court, District Court, and District Court Clerk-Magistrates. During the summer 
of 1982 the Division played a key role in setting up procedures for coordinating 
the work of local, state, and federal police and prosecutorial agencies in cases 
involving racial violence. 

To create broader public awareness of the Act, the Department of the Attorney 
General joined with other state, federal, and private agencies in sponsoring a 
statewide conference on racial and religious violence attended by municipal offi- 
cials, school officials, and chiefs of police. Following the conference, several com- 
munities asked for and received assistance in establishing local human rights 
commissions. The Division also works closely with a variety of organizations and 
groups, including representatives of the state's growing Southeast Asian refugee 
population. 



2. Housing 

Using personnel from the Public Protection Bureau, the Division investigated 
race discrimination by Boston real estate brokers and agents. By the end of the 
fiscal year three lawsuits had been settled: Commonwealth v. New Boston Realty, 
Inc. , et al.; Commonwealth v. John A. Forger, d/b/a Old Forge and Common- 
wealth V. Fulton Realty, Inc. In each case, the defendants agreed to future com- 
pliance with fair housing laws, training of agents, advertising in minority 
newspapers, and payments to either the Commonwealth or housing groups. 

Representing the Secretary of the Executive Office of Communities and Develop- 
ment, the Division intervened as a defendant in Faverman v. Cambridge Housing 
Authority, a case brought by a condominium association to prevent a housing 
authority from purchasing a condo unit to be rented to a low income family. 
Defenses were raised under the condominium statute, together with a counterclaim 
seeking implementation of the Commonwealth's scattered site public housing pro- 
gram. The case was pending at the end of the fiscal year. 

Litigation was avoided against a city which had passed a resolution restricting 
the development of subsidized housing in its predominantly Hispanic neighbor- 
hoods. The matter was resolved by negotiation, and at the end of the year, the pro- 
posed project was moving forward. 



38 P.D. 12 

3. Health Care 

The Division continued its enforcement of the Hill-Burton Act, which requires 
that health care facilities which received funds under the federal Hill-Burton pro- 
gram provide a reasonable volume of free or reduced cost care to persons unable 
to pay. Agreements were reached with six hospitals, under which they have agreed 
to provide approximately $1 million in additional free or reduced cost care. Since 
the project began, approximately $3 million has been recovered. 



4. Education 

The Division was involved in a number of cases involving state regulation of 
private religious schools. Last year, the Supreme Judicial Court held in Attorney 
General v. Bailey, that supervisors of private religious schools must comply with 
the school attendance reporting provisions of G.L. c.72, §2. Although the United 
States Supreme Court refused to hear the case, defendants failed to submit the 
required information, and were found in contempt in Attorney General v. Willett 
et al. Thereafter, the reports were filed, and consent judgments were reached in 
two similar cases. Attorney General v. Supervisory Officers of New Life Chris- 
tian Academy and Attorney General v. Supervisory Officers ofBraintree Baptist 
Temple. 

Two actions were filed in state court to enforce the Commonwealth's compul- 
sory school attendance law, G.L. c. 76, §1 : Attorney General v. Grace Bible Church 
Christian School and Attorney General v. North Brookfield Christian Academy. 
The Division is representing the Department of Education in Braintree Baptist Tem- 
ple V. Holbrook, a federal court challenge to the constitutionality of the compul- 
sory school attendance laws. All three cases were pending at the end of the fiscal 
year. 

The Division represented the Department of Education in several cases arising 
under the state's special educational laws, including BrookUne School Committee 
V. Bureau of Special Education Appeals. In the Brookline case, the Supreme Judicial 
Court upheld the decision of the Bureau of Special Education Appeals requiring 
Brookline to pay the costs of a private school placement for a special needs child, 
ruling that any budgetary restrictions caused by "Proposition 2'/2" did not abrogate 
a school committee's responsibilities under the special education laws. 

The Division also continued to work with the Department of Education in review- 
ing the City of Lawrence's compliance with the state's transitional bilingual edu- 
cation laws. Monitoring during fiscal year 1983 showed that the city had made 
significant progress, improving its procedures for identifying and placing students 
in need of transitional bilingual education, meeting the student/teacher ratios man- 
dated by the regulation, limiting the age spans of children within a class, and locat- 
ing classes more appropriately. 

In Attorney General v. School Committee of Essex, the Supreme Judicial Court 
held that G.L. c.76, §1 , which provides private school students with the same trans- 
portation rights as public school students, did not violate the Anti-Aid Amendment 
to the state constitution. However, the Court ruled that the private school trans- 
portation entitlement is limited to children of compulsory school age, and that 
school committees need only provide transportation to private schools which are 
the same distance as or closer than the public schools the student is entitled to attend. 



P.D. 12 39 

5. Voting, Assembly and Petition 

The Division participated as amicus in the case of Batchelder v. Allied Stores 
International. The Court held in that case that Article 9 of the Declaration of Rights 
of the Massachusetts Constitution, which concerns the freedom and equality of 
elections, guaranteed the right of a candidate to solicit signatures for a nominat- 
ing petition in a reasonable and unobtrusive manner in the common areas of a pri- 
vately owned shopping center. 

In Bellotti v. Bniynell, a complaint was filed under the State Equal Rights Amend- 
ment against the Town Clerk of Braintree for segregating voters into voting lines 
and maintaining separate voting lists on the basis of sex. After a preliminary injunc- 
tion was issued, the Clerk agreed to stop the practice. 

Following discussions with the Division, the town of Framingham agreed to stop 
enforcing an ordinance which prohibited all distribution of pamphlets on the pub- 
lic streets. The matter was brought to our attention by a group which wanted to 
pamphlet in opposition to a local override of "Proposition 2'/2."' 



6. Public Records and Open Meeting 

The Supreme Judicial Court rendered its decision in Globe Newspaper Co. v. 
Boston Retirement Board, in which the Attorney General had intervened. The Court 
held that medical and personnel files or information were absolutely exempt from 
mandatory disclosure under the state's public records laws where the files or infor- 
mation are of a personal nature and relate to a particular individual. 

A final ruling on summary judgment was sought in Bellotti v. Board of Zoning 
Appeals of Milton, in which the public record status of a letter from town counsel 
to the defendant Board is at issue. The Division argued that the attorney-client and 
work-product privileges do not constitute exemptions under the Public Records 
Law. A decision is pending in Superior Court. 

Suit was filed in Bellotti v. Chief of Police ofAmesbury, et al. against 28 police 
departments which failed to comply with state regulations governing the amount 
which government officials may charge for public records. The departments 
involved had charged excessive amounts, or refused to provide copies by mail. 
By the end of fiscal year 1983, agreement had been reached with all but one of 
the defendants. 

In Attorney General v. MBTA, the Superior Court found that the MBTA had 
violated the open meeting law when it discussed major service cutbacks and the 
issuance of bonds in closed sessions. The court held that the litigation exception 
to the open meeting law did not apply to matters about which litigation was a mere 
possibility. It also held that a "briefing session" was a "meeting" subject to the 
open meeting law. The decision was not appealed. 

The Division represented the Bristol Country District Attorney in Town of Dart- 
mouth V. Standard Times, Bristol County D. A. , et al. in which the town sought 
a declaratory judgment that it could hold an executive session to discuss possible 
litigation. Our motion to dismiss was pending at the end of the fiscal year. 

Much of the Open Meeting Law work of the Division does not involve litiga- 
tion. Complaints were resolved concerning variety of issues, including when the 
"litigation exemption" could be invoked; when an "emergency" meeting could 



40 P.D. 12 

be held; what was a "governmental body'' subject to the Open Meeting Law; and 
the use of tape recorders. The Division also plays a coordinating and liaison role 
on Open Meeting Law issues with the offices of the District Attorneys who have 
jurisdiction over complaints affecting municipal and county governmental bod- 
ies. A workshop for Assistant District Attorneys throughout the state was held dur- 
ing the past year. 

7. Privacy 

The Division participated as amicus in the discovery aspects of Town of Brook- 
line V. Boiirnewood Hospital, a case in which Brookline alleges that a private psy- 
chiatric facility constitutes a public nuisance. The Town sought discovery of 
diagnostic, therapeutic, and other arguably privileged records concerning individual 
patients. The Division raised the privacy interests of the patients, proposing that 
a guardian ad litem be appointed to represent the patients and that a protective order 
be entered. The parties agreed to the appointment of a guardian ad litem, and pro- 
tective orders were entered by the court. 



8. Employment 

The Commonwealth joined several other states before the United States Supreme 
Court as amici in Shaw v. Delta Airlines, Inc. , arguing that the federal Employee 
Retirement Income Security Act of 1974 did not preempt state laws banning dis- 
crimination in employee benefit plans. The Court held that state laws were 
preempted only to the extent that they prohibited practices that were lawful under 
federal law. 

The Division resolved a complaint of sexual harassment and retaliation against 
a restaurant after the restaurant agreed to offer reinstatement, back pay, and to 
adopt, publicize, and follow a policy prohibiting sexual harassment. It also resolved 
a number of complaints concerning the use of lie detectors by employers. 

The Division continued to monitor affirmative action compliance in the Copley 
Place development. The project contract requires hiring of minority and female 
workers and use of minority business firms. 



9. Equal Credit 

The Federal Reserve Board finally took action on proposals dealing with credit 
scoring systems on which the Division had commented in 1979 and 1980. The 
Board adopted most of the Division's recommendations, prohibiting creditors from 
using generalizations about the reliability of certain types of income, such as alim- 
ony; considering the fact that an applicant has multiple sources of unearned income; 
and requiring more informative disclosure of the reasons for adverse action on 
credit applications. 



P.D. 12 41 

1 . Gua rdiansh ips 

The Division participated in several guardianship proceedings, all of which con- 
cern whether the Probate Court could make decisions concerning medical treat- 
ment for incompetent state patients and inmates. 

CONSUMER PROTECTION DIVISION 

A. Introduction 

During the past year the Consumer Protection Division expanded its role as an 
advocate of national consumer issues, largely in response to the federal govern- 
ment's lessened commitment in the field. At the same time, the Division used an 
increasing variety of remedies to address traditional consumer problems, includ- 
ing deceptive automobile sales practices, mistreatment of elderly patients, abu- 
sive landlord-tenant practices, and illegal activities in the sale of goods and services 
ranging from health spas to new homes. 

The Division's work on national consumer problems included both litigation and 
legislative efforts. Acting as the leader of a coalition of Northeastern states, the 
Division successfully coordinated multi-state auto defect litigation, described 
below, against Subaru of America. The Division also represented national coali- 
tions of state Attorneys General in advocacy to the federal government. It spon- 
sored legislation, enacted in June, which substantially expands the Division's 
authority to sue large interstate corporations over unfair and deceptive practices. 

In traditional areas of concern, the Division has placed a new emphasis on the 
use of attachments to insure that a defendant's assets are not dissipated and remain 
available to pay consumer claims. Criminal sanctions were sought against perpetra- 
tors of egregious frauds in areas such as odometer spinning and home improve- 
ments. In fiscal 1983 the Division also pursued contempt actions against repeat 
violators and obtained the largest penalty award in the history of the Division. And, 
as a complement to litigation, the Consumer Protection Division sponsored educa- 
tional programs and conferences both for consumers and for law enforcement per- 
sonnel, in areas ranging from mobile home law to arson prevention, all designed 
to prevent consumer injury at its inception. 

B. Interstate Cooperative Enforcement 

In 1983, the Department joined with the Attorneys General of other Northeastern 
states to form the Northeast Regional Consumer Protection Committee 
(N.E.R.C.P.C.). The purpose of the Committee is to share information and to coor- 
dinate litigation on issues which transcend state lines. This past year, N.E.R.C.P.C. 
successfully concluded its first cooperative lawsuit, brought against Subaru of 
America. The suit alleged that Subaru sold large numbers of 1980 and 1981 
automobiles with defective "axle boots", causing a risk of serious damage to the 
car's drive mechanism. As a result of the litigation, which Massachusetts coordi- 
nated and negotiated for the N.E.R.C.P.C. states, Subaru has agreed to replace 
the defective parts on all affected vehicles, to pay for past repairs, and to offer 
owners an extended warranty and inspection program to guard against such defects 
in the future. 



42 P.D. 12 

The Subaru settlement compares favorably with settlements obtained by federal 
agencies in the past year against other automakers. Most importantly, the Subaru 
case shows that the states can join forces to obtain comprehensive relief for their 
residents and need not depend exclusively on the federal government to address 
multi-state consumer problems. 

In fiscal year 1983 year the Consumer Division also represented a coalition of 
Attorneys General who advocated that the Federal Trade Commission adopt a 
nationwide rule barring abusive practices in debt collection. The effort occurred 
in the context of a special hearing called by the F.T.C. and included briefing and 
oral argument to the Commissioners and efforts to muster Congressional support 
for the rule. Recently, a closely divided Commission adopted a Credit Practices 
Rule, with a number of Commissioners citing the effectiveness of the Division's 
advocacy. 

Because federal agencies have lowered their commitment to consumer protec- 
tion, the Division has also taken steps to protect the ability of individual states to 
enforce their laws. In the past year, this issue was argued before the F.T.C. (in 
the context of credit practices), the Civil Aeronautics Board (with regard to ticket 
disclosure requirements), congressional staff (amendments to the F.T.C. Act) and 
the federal courts (Commonwealth v. Hayes, concerning exemption from preemp- 
tion of state hearing aid laws). As a result, pending national legislation and regu- 
lations have been modified to avoid federal pre-emption of state credit and other 
consumer statutes and to prevent new federal legislation from interfering with the 
interpretation of state consumer protection acts, including G.L. C.93A. 



C. Legislation 

This year the Division successfully sponsored amendments to the state Consumer 
Protection Act, G.L. c.93A, which removed major limitations on the Division's 
authority to sue interstate businesses. In its prior form. Section 3 of Chapter 93 A 
barred the Attorney General, private persons and local merchants injured by the 
unfair and deceptive practices of an interstate business from suing under Chapter 
93 A if (1) the Federal Trade Commission was proceeding against the same com- 
pany (even if the F.T.C. did not have the authority to obtain prompt or complete 
relief), or (2) the company's activities took place "primarily and substantially" 
in another state. These limitations have prevented the Division from bringing 
several important lawsuits, particularly against car makers concerning automo- 
bile defects. 

The new legislation removes both of these limitations. Massachusetts businesses 
will be helped by the amendments, since they will no longer be forced to compete 
against out-of-state concerns which do not comply with Chapter 93 A. Most impor- 
tantly, the Division will be free to take action against interstate businesses who 
commit unfair or deceptive practices which injure Massachusetts consumers. 

In other legislative developments, the Consumer Division successfully sponsored 
an anti-arson measure and gave extensive assistance to legislative committees in 
drafting a Massachusetts "Lemon Law" which would require manufacturers of 
new vehicles to take back vehicles which experienced repeated and significant oper- 
ating problems. 



P.D. 12 43 

D. Statistics 

During the 1983 fiscal year, the Consumer Protection Division maintained an 
active litigation caseload of 192 lawsuits. The Division obtained 17 preliminary 
injunctions and temporary restraining orders, 61 judgments, and 21 assurances 
of discontinuance. The Division also initiated 4 contempt of court proceedings. 
Finally, the Division obtained approximately $12,91 1,756 in judgments, settle- 
ments and restitution for Massachusetts consumers and $127,000 in agreements, 
assurances and judgments for fines and civil penalties. 



E. Subject Areas 
1. Health Care 

In fiscal year 1983, the Division continued its efforts to prevent the abuse of 
elderly patients in nursing homes, health quackery, and poor medical practices 
by diagnostic laboratories. 

In Commonwealth v. Townsend Nursing Home, for example, the Division 
obtained emergency court orders and worked closely with the Departments of Pub- 
lic Health and Public Welfare and the State Rate Setting Commission to obtain 
the appointment of a receiver and the resources needed to phase out the operation 
of the home and safely transfer its residents. 

The Division took similar action on behalf of endangered patients in other parts 
of the state. For example, as a result of our cooperative efforts with the Depart- 
ment of Public Health, residents of the Big G Rest Home of Templeton were trans- 
ferred to well-managed and sanitary facilities, the rest home was closed, and its 
operators were barred from opening any new patient care facility for a period of 
ten years. 

The Division also pursued legal actions against medical laboratories whose poor 
practices endanger their clients. In the case of Commonwealth v. Cambridge Diag- 
nostics, Inc. the Division obtained an injunction which prevented a clinical labora- 
tory from performing any further laboratory tests for consumers until a new 
laboratory director was in place and the deficient conditions had been corrected. 

In 1983, the Division also sued unlicensed health practitioners whose treatments 
and "miracle cures" were shown to seriously endanger patients and whose sales 
practices induced consumers to forego proven treatments. In Commonwealth v. 
Constance Jones, for example, we obtained injunctions against three Boston clinics 
which practiced "colonic irrigation," a form of alleged health care which has 
caused injuries and death in other states. 



2. Automobiles 

During the past year the Consumer Division continued its enforcement efforts 
and implemented new strategies in its ongoing effort to prevent unfair business 
practices in the sale and repair of automobiles. Those strategies included large scale 
investigations and prosecutions of odometer tampering in selected cities, the use 
of attachments to freeze assets of dishonest dealers, criminal prosecutions in egre- 
gious cases, and litigation over auto defects and unfair sales practices. 



44 PD. 12 

a. Odometer Tantperiiii^ 

In the case of Commonwealth v. Norman LaCasse, the Division worked with 
the Department's Criminal Bureau to obtain multiple indictments against a Spring- 
field car dealer for selling vehicles with altered odometers. Prior to trial, LaCasse 
pled guilty to these charges and received a suspended state prison sentence of three 
to five years. In the cases of Commonwealth v. Dean Street Auto Sales and Com- 
monwealth V. Bennett Street Auto Sales, also involving large scale odometer tam- 
pering, the Division moved at the start of litigation to attach all available assets 
of the defendants. By doing so, the Division was quickly able to obtain Judgments 
which provided $85,000 in restitution to injured consumers. Finally, coordinated 
programs were begun to investigate dealers suspected of odometer tampering in 
Lawrence, Springfield and other communities. This effort produced a series of 
visible and successful prosecutions under the Consumer Protection Act which have 
a substantial deterrent effect. 

b. Advertising 

The Division continued to monitor and enforce its automobile advertising regu- 
lations in the past year. This effort led to the entry of numerous assurances of dis- 
continuance and judgments against dealers who committed themselves to refrain 
from illegal practices in the future. 



c. Sales Practices 

The Division continued to prosecute cases against new car dealers who engage 
in "option packing," the practice of forcing consumers to purchase unwanted and 
unnecessary accessories and other equipment as a condition of obtaining popular 
models of new cars. As a result of this litigation, a number of dealers have agreed 
to stop the practice, notify buyers of their rights, and pay civil penalties and resti- 
tution to consumers. 

During fiscal year 1983 the Division also initiated actions on automobile dealers 
who were selling rebuilt vehicles which had previously been declared total losses 
as a result of accidents. The sale of these vehicles without prior disclosure to 
prospective purchasers is specifically prohibited by a regulation of the Attorney 
General. In several cases, judgments were entered which require these dealers to 
disclose the true nature of their vehicles to all prospective purchasers. 

3. Commprehensive Arson Prevention & Enforcement System (C.A.P.E.S.) 

The C.A.P.E.S. Unit of the Consumer Protection Division was created with fed- 
eral assistance to implement a preventive, civil approach to arson which would 
supplement criminal prosecution. In the past three years the Unit has devised crea- 
tive methods to identify arson-prone buildings and neighborhoods and to prevent 
fires from occurring. In November 1982, federal funding for C.A.P.E.S. termi- 
nated, and the state Legislature failed to provide replacement funds in the Depart- 
ment's budget. Despite this loss of funding, the Consumer Protection Division 
continued to devote resources in the areas of litigation, education, and legislation 
to combat the threat of arson. 



P.D. 12 45 

In December 1982, the C.A.P.E.S. Unit prepared and published the Arson 
Prevention Manual. This booklet details the methodology and strategy developed 
by the Unit to prevent arson and is intended to be used a a guide by local and state 
governments and community groups who are interested in establishing similar arson 
prevention units. Later in the year, the Division sponsored regional conferences, 
in which local officials and representatives of community groups attended panel 
discussions led by C.A.P.E.S. staff and other experts in the field of arson 
prevention. 

The C.A.P.E.S. staff also successfully concluded one of the major cases 
instituted by the Unit. A judgment entered in Commonwealth, eta! v. Second Realty 
Corp, et al, requires the defendants to pay the City of Boston $270,000 in unpaid 
property taxes, to maintain their residential rental units in compliance with all 
applicable sanitary and housing codes and to pay taxes and utility charges on time 
in the future. 

In Commonwealth v. Shadrawy, the C.A.P.E.S. Unit successfully sued the City 
of Boston over code violations in properties the City had acquired through tax fore- 
closures. A settlement of the law suit requires the City to make minimum repairs 
to its properties to ensure the safety of the occupants while the City is holding the 
properties for public sale. 

During the past year the C.A.P.E.S. Unit also provided advice and assistance 
to the Boston City Council and the State legislature on issues relating to arson. 
In the 1982 session of the Legislature, the Unit drafted and successfully sponsored 
legislation requiring property owners to disclose certain fire insurance informa- 
tion, which will assist officials and tenants to identify likely targets of arson. 

Through these and other activities, the unit continues to aggressively pursue arson 
prevention through both criminal and civil strategies. 



4. Home Construction and Improvement 

The business of home improvement, in which consumers must make large invest- 
ments of money in reliance on the expertise and good faith of largely unregulated 
craftsmen, has been of continuing concern to the Division. Problems in the field 
have become more widespread as high mortgage interest rates and the recession 
have encouraged homeowners to improve their houses rather than to buy new ones. 

The Division has aggressively pursued home improvement frauds, with partic- 
ular emphasis on repeat violators. In Commonwealth v. Ward, for instance, evi- 
dence of contemptuous conduct and egregious fraud on elderly consumers led the 
Division to bring a criminal contempt action and simultaneously to obtain crimi- 
nal indictments against the defendant contractor. The case is expected to go to trial 
in the near future. In Commonwealth v. Anderson Construction Co. , a civil con- 
tempt action against a Boston contractor resulted in a finding of contempt, full res- 
titution to consumers and the payment of $7,500 in penalties. 

In the area of home construction abuses, the Division used a variety of approaches 
depending on the nature of the problem. In Commonwealth v. Tri-City Realty, for 
example, a $50,000 attachment was obtained against a Bristol County builder who 
convinced consumers to advance him large deposits to build new homes by 
allegedly misrepresenting his ability to secure federal construction assistance. Most 
consumers have now obtained restitution, and the case is continuing toward trial. 



46 P.D. 12 

A case which did not lend itself to traditional litigation approaches involved the 
Agua Corporation, a private Plymouth water company which had failed to main- 
tain water service to a South Shore development. When discovery showed the cor- 
poration to be insolvent, a meeting of home owners was called and the Division 
assisted them in forming a local association to take over the defendant's facilities, 
and then worked with the association to reach settlements with creditors and to 
resolve the other legal problems needed to create a viable water supply system. 

As part of a long-term approach to construction problems. Division personnel 
have also met with and spoken to industry trade associations to explain the law 
and cooperatively discuss its enforcement actions against disreputable builders. 

5. Landlord-Tenant and Mobile Homes 

In the past year, the continuing tight rental market has led to expanded activity 
by "apartment listing services", which for an advance fee offer to supply 
apartment-seekers with listings of available units. Often, however, such services 
advertise and sell stale listings of unavailable apartments. To address this problem, 
the Consumer Protection Division adopted a two-pronged approach. First, the Divi- 
sion sued and obtained preliminary injunctions against two major Boston listing 
services. Second, it drafted and successfully advocated the adoption of regulations 
by the Board of Registration of Realtors which place necessary controls on this 
new industry. 

In the field of mobile homes, the Division also employed a combination of 
approaches. In order to reduce unnecessary disputes between mobile home owners 
and tenants, a revised version of the Attorney General's Mobile Home Law Guide 
was published and distributed across the Commonwealth. A series of regional semi- 
nars was held to further inform owners and tenants of their rights and responsi- 
bilities under the law. 

In cases where park owners ignored their obligations, however, the Division 
did not hesitate to litigate. Thus, in Commonwealth v. DeCotis the operators of 
a mobile home park in Chelmsford were sued for illegally dumping sewage into 
Chelmsford town waters, concealing their activities from town authorities through 
the use of illegal devices, and illegally threatening to close their park. State law 
requires that park closures be made in good faith; the Division alleged that the 
DeCotis' threat to close the Chelmsford park in retaliation for tenants' efforts to 
correct the sewage problem and their advocacy of rent control statutes was not 
made in good faith. As a result of the lawsuit, closure of the park was enjoined 
and a new sewage system was installed. 



6. Banking and Financial Practices 

In the area of financial transactions, the Division continued to protect consumers 
from unfair practices and dishonest schemes in such areas as debt counseling, 
investment fraud, mortgage deceptions, and lending disclosures. 

In the case of Commonwealth v. Legal Credit Counselors, the Division sued a 
nationwide debt consolidation business for using deceptive practices in purport- 
ing to assist and counsel persons with serious debt problems. After a week-long 



P.D. 12 47 

trial, a Superior Court Judge found that the defendants had misrepresented their 
fees, had provided little help to their customers and in some cases had actually 
lessened their clients' ability to pay their debts. Based on the evidence presented 
by the Division, the Court ordered the defendants to cease doing business and to 
make refunds to injured consumers. 

During the past fiscal year the Division continued to attack fraudulent invest- 
ment schemes. In Commonwealth v. Nadine Gan, for example, the Division had 
sued an investment counselor for enticing consumers through misrepresentations 
to pay her more than two million dollars for investments in commodities. In fis- 
cal year 1983, acting on evidence that the defendant had violated a preliminary 
injunction, the Division sued for contempt and civil penalties. After trial, the court 
found the defendant in contempt and ordered her to pay a fine of $100,000, which 
represents the largest known penalty under G.L. c.93A, §4. In the case of Com- 
monwealth V. Boston Bullion Group Ltd. , et al. , the Division brought suit against 
a precious metals firm for fraudulent sales practices which had defrauded con- 
sumers of thousands of dollars. The Division was able to bring a quick halt to the 
operations of this company and has secured injunctions against the individuals 
involved which prevent them from operating a similar scheme in the future. 

Through agreements with Massachusetts banks, including the Plymouth Sav- 
ings Bank and the Arlington Trust Company, the Division also prevented 
homeowners from being forced to pay drastically increased interest rates on 
variable-rate mortgages in cases where bank employees had misrepresented their 
terms. The Division also continued to enforce the federal Truth-in-Lending Act 
in such cases as Commonwealth v. Financial Enterprises, Inc. 



7. Miscellaneous Issues 

The Division also took initiatives in a variety of other areas which it regulates. 

Responding to a widespread pattern of consumer complaints against the furni- 
ture industry, the largest dealer in New England, Puritan Furniture Corp., as well 
as several smaller retailers were sued. In Puritan a settlement was reached in which 
past and future complainants will have swift access to a company complaint 
mechanism and then to the Division. 

In recent years, intensive competition in the health spa industry has resulted in 
a series of spa closings. Some spas have deceived consumers by continuing to sell 
long-term memberships until just before they closed. In the past year, the Divi- 
sion obtained judgments against two operators of health spa chains, Joy of Health 
and Diamedics, Inc. , which require the defendants to make restitution to their mem- 
bers for unused memberships at closed locations and secured an injunction against 
OKL Health, Inc. on similar grounds. 

These specific examples are representative of the many lawsuits brought and 
judgments obtained this year against a variety of deceptive practices ranging from 
the use of inaccurate weights and measures to the sale of illegal or fraudulent energy 
devices. This litigation is indicative of the Division's continuing effort to protect 
Massachusetts consumers. 



48 P.D. 12 

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 on 
environmental issues to all of the agencies of the Commonwealth, principally those 
within the Executive Office of Environmental Affairs. In this role the Division 
does all of the Commonwealth's civil environmental enforcement, including air 
and water pollution, hazardous and solid waste control, wetlands protection and 
billboard control. In addition, the Division initiates and intervenes injudicial and 
administrative actions for the purpose of protecting the environment of the Com- 
monwealth. These cases include hearings before federal agencies on the siting of 
energy generating facilities and participation in state and federal appellate litiga- 
tion on issues of significance to the environment. 

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 1983 the Division received one hundred and seventy-five 
thousand dollars ($175,000) in such funds. 

During the year the Division negotiated judgments calling for the payment of 
penalties and costs totalling nearly eight hundred and fifty thousand dollars 
($850,000) paid to the General Fund of the Commonwealth. In addition, several 
of the cases described below have resulted in forcing private parties to undertake 
cleanups which cost in the hundreds of thousands of dollars and which the Com- 
monwealth would otherwise have had to perform. 

The work of the Division can be divided into several different categories includ- 
ing air pollution cases which are referred from the Department of Environmental 
Quality Engineering, Division of Air Quality, and involve violations of the state 
Air Pollution Regulations. The water pollution cases are generally referred from 
the Department of Environmental Quality Engineering, Division of Water Pollu- 
tion Control. Most of these cases involve violations of discharge permits issued 
jointly by the Division of Water Pollution Control and the United States Environ- 
mental Protection Agency. Others seek to recover costs expended in cleaning up 
oil spills. The Department of Environmental Management, Wedands Section, or 
Department of Environmental Quality Engineering, Wetlands Division frequently 
refer wetlands cases. These cases fall into two categories: (1) those involving the 
permit program for altering of wetlands under G.L. c.l31, § 40; and (2) those 
challenging the development restrictions the state imposes on inland and coastal 
wetlands pursuant to G.L. c.130, §105 and G.L. c.131, §40A. Solid waste cases 
are referred from the Department of Environmental Quality Engineering, Divi- 
sion of General Environmental Control and involve the manner in which refuse 
is disposed and the enforcement of the state's sanitary landfill regulations. Cases 
involving the transport and disposal of hazardous substances in violation of state 
regulations are referred by the Department of Environmental Quality Engineer- 
ing, Division of Hazardous Waste. Pesticide cases are referred by the Pesticide 
Board of the Department of Food and Agriculture. They involve the improper appli- 
cation of pesticides in such a way as to pose a threat to human health. The Out- 
door Advertising Board refers a number of billboard cases every year. A majority 
are defenses to petitions for judicial review of decisions of the Board. 



P.D. 12 49 

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 defense, in federal court, of the Massachusetts Executive Office of Environ- 
mental Affairs and Executive Office of Transportation and Construction. Others 
are brought pursuant to the Attorney General's statutory authority to prevent 
environmental damage. These are frequently in areas of broad concern, such as 
energy policy, the siting of nuclear facilities and the interpretation of state and fed- 
eral enviornmental statutes. They involve the initiation of or intervention in 
proceedings in a variety of forums, judicial and administrative, state and federal. 

The following are significant cases in which the Division was involved during 
fiscal year 1983. 



A. Significant Cases 

Commonwealth of Massachusetts v. James G. ^. 

Watt, Secretary of the Interior, and the 
United States Department of the Interior 

On March 2, 1983, the Commonwealth of Massachusetts filed suit in U.S. Dis- 
trict Court against Secretary of the Interior James Watt, challenging the proposal 
to hold an oil and gas lease sale of 488 tracts (the largest sale then attempted) in 
the George's Bank region of the North Atlantic. This area contains one of the richest 
fishing grounds in the world. Most of those who fish there are from Massachusetts 
ports such as Gloucester and New Bedford. The lease sale was scheduled for March 
29. 

Because of the significance of the area, the Massachusetts Coastal Zone Manage- 
ment Office, over the course of two administrations, had sought to have the Interior 
Department delete a number of tracts important to the fishery. When negotiations 
on this issue broke down, the suit was filed. 

On March 28, 1983, the federal court issued a preliminary injunction halting 
the lease sale. The Department of the Interior and nine oil companies appealed 
to the Court of Appeals for the First Circuit. Oral argument was heard on June 
6, 1983, and the case is now awaiting decision. 

D. E. Q. E. V. Charles George Land Reclamation Trust 

The Division brought a petition for contempt in November of 1982 because of 
the defendant's failure to comply with terms of a 1981 Agreement for Judgment, 
including the performance of a ground water study and proper maintenance of the 
landfill. After trial was scheduled, negotiations produced an agreed-to judicial order 
under which the Trust paid $170,000 into an escrow account administered by the 
Division for a study, hazardous waste clean-up, and guarantees on drinking water 
for nearby residents. When it became clear that the defendant was exceeding its 
daily tonnage-intake limits, the Division returned to court. The defendant then filed 
a bankruptcy petition. Working with the U.S. Trustee's office, the Division suc- 
ceeded in having the bankruptcy petition dismissed. Because of the way the defen- 
dant operated the landfill during the bankruptcy proceedings, the Division sought 
and obtained a state court order closing the landfill. 



50 P.D. 12 

Commonwealth v. Newtown Refining 
Corporation, et al. 

As a result of negotiations, the defendants in this action have begun a clean-up 
of a 3.6 acre site located in Palmer. The first phase of the clean-up includes removal 
and proper disposal of more than 450,000 gallons of liquid waste, waste oil and 
sludge contaminated by hazardous substances which are contained in 18 above- 
ground bulk storage tanks and in dikes surrounding the tank area. Clean-up will 
also involve decontamination of the tanks, dikes and equipment located on the site. 
The projected cost of this first phase of the clean-up is approximately $750,000; 
the projected completion date is September 15. 1983. 

Commonwealth v. Cannons Engineering Corp. 

The defendant had disposed of hazardous waste at several sites in southeastern 
Massachusetts. At the beginning of the year, several of its principals had pleaded 
guilty to crimes arising out of their activities, and the business was in receiver- 
ship. The Division amended its orginal complaint to include other land-owners 
and obtained attachments on a number of pieces of property. At the same time, 
individual defendants attempted to remove the waste from one of the sites without 
complying with state laws and regulations. The Division obtained, first, a tem- 
porary restraining order preventing the removal, and, second, a preliminary injunc- 
tion requiring the lawful removal of the waste. Subsequently, an agreement among 
the Commonwealth, EPA and several responsible parties was reached. It provided 
for clean up and reimbursement to the Commonwealth of the $75,000 it had already 
spent at one of the sites. 

D.E.Q.E. V. Rocco 

The defendant in this case operates a large landfill, which the Department con- 
cluded was leaching chemicals into the groundwater. When the Division received 
that information, a preliminary injunction was obtained shutting the landfill. 

Town of Warren v. The Hazardous Waste 
FaciUty Site Safety Council, et al. 

This case, filed by the Town of Warren in January, 1982, was the first attack 
on the constitutionality of the Commonwealth's Hazardous Waste Facility Siting 
Act, G.L. C.21D. It also involves several claims of procedural error in connec- 
tion with the preliminary review of a proposal to site a hazardous waste treatment 
facility in the Town. The Superior Court decided the case in favor of the defen- 
dant state agencies on all counts. The decision upheld the Act against claims that 
it violates the Home Rule Amendment of the State Constitution and unlawfully 
delegates legislative power to the Siting Council and private developers and invali- 
dated certain by-laws adopted by the Town of Warren which would have excluded 
the proposed facility from the Town. The Town appealed the Superior Court's deci- 
sion and the Supreme Judicial Court has decided to hear the case without inter- 
vening review by the Appeals Court. The matter has been briefed and the S.J.C. 
will hear argument in the fall of 1983. 



P.D. 12 51 

Department of Environment Quality 
Engineering v. Town of Hingham 

In 1979 Hingham began to reroute a brook in violation of the Wetlands Protec- 
tion Act, asserting that it was exempted by a clause excluding from the Act "any 
project authorized by special act before 1973"; a 1933 special act had authorized 
the selectmen to improve waterways. The Division filed suit, and the Superior 
Court held that the work was subject to the Act. Hingham appealed to the Appeals 
Court, which affirmed the trial court's judgment. The case is important to the 
Department not only because of the need to protect the particular wetland involved, 
but also because several other municipalities have asserted that they are exempt 
from the Act under special acts similar to Hingham's. 

Bowers v. Brownwell 

Summary judgment was granted to the defendant Department of Environmen- 
tal Management in this case, in which the plaintiff challenged a restriction on his 
property under the Wetlands Restriction Act, G.L. c.l31, § 40A. This was the 
first defense of a restriction of a coastal wetland and required a great deal of time 
and several court hearings. Because of these factors and because the plaintiffs 
answers at a deposition directly contradicted the allegations of the complaint, the 
Division submitted a bill for costs (expert witness fees and the deposition) after 
the superior court had awarded costs. The plaintiff appealed the award of these 
costs, and the Appeals Court affirmed the award. 

Department of Environmental Quality 
Engineering (DEQE) v. Town of Marshfield 

The Division brought this suit for injunctive relief against the Town of Marsh- 
field to require restoration of a dune area which was extensively damaged during 
construction of a Town's sewer project. The Town impleaded its sewer contrac- 
tor as a third-party defendant. The Division alleged that the Town had violated 
the terms of an Order of Conditions issued under the Wetlands Protection Act, 
G.L. c. 131 § 40, and had breached the terms of a Grant Agreement with the state 
which provided funding for the sewer project. Following a trial, the Superior Court 
on January 7, 1983, ordered the Town and its contractor to restore the dunes to 
their original conditions. The contractor has appealed the case to the Court of 
Appeals. 

Pesticide Hearing 

The Division represented the Pesticide Board of the Division of Food and 
Agriculture in a hearing challenging an administrative order. The applicator, which 
had placed a rodenticide in an area accessible to the public and where a small child 
handled and perhaps ingested the rodenticide, presented experts from four states 
and from its national trade association in an effort to obtain a narrow construction 
of the terms of the labeling requirements concerning placement of the rodenticide. 
At the conclusion of the hearing the issue was resolved in a consent order by which 
the applicator agreed not to place rodenticide in the area. The Board did not nar- 
row its construction of the requirements. 



52 P.D. 12 

Coinmouwcalth of Massachusetts v. Baiula of Mass., Inc. 

This case alleged that the defendant had, over a nine-year period, periodically 
discharged concentrated chemical solutions and routinely discharged process water 
containing toxic metals into the MDC sewerage system in violation of MDC regu- 
lations. The Division negotiated an agreement, filed in Suffolk Superior Court, 
that sets a schedule for design and installation of a wastewater pretreatment sys- 
tem for metals, prohibits the discharge of concentrated chemicals, and calls for 
payment of a $20,000 civil penalty. 



Bellotti V. N.R.C. 

In January 1982, the Nuclear Regulatory Commission imposed a large fine on 
Boston Edison Company because of the company's violation of Commission regu- 
lations. The Commission also required revision of the company's management 
structure to avoid future violations. The Division moved to intervene in the proceed- 
ing concerning management changes. The Commission took no action, and the 
Division sued in the Federal District Court for the District of Columbia to force 
it to do so. In response, the NRC denied the petition to intervene. The denial was 
challenged in the Court of Appeals for the District of Columbia circuit on the 
grounds that it violated public intervention and hearing rights under the Atomic 
Energy Act. The case has been argued and is under submission. 



Seahrook Operating License Proceeding 

In September 1982, the Nuclear Regulatory Commission's Atomic Safety and 
Licensing Board denied the Division's petition to intervene in the operating license 
proceeding for the Seabrook Nuclear Power Station in Seabrook, New Hampshire. 
The Division had requested an opportunity to participate in the licensing proceeding 
on questions relating to the feasibility of safely evacuating or otherwise protect- 
ing Massachusetts citizens within the zone of danger surrounding the Seabrook 
site in the event of a radiological emergency, including tho.se citizens who frequent 
the New Hampshire beaches within five miles of the site. In denying the petition, 
the Board ruled that these issues could not be raised in the proceding until off-site 
emergency plans were prepared and submitted to the NRC. Off-site plans for the 
State of New Hampshire and New Hampshire communities within ten miles of the 
site were submitted to the Board during the summer of 1983 and the Division has 
recently been admitted as a full party to the proceeding in connection with these 
issues. 

In hearings held by the Board relative to the accuracy of an evacuation time study 
conducted by the Applicants, the Division participated as an "interested state", 
presenting expert testimony that the evacuation study is inaccurate and fails to pro- 
vide information essential to both emergency planners and decision-makers. No 
decision has yet been rendered. 



P.D. 12 53 

B. Billboard Settlements 

During the year the Division reached comprehensive agreements with several 
outdoor advertising companies, thereby securing the removal of hundreds of bill- 
boards and setting the regulatory program on a sound footing for the coming years. 



Ackerley Communications of Massachusetts, Inc. v. Outdoor Advertising Board 

Ackerley Communications will remove approximately 250 billboards and pay 
the state $260,000 as a result of a consent judgment signed by the members of the 
Outdoor Advertising Board (OAB) and filed in Superior Court on September 2, 
1982. The judgment settles all outstanding disputes between the OAB and the bill- 
board firm, including 39 lawsuits and more than 200 administrative hearings. The 
lawsuits involved billboards in more than 30 cities and towns located in central 
and eastern Massachusetts. 



Maurice E. Callahan & Sons, Inc. v. Outdoor Advertising Board 

Within one year Callahan & Sons will remove 34 billboards, waiving compen- 
sation of approximately $200,000 under the Federal Highway Beautification Act, 
as a result of a consent judgment filed with the Superior Court on February 24, 
1983. The judgment resolves six superior court civil actions and approximately 
40 administrative hearings pending before the OAB. Callahan & Sons is located 
in Pittsfield and all of the billboards scheduled for removal are located in Berk- 
shire Country. 



Finney Outdoor Advertising Corp. v. Outdoor Advertising Board 

Within one year Finney will remove 20 billboards, waiving compensation of 
approximately $50,000 under the Federal Highway Beautification Act, as a result 
of a consent judgment filed with the Superior Court on May 26, 1983. The judg- 
ment resolves three superior court civil actions and approximately twenty adminis- 
trative hearings pending before the OAB. Finney is located in Fall River and all 
of the billboards scheduled for removal are located in Fall River and Dartmouth. 



INSURANCE DIVISION 

The Insurance Division represents the interests of Massachusetts citizens who 
purchase insurance. Division attorneys intervene in administrative hearings relating 
to insurance companies' requests for rate increases and also brings affirmative liti- 
gation on behalf of victims of unfair and deceptive insurance practices, fraud, and 
other illegal insurance activities. As a result of the Division's reconcentration in 
both areas, Massachusetts consumers were saved over one hundred ninety mil- 
lion dollars ($190,000,000) in fiscal year 1983. 



54 P.D. 12 

A. Administrative Hearings 

1 . Automobile Insurance 

In the fall of 1982, the Insurance Division intervened in a major administrative 
hearing relating to a requested 220 million dollar (19.6%) insurance rate request. 
Although many issues were scrutinized in the protracted hearing, the Division per- 
suaded the Insurance Commissioner to adopt a new method of calculating the after 
tax investment income of insurance companies. As a result, the decision permit- 
ted only a 35 million dollar (3%) rate increase. On appeal, the Supreme Judicial 
Court upheld the Commissioner's decision which was based in great part upon evi- 
dence presented by the Division and its expert witnesses. 



2. Blue Cross/Blue Shield (Non-Group) 

The Division intervened in opposition to a 22% rate increase request filed on 
behalf of Blue Cross/Blue Shield in connection with non-group health insurance 
subscribers. Following an administrative hearing, the Insurance Commissioner 
approved a 19.5% rate increase. 



3 . Blue Cross/Blue Shield - Medex 

Early in 1983, Blue Cross/Blue Shield filed for a 29% insurance rate increase 
on its Medex coverage. Medex is a supplement to social security's medicare cover- 
age purchased primarily by senior citizens. In the course of the Division's involve- 
ment in the discovery and the hearing phases. Blue Cross reduced its rate increase 
request to 22.3% . Despite continued opposition from the Division, the rate increase 
request was granted by a hearing officer. Notwithstanding a further appeal of that 
decision to the Commissioner, the decision was upheld and no further appeal was 
taken. 



4. Automobile Insurance Competition ' 

The Division intervened in a hearing called by the Insurance Commissioner to 
review the method of establishing automobile insurance rates for 1984. The Divi- 
sion argued successfully to the Commissioner that the automobile insurance mar- 
ket in the Commonwealth of Massachusetts was not currently suitable for 
competitively setting insurance premiums. Expert testimony was presented con- 
cerning certain reforms which are prerequisites to any change in the current fix 
and establish system. 

During the spring, the Division was involved in extensive negotiations with the 
industry and representatives from the Commissioner's office concerning the method 
used to establish territories for automobile insurance rates. Most of the issues were 
resolved to the Division's satisfaction. The Division participated in a hearing this 
past summer on the unresolved issues. A decision by the Commissioner is pending. 



P.D. 12 55 

5. Insurance Premium Finance Board 

The Division requested that the Insurance Premium Finance Board call a hear- 
ing to review interest rates charged to insurance consumers who choose to finance 
the payment of their premiums. Current interest rates charged to many consumers 
run as high as 21 % and the Division has requested a reduction to the 15% level. 
The hearing is in process at the time this report is being prepared. 



B. Affirmative Litigation 

1 . Tax-Deferred Annuities 

The Division has continued a major effort undertaken in the past to represent 
Massachusetts consumers who have invested in certain annuity concepts which have 
failed for one reason or another. One effort involves litigation against a number 
of major companies which promised that their annuity products would provide tax 
deferral when, in fact, the Internal Revenue Service has denied this preferred tax 
treatment to the purchasers of these annuities. 

Another major area of concern involves the employees of the City of Boston 
who have participated in a municipal deferred compensation plan after being 
promised various rates of return. An investigation by the Division in cooperation 
with the City Treasurer's Office revealed that insurance companies failed to invest 
these funds as promised. Restitution agreements have been reached with several 
of the companies involved. 

The third major annuity matter involves several pending actions which seek 
damages from securities dealers who failed to properly disclose the risks of pur- 
chasing high yielding annuities from the now defunct Baldwin-United Insurance 
Company. 

2. Group Health Insurance 

Division attorneys have also concentrated their affirmative litigation efforts in 
the field of group health insurance plans where employers failed to provide the 
promised insurance coverage as a result of failure to properly remit insurance 
premiums to the carriers involved. The Division has obtained attachments when 
necessary to secure restitution and continues to aggressively police this area of 
the insurance market. 



3. Senior Citizens - Insurance 

In addition to opposing excessive rate increases for Medex (the medicare sup- 
plement insurance policy) the Division's litigation emphasizes matters involving 
abuse of senior citizens. A recently settled case closed down a counseling service 
operated by a man who misrepresented to senior citizens in Western Massachusetts 
that he was connected with the American Association of Retired Persons. Further, 
the Division continues to operate a Senior Citizens Speaker's Bureau wherein Divi- 
sion attorneys and other personnel meet with senior citizens groups to inform them 
about insurance policies and practices which are important to them. 



56 P.D. 12 

C. Legislathm 

The Division continues to actively assist legislators, the public, and adminis- 
trators in the drafting of legislation involving automobile insurance reform, sex 
discrimination in insurance and group health insurance. 



PUBLIC CHARITIES DIVISION 

The Division of Public Charities was established pursuant to G.L. c. 12, 
Its activities fall into three main areas: (1) affirmative litigation aimed at protect- 
ing the public generally from misapplications of charitable funds and from fraudu- 
lent 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 Litigation 

1 . Registration and Audit Enforcement 

The Division continues to actively enforce the requirements that public chari- 
ties register and file periodic financial reports as imposed by 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 Division's efforts to insure accountability for charitable funds. In connec- 
tion with these efforts eleven separate lawsuits were brought during the fiscal year. 

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

2 . Boiler Rooms and Ad Books 

In the last few years 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. §23, excessive compensation usually in the range 
of 65-85% and deceptive sales presentations. Certain of these solicitations were 
made in 1982-83 on behalf of police groups with solicitors suggesting that dona- 
tions would result in favored treatment from police on parking and traffic viola- 
tions. In addition the Division has been investigating alleged violations of judgments 
entered in prior years. 

3. Charitable Gambling 

On August 1 , 1982, the Attorney General's Regulations Governing Raffles, 940 
CMR 12.00, and Regulations Governing Bazaars, 940 CMR 13.00, became effec- 
tive. These regulations represented a comprehensive approach to the problems of 



P.D. 12 57 

charitable gambling sponsored by charitable organizations as fundraising devices 
under G.L. c.271, §7A. The Regulations were formulated after several years of 
enforcement experience, a public hearing and an intensive study. The Division 
disseminated the regulations by mailing copies to all town and city clerks and to 
all police departments in the Commonwealth. In addition, on September 22, 1982, 
the Division hosted a Law Enforcement Conference on Charitable Gambling. Over 
150 police chiefs and other representatives from police departments were in atten- 
dance. Two panels made presentations. The first panel aimed at familiarizing the 
participants with the charitable gambling regulations. It consisted of representa- 
tives from the Massachusetts State Lottery Commission and from the Division. 
The second panel focused on local and regional law enforcement. 

While the Regulations greatly aided the enforcement efforts of the Division in 
obtaining compliance with the provision of G.L. c.271, §7A, which only permits 
members to promote or operate the event, there was a need for the Division to 
continue its enforcement efforts against suppliers of casino equipment who pro- 
vide paid dealers. In this connection cases were filed against three suppliers of 
casino equipment. Consent Judgments were obtained in each instance. 

In addition the Division has enacted a program of monitoring these judgments 
and those entered in prior years for compliance. As a result of this program two 
contempt actions were filed in June of 1983 against casino equipment suppliers 
for violations of their consent judgments. 

The Regulations limited organizations to two Las Vagas type events per year. 
This limit was imposed in part to address the problem of "standing casinos", i.e., 
places that were utilized for Las Vegas type activities virtually every night of the 
week. With the help of Bureau investigators, the Division instituted a program to 
monitor function facilities and organizations for violations. When a violation of 
the rule was discovered, a letter of assurance of future compliance was required 
from the sponsoring organization. In connection with this program there were 
numerous investigations and eighteen compliance letters were obtained. 

The raffle regulations were instrumental in informing sponsoring organizations 
about how to conduct a raffle and in providing an effective way to approach mis- 
managed raffles. To obtain enforcement of its regulations the Division negotiated 
settlements with four organizations to obtain compliance with the regulations and 
fair treatment for purchasers of raffle tickets. 



4. Constitutional Lit ligation 

Planned Parenthood League of Mass. v. Bellotti 

In this action the Planned Parenthood League of Massachusetts (PPLM) seeks 
a declaratory judgment that G.L. c.68, §28 is unconstitutional. The challenged 
section prohibits charitable organizations from using paid telephone operators to 
solicit contributions where the operators' principal duties are such solicitation. After 
a trial based on stipulated facts, the Superior Court declared §28 unconstitutional. 
An appeal was taken, the Supreme Judicial Court granted direct appellate review, 
and the issue is being briefed. The Division is defending §28 as a regulation of 
speech in a private forum aimed at protecting the privacy rights of telephone 
subscribers. 



58 P.D. 12 

Bellolli V. OSC Corporation 

The Division brought an action to enforce compliance with G.L. c.68, §§21 and 
23 which require that Professional Solicitors register with the Division, file an 
annual bond in the amount of $10,000, submit copies of their contracts with charita- 
ble organizations and limit their compensation to 15% of the monies collected on 
behalf of the charity. OSC Corporation has counterclaimed asserting that these 
sections are unconstitutional because they burden solicitors and thus burden a char- 
ity's ability to solicit funds. The Division has argued that such accountability and 
limits on compensation serve to protect the charity from overreaching by the soli- 
citor, that such regulation does not affect speech and that limits on percentage com- 
pensation are a valid regulation of professional fiduciaries. 

Bellotti V. International Marathons Inc. 

Marshall Medoff, the president and sole shareholder of International Marathons 
Inc. (IMI), alleged that he had a contract with the Boston Athletic Association to 
be sole agent for the selling of sponsorship rights for the Boston Marathon. The 
Division sued IMI for violating G.L. c.68, §21, which limits a solicitor's com- 
pensation to 15% of the monies received and G.L. c.68, §23 which requires soli- 
citors to register and become bonded. Medoff countered that §21 is unconstitutional 
as it limits the speech rights of charities. The case is now before the Supreme Judi- 
cial Court on an interlocutory appeal of a preliminary injunction. The appeal raises 
the issue of the constitutionality of the challenged section. 

Bellotti v. International Marathons, Inc. et al. 

Boston Athletic Association v. International Marathons, Inc., and 

International Marathons , Inc. v. Bellotti 

These related cases arise from a disputed contract for the solicitation of contri- 
butions for the Boston Marathon by Marshall Medoffs IMI. After the Director 
of the Division of Public Charities disapproved the contract between the Boston 
Athletic Association (BAA) and IMI as violative of the 15% compensation limi- 
tation imposed by G.L. c.68, §21 , the BAA and the Division filed two lawsuits 
in Suffolk Superior Court. The contract provided that IMI would remit $400,000 
annually to the BAA and retain the balance of solicited funds as compensation. 
For 1981 the amount retained exceeded $300,000. The court imposed a prelimi- 
nary injunction which effectively froze the funds solicited by IMI. IMI appealed 
from the entry of the injunction. The appeal is now pending before the Supreme 
Judicial Court. The Attorney General sought to require Medoff to register and to 
post a bond in accordance with G.L. c.68, §23. The BAA alleged that the con- 
tract was not authorized by the Board of Governors and was void ab initio and 
further alleged that the contract violated the 15% limitation of G.L. c.68, §21. 
Subsequently, 10 days of administrative hearings were held before the Chief of 
the Public Protection Bureau, who affirmed the disapproval of the contract. IMI 
appealed to the Superior Court pursuant to c.30A. The Court upheld the decision 
rendered in the administrative proceeding. On cross motions for summary judg- 
ment, the Superior Court ruled that the contract was void ab initio and the issue 
of damages is now before the court. 



P.D. 12 59 

5. Dissolutions 

The Division continues its efforts to dissolve inactive charitable organizations. 
This involves legal proceedings and investigations to discover any corporate assets. 
In fiscal year 1983 involuntary dissolution petitions were filed against twenty-nine 
organizations. 

In addition, organizations may dissolve voluntarily by filing an action against 
the Attorney General. While the division assents to most dissolutions, it is neces- 
sary 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 forty-two separate dissolutions. 

6. Miscellaneous 

Commonwealth v. Columbo d/hia Life Science Church 

The Division sued to enjoin false and deceptive advertisement of mail order 
ministries which were alleged to reduce tax obligations by 50-100%. We obtained 
an injunction against further misrepresentations. Defendants filed a motion to dis- 
miss the case based on claims the action could not be maintained without violat- 
ing their First Amendment rights of free speech and free exercise of religion. The 
Superior Court denied their motion stating those assertions were "clearly facially 
fraudulent." Subsequently during depositions, defendants refused to produce docu- 
ments such as church financial records and lists of consumers who purchased the 
scheme. A Motion to Compel was argued and the court ordered production. In 
addition, as a result of the leads supplied to the Internal Revenue Service on the 
case regarding the organizers, a New England Revenue task force was formed 
which has recovered over $1.5 million. Although no trial has yet occurred, the 
scheme appears to have terminated. 

Bellotti V. Silver et al. 

A trial was held to determine whether under Massachusetts law it is legal to sell 
a charity between private parties. The suit also seeks recovery of the charitable 
assets diverted to private use as result of the sale. No decision has yet been 
rendered. 



Commonwealth v. Aurora, Inc. 
Commonwealth v. Turning Point Enterprises 

The Division sued the Turning Point Enterprises, and Aurora, Inc., both men- 
tal health service providers in separate actions alleging false claims for reimburse- 
ment and seeking restitution and registration with the Division of Public Charities. 
After considerable negotiation the defendants entered into a consent judgment 
agreeing to the relief requested. 



60 P.D. 12 

B. Participating in Estates and Trusts 
with Charitable Interests 

By statute, the Attorney General is an interested party in the probate of each 
estate in which there is a charitable interest. This year, 1,840 new wills were 
received. Each of these wills was reviewed and it was determined that the Depart- 
ment had an interest in 1,564 of these estates. 

In addition, the Division approved 98 petitions for the sale of real estate and 
21 petitions for appointment of trustees and was involved in 289 miscellaneous 
probate legal actions. 

The Division has continued its efforts to review old probate matters in order 
to close tiles where no further action is required and to investigate estates and trusts 
where additional accountings are required but have not been received by the Divi- 
sion. In fiscal year 1983, 168 estates had been reviewed and closed. At the com- 
pletion 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 255 actions on cases 
in litigation. The most significant cases in this area are as follows. 



Estate of Edwin A. Phillips 

The Divison initiated court proceedings to determine whether distributions from 
a $4,000,000 trust over a 19-year period are improper. The Division alleged self- 
dealing in that the distributions were paid to the trustees' own institutions. Trial 
is expected to commence in November 1983. 



Estate of Enoch Cobb 

This case involves a neglected land trust for the benefit of the Town of Barn- 
stable's educational system. The Division had previously filed a complaint to break 
the nominal rent leases and obtained the relief requested. A subsequent complaint 
was filed regarding fair market value leases, which resulted in negotiated settle- 
ments so the trust now has over $500,000 and will ultimately have over $1 ,000,000 
in cash in addition to land. Distributions are now being made upon application 
to the trustees for school items cut out of the school budget as a result of 
Proposition IVi. 

C. Administrative Functions 

The Division has numerous administrative and routine responsibilities includ- 
ing: (1) Receiving annual financial statements from nearly 12,000 charities 
operating in Massachusetts and maintaining these as public records; (2) 
administering the state's charitable solicitation act (G.L. c.68, §§18-33); (3) 
registering and regulating professional solicitors and professional fund-raising 
counsel; and (4) representing the State Treasurer in the public administration of 
estates escheating to the Commonwealth. 



P.D. 12 61 

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

The Division has completed the process of computerizing registration informa- 
tion. This together with an increased level of enforcement has resulted in a 
dramatic increase in registrations over fiscal year 1981. This year 1,330 new 
charitable organizations' Articles of Organization received from the Secretary of 
State's Office were reviewed, determined to be charitable and entered on the com- 
puter. This generated a total of $202,330 in registration fees. 

After many years of effort, the nationwide 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. 

Regulation of Charitable Solicitations 

Under G.L. c.68, §19, every charitable organization soliciting funds from the 
public in Massachusetts must apply to the Division for a Certificate of Registra- 
tion. Each such application must be reviewed for compliance with the statutory 
requirements. For the period from July 1 . 1982 to June 30, 1983, 1 ,625 applica- 
tions were received. Certificate fees received were $16,250. 



Registration of Professional 
and Fund-Raising Counsel 

Under G.L. c.68, §§21 and 23, all persons acting as solicitors or fund-raising 
counsel for soliciting organizations in Massachusetts must register with the 
Division and file a bond. This year a new monitoring program was instituted in 
coordination with the Form PC filing which requires charitable organizations to 
list their professional fundraisers. Each registration and each professional solici- 
tation contract must be approved by the Director to determine if it meets statutory 
requirements. During the fiscal year ending June 30, 1983, 80 registrations were 
received and approved and total fees were $800. This was an increase of 36 from 
the previous year. 



Public Administration 

The division represents the State Treasurer in the public administration of 
intestate estates where the decedent had no heirs. Such estates escheat to the Com- 
monwealth. The following table represents activity in this area. 

New Estates 118 

Estates Closed 146 

With Escheat 58 

Without Escheat 88 
Total Amount of Escheats Received — $293,243.03 



62 P.D. 12 

UTILITIES DIVISION 

A. Introduction 

The Public Utilities Division has advocated for consumers in utility matters, pur- 
suant to G.L. c.12, §11E, since 1973 and continues as the major and, in most 
instances, the only representation of consumer interests in gas, electric and tele- 
phone rate cases and related matters affecting Massachusetts residents. These mat- 
ters are heard and decided by the Department of Public Utilities (D.P.U.) and the 
Energy Facilities Siting Council (E.F.S.C). During fiscal year 1983, the budget 
allocated to the Utilities Division pursuant to G.L. c.6A, §9A remained at 
$250,000. This sum reflects an assessment against the utilities necessary to main- 
tain effective consumer advocacy by the Division.^ 

A priority of the Division is to advocate for an increase in this assessment. Given 
the current funding level, the Division was not able to present expert testimony 
in most D.P.U. cases, and was able to intervene in only one Federal Energy Regula- 
tory Commission proceeding. It is hoped that the Legislature will grant the increase 
to $500,000 as requested and that those funds will be available in fiscal year 1984. 

A priority of the Division is to advocate for an increase in this assessment. Given 
the current funding level, the Division was not able to present expert testimony 
in most D.P.U. cases, and was able to intervene in only one Federal Energy Regula- 
tory Commission proceeding. It is hoped that the Legislature will grant the increase 
to $500,000 as requested and that those funds will be available in fiscal year 1984. 

B. Boston Gas Company 

The D.P.U. 's investigation of the gas crisis of 1981 ended in 1982 without any 
finding of liability. In October of 1982, the D.P.U. found that its twenty-one month 
investigation showed the need for still further hearings to determine if any gas com- 
pany (except North Attleboro and Blackstone) acted imprudently and thus incurred 
costs which should not be the ultimate responsibility of its ratepayers. The Utili- 
ties Division intervened in the adjudicatory proceedings of each company. A major 
commitment of resources was made to the cases of Boston Gas Company and the 
Cape Cod and Lowell Gas Companies, the three companies which actually had 
a gas shortage of crisis proportion. By the end of the fiscal year, only the case 
of Boston Gas Company had reached the end of adjudicatory hearings. The Utili- 
ties Division argued that beginning in 1981 and continuing throughout 1982 and 
1983 a series of unreasonable and imprudent actions by Boston Gas resulted in 
the supply crisis experienced in January, 1981. Consequently, the Division urged 
that none of the $46 million in emergency gas costs should be paid for by the com- 
pany's customers. Phase II of the adjudicatory hearings for Cape Cod and Lowell 
has not yet begun. 



Il is interesling to note thai for rale cases and related matters decided in 1982 the total expenditure by utility companies for legal 
expenses was $3,155,137. 



P.D. 12 63 

C. Montaup Electric Company 

In only the second case ever litigated by the Attorney General before the Fed- 
eral Energy Regulatory Commission (FERC) Montaup Electric Company, which 
sells power to the Eastern Edison Company in southeastern Massachusetts, filed 
for $15 million in additional rates. The filing was highly controversial because 
it requested that "construction work in progress" (CWIP) be included in the rate 
base and that the company be allowed to recover its total of $1 1 million invest- 
ment in the now-abandoned Pilgrim II Project. The Division has strenuously 
opposed both proposals. 

D. Rate Cases 

During the fiscal year, the Utilities Division intervened in each of the 18 gas 
and electric general base rate cases before the Department of Public Utilities 
(D.P.U.), and in two wholesale rate increase cases filed with the Federal Energy 
Regulatory Commission (F.E.R.C). Approximately $300 million in rate increases 
was requested by the companies. In those 12 cases decided at this writing, $147 
million has been granted out of $282 million requested, resulting in a saving to 
the consumer of $135 million from the activities of this Division. 

It should be noted that the Department of the Attorney General has no control 
over the scheduling of rate cases. Companies may file for rate increases annually 
and many do so. The D.P.U. and F.E.R.C. set the schedule based on the timing 
of these filings. For the D.P.U. proceedings there is a six-month statutory time 
limit during which each rate case must be heard and decided; this time limit imposes 
considerable strain on the limited resources of the Division. The Utilities 
Division staff reviews requested increases with a critical eye. It examines profit 
margins, operation and maintenance expenses, property taxes, depreciation, util- 
ity plant in service, rate design and quality of service. Though a review of 
prefiled documents, cross-examination of companies' witnesses and, when funds 
are available, sponsoring expert witnesses, the Utilities Division is able to formulate 
independent recommendations for the rate increases which should be granted. In 
D.P.U. cases, the factual basis for allowing rates less than those requested by a 
utility is developed almost entirely by the Utilities Division. 

A particularly good example of effective rate case work was Bay State Gas 
Company. The company had sought to increase its rates by $22,948,200. The Divi- 
sion moved to dismiss the case based on the belief that the company had failed 
to make 3. prima facie case for a rate increase. Although the D.P.U. denied this 
motion, the Division went on to analyze the company's filing, cross-examined 
company witnesses, made a detailed study of the proposed rate schedules and 
recommended that the company receive a decrease of $1,250,912. 

Issues of significance touched on during the hearings and briefing periods were 
advertising expenses, accounting treatment of non-utility expenses, the effects of 
non-utility operations' losses on utility operations, treatment of interruptible gas 
profits and merger expenses. 

The D.P.U. issued its rate order on November 30, 1982, allowing Bay State 
a rate increase of only $4,232,801. The D.P.U. adopted the Division's recom- 
mendations in most of the above-mentioned significant areas. After several 



64 P.D. 12 

recalculation hearings, held at the request of the Division a final order was issued 
reducing the original award and allowing the Company only $2, 160.847. This final 
order superseded the earlier orders and illustrates a hard-fought victory for 
ratepayers. 



E. Appeals of Rate Cases 

Any appeal of a Department of Public Utilities' rate case decision is heard by 
the Supreme Judicial Court of Massachusetts. At this writing, three appeals taken 
by the Utilities Division are pending before the Court. 



1 . Boston Edison Company 

The Utilities Division appealed this case to oppose the pass-through to ratepayers 
of the costs of the abandoned Pilgrim II nuclear power plant at Plymouth. The Divi- 
sion has been opposing the construction of this plant since 1977, on the grounds 
that it was unnecessary to provide power and that it was an undue financial 
burden on the company. This appeal was briefed and argued in the spring of 1983, 
and a decision is expected shortly. 



2. Fitchhurg Gas & Electric Light Company 

The Department of Public Utilities awarded the Company $2.3 of a requested 
$3.4 million rate increase. While the decision was favorable to residential 
ratepayers on the issues of cost of service and rate design, the rate of return 
allowance given the Company was higher than the Division believed was merited. 
More importantly, the Utilities Division believed that the Department failed to dis- 
tinguish between the gas and electric operations of the Company in determining 
the cost of equity, to the detriment of the gas consumers of the Fitchburg service 
territory. This appeal will be briefed and argued in the fall of 1983. 



3. Boston Gas Company 

This case has been appealed because the Utilities Division had vigorously 
opposed the allowance in base rates of the Boston Gas Company's legal fees and 
advertising expenses associated with the D.P.U.'s investigation of the gas crisis. 



F. Electric Fuel Clause Intervention 

During the fiscal year, the Utilities Division intervened in all of Boston Edison 
Company's and Western Massachusetts Electric Company's fuel adjustment clause 
cases. The Division investigated such issues as the management of a nuclear out- 
age; fuel procurement practices; the obligation of a utility to pay interest to 
ratepayers on fuel cost overcoUection; and other matters to insure that these utili- 
ties only pass through to ratepayers the lowest reasonable fuel costs. 



P.D. 12 . 65 

The Division also selectively intervened in the fuel adjustment clause cases of 
other utilities. In one such case, the Division argued that Commonwealth Elec- 
tric's customers should not have to bear the costs associated with an imprudently 
prolonged outage at Pilgrim I. The D.P.U. had already disallowed Boston Edi- 
son similar costs in another case, but it remained unclear whether a company which 
did not operate a unit could be penalized for the operating company's mismanage- 
ment. The D.P.U. agreed with the Division's argument and ordered that $555,513 
plus interest be refunded to Commonwealth Electric's customers. The order estab- 
lished the important precedent that a company with a minority interest in a unit 
is not absolved of responsibility for that unit's proper management. The company 
appealed this decision to the Supreme Judicial Court. 



G. Performance Programs Standards 

The new law governing electric fuel costs pass throughs allows the Department 
of Public Utilities and the Attorney General to question the efficiency with which 
electric plants are run, and to reduce electric utilities' fuel adjustment charges if 
inefficiency is found. 

In G.L. c. 164, § 94G, the Legislature directed the D.P.U. to institute a unit- 
by-unit performance program for all Massachusetts utilities. The program estab- 
lishes goals in areas such as heat rate, unit availability and forced outage rates. 
In these hearings, the Division argued against the use of historical average unit 
performance as basis for goal-setting since that only encourages utilities to live 
up to past performance, no matter how inefficient. The D.P.U., at the Division's 
urging, has begun to order companies to file the type of information which would 
permit rigorous goal-setting by the use of methodology recommended by the Attor- 
ney General. The Division is monitoring the performance of those companies for 
which the D.P.U. has promulgated standards and will intervene in performance 
review cases during the upcoming fiscal year. 



H. Heat Rate Audits 

The fuel clause legislation also requires that each electric company file with the 
D.P.U. the results of an annual heat rate audit on each of its generator units and 
that all such audits be certified by the D.P.U. Heat rate audits are intended to meas- 
ure the efficiency of generating units, and are a major tool to reduce fuel costs. 
In March of 1983, the D.P.U. issued draft heat rate audit regulations following 
several months of receiving written and oral comments from the Division and the 
electric utilities. The Utilities Division retained a consultant to help devise proper 
heat rate audit test specifications and to review the Department's draft regulations. 
This work will continue in the next fiscal year. 



66 P.D. 12 

I. NASUCA Electric Fuel Charge Survey 

The Utilities Division compiled and distributed to each member of the National 
Association of State Utility Consumer Advocates (NASUCA), a state by state sur- 
vey of the activities of each advocate's office in the area of fuel clause litigation. 
The survey contains useful information, such as state utility commission and court 
decisions in this area, expert witness referrals, and unique approaches to advocacy. 

J. Other Case Activities 

The D.P.U. and the Securities & Exchange Commission (S.E.C.) approved the 
application for approval of a merger between the Manchester Electric Company 
and the Massachusetts Electric Company. As a result of the merger, Manchester's 
rates will drop by an average of approximately 15 percent. The Division supported 
the proposed merger before the D.P.U. The utility's general rate case was dropped 
as a result of the merger. 



K. Commonwealth of Massachusetts v. 

Fitchburg Gas and Electric Light Company 

The Fitchburg Gas and Electric Light Company was sued under G.L. C.93A, 
the State Consumer Protection Act, for increasing rates for appliance rentals not 
authorized by existing rental contract with customers. This action was settled by 
entry of a judgment by agreement enjoining the company from future rental 
increases under these contracts, requiring increased management oversight of the 
rental program, and ordering the Company to seek the Attorney General's approval 
of future rental increase notices prior to issuance. 

L. Telecommunications 

American Telephone and Telegraph Company (AT&T) is currently in the process 
of divesting itself of its local Bell Operating Companies, including New England 
Telephone. This divestiture is occurring pursuant to a settlement agreement with 
the United States Justice Department, and will cause substantial changes in the 
structure of the telecommunications industry and in the rates paid by consumers. 
In addition, the Federal Communications Commission has issued decisions which 
(1) shift some cost recovery from long-distance rates to local monthly exchange 
rates, and (2) attempt to preempt state control over depreciation rates and methods. 

Anticipating a dramatic impact on consumers, the Utilities Division has been 
focusing substantial time and effort preparing itself for the tariff filings which will 
implement the changes. It is expected that New England Telephone will begin to 
implement the divestiture, through filings at the D.P.U. and the Federal Commu- 
nications Commission (F.C.C.), in the fall of 1983. The Division will represent 
consumers in these cases. 



P.D. 12 67 

M . New England Telephone & Telegraph Company 

Joint action was taken by the Utilities Division and the Consumer Protection 
Division resulting in an order by the D.P.U. requiring New England Telephone 
to disclose implied warranty rights to customers who purchase single line tele- 
phones and to correct any misinformation regarding warranty rights already 
conveyed through printed materials used in the advertising and sale of these phones. 



N. New England Telephone Company v. Public Utilities Commission 
(P.U.C.)ofMaine 
(Federal District Court, Portland, Maine) 

On June, 8, 1983 the Utilities Division submitted a motion for leave to file an 
amicus curiae brief in the above case. The brief will argue that the Federal Court 
lacks jurisdiction, under the Johnson Act, to hear what amounts to an appeal of 
a state utilities commission ruling in an intrastate ratemaking proceeding, and that 
the Communications Act of 1934 reserves intrastate ratemaking to the states. The 
Utilities Division has taken the extraordinary step of participating in this case 
because of the effects throughout New England of a ruling adverse to the Maine 
P.U.C.'s decision. 



VI. SPRINGFIELD OFFICE 

The Springfield Office of the Department of the Attorney General continues to 
be responsible for matters of concern to the Department in the four Western Coun- 
ties: Hampden, Hampshire, Franklin and Berkshire. As in the past, the primary 
function of the office has been to handle referrals and requests for assistance from 
other divisions. 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 office also handled Department of Employment 
Security and Department of Public Welfare criminal prosecutions relating to 
recipient fraud. Industrial Accident Board Claims hearings in the four western 
counties are handled by the Springfield Office, and personnel from the office also 
serve on the Board of Appeal on Motor Vehicle Liability Policies and Bonds. 

In addition to the above cases, attorneys in the Springfield Office responded to 
53 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 var- 
ious pleadings and/or arguing various motions before the court. 

Attorneys from the Springfield Office frequently appear in court on particular 
motions but do not handle the entire case. During the course of the year nearly 
100 man-hours were spent in court on such matters. The ability of the Springfield 
Office to respond on short notice to these requests 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. 



68 P.D. 12 

The Public Protection Section of the Springfield Office continues to actively pur- 
sue enforcement of consumer protection statutes and regulations. Additionally, 
the office provided assistance and information to the local consumer groups in the 
four western counties, aided individual consumers where no local consumer group 
existed and attorneys from this office appeared on behalf of the Attorney General 
at six rate setting hearings before the Dpeartment of Public Utilities. 

Investigators assigned to the Consumer Protection Section conducted numer- 
ous investigations of firms or individuals suspected of unfair and deceptive prac- 
tices. The investigations covered a wide range of businesses including but not 
limited to automobile sales and service, career schools, employment services, 
business franchise sales, rental listing firms, advertising practices, investment 
schemes and firewood sales. 

One of the major areas of concern for the Springfield Office in the consumer 
protection area during the past fiscal year was that of odometer turnbacks. This 
appears to be a growing problem in the Western Massachusetts area due to the 
economy and the fact that there are several out of state auto auctions on our borders 
which deal in high mileage late model cars. The office conducted reviews of the 
records of new and used car dealerships throughout the four western counties. The 
investigations entailed a review of dealer record books, odometer statements, war- 
ranties and follow-up with the consumers who purchased the automobiles. These 
investigations resulted in the arrest of a used car dealer for larceny over $100.00 
based on 1 1 indictments. Additionally, a civil suit was filed seeking to enjoin the 
defendant from altering odometers and requesting restitution for consumers who 
purchased vehicles with altered odometers. Investigations into odometer turnbacks 
continue with more suits to be filed. 

During a review of advertisements in local newspapers it was noted that there 
were widespread violations of the advertising regulations dealing with the adver- 
tising of finance rates on new cars. After contacting the dealers who were in vio- 
lation, the office received 35 letters of agreement from the dealers stating that they 
would comply with the provisions of the law. 

The consumer protection section proceeded with a petition for contempt filed 
against Nadine Gan for continuing the operation of her investment club and for 
failing to make disclosures required by a court order for accounting. 

After trial in Superior Court, Nadine Gan, who operated the large fradulent 
investment scheme, was held in contempt and fined $100,000. At the height of 
activity from the winter of 1978 through the Spring of 198 1 , records obtained from 
western Massachusetts banks documented that approximately two million dollars 
had been deposited and withdrawn from these accounts by the defendant. 

The court held that Gan had violated a restraining order entered in July, 1981 
by continuing to receive money from investors and disbursing assets belonging 
to investors, when prohibited from doing so. She was held liable for 10 violations 
and fined the maximum $10,000 penalty for each. Gan was also found guilty of 
violating an order for accounting by failing to provide accurate and complete infor- 
mation regarding members in her investment programs. 

Apartment listing services generated a number of complaints during the fiscal 
year. Because of these complaints, the attorney assigned to the Springfield Office 
public protection section developed and authored Apartment Listing Regulations 
which have been promulgated as of June, 1983. 



P.D. 12 69 

There were 104 individual consumer complaints settled between July 1. 1982 
and June 30, 1983 resulting in a savings for consumers in the amount of 
$16,904.15. 

VII. GOVERNMENT BUREAU 

The Government Bureau has four functions: ( 1) defense of lawsuits against state 
officials and agencies concerning the legality of governmental operations; (2) initi- 
ation 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 activity 
during fiscal year 1983 in each of these areas follows. 



Defense of State Agencies 

The Government Bureau defends the Commonwealth and its officials and agen- 
cies in litigation in state and federal courts, and, in certain cases, before federal 
administrative agencies. These proceedings typically involve challenges to the 
validity of governmental decisions, initiatives, regulations, or statutes, and raise 
important issues of administrative and constitutional law in diverse subject-matter 
areas. 

During fiscal year 1983, the Bureau opened 529 new cases and closed a total 
of 384 previously active cases. The time spent representing specific agencies cannot 
be measured simply by the number of new cases. A substantial amount of time 
is devoted to litigation commenced in earlier fiscal years. For example, as in previ- 
ous years, substantial resources were devoted to six cases in which consent decrees 
had previously been entered seeking improvement in the conditions and treatment 
of residents of state institutions for the retarded and mentally ill. 

Representation of certain agencies often involves a significantly larger commit- 
ment of time due to the often intense litigation of complex issues of law or fact, 
although the total number of lawsuits brought against such agencies was relatively 
small. Also, a substantial amount of time, not fully reflected in the statistics, was 
spent advising various agencies, particularly the boards of registration, on legal 
matters which did not always result in litigation. Finally, a trend established in 
previous years continued during fiscal year 1983 as claims for attorneys' fees under 
42 U.S. C. § 1988 mounted to well over $3 million and required the expenditure 
of much attorney time. 

In fiscal year 1983, the Supreme Court of the United States decided one Bureau 
case which had been argued during the previous year and chose not to decide 
another case after first granting review. The first case, Larkin v. Grendel's Den, 
Inc. , involved the constitutionality of a state statute which permitted churches, syn- 
agogues, or other houses of worship, as well as schools, to veto the granting of 
a liquor license to an entity whose licensed premises fell within a 500-foot radius 
of a church or school. Although the constitutionality of the statute had been upheld 
previously by one panel of the federal Court of Appeals in the Grendel 's Den case 
and by the Massachusetts Supreme Judicial Court in another case, the Supreme 
Court held that the statute violated the Establishment Clause of the First Amend- 
ment because the law allowed a unilateral decision of a church to require the denial 
of a liquor license. 



70 P.D. 12 

The second case, actually three related cases (Boston Firefighters Union v. Boston 
Chapter, NAACP, Boston PoUce Patrobnen's Ass'n v. Castro, and Beecher v. 
Boston Chapter, NAACP), raised important issues concerning affirmative action, 
the power of states to govern their civil service, and the scope of federal court 
remedial powers. In 1981, the City of Boston decided to lay off hundreds of fire- 
fighters and police officers. By statute, Massachusetts requires that civil service 
layoffs occur in the order of reverse seniority. Minority members of the fire and 
police forces who had been recently hired pursuant to certain consent decrees sought 
and obtained an order preventing layoffs in accordance with the statute. The Court 
of Appeals upheld the order, and the Legislature then enacted the so-called "Tregor 
Bill" providing Boston with new revenues, requiring it to reinstate the laid-off 
police officers and firefighters, and securing those persons against future layoffs 
for fiscal reasons. After first agreeing to review the decisions of the lower courts, 
and after full briefing and argument, the Supreme Court vacated the judgments 
and remanded the cases for consideration of mootness in light of the Tregor legis- 
lation. Resolution of the substantive issues rai.sed by the lower court orders is thus 
deferred until another day. 

The Government Bureau also filed an amicus curiae brief on behalf of the Com- 
monwealth and 23 other states in Pennhurst State School and Hospital v. Haider- 
man, a case involving the power of federal courts to issue orders directed at state 
officers based on state law. The Supreme Court was unable to resolve the difficult 
constitutional questions during its 1982-83 term, however, and set the case for 
reargument in the followins term. 

Government Bureau lawyers argued many cased before the Court of Appeals 
for the First Circuit which resulted in reported opinions and many concerned impor- 
tant issues of law."* In Costa v. Marker, the Bureau represented the Personnel 
Administrator in a case involving physical requirements for public safety positions. 
The First Circuit reversed its earlier decision and found that the New Bedford Police 
Department's use of a height requirement in hiring police officers did not violate 
the Title VII rights of women competing for positions as police officers. The Bureau 
represented the State Secretary's Securities Division in Agency Rent-A-Car, Inc. 
V. Connolly which involved an appeal from an injunction against the Secretary from 
enforcing provisions of the Massachusetts takeover statute, G.L. c. 1 IOC, against 
a tender offeror. The Court of Appeals vacated the injunction, holding that the 
one-year ban on a bidder's subsequent purchases of target securities imposed pur- 
suant to the disclosure provision of the statute was not preempted by the federal 
Williams Act. In Kudish v. Bradley, the First Circuit upheld the decision of the 
Board of Registration in Medicine, and held that the Board did not deny due process 
to a former physician who resigned from the practice of medicine as a result of 
a criminal plea bargain. The Court held that no due process rights arose in sup- 
port of the physician's application for reinstatement because his resignation was 
final . 



'' The Government Bureau briels anil aryues many more appeals in the United States Court of Appeals, the Supreme Judicial Court, 
and the Massachusetts Appeals Court than rcsufl in reported decisions Although brictmg and argument of these cases requires the 
same professional effort as any others, the issues presented in such cases arc relatively insignillcant or are already settled and. 
consequently, are disposed of in unreported summary decisions or by rescript opinion. Such cases are not included in the description 
of the Government Bureau's appellate decisions for this llscal year. 



P.D. 12 71 

The Government Bureau represented the Department of Public Welfare in five 
separate cases decided by the First Circuit this year. In Ciampa v. Secretary of 
Health and Human Senices, the Bureau defended the Commissioner of Welfare's 
implementation of the so-called "Pickle Amendment" to the Social Security Act. 
The Court decided that the federal regulations implementing the statutory change 
— and consequently the Commissioner's actions pursuant to the federal regula- 
tions — were invalid. The case of Drysdale v. Spirito involved the Welfare Com- 
missioner's benefit calculation made under the Aid to Families with Dependent 
Children (AFDC) program for dependent children living with non-needy caretaker 
parents. The court considered whether grants to children with caretaker parents 
who earn some income and are not themselves needy should be enlarged by an 
amount equal to a portion of the parent's earned income, as is the case where the 
caretaker parent himself is needy. The Court of Appeals upheld the Commissioner's 
interpretation. A conflict between the eligibility provisions of the AFDC Act and 
the Medicaid Act was the subject oi Mass. Association of Older Americans v. Sharp 
where the Court resolved matters in favor of the more generous Medicaid provi- 
sions. The case of Fortin v. Commissioner of the Massachusetts Department of 
Public Welfare affirmed a district court determination of non-compliance with cer- 
tain consent decree obligations concerning the timeliness of welfare eligibility deci- 
sions. Finally, in Coalition for Basic Human Needs v. King, the Court of Appeals 
awarded attorneys' fees to lawyers who obtained an interlocutory order to require 
the payment of welfare benefits in July 1981 despite the absence of an appropria- 
tion for AFDC at the time. 

A considerable portion of the Government Bureau's resources was dedicated 
in fiscal year 1983 to the litigation of cases in the United States District Court. 
Among the more active and significant of the many federal district court cases are 
those involving the following issues: federal regulation of and monies for state 
foster care programs (Lynch v. King); the effect on levels of AFDC benefits of 
various sources of income (Silva v. Spirito); state work requirements (Rheault v. 
Spirito); the role of parents of handicapped and learning disabled children in the 
residential or educational placement of their children (Doe v. Anrig, Roe v. Mil- 
ford School Committee); implementation of consent decrees concerning the state 
institutions for the mentally retarded {Massachusetts Association for Retarded 
Citizens v. Dukakis and consolidated cases); the Medicaid eligibility of individuals 
who are the beneficiaries of a transfer of assets {Robinson v. Spirito); payments 
to an organization which provides laboratory services to a hospital {Danvers Pathol- 
ogy Associates V. Spirito); and the ability of the state to regulate health care profes- 
sionals {Harvey v. Board of Registration in Nursing). 

During the past fiscal year, Government Bureau attorneys were involved in 28 
cases decided by the Massachusetts Supreme Judicial Court (SJC). Among them 
were several significant cases including Attorney General v. Laffey, where the Court 
held that a gubernatorial appointment to the Massachusetts Port Authority may 
be rescinded by a subsequent governor, pursuant to St. 1964, c.740, §3. In Deb- 
nam v. Town of Belmont, the SJC held that the existence of a reserve fund in Bel- 
mont for emergency expenses did not preclude the municipality from laying off 
firefighters in response to Proposition 2 Vi as long as the layoffs were made in good 
faith, were not a result of political favoritism, and were not arbitrary or capricious. 



72 P.D. 12 

Government Bureau attorneys represented the Board of Registration in Medicine 
in three appeals to the SJC from decisions of the Board. For example, in Feld- 
stein y. Board of Registration in Medicine, the Court affirmed the Board's deci- 
sion to revoke a license to practice medicine based on a guilty plea often counts 
of false representation to the Department of Public Welfare for the purpose of 
extracting Medicaid payments. During fiscal year 1983, Bureau attorneys argued 
ten tax cases before the SJC. In Page v. Commissioner of Revenue, the SJC upheld 
the Commissioner of Revenue's judgment, that securities held by a foreign trust 
company on behalf of a Massachusetts resident are intangible property and there- 
fore subject to an estate tax, and that such tax does not violate the fourteenth amend- 
ment to the United States Constitution. In Walter Kidde Co. v. Commissioner of 
Revenue, the Court affirmed the Appellate Tax Board's decision that corporations 
are entitled to apply the investment tax credit of one subsidiary that had incurred 
a loss for the tax year against the total excise tax owed under the combined return. 
In Andover Savings Bank v. Commissioner of Revenue , the SJC upheld the con- 
stitutionality of the bank excise tax levied by G.L. c.63, §11, stating that the 
income-based portion of the excise tax meets the reasonableness test of the Mas- 
sachusetts constitution. 

Government Bureau lawyers also participated in 24 cases decided in the state 
Appeals Court. Nine of these cases involved issues of termination of parental rights 
(e.g. Petition of the Department of Social Services to Dispense With Consent to 
Adoption; Adoption and Visitation of a Minor). Other cases involved personnel 
and civil service matters (e.g., Flynn v. Civil Service Commission; Cahill v. Com- 
monwealth), suspension of licenses (e.g., Adams v. Department of Health; Stop 
& Shop Companies, Inc. v. Board of Registration in Pharmacy), and appeals from 
the decisions of the Alcoholic Beverages Control Commission (e.g., Pastene Wine 
& Spirits Co. v. Alcoholic Beverages Control Commission; New England Liquor 
Sales Co. v. Alcoholic Beverages Control Commission). 



AFFIRMATIVE LITIGATION 

The Affirmative Litigation Division was established in the Government Bureau 
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 four broad, and sometimes over-lapping, categories: (1) advocacy liti- 
gation; (2) federal program litigation; (3) enforcement litigation; and (4) quasi- 
criminal litigation. The first category includes cases commenced on behalf of a 
state agency with an advocacy responsibility or in the futherance of an indepen- 
dent 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 
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 mil- 
lions of dollars due to the Commonwealth and its citizens. In cases of the third 
category, the bureau performs the traditional enforcement function of the Attor- 
ney General by commencing suit on behalf of state regulatory and licensing agen- 



P.D. 12 73 

cies. The final category, which is rapidly growing in importance, involves suits 
for civil recovery of funds criminally obtained from state agencies. It serves as 
a supplement to normal criminal prosecution. The following paragraphs contain 
brief descriptions of significant or representative cases litigated during the fiscal 
year. 

In Zelinsky v. Maccario, the Bureau intervened on behalf of plaintiffs challeng- 
ing the City of Maiden's refusal to allow more than two unrelated mentally retarded 
women to live together in a group home. The intervention, on behalf of the Depart- 
ment of Mental Health, was designed to further the public policy of mainstream- 
ing retarded citizens by maximizing their opportunity to participate in ordinary 
life. The case was later settled. In another example of advocacy litigation, the 
Government Bureau, together with the Consumer Protection Division, has con- 
tinued its practice of bringing actions against nursing homes and other health care 
institutions to obtain appointment of receivers to take over their operation. 

An example of federal program litigation is A'^'vv Mexico, et al. v. Heckler, an 
action commenced by the Government Bureau in concert with several other states 
against the Secretary of Health and Human Services seeking to restrain her from 
reducing Massachusetts Medicaid reimbursement because of projected excessive 
error rates. The Secretary has already reduced the Commonwealth's reimburse- 
ment by $1 .8 million and intends to make further reductions. The case is now pend- 
ing in the United States District Court for the District of Columbia. 

A case which represents both advocacy and federal program litigation is Avety 
V. Heckler in which the Bureau intervened in a federal district court action on behalf 
of the Commonwealth, its disabled citizens, and the Department of Public Wel- 
fare. The purpose of that intervention is to halt the federal government's policy 
of forcing the state to use improperly strict rules for reviewing payments of Social 
Security disability benefits and to require the federal government to halt its prac- 
tice of ignoring adverse legal precedents. The impact of these practices is felt by 
the disabled, many of whom have been improperly denied disability benefits due 
them, and by the Commonwealth which has to pay General Relief to some of those 
who have been denied such federal benefits. The United States has opposed inter- 
vention and the matter is pending in the district court. 

As in past years, the Government Bureau brought several lawsuits to enforce 
the licensure requirements, regulations, and orders of state agencies. For exam- 
ple in Barresi v. Somerville Engineering, the Bureau filed an action in superior 
court to enforce a subpoena issued by the Inspector General as part of an investi- 
gation into MDC contracts. Although the defendant had refused to comply with 
the Inspector General's subpoena, the Bureau obtained a Superior Court order 
which the defendant did obey, and thus the Inspector General obtained the material 
he needed to complete his investigation. 

Another example of the Bureau's role in enforcing agency rights is a series of 
lawsuits filed in the Boston Municipal Court on behalf of the Department of Com- 
munity Affairs against a number of fuel oil dealers who participated in the Depart- 
ment's fuel assistance program which provided low cost heating oil to the poor 
and elderly. The defendants had received low cost oil from the Department but 
had not delivered it to qualifying citizens. The suit seeks to compel the dealers 
to return the undelivered oil or to pay the difference between the price they paid 
and the fair market value of the oil they received. The Bureau has also assisted 



74 PD. 12 

the Department of Revenue's stepped up tax enforcement program by filing several 
seizure actions. In those cases, the Department on behalf of the Commissioner of 
Revenue files actions for seizure of the property of businesses with large unpaid 
state tax bills who have consistently rebuffed other, less drastic efforts at tax 
collection. 

The Bureau has filed three cases in the new quasi-criminal area. Each involves 
a physician or health care provider who has already been indicted on criminal 
charges of Medicaid fraud. These quasi-criminal cases are brought under purely 
civil law provisions of fraud and contract law and seek to have the provider return 
the money improperly received from the state. These actions are entirely separate 
from the criminal actions but complement those actions by ensuring that, if con- 
victed, a provider will not only face criminal sanctions, usually jail, but will also 
be forced to disgorge the fruits of his crime by repaying the money taken. In the 
only one of the these cases which has been concluded, over $75,000 was recovered. 



OPINIONS AND BY-LAWS 

A. Standards for Issuing Opinions 

Section 3 of Chapter 12 of the General Laws authorizes the Attorney General 
to render legal advice and opinions to state officers, agencies, and departments 
on matters relating to their official duties. Following in large part the established 
practice of previous Attorneys General, opinions have been given only to the offi- 
cials who head state agencies and departments. Opinions are not rendered to 
individual employees of a state agency; questions posed by county or municipal 
officials or by private citizens or organizations are not answered. 

The questions considered in legal opinions must have an immediate, concrete 
relation to the official duties of the state officers requesting the opinion. In other 
words, hypothetical or abstract questions or questions which ask generally about 
the meaning of a particular statute, lacking a factual underpinning, are not 
answered. Opinions are not offered on questions raising legal issues which are or 
soon will be the subject of litigation or concern collective bargaining. Questions 
relating to the wisdom of legislation or administrative or executive policies are 
not addressed. Generally federal statutes are not construed and the constitutional- 
ity of proposed state or federal legislation is not determined. 

B. Procedures for Requesting an Opinion 

In an effort to make the opinion rendering function as effective, helpful, and 
efficient as possible, a number of procedural guidelines to govern opinion requests 
have been established. 

Opinions requests from the heads of state agencies which come under the juris- 
diction of a cabinet or executive office must be first sent to the appropriate execu- 
tive 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. 



P.D. 12 75 

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 resolved more quickly within the 
agency or executive office, by agency legal counsel or otherwise, everyone is better 
served. The second reason relates to the internal workings of the requesting agency 
and its executive office. It would be inappropriate for this Department to be placed 
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, coun- 
sel 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, the Department 
solicits the views of such other agencies, individuals, or organizations before the 
opinion is rendered. In this way, significant and relevant considerations are not 
overlooked. 

The issuance of informal opinions is strongly discouraged. Informal opinions 
are often relied upon as though they were formal opinions, and in a number of 
instances, this reliance has been seriously misplaced. As a result, the issuance of 
informal opinions is strictly limited to situations of absolute necessity. 



C. Opinions Rendered in Fiscal Year 1983 

Approximately 200 requests for opinions of the Attorney General were received 
during fiscal year 1983. Most of those requests were declined because they origi- 
nated from private individuals, municipal officials, and other persons or organi- 
zations who are not entitled to an opinion, or because they raised questions that 
were not appropriate for resolution by a formal opinion. Thirteen formal opin- 
ions of the Attorney General were rendered in fiscal year 1983, some of which 
are summarized below. 

Two questions arose at the outset of the new administration concerning guber- 
natorial appointments. In response to a request from the Governor, an opinion was 
issued concerning the way that the party affiliations of members of the Mas- 
sachusetts Port Authority are to be determined for purposes of ensuring that no 
more than four members of the Authority belong to the same political party. In 
another opinion, the Secretary of the Commonwealth was advised of his duty to 
issue commissions to gubernatorial appointees and to record those commissions 
in the Commonwealth's official records. 

Two opinions were issued to the Secretary of the Commonwealth concerning 
public policy questions and referendum petitions to be placed on the ballot. In one 
opinion, the standards for determining whether questions are ones of "public 
policy," were described and the Secretary was advised that certain questions were 
proper policy questions. That opinion also specified the form in which such ques- 
tions would appear on the ballot. In another opinion, a petition calling for repeal 
of a law providing a new salary schedule for executive, legislative, and judicial 
officials was determined not to be a proper subject for a referendum petition. 



76 P.D. 12 

In another opinion the Treasurer and Reeciver General was advised that the issu- 
anee and sale of state bonds for the purpose of finaneing the operations of the 
Government Land Bank does not violate the eredit clause of the Massachusetts Con- 
stitution, which provides that the credit of the Commonwealth shall not be given 
to aid private individuals and organizations. 

Two opinions took restrictive views of the powers of state agencies. The Divi- 
sion of Savings Bank Life Insurance was advised that state savings bank life insur- 
ance departments have no authority to reinsure risks on group life insurance policies 
underwritten by a commercial life insurance company, and the Department of Pub- 
lic Utilities was advised that it has no authority to approve or disapprove local board 
of health regulations restricting the use of herbicides on utility company rights of 
way. 

In other opinions clarifying the responsibilities of state officials, the Commis- 
sioner of Education was advised concerning the extent of the Commonwealth's 
obligation to reimburse local school committees for the cost of transporting chil- 
dren to private schools; and the Secretary of Economic Affairs was advised on 
the standards to be applied in certifying the eligibility of certain businesses, located 
in areas of substantial poverty, for favorable tax treatment. 



D. By-Iuiws Reviewed In Fiscal Year 1983 

Town by-laws and city and town home rule charters and amendments are 
reviewed and must be approved or disapproved by the Attorney General. There 
were eight charter actions and about 820 by-law submissions reviewed during fiscal 
year 1983. The 820 submissions constituted a total of 1,800 individual by-laws. 
Zoning by-laws constituted more than half the total. 

As in the previous year, there was a continuing emphasis on controlling radi- 
oactive and hazardous waste disposal and time-sharing by means of zoning enact- 
ments. The number of general by-laws regulating the use of pesticides and 
protecting water supplies from contamination increased. 

The most common grounds for disapproval of zoning by-laws were procedural 
defects that occurred before the town meeting vote. The defects were often caused 
by the failure of planning boards to follow the requirements of the Zoning Act (G.L. 
C.40A, §5). 



P.D. 12 77 

August 16, 1982 
Number 1. 

Robert Q. Crane 

Treasurer and Receiver General 

Commonwealth of Massachusetts 

State House 

Boston, Massachusetts 02133 

Dear Treasurer Crane: 

You have asked my opinion whether Commonwealth bonds and notes may be 
issued under chapter 212 of the Acts of 1975, an Act Creating a Government Land 
Bank (hereafter, "the Act"), without violation of Article 62, §1, of the Amend- 
ments to the Massachusetts Constitution. Your request is prompted by your duties 
as state treasurer to issue and sell bonds of the Commonwealth (pursuant to sec- 
tion 8A of the Act), the proceeds of which are used to finance land acquisition 
and other activities of the Land Bank. For the reasons and with the restrictions 
stated below, I answer your question in the affirmative. 

The Land Bank was created by the Legislature in 1975 to aid private enterprise 
or public agencies in the conversion and redevelopment of lands formerly used 
for military activities for industrial, commercial, and residential uses in order to 
prevent blight, economic dislocation and unemployment, or to aid private enter- 
prise in the construction of low and moderate-income housing upon such lands to 
alleviate the housing shortage. St. 1975, c. 212, §1. The Act was later amended 
to include in its purposes the development and redevelopment of surplus state or 
federal government property and decadent, substandard or blighted open areas. 
St. 1979, c. 762, §2. That the purposes of the Land Bank are valid public pur- 
poses is unquestionable. See Opinion of the Justices, 373 Mass. 904, 907 (1977). 

The statute establishes the Land Bank as a public instrumentality, a body cor- 
porate and politic, in the Executive Office of Administration and Finance, but not 
under its administrative supervision or control. St. 1975, c. 212, §2. It is governed 
by a board of nine directors, eight appointed by the governor. Id. It may adopt 
rules and regulations as it deems desirable for the exercise of its powers and dis- 
charge of its duties. St. 1975, c. 212, §6. The Land Bank is authorized to contract 
and to enter into agreements and transactions with governmental agencies or pri- 
vate persons in connection with its power and duties under the Act. St. 1975, 
c. 212, §4(d) and (e). Primarily, the Land Bank may take possession of or acquire 
lands, and dispose of those lands to a public or private entity for redevelopment. 
Such redevelopment must be in accordance with plans approved by the Land Bank, 
after public hearing, and in accordance with specific findings that ensure the 
redevelopment plan is consistent with the public purposes of the Act. St. 1975, 
c. 212, §6. The Land Bank may also establish by regulation additional require- 
ments for redevelopment plans. Id. 

The land acquisition activities of the Land Bank are financed in part by the sale 
of bonds of the Commonwealth. St. 1975, c. 212, §8 A. This financing by bond 
proceeds, in connection with a provision of the Act which allows for the bank to 



78 P.D. 12 

resell land in exchange for a purchase money mortgage,' gives rise to your con- 
cern that a specific transaction, i.e. , one involving land acquired with funds from 
bond proceeds and sold to a private party in exchange for a mortgage, ^ might violate 
article 62, §1, of the Massachusetts Constitution. 

Article 62, §1, of the Amendments to the Massachusetts Constitution, known 
as the "credit clause," provides: 

The credit of the Commonwealth shall not in any manner be given 
or loaned to or in aid of any individual, or of any private association, 
or of any corporation which is privately owned and managed. 
Article 62 was adopted in 1918 following the Constitutional Convention of 
1917-1918. Convention debates indicate that the purpose of section 1 was to pre- 
vent the loan of the Commonwealth's credit to enterprises not under public owner- 
ship or control, 3 Debates in the Massachusetts Constitutional Convention, 
1917-1918, at 1220, 1223, 1234, as well as to force state assistance to public service 
enterprises to be on a "pay as you go basis," not involving any absolute or con- 
tingent debt obligation on the part of the Commonwealth. Opinion of the Justices, 
337 Mass. 800, 808 (1958). See also Pinsky, State Constitutional Limitations on 
Public Industrial Financing, 1 1 1 U. Pa. Law Rev. 265, 317 (1967) (credit clauses 
intended to protect taxpayers from heavy future taxes levied to pay for "recklessly 
incurred past debt"). 

From time to time, the question has arisen whether a particular transaction con- 
stitutes a lending of credit barred by Article 62. Historically, the lending of the 
Commonwealth's credit occurred in the form of a guaranty of another's obliga- 
tions. See, e.g.. Opinions of the Justices, 322 Mass. 745, 751 (1948) (housing 
authority obligations); 261 Mass. 523, 541-545, and 261 Mass. 556, 564, 602-604 
(1927) (Boston Elevated Railway Company bonds or obligations). More recently, 
the Supreme Judicial Court has considered whether the loan of proceeds of Com- 
monwealth bonds constitutes a lending of credit. In Opinion of the Justices , 359 
Mass. 769 (1971), the Court found that: 

The two steps of (a) borrowing by the State and (b) lending of the 
borrowed cash to a private borrower, would have essentially the same 
effect as a State guaranty of a loan to the ultimate borrower. Such a 
guaranty would be a violation of art. 62. 

Opinion of the Justices, 359 Mass. at 773. 
That opinion involved chapter 746 of the Acts of 1970, which authorized the 
Department of Commerce and Development to make loans to private businesses 
from funds derived from the sale of Commonwealth bonds for construction of water 
pollution waste treatment facilities. The Court held that the issuance of Common- 
wealth bonds and the use of bonds proceeds for such loans violated the credit clause. 



Section 6 of c 212 of the Acts of 1975, as amended through St. 1977. c. 732. provides, in pertinent part: 
Any disposition of lands, or any interest therein, by the bank may be made in such manner whether by sale, lease or otherwise, 
by parcels which are the same as or different from those by which they were acquired or taken possession of by the bank, and for 
such price, rental or other consideration payable over such term, which may extend beyond the expiration date of this act, and bearing 
interest as to deferred payments and secured in such manner, by mortgage or otherwise, all as the bank may determine to be desirable 
consistent with any applicable provisions of any applicable redevelopment plan. 

Your opinion request relates solely to the question whether bonds may be issued without violation of the credit clause Accordingly, 
this opinion is confined to that matter and does not address the statutory authority of the Land Bank to enter into particular types 
of transaction. 



P.D. 12 79 

The Court noted that the loan, although made for a public purpose, was to private 
persons and was likely to benefit them and their property substantially.^ 

In 1977 the Court had occasion to apply the two-step analysis to find a lending 
of credit, but concluded that there was no violation of the credit clause because 
the "ultimate borrower" was not an individual, a private assocation or a privately- 
owned and managed corporation. Opinion of the Justices, 373 Mass. 904, 910 
(1977). The opinion involved the Community Development Finance Corporation 
(hereafter, "CDFC") created by G.L. c. 40F. Under chapter 40F, the state treas- 
urer would sell Commonwealth bonds and use the proceeds to purchase all of the 
common stock of CDFC. CDFC in turn would lend the proceeds to community 
development corporations to invest in development projects which met detailed 
standards set forth in the statute. G.L. c. 40F, §4. Analyzing the "substance of 
the entire statute," Opinion of the Justices, 373 Mass. at 909, the fact of CDFC s 
loan of the borrowed funds to community development corporations had, again, 
the same effect as a state guaranty of a loan to the ultimate borrower, the commu- 
nity development corporation, and therefore constituted a lending of credit. Id. 
at 909-910. Whether the transaction was constitutionally permissible depended 
upon whether a community development corporation is a "private association" 
or "a corporation which is privately owned and managed." Id. at 910. 

The Court concluded that a community development corporation was not a pri- 
vate borrower. Without articulating the precise composition of a community 
development corporation,'' the Court reached its conclusion based upon the fol- 
lowing key considerations: 

(1) that CDFC would be publicly owned and managed for a public 
purpose; and 

(2) the CDFC proceeds could be used only for specific approved 
projects of public benefit and public purpose; and 

(3) the community development corporations which would use the pro- 
ceeds had to meet certain criteria designed to insure the public nature 
and purpose of the use of the funds. 

The Court concluded: 

We think that a community development corporation which expends 
funds in accordance with the conditions and limitations of G.L. c. 40F, 
§4, is not a private borrower and that, therefore, the statutory pattern 
of G.L. c. 40F does not involve an unconstitutional lending of the credit 
of the Commonwealth. Id. at 910. 
Obviously critical to the Court's conclusion was the existence of sufficient stan- 
dards or "conditions and limitations" which ensure that the bond proceeds were 
used for public purposes only and that any benefit to a private person or entity 
is " 'indirect and incidental and not the purpose of the statute.' " Id., citing 
Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288 (1939). 



The Court noted further that the statute provided only meager and general standards to guide the Department of Commerce and 
Development in making loans, leaving much to departmental discretion. Opinion of the Justices. 359 Mass. at 773. Under the Court's 
two-step analysis, because the borrower was private, the loan violated the credit clause. It is unclear whether this further concern 
that the staoite provided only "meager guidelines" and left much to departmental discretion suggests that sufficiently detailed standards 
m the statute might have avoided a credit clause violation in this issue. 

^ Section 1 of chapter 40F dcnnes a community development corporation as a quasi-public non-profit corporation organized under 
the General Laws to carry out ccrtam public purposes, with certain .specified by-laws provisions as to, inwr iiliti. area of operation, 
membership, and election and make-up of the board of directors. G.L. c. 40F, §1. 



80 PD. 12 

Applying the foregoing analysis to the present circumstances. I conclude that 
the use of bond proceeds by the Land Bank to acquire land which is resold in 
exchange for a purchase money mortgage would constitute a lending of the Com- 
monwealth's credit to the purchaser of the land. Similarly, if that purchaser is a 
private person or association or a privately owned and managed corporation, there 
is almost certainly an unconstitutional lending of credit. 

It is my opinion, however, that the Land Bank can avoid a credit clause viola- 
tion by adhering closely to the CDFC model. "^ In order to do so, the Land Bank, 
when it resells land which it has acquired with bonds proceeds in exchange for 
a purchase money mortgage, must effect the transaction under the following 
restrictions: 

1. The land must be resold only to a non-private or quasi-public 
agency which has the statutory authority to participate in the 
redevelopment project (hereafter referred to as the "participating 
agency").^ 

2. The resale must be in accordance with a development plan which 
the Land Bank has approved only after making the following 
specific findings: (a) the project is within the scope of the enabling 
statute and may reasonably be expected to contribute to the 
redevelopment of the target areas and the economic development 
of the Commonwealth or will alleviate the shortage of safe, decent 
and sanitary housing available to persons of low and moderate 
income; (b) the project plans conform to all applicable environmen- 
tal, zoning, building, planning, or sanitation laws; (c) the project 
will be of public benefit for a public purpose; (d) there is a reasona- 
ble expectation that the project will be successful; (e) private indus- 
try has not provided sufficient capital required for the project or 
sufficient primary employment opportunities in the project's area; 
(f) the Land Bank has determined that its participation is necessary 
to the successful completion of the proposed subject because fund- 
ing for the project is unavailable in the traditional capital markets, 
or that credit has been offered on terms that would preclude the 
success of the project; (g) the participating agency meets certain 
standards set forth in ^1 above and appears able to manage its pro- 
posed project responsibilities; (h) the plan, or alternatively the mort- 
gage, provides for adequate reporting from the participating agency 
to the Land Bank. These findings, to the extent they go beyond find- 
ings already required by the Land Bank's enabling statute, could 
be established by regulations. St. 1975, c.212, §6. 



' Like CDFC. the l.arul Bank isilo.iilv a puhlic inslrunicTiialitv . ■'nianaocil puhlicl> Icii a public purpose," Opinion afllw JiiMiccs. 
373 Mass. at') 10 

* E.g.. a community development corporation or similar "quasi-public nonprofit corporation organized under the General Laws to 
carry out certain public purposes" with by-laws providing, inter alia, for public membership and directors. G.L. c. 40F, §1 (definition 
of community development corporation). 



P.D. 12 81 

3. The resale must place conditions and limitations on the participat- 
ing agency which require that it will maintain sufficient control over 
the project to ensure that public benefit and public purposes of the 
redevelopment are maintained. G.L. c. 40F, §4(11).'' 
It is my opinion that these restrictions suffice to preclude the possibility of a credit 
clause violation. Opinion of the Justices, 373 Mass. at 910. Cf. Opinion of the 
Justices, 359 Mass. at 773. 

In summary, based upon the analysis of the Supreme Judicial Court of the CDFC 
model as applied to the Land Bank, I conclude that the resale of land acquired by 
the Land Bank with bond proceeds to a quasi-public agency in exchange for a pur- 
chase money mortgage, subject to the restrictions discussed above, would not con- 
stitute a lending of the Commonwealth's credit to any "individual, private 
association, or corporation which is privately owned and managed." It is there- 
fore my opinion that Commonwealth bonds and notes may be issued under the Act 
for such projects without violation of the credit clause. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



August 23, 1982 
Number 2. 

Richard E. McLaughlin 
Registrar of Motor Vehicles 
100 Nashua Street 
Boston, Massachusetts 02114 

Dear Registrar McLaughlin: 

You have requested my opinion whether the payment of a fine for a minor traffic 
violation under the "pay by mail" procedure of G.L. c. 90, §20F, is a conviction 
for which you may revoke or suspend a license under c. 90, §20 and §22. For the 
reasons stated below, it is my opinion that the payment of a fine by this procedure 
does not constitute a conviction for which you may revoke or suspend a license 
under G.L. c. 90, §20. However, a person who consistently violates the traffic 
laws and who has repeatedly been required to pay such fines, may be operating 
the motor vehicle in such a manner as to be a threat to the public safety and thus 
may be subject to the discretionary revocation and suspension provisions of G.L. 
c. 90, §22. 

General Laws chapter 90, section 20F, sets forth the current' procedures for 
issuing traffic citations and for the disposition of minor traffic violations. The pro- 
vision establishes two mechanisms for disposing of these traffic citations. 



^ For example, if the participating agency in turn resells the land to a private entity in exchange for a purchase money mortgage, that 
mortgage would have to include adequate provision for reporting to the participating agency and that the participating agency must 
approve all major transactions including but not limited to any sale, merger, dissolution, the sale or issue of substantial amounts 
of stock, and corporate reorganization. G.L. c. 40F. §4(1 1) (f). 

Chapter 90, section 20F, was inserted into the General Laws by section 41 of what has popularly been called the Court Reorganization 
Act, St. 1978, c. 478. See generally Commonweallh v. Germano. 379 Mass. 268 (1979). 



82 P.D. 12 

First, the person may "appear before a magistrate of the appropriate district court 
and confess the offense charged, either personally or through an agent duly autho- 
rized in writing, or may mail to such magistrate, with the citation, the maximum 
statutory fine provided therein/' G.L. c. 90, §20F, 13. ^ If this procedure is used, 
then the "appearance shall not be deemed a criminal proceeding for the purposes 
of [chapter 90). "G.L. c. 90. §20F, 14. ^ Thus, under this procedure the Legisla- 
ture has established a non-criminal, administrative mechanism for conveniently 
disposing of these traffic violations. 

Alternatively, the section also provides a mechanism by which the offender may 
decline to avail himself of the benefits of the "pay by mail" procedure. Under 
this procedure the offender may contest the citation through the usual procedures 
established for criminal cases. See, e.g. , Commonwealth v. Germano, 379 Mass. 
268 (1979); Commonwealth v. Marder, 346 Mass. 408 (1963), appeal dismissed, 
377 U.S. 407 (1964). Cf. Commonwealth v. Hesser, 1 Mass. App. 877 (1974). 

The legislative history of G.L. c. 90, §20F, indicates that the Legislature intended 
to treat minor motor vehicle violations governed by that provision in a manner 
similar to parking violations. Commonwealth v. Germano, 379 Mass. at 276. 
Accordingly, the Legislature sought, through the "pay by mail" mechanism, to 
provide "a sensible, simple, administrative method of making necessary traffic 
rules effective, without clogging the courts, causing undue public inconvenience 
and resentment, or depriving any citizen of full opportunity at his option for a judi- 
cial determination of facts." Conmionwealth v. Marder, 346 Mass. at 41 1. Because 
the "pay by mail" procedure is non-criminal, the payment of the statutory fine 
cannot be considered a conviction." 

General Laws chapter 90, section 20, permits you to revoke the license of a per- 
son who is convicted three consecutive times in the same year for violating G.L. 
c. 90, §§16^ or 17,^ or a regulation made under §18.^ Section 20 also prohibits, 
for at least thirty days after the date of such conviction and only at your discre- 
tion, the issuance of a new license to a person whose license has been sanctioned. 

The word "conviction" is a technical word which has acquired peculiar meaning 
in the law. It must therefore be interpreted according to that meaning. G.L. c. 4, 
§6. A long line of judicial decisions have interpreted the word "conviction" as 
a "judgment that conclusively establishes guilt after a finding, verdict, or plea of 
guilty." Forcier v. Hopkins, 329 Mass. 668, 670 (1953) (cases cited). A mere 
verdict or confession of guilt is not enough; "[njothing less than a final judgment, 
conclusively establishing guilt, will safisfy the meaning of the word 'convic- 
tion. . . .' " Attorney General v. Pellet ier, 240 Mass. 264, 310-11 (1922), quot- 
ing Commonwealth v. Kiley, 150 Mass. 325 (1889). Under the non-criminal 



^ This section does not apply to violations which have fines exceeding one hundred dollars or which have a pcnallv of imprisonment. 
G.L. c. 90, §20F. 11 II also does not apply to parking violations. Id. See also G.L. c 90. SS20A and 20C 

■* The paragraph further states that the "offender shall not be required to report to any probation officer and no record of the case 
shall be entered in any probation records." 

** If. on the other hand, the person decides to challenge the citation through normal criminal priKcdurcs, then any judicial determination 
of guilt will be considered a conviction and the offender will suffer the collateral consequences which accompany a criminal record. 
See Comnumweallh v. Murder, 346 Mass. at 41 1. See also Commonwealth r Germano. 379 Mass. at 274. 

^ Offensive or illegal operation of motor vehicles. 

* Excessive speed on a street or way which does not have a posted speed limit 

^ Exceeding the posted speed limit on any street or way. 



P.D. 12 83 

procedure of G.L. c. 90, §20F, the Legislature has precluded the Court from enter- 
ing a judgment in these cases. The payment of a fine by these procedures is not, 
therefore, a conviction as that term is used in G.L. c. 90, §20.^ I conclude, there- 
fore, that the payment of these fines through the non-criminal procedures of G.L. 
c. 90, §20F, are not convictions for which you may revoke or suspend a license 
under section 20. 

This conclusion does not mean that you are without authority to revoke or sus- 
pend a license for these minor traffic violations. On the contrary, you may well 
possess such authority under G.L. c. 90, §22. General Laws chapter 90, section 
22(a), permits you to suspend or revoke, without a hearing, a license whenever, 
"the holder thereof has committed a violation of the motor vehicle laws of a nature 
which would give the registrar reason to believe that continuing operation by such 
holder is and will be so seriously improper as to constitute an immediate threat 
to the public safety." 

Similarly, under G.L. c. 90, §22(^), you are authorized to "suspend or revoke 
any certificate of registration or any license issued under this chapter, when (you 
have) reason to believe the holder thereof is an incompetent person to operate motor 
vehicles, or is operating a motor vehicle improperly." 

These provisions grant you broad authority to suspend or revoke a license when 
you have reason to believe that a person is operating a motor vehicle improperly 
or is operating it in such a manner as to endanger the public safety and when a 
person who has repeatedly violated the motor vehicle laws. A conviction is not 
necessary to trigger the revocation mechanism set forth in these provisions of sec- 
tion 22.' Thus, repeated violations which result in the payment of fines by mail 
pursuant to G.L. c. 90, §20F, may support a finding that the person is operating 
improperly under G.L. c. 90, §22(a) or §22{b). 

In sum, I conclude that the payment of a traffic violation fine through the non- 
criminal procedures of G.L. c. 90, §20F, is not a conviction for which you may 
suspend or revoke a license pursuant to G.L. c. 90, §20. However, the consistent 
violation of the motor vehicle laws may support a finding that a person is operat- 
ing a motor vehicle improperly and therefore subject that person to a suspension 
or revocation under G.L. c. 90, §22(a) and §22(^7). 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



This non-criminal disposition is to be compared with the provisions of G.L. c. 90, §4A, as inserted by St. 1964. c. 626. §1. which 
provides for a waiver of trial, guilty plea and payment of a fme "on a complaint alleging violation of any law relating to the operation 
of control of motor vehicles ... for which the punishment is a fine or forfeihjre not exceeding . . fifty dollars and does not include 
a sentence of imprisonment." This provision for criminal disposition of motor vehicle violations was also amended by the Court 
Reorganization Act. In such circumstances, it must be presumed that the Legislature was aware of the differing procedures to resolve 
such cases and that the distinction was intentional. Harboniew Residents ' Commillee. Inc. v. Quincy Housing Aulharity, 368 Mass. 
425,432 (1975). 

Subsection (c) of section 22, on the other hand, is triggered by an out-of-state conviction of operating under the influence of narcotics. 
Again, one can only conclude that the distinctions in the various subsections were intentionally drawn, therefore supporting the 
conclusion that convictions are not a condition precedent to the exercise of your power under G.L. c. 90, §22(a) or (fc). 



84 P.D. 12 

September 10, 1982 
Number 3. 

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

Dear Secretary Connolly: 

By letter dated August 6, 1982, you have requested my opinion whether cer- 
tain questions forwarded to me are ones of public policy within the meaning of 
G.L. c. 53, §19. You further requested an opinion of what simple, unequivocal 
and adequate form is best suited for presentation of these questions on the ballot. 

As my predecessors, I am of the opinion that the term "public policy" as used 
in G.L. c. 53, §19, should not be given a restrictive meaning. 1980/81 Op. Atty. 
Gen. No. 6, Rep. A.G., Pub. Doc. No. 12 at 109(1980). Each question must con- 
cern an important public matter in which every citizen of the Commonwealth would 
have an interest. 1980/1981 Op. Atty. Gen. No. 6, Rep. A.G., Pub. Doc. No. 
12 at 109 (1980); 1978/79 Op. Atty. Gen. Nos. 8 and 17, Rep. A.G., Pub. Doc. 
No. 12 at 114 and 121 (1978). Moreover, the instruction contained in each ques- 
tion must be consistent with the powers of the Legislature and the subject matter 
must be fit for lawmaking. 1980/81 Op. Atty. Gen. No. 6, Rep. A.G., Pub. Doc. 
No. 12 at 109 (1980). Even when questions concern a small geographic area, if 
the problem is one of concern to the Commonwealth in general, then the question 
may be considered one of public policy. 1980/81 Op. Atty. Gen. No. 6, Rep. A.G., 
Pub. Doc. No. 12 at 109. (1980); 1978/79 Op. Atty. Gen. Doc. Nos. 16, 17, and 
18, Rep. A.G., Pub. Doc. No. 12 at 121-123 (1978); 1974/75 Op. Atty. Gen. No. 
11, Rep. A.G., Pub. Doc. No. 12 at 54 (1974). 

Certain additional requirements, however, must be satisfied before the questions 
may appear on the ballot. The requirements to which I make reference are con- 
tained in G.L. c. 53, §§19, 20, and 21, and involve a number of statutory prohi- 
bitions which involve questions of fact. For example, a question which is technically 
accurate and presents an important public issue may not appear on the ballot if 
the question is substantially the same as one which has been submitted to the voters 
within less than three years. G.L. c. 53, §21 . As Secretary of the Commonwealth, 
you have in your possession past election ballots from each of the relevant dis- 
tricts and, therefore, you are in a better position than 1 to make the factual deter- 
mination required by the statute. 

Consequently, I have made no independent inquiry to determine whether these 
questions are statutorily defective for any reason other than a failure to qualify 
as a public policy question in proper form for presentation on the ballot. 1980/81 
Op. Atty. Gen. No. 6, Rep. A.G., Pub. Doc. No. 12 at 109 (1980); see 1958/59 
Op. Atty. Gen. No. XII, Rep. A.G., Pub. Doc. No. 12 at 44 (1958). 



P.D. 12 85 

With these considerations in mind, it is my opinion that the following questions 
are ones of public policy within the meaning of G.L. c. 53, §19, and should appear 
on the ballot in the following form: 

Representative District: 5th Essex 

Shall the Representative from this district be instructed to vote in favor of a reso- 
lution requesting the United States and the Soviet Union to adopt a mutual freeze 
on the testing, production, and deployment of nuclear weapons and of missiles and 
new aircraft designed primarily to deliver nuclear weapons? 

Representative District: J 7th Essex 

Shall the Representative from this district be instructed to vote in favor of a reso- 
lution requesting the President of the United States to propose to the Soviet Union 
a mutual freeze on the testing, production and deployment of nuclear weapons and 
of missiles and new aircraft designed primarily to deliver nuclear weapons, with 
verification safeguards satisfactory to both countries? 

Senatorial District: 2nd Middlesex 

Shall the Senator from this district be instructed to vote in favor of a resolution 
requesting the United States and the Soviet Union to stop the nuclear arms race, 
and specifically to adopt a mutual, verifiable freeze on the testing, production and 
deployment of nuclear weapons and of missiles and new aircraft designed primarily 
to deliver nuclear weapons? 

Representative District: 21st Middlesex 

Shall the Representative from this district be instructed to vote in favor of a reso- 
lution requesting the President of the United States to propose to the Soviet Union 
a mutual nuclear weapons freeze immediately halting the testing, production, and 
deployment of all nuclear warheads, missiles, and delivery systems; and to fur- 
ther propose future reductions in the number of these nuclear warheads, missiles 
and delivery systems? 

Representative District: 35th Middlesex 

Shall the Representative from this district be instructed to vote in favor of a reso- 
lution requesting the United States and the Soviet Union to adopt a mutual freeze 
on the testing, production, and deployment of nuclear weapons and of missiles, 
submarines and new aircraft designed primarily to deliver nuclear weapons? 

Representative District: 9th Hampden and four other Representative Districts^ 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation properly before the General Court requiring the city of Springfield to adopt 
the lowest tax rate for residential property allowed by the property tax classifica- 
tion law? 



lOth. llth. 12th and 13th Hampden. 



86 P.D. 12 

Representative District: 18th and 19th Middlesex 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation properly before the General Court requiring the city of Lowell to adopt the 
lowest tax rate for residential property allowed by the property tax classification 
law? 

Representative District: 13th Worcester and four other Representative Districts^ 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation properly before the General Court requiring the city of Worcester to adopt 
the lowest tax rate for residential property allowed by the property tax classifica- 
tion law? 

Representative District: 5th Bristol and eight other Representative Districts^ 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation creating a state fund to clean up hazardous waste sites, to be financed through 
a special tax on businesses which produce wastes and not through general tax 
revenues? 

Representative Districts: 5th Bristol and 1 1th Essex 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation requiring businesses to disclose to their employees and to residents of adjoin- 
ing neighborhoods the identity of all toxic chemicals which those businesses use, 
store, discharge or produce? 

Senatorial Districts: Bristol and Plymouth; Worcester; 1st Worcester and Middle- 
sex; and Fourteen Representative Districts^ 

Shall the Representative from this district be instructed to vote in favor of a reso- 
lution calling upon the United States Congress to make more federal funds avail- 
able for equal opportunity jobs and programs in education, public transportation, 
energy efficient housing, health care, and other services, and to obtain those funds 
by significantly reducing the amount spent on nuclear weapons and programs of 
foreign military intervention? 

Representative District: 15th Suffolk 

Shall the Representative from this district be instructed to vote in favor of a reso- 
lution calling upon the United States Congress to make more federal funds avail- 
able for jobs and programs in education, public transportation, energy efficient 
housing, health care, and other services and to obtain those funds by significantly 
reducing the amount spent on nuclear weapons and programs of foreign military 
intervention? 



^ I4th, 15th. 16lhand 17th Worcester 

' ISlhand I9lh Middlesex. 16th Suffolk. 13th. Uth. l.Sth. 16th and 17th Worcester 

* 8th Bristol; 2nd. 10th. Ilth and 1 Mh Hampden; 1st and Md Hampshire; 17lh. 18th and 19th Middlesex; 12th Norfolk; "Jth. 10th. 
and 1 llh Plymouth 



P.D. 12 87 

Representative District: 5th Suffolk and four other Representative Districts^ 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation controlling residential rents and evictions, assuring a fair net income to the 
owner, and exempting owner-occupied two and three family dwellings? 

Representative District: 5th Suffolk and four other Representative Districts^ 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation banning condominium and cooperative conversion of residential rental 
property for at least the next three years? 

Representative District: 1st Bristol 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation promoting, developing and encouraging a greyhound breeders program simi- 
lar to the program granted both the thoroughbred and harness horse industry in 
this state? 

Representative District: 9th Hampden and three other Representative Districts'' 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation creating a comprehensive state program to weatherize homes, businesses 
and public buildings, to be financed through a tax on major oil companies? 

Representative District: 28th Middlesex 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation restricting attorneys' fees in workers' compensation cases to no more than 
5% of any lump sum settlement awarded to an injured worker? 

Senatorial District: Norfolk & Plymouth 

Shall the Senator from this district be instructed to vote in favor of a constitu- 
tional amendment requiring all sales tax revenues to be returned to cities and towns? 

Senatorial District: Norfolk & Plymouth 

Shall the Senator from this district be instructed to vote in favor of legislation 
repealing the law which requires consumers to pay utility company fuel adjust- 
ment charges? 

Representative District: 11th Suffolk 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation properly before the General Court requiring the City of Boston to sell por- 
tions of the Arnold Arboretum for private development, the proceeds to be 
earmarked for security patrols and other safety programs in the park? 



' 9lh. 17lh. 18th and Wlh Sulfolk. 
* 9lh. I7ih. 18th and 19th Sulfolk. 
^ lOlh. 11th and 12th Hampden. 



88 P.D. 12 

Representative District: Nth Suffolk 

Shall the Representative from this district be instructed to vote in favor of legis- 
lation properly before the General Court providing for public review and approval 
of public safety manning levels, by district, in the City of Boston? 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



December 29, 1982 
Number 4. 

Michael Joseph Connolly 

Secretary of State 

State House 

Boston, Massachusetts 02133 

Dear Secretary Connolly: 

You have asked my opinion whether chapter 455 of the Acts of 1 982 ( * 'chapter 
455"), entitled "An Act providing a new salary schedule for the executive and 
legislative and judicial departments," may be the subject of a referendum peti- 
tion under Article 48 of the Amendments to the Massachusetts Constitution. 

Your opinion request arises because a referendum petition calling for the repeal 
of this law has been filed with your office in a timely fashion signed by ten quali- 
fied voters of the Commonwealth. The particular question presented by your opin- 
ion request concerns whether the Act may be the subject of a referendum petition. 
A law that relates to any matter excluded from the referendum process, including 
a law that relates to the compensation of judges, may not be the subject of a referen- 
dum petition. Amendments, Article 48, The Referendum, Pt. Ill, §3 ("Article 
48"). If the Act does not relate to an excluded matter, you have the constitutional 
obligation of preparing blank petitions for the use of subsequent signers. The 
answer to the particular question which you pose is so clearly in the negative that 
extended discussion is unnecessary. 

On November 10, 1982 the Governor signed chapter 455 into law. Section one 
of this Act makes certain changes in the salaries of the members of the general 
court and modifies their salary schedule depending upon their positions and duties 
within the legislature. Sections two through seven increase the salaries of the Gover- 
nor and the other constitutional officers. Sections eight, nine and ten increase the 



P.D. 12 89 

compensation provided the justices of the Supreme Judicial Court, the Appeals 
Court and the Trial Court of the Commonwealth.' 

Under the provisions of Article 48, "No law that relates to . . . the appoint- 
ment, qualification, tenure, removal or compensation of judges . . . shall be sub- 
ject to a referendum petition." Amendments, Article 48, Pt. Ill, §2. The excluded 
matters provision has consistently been read to mean that if any portion of a law 
relates to a matter excluded from the referendum process, the law in its entirety 
may not be the subject of a referendum petition. 8 Op. Atty. Gen. at 331 , 334-335 
(1927). This conclusion is supported by an examination of the debates of the con- 
stitutional convention^ and the long established principle that a referendum may 
be conducted only as to an entire Act of the Legislature as adopted and not as to 
any of its sections. 1965-66 Op. Atty. Gen.. Rep. A.G., Pub. Doc. No. 12 at 312 
(1966). 

It is clear that chapter 455 relates to the compensation of judges, as the Act 
expressly amends the statutory provisions which set the compensation forjudges, 
and as its very title indicates, provides a new salary schedule for the judicial depart- 
ment. Because chapter 455 relates to a matter excluded from the referendum 
process, it is my opinion that it may not be the subject of a referendum petition. 
Therefore you should not proceed to provide blank forms for the use of subse- 
quent signers. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Those sections provide as follows; 

Section 8. Section 22 of chapter 2 1 1 of the General Laws is hereby amended by striking out the first sentence, as most recently amended 
by section 4 of chapter 632 of the acts of 1981, and inserting in place thereof the following sentence: — The chief justice of the 
court shall receive a salary of sixty-five thousand dollars and each associate justice a salary of sixty-two thousand five hundred dollars; 
and the chief justice and each associate justice shall annually receive from the commonwealth, upon the certificate of the chief justice, 
the amount of expenses incurred by them in the discharge of their duties. 

Section 9. Section 2 of chapter 2 1 1 of the General Laws Is hereby amended by striking out (he first sentence, as most recently amended 
by section 6 of said chapter 632, and inserting in place thereof the following sentence: — The chief justice shall receive a salary 
of sixty-two thousand five hundred dollars and each associate justice a salary of sixty-two thousand five hundred dollars; and the 
chief justice and each associate justice shall annually receive from the commonwealth, upon the certificate of the chief justice, the 
amount of expenses incurred by them in the discharge of their duties. 

Section 10. Section 4 of chapter 21 IB of the General Laws is hereby amended by striking out the first three paragraphs, as amended 
by section 10 of said chapter 632. and inserting in place thereof the following three paragraphs: — 

The salariesof the justices of the trial court shall be paid by the commonwealth. Each associate justice shall receive as a salary sixty 
thousand dollars. 

The administrative justices of the superior court department, the land court department, the housing court department, the probate 
and family court department, the Boston municipal court department, the juvenile court department and the district court department 
shall receive sixty-two thousand five hundred dollars. 

The chief administrative justice shall receive as a salary sixty-two thousand five hundred dollars. 

The Resolutions as originally considered by the Constitutional Convention provided that a referendum petition could be filed on any 
law enacted by the General Court which is not an emergency measure or on "any part thereof." 2 Debates in the Consititutional 
Convention, 3-6 and 674-678 (Wright & Poner Printing, 1917-1918). Upon a Motion by Mr. Lincoln Bryant of Milton, the Convention 
accepted an amendment striking the provisions allowing for a referenda on parts of Acts. Id. at 69.'i-702 Mr. Bryant had explained 
the rationale of his amendment by stating, "If any part of a law is to be rejected the whole law ought to be considered and it is almost 
impossible for the voters to take a part of a law without the rest of the law before them and to decide intelligently whether that one 
particular part ought to come out." Id. at 694. As finally adopted by the voters. "Article 48" does not provide a means by which 
a referendum may be held on a part of a law. 



90 P.D. 12 

January 7, 1983 
Number 5. 

Romulus DeNicola, Executive Secretary 
Board of Registration in Pharmacy 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Dr. DeNicola: 

On behalf of the Board of Registration in Pharmacy (hereinafter, "the Board"), 
you have requested an opinion of the Attorney General on questions relating to 
Chapter 706 of the Acts of 1981 which altered the provisions of G.L. c. 1 12, §39A, 
to permit a restricted pharmacy to accept and fill prescriptions by mail. ' Specifi- 
cally, you wish to know whether Chapter 706 eliminates the requirement that re- 
stricted pharmacies may accept and fill by mail only those prescriptions issued by 
physicians registered with the Commissioner of Public Health in accordance with 
G.L. c. 94C, § 18(c). You also request a description of the changes made by Chapter 
706 in the statutory obligations of restricted pharmacies that wish to accept and 
fill prescriptions by mail. 

After reviewing the legislative history of Chapter 706 and judicial interpreta- 
tions of the statute as enacted by the Legislature, I have concluded that Chapter 
706 eliminates the former requirement which authorized restricted pharmacies to 
accept and fill by mail only those prescriptions issued by physicians registered with 
the Commissioner of Public Health in accordance with G.L. c. 94C, § 18(c). Before 
filling a prescription by mail, a restricted pharmacy must still verify in accordance 
with the Board's regulations that the prescribing physician is licensed to practice 
in Massachusetts or any other New England state, but the pharmacy no longer must 
determine whether the physician is registered with the Commissioner of Public 
Health in accordance with G.L. c. 94C, §18(c). 

Chapter 706 originated with the filing of a petition, S. 613, ^ five days after I 
issued an opinion on May 5, 1981 . That opinion reconciled minor inconsistencies 
between G.L. c. 94C, §18(c), and G.L. c. 1 12, §39A, and concluded, inter alia, 
that a restricted pharmacy may accept and fill by mail prescriptions issued only 
by those out-of-state physicians who are registered in accordance with the latter 
statute. Without doubt, the petition was a response to that Opinion and was filed 
in order to eliminate the requirement of registration for those physicians. Initially, 
the petition was referred to the Senate Committee on Health Care and thence 
reported favorably to the Senate Committee on Ways and Means. Mass. S. Jour. 
56A, 575 (1981). The Ways and Means Committee redrafted the provision and 
recommended to the Senate that the bill as amended (and renumbered as S. 2339) 



' That amcndnicnl inserted the following language: 
notwithstanding the provisions of paragraph (c) of section eighteen of chapter ninel> -four C or any other law to the contrary . . . 

^ The original pclition provided. 

Notwithstanding any laws or regulations to the contrary, nothing shall prohibit a restricted pharmacy from accepting and filling 
prescriptions written by physicians from the Commonwealth of Massachusetts or any New England state by mail; provided, however, 
that said prescriptions are authentic, in the reasonable professional judgment of the pharmacist. 



P.D. 12 91 

ought to pass. Mass. S. Jour. 1326 (1981). The new draft substituted by the Ways 
and Means Committee provided: 

Nothing in this section shall prohibit a restricted pharmacy from accept- 
ing and filling prescriptions by mail; provided, however, that, notwith- 
standing any provisions of section 18(c) of chapter 94C to the contrary, 
the prescribing physician is verified, according to procedures estab- 
lished by the board, as licensed to practice in the commonwealth or 
in any New England state. 
On October 26, 1981, S. 2339 was ordered to a third reading which resulted 
in some alterations of the Ways and Means Committee draft. The principal change 
accomplished by the floor amendments adopted during the third reading was the 
insertion of the phrase "or any other law" after the reference to "section 18(c) 
of chapter 94C." The measure passed the Senate and went to the House of Rep- 
resentatives where it was approved without alteration. Mass. S. Jour. 1401 (1981); 
Mass. H. Jour. 1788, 1794, 1841 (1981). S. 2339 was signed by the Governor 
on December 24, 1981. Mass H. Jour. 1868 (1981); Mass. S. Jour. 1685(1981). 
This brief review of the legislative history of Chapter 706 reveals that from the 
outset the measure contained language which would remove the application of G.L. 
c. 94C, § 18(c), to prescriptions filled by mail by restricted pharmacies. The original 
petition, S. 613, began with the words: "Notwithstanding any laws or regulations 
to the contrary.^ Although the revised draft substituted by the Ways and Means 
Committee, S. 2339, preserved the exemption contained in the original petition, 
it substantially narrowed the exemptory language by requiring that "notwithstand- 
ing any provisions of section eighteen (c) of chapter 94C to the contrary" a re- 
stricted pharmacy may fill a prescription by mail provided that it first verifies, 
in accordance with the Board's regulations, that the prescribing physician is licensed 
to practice in Massachusetts or any New England state. The final language of the 
measure, after being amended during the Senate's third reading, excludes the oper- 
ation of not only G.L. c. 94C, § 18(c), but "any other law to the contrary." 

The conclusion to be drawn from the legislative process which led to the enact- 
ment of Chapter 706 is clear. The purpose for enacting the measure was to eliminate 
the obligation of restricted pharmacies to ensure that all prescriptions filled by mail 
were issued by physicians registered with the Commissioner of Public Health in 
accordance with G.L. c. 94C, § 18(c). This objective is firmly established by the 
language selected by the Legislature explicitly exempting pharmacies from deter- 
mining whether a physician has complied with G.L. c. 94C, §18(c), before it fills 
by mail a prescription issued by that physician. The key phrase, "notwithstand- 
ing the provisions of paragraph (c) of section eighteen of chapter ninety-four C 
or any other law to the contrary," leaves no room for doubt that the procedures 
to be followed by a restricted pharmacy before it fills a prescription by mail are 
limited to those established by the Board's regulations for verifying that the 
prescribing physician is licensed to practice in the Commonwealth or any other 
New England state. 



The language of S. 613 was cxlreniemly broad and could have been intcrpreled to exempt restricted pharmacies even from complying 
with the Board's regulations for verifying that a physician is actually licensed to practice in the Commonwealth or any New England 
state before filling by mail a prescription issued by that physician 



92 P.D. 12 

The term "notwithstanding'' means in spite of or without obstruction from any 
other outside factor. Missouri Pacific Railroad Company v. Rental Storage and 
Transit Company, 524 S.W. 2d 898, 908 (Mo. App. Ct. 1975); State v. Board 
of Education of Hardin County, 170 Ohio St. 415, 165 N.E. 2d 918, 923 (1960). 
"[NJotwithstanding [the provisions of G.L. c. 94C, §18(c)] or any other laws to 
the contrary" therefore means that the provisions of G.L. c. 112. §39A, operate 
in spite of and without prevention or obstruction from G.L. c. 94C, §18(c), or 
any other statute establishing a different requirement. Cf Matter of Oswego Barge 
Corp. , 664 F.2d 327, 340 (2d Cir. 1981); Tug Ocean Prince, Inc. v. United States, 
584 F.2d 1 151, 1 162 (2d Cir. 1978) cert, denied, 440 U.S. 959 (1979); State v. 
Superior Court of County of Los Angeles, 252 Cal. App. 2d 637, 60 Cal Rptr. 653 
(1967). 

Thus, the plain language, as well as the legislative history of Chapter 706, 
requires an affirmative answer to your first question. This amendment to G.L. c. 
112, §39A, eliminates the requirement discussed by the Attorney General in his 
earlier opinion that restricted pharmacies may accept and fill by mail only those 
prescriptions issued by phys'cians registered with the Commissioner of Public 
Health in accordance with G.L. c. 94C, §18(c). 

Finally, you ask "[w]hat change in law is mandated by this new statute." Chapter 
706 makes only one alteration in the pre-existing law governing restricted phar- 
macies. It eliminates the restrictions formerly imposed by G.L. c. 94C, §18(c), 
and any other law to the contrary on the privilege of a restricted pharmacy to accept 
and fill prescriptions by mail. All other requirements and limitations on the opera- 
tion of the prescription services of restricted pharmacies remain in force. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



February 1, 1983 
Number 6. 

Francis D. Pizzella 

Deputy Commissioner 

Division of Saving Bank Life Insurance 

120 Tremont Street 

Boston, Massachusetts 02108 

Dear Mr. Pizzella: 

You have requested my opinion regarding the reinsurance' powers of Mas- 
sachusetts saving bank life insurance C'SBLI") departments. Specifically, you ask 
whether: (1 ) SBLI departments are authorized to accept reinsurance risks pursuant 
to the general powers conferred by G.L. c. 178, §6, or any other authority, and 
(2) if so, whether the requirements of G.L. c. 175, §54G, are applicable to the 



"Reinsurance" has been defined as a conlraci entered inli) between insurance companies, with an obligation on the part of the reinsurer 
only to the company insured, and not to those persons whom the latter itself covered. Il is. in essence, a contract of indemnity. 194.^ 
0\< Atty. Gen.. Rep. A.G., Pub. Doc. No, 12 at 83. S6 87. (194.1). 



P.D. 12 93 

reinsurance activities of SBLI departments.- For the reasons set forth below, it 
is my opinion that SBLI departments lack the statutory authority to reinsure risks 
on group life insurance policies underwritten by a commercial insurance company. 
As a result of this determination, I need not answer your second question. 

SBLI departments have a lengthy history in Massachusetts. Three quarters of 
a century ago, the legislature enacted the precursor to G.L. c. 178, an "Act to 
Permit Savings Banks to Establish Life Insurance Departments." The stated pur- 
pose of this statute was to make low cost life insurance available to savings bank 
customers. Consistent with this intent, the legislature placed an original ceiling 
of five hundred dollars ($500) on the amount of life insurance that a savings bank 
may write for any one customer. St. 1907, c. 561, §10. This figure was raised 
most recently in chapter 276 of the Acts of 1982, to an aggregate maximum cover- 
age totalling one thousand dollars per bank.' As a practical matter, this presently 
allows for approximately $64,000 total life insurance coverage per bank customer." 

As your request correctly suggests, the operative statute is section six of chap- 
ter 178,"* which allows SBLI departments to "make and issue policies" and "grant 
and sell annuities." The statutory authority vest SBLI departments "with all the 
rights, powers and privileges and subject to the duties . . . imposed by general 
laws'' relating to . . . life insurance companies, so far as the same are appliea- 
hle. ' ' The term ' 'applicable" in this modifying clause must be construed in a man- 
ner consistent with the basic principles and purposes of the Act. Custody of a Minor, 
13 Mass. App. Ct. 66 (1982). It would be inconsistent with these purposes to read 
section six as authorization for SBLI departments to enjoy all of the same rights 
and privileges of commerical insurance companies since, to do so, would render 
these words of limitation mere surplusage. Commonwealth v. Gove, 366 Mass. 
351, 354 (1974); Commonwealth v. Woods Hole, Martha's Vineyard and Nan- 
tiieket Steamship Authority. 352 Mass. 617, 618 (1967) (no portion of statutory 
language may be deemed superfluous). Moreover, SBLI departments were estab- 
lished in a separate chapter of the General Laws, and are subject to vastly differ- 
ent licensing and operational requirements. 



- You have presented Ihi.s question in the tactual context ol a proposed Reinsurance Agreement (■■Agreement") helwcen an out-of- 
state commercial life insurance company, and Massachusetts SBLI departments. You describe this Agreemcnl as having resulted 
from ■■a need among savings bank customers for low cost group mortgage life insurance." 

Briefly, the Agreement requires that the insurance company underwrite a policy of group mortgage life insurance for savings bank 
cu.stomcrs holding mortgages. In turn, the SBLI department would reinsure a substantial percentage of the risk involved. The Agreement 
further provides that no right or legal relation is created between the SBLI department and the policy holders. The maximum hfe 
msurance coverage for an individual savings bank customer contemplated by the plan is only hniited hy the consiranils put upon 
the commercial msurance company— in this ease. $200,000. 

As It IS not the function of the Attornev General to pass upon questions of tact, policy, or discrcMon ( 1962 Op. Alty. Gen , Rep 
AG,, Pub. Doc. No. 12 at 199, 200 ('|962)), my response to your questions shall he limited to the legality of SBLI departments 
to reinsure these risks. 

' In Its present form, G.L. c. 178, SIO, reads, in perlinenl pari: 

Vic iii;ifri'f;titc iiiiinuni o/'icivinx'' hunk life in.siiniiuc whiih imiy he issiicil or in force at any time on any one life, in all sa\ings and 
insurance hanks, shall nol extccit an aagn-f^alc ainounl which mnild he equal to one ihintsand dullars in each .\a\inf;\ inhl insiirame 
Ihnd. exclusive of group insurance, payor insurance, dividends and profits (emphasis added) 

■* This Hgure rellects the tact that there are approximately sixtv-ltiur banks across the Commonwealth currently issuing SBLI. 

' G.L. c. 178. (jh, reads in full: 

Any savings and insurance bank acting through its insurance department, after the issue of the license provided for in the following 
section, »i((y make and L\.siie policies upon the lives of persons and jirani or sell annuities with all the rights, powers and privileges 
and subject to all the duties, liabilities and restrictions in respect to the conduct of the business of life insurance conferred or 
imposed by general laws relating to domestic legal reserve life insurance companies, so far as the same are applitahlc and 
except us is otherwise provided herein. The insurance department shall in all respects, except as is otherwise provided herein, 
be managed as savings banks are managed under general laws relating to savings hanks. Such insurance department may decline 
particular classes of risks or reject any particular application; provided, however, said insurance dcp.irlment may nol decline 
or reject any application for the sole reason of blindness (emphasis added). 

* The general insurance laws are codified in G.L. c. 175. 



94 P.D. 12 

There is nothing in the original Act or subsequent legislation, to suggest that 
the legislature comtemplated the power to engage in all forms of reinsurance'' to 
be among those insurance powers generally "applicable" to SBLI departments. 
Rather, there are only limited circumstances, outlined inthe original legislation, 
under which SBLI departments have statutory powers to reinsure. In particular, 
c. 178. §7, unchanged in pertinent part since its enactment, gives an SBLI depart- 
ment who.se license to write policies has been revoked by the insurance commis- 
sioner, the right: 

to continue and fulfill its existing contracts, or the right, with the 
approval of said commissioner, to reinsure them or to transfer them 
to another bank or company holding a license to do insurance busi- 
ness in the commonwealth (emphasis added). 
Additionally, section 25 (formerly section 26) allows an SBLI department to 
"discontinue the issuing of insurance policies and annuity contracts" upon the vote 
of its board of trustees, and to reinsure the outstanding ones.** 

It is clear, then, that the legislature comtemplated only limited reinsurance 
powers in SBLI departments under particular circumstances, requiring the approval 
of the Commissioner of Insurance for reinsuring policies. Had the legislature 
intended SBLI departments to assume the general reinsurance powers of commer- 
cial insurance companies, it would not have included the limiting proviso in G.L. 
C.178, §6, and would not have delineated in sections 7 and 25 these particular 
situations^ where reinsurance of existing policies is permitted. The specific inclu- 
sion of limited reinsurance powers in those sections'" of the 1907 Act implies an 
intentional omission of reinsurance powers in related sections. See First National 
Bank of Boston v. Judge Baker Guidance Center, 13 Mass. App. Ct. 144 (1982) 
(where specific language appears in one part of statute, but not in others that treat 
same topic, language cannot be implied where not present). An attempt to supply 
the larger authority for an SBLI department to write reinsurance contracts would 
be tantamount to adding a meaning not clearly intended by the legislature. See Boyl- 
ston Water District v. Tahanto Regional School District , 353 Mass. 81 (1967) (if 
statutory omission intentional, no court can supply it; if due to inadvertance, attempt 
to supply, it adds meaning not intended by legislature). 

The 1907 Act was proposed to provide for low cost life insurance to savings 
bank customers of modest means, ' ' and its enactment as a separate chapter in the 
general laws is but one indication that the legislature intended to keep SBLI depart- 
ments distinct from commercial insurance companies. Commerical companies are 



■■RcinsuraiKc" is tictmcd M lootmuc I. ahove. 

" Thai stalulo provides: 

A bank which has st* voted mu\' winMiic nil tuit^itintlini; poitt i{'\ uiiil nnnmiv ttmtrtu i\ in tun cthci \tt\iiii;\ titul iti\iinifi( c hank, 
or. with ihc appi ovul tif ihr i iniiinisshmrr nj idmiiiihic unit ihi' iommi'-\uinci i>f hunks, in tni\ piinlv nniliial Ici^iil ic\cr\c life 
in\unintc tiinipiiny iirfianKril under ihc la\y\ of ihc coinntonwcahh. it such company docs nol employ sohcilors ol insurance 
or make house lo house collection premiums (emphasis addedl 

'' Ol special note, these apparently isolated instances in G L. c, 178. !}!J7and25. whereby SBLI departments are empowered to reinsure, 
concern situations where the SBLI department is giving, or "ceding." its risk on policies writlen by the SBLI department lo another 
insurance carrier. By contrast, the .\grecment proposed in this opinion request requires that the SBLI deparlments iheiiiselves reinsure 
by accepting a portion of the risk on policies written by the commercial insurance company 

'"Although subsequenl changes have been made in the original 1907 Act, sections 7 and 2.'^ of chapter I7X remain the only statutes 
in that chapter where a reinsurance p<mer is specifically granted lo SBLI deparlments Also, General Laws chapter .^2A. section 
4. and General Laws chapter .12B. section .^. allow SBLI departments to reinsure lor certain types olgroup policies, inapplicable here. 

" Sec Report ol the .loint Special Committee on Insurance. House Doc No. lOK.S. at .S4 .S.S (1907), 



P.D. 12 95 

licensed to underwrite and market policies providing extensive coverage, with 
greater reinsurance powers. By contrast, SBLI departments may only reinsure life 
insurance permits pursuant to G.L. c. 178, §§7 and 25. 

In light of these specified provisions for reinsurance in G.L. c. 178, it appears 
that the legislature intended the words "insurance" and "reinsurance," to carry 
distinct and separate meanings. A savings bank "insurance department" is defined 
as " 'the department of a savings and insurance bank in which the business of issu- 
ing life insurance and the granting of annuities is conducted" (emphasis added). 
St. 1907, C.561, §1; G.L. c. 178, §1. By reference, the general insurance chap- 
ter, G.L. c. 175, did not define "insurance" to include "reinsurance" until 1921, 
at which time the blanket authority for a commercial company which could make 
insurance contracts to reinsure risks was codified. '^ 

Words are to be given their usual and ordinary meaning in light of the aim of 
the legislature, unless there is a clear indication to the contrary. Purity Supreme, 
Inc. v. Attorney General, 1980 Mass. Adv. Sh. 1349; Commonwealth v. Vickey, 
1980 Mass Adv. Sh 2355; Prudential Insurance Company of America v. City of 
Boston, 369 Mass. 542 (1976); Randall's Case, 331 Mass'. 383 (1954). Although 
the power to engage in insurance may include the power to reinsure for commer- 
cial insurance companies, the plain meaning of the term "insurance" does not 
include "reinsurance." Use of the term in G.L. c. 178, §6, must be construed 
in light of the pre-existing state of the law which defined and treated such con- 
tracts differently, as well as the development and purpose of the 1907 Act which 
established SBLI departments under a separate and distinct chapter from commer- 
cial insurance companies. Murphy v. Bohn, ?>11 Mass 544 (1979); A. Belanger 
& Sons, Inc. v. Joseph M. Concannon Corp., 333 Mass. 22 (1955). 

Consistent with the SBLI statute's failure to bestow broad reinsurance powers, 
the reinsurance statute found in the general insurance chapter does not include SBLI 
departments among those authorized to reinsure. Chapter 175. §20, which governs 
reinsurance and enables commercial insurance "companies" to "reinsure" in any 
other company any part or all of any risks assumed by it, could not apply by defi- 
nition. The term "company" is defined in section 1 of chapter 175 as "all corpo- 
rations, associations, partnerships or individuals engaged as principals in the 
business of insurance . . . . " This definition clearly does not include SBLI depart- 
ments either expressly or by implication, since SBLI departments are not "prin- 
cipals in the business of insurance." 

Major differences exist between G.L. c. 175, the general insurance law, and 
G.L. c. 178, the more specific Act creating SBLI departments. When construing 
the specific sections of G.L. c. 178, including their applicability to G.L. c. 175, 
he provisions of the statute must be read as a whole, to provide a harmonious body 
3f law which is consistent, so far as possible, with the legislative intent behind 
he Act. Jones v. Town of Way land, 1980 Mass. Adv. Sh. 669; Lxibor Relations 
Commission v. Board of Selectmen ofDracut, 374 Mass. 619 (1978). Chapter 178 
establishes and governs only SBLI departments, one part of a savings bank's oper- 



^ General Laws c. 175. §2A, provides: 

Cnnlracts of reinsurance shall be deemed contracts of insurance as defined in section two. and authority to make contracts of 
insurance shall include authority to make contracts of reinsurance covering the same classes of risks, but the hazards under 
such contracts shall be deemed distinct in nature from the hazard originally insured. No provision of law relative to the form 
of insurance policies shall apply to contracts of reinsurance unless made specifically applicable thereto. 



96 P.D. 12 

ation, in contrast to those companies regulated by chapter 175 which are in the 
sole business of providing insurance.'^ 

Viewing the 1907 Act and its subsequent revisions as a whole, and in light of 
the manifest purpose of establishing SBLI departments, I cannot say that the legis- 
lature intended these departments to enjoy all of the rights and privileges of com- 
mercial insurance companies. In short, the power to reinsure large risks on policies 
underwritten by a commercial company is inconsistent with the purposes of the 
Act, and thus not a power "applicable" to the authority granted SBLI departments 
to "make and issue policies" and "grant and sell annuities," as provided by G.L. 
c. 178, §6. 

While I am mindful of the benefits which the proposed Agreement may bestow 
upon potential customers of group mortgage SBLI, the authority for SBLI depart- 
ments to participate in such reinsurance contracts must come from the legislature. 

Very truly yours, 
^ FRANCIS X. BELLOTTI 

\ Attorney General 



February 3, 1983 
Number 7. 

John W. Lawson, Commissioner 
Department of Education 
1385 Hancock Street 
Quincy, Massachusetts 02169 

Dear Commissioner Lawson: 

You have requested my opinion concerning the scope of a school committee's 
responsibility for transportation of non-public school students.' Specifically, you 
ask whether General Laws chapter 76, section 1 , requires a school committee to 
provide cash reimbursement to parents of students attending out-of-district pri- 
vate regular day schools for that part of the bus trip that takes place within the dis- 
trict, where the school committee transports no public school students out of district 
to comparable programs. If so, you ask whether the amount of reimbursement must 
be in an amount equal to the per pupil transportation cost the school committee 
expends for district public school transportation. 

For the reasons set forth below, it is my conclusion that school committees are 
not required to provide cash reimbursements to parents of private school students 
attending out-of-district schools. The Department of Education therefore has no 
corresponding responsibility to reimburse a school committee which chooses to 
reimburse parents of private school students for those transportation costs. Since 



As an additional note, ihc general insuranec laws piaee strict lirnilaluins upon group lite insurance policies underwritten b\ eoinniereial 
insurance companies, as well as by SBLI departments- For example. G.L. c. I7.'>. SI3.^C, limits group lite insurance to debtors 
of a bank on maximum bank loans of $U),(XX), payable over ten years or less. The proposed Agreement would contravene this statutory 
provision, since the prospective policy holders would be mortgagors holding home mortgage debts well in excess of $10,000 and 
payable over more than ten years. 

Your request derives from your responsibilities to advise school committees concerning their legal duties and to ensure that the laws 
pertaining to education are enforced. See. e.g., G.L. c. 15, SIG. In addition, the Department of tiducation has the statutory responsibility 
to reimburse schixil committees for the costs of transportation which they are required by law to furnish students. See. G.L. c. 71, §7A. 



P.D. 12 97 

I have answered your first question in the negative, I find no need to address your 
second question concerning the amount of reimbursement that must be provided 
to the parents of private school students. 

At the outset it should be observed that your question is a narrow one; it focuses 
on the responsibility of the school committee to reimburse parents of private school 
students for transportation to those schools. It does not involve a determination 
of the issue of the extent of the school committee's responsibility to provide trans- 
portation to private school students. 

This is not a distinction without difference. The Supreme Judicial Court has had 
occasion to address the issue of the responsibility of school committees to pro- 
vide transportation to private school students several times since the enactment 
of G.L. c. 76, §1 . See, Attorney General v. School Committee of Essex, 387 Mass. 
326 (1982); Murphy v. School Committee ofBrimfield, 378 Mass. 31 (1979); Quinn 
V. School Committee of Plymouth, 332 Mass. 410 (1955). 

The decision in those cases would appear to be totally dispositive of your ques- 
tions. In Murphy v. School Committee ofBrimfield, for instance, the Supreme Judi- 
cial Court held that district lines are the primary consideration in determining a 
school committee's private school transportation responsibility under G.L. c. 76, 
§1 : "private school students are entitled to receive transportation to schools located 
outside their district of residence only if, and to the extent that, public school stu- 
dents enrolled in comparable programs receive transportation to schools located 
outside their district of residence," 378 Mass. at 37. In its most recent decision, 
the Supreme Judicial Court held that where a school committee provides out-of- 
district transportation to public school students. General Laws chapter 76, sec- 
tion 1 , requires that it provide transportation to private school students under the 
age of sixteen who attend schools that are the same distance from home or closer 
than the public school the student is entitled to attend. Attorney General v. School 
Committee of Essex, 387 Mass. at 337. 

You inform me that the school committee in question here transports no public 
school students out of district, but under G.L. c. 76, §1, a school committee is 
required to provide out-of-district private school transportation only if it transports 
public school students in comparable programs out of the district. Murphy v. School 
Committee ofBrimfield, 378 Mass at 38 n.8 (1979). Because the case law clearly 
states that there is no requirement to provide reimbursement to the parents of pri- 
vate school students for out-of-district transportation, the inquiry would appear 
to be at an end. Because you have indicated that this remains an important ques- 
tion, however, I go beyond the dispositive opinions of the Supreme Judicial Court 
and analyze further the specific statutory provision to determine if there exist any 
new arguments, not considered by the Court, requiring cash reimbursement. 

In answering the question afresh, I begin with the provision of the statute itself 
and measure it by the cardinal rule of statutory interpretation succinctly 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 language, consi- 
dered 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. 



98 P.D. 12 

Thus, the language of the G.L. c. 76. §1. itself must be the starting point for 
determining its meaning, as well as the principal source of insight into the legisla- 
tive purpose for its enactment. Globe Newspaper Co. v. Superior Court, 379 Mass. 
846 (1980); Hojfincm v. Howmedica, Inc., 373 Mass. 32, 37 (1977). The language 
of G.L. c. 76, §1, providing for transportation to private school students is plain 
and unambiguous. It states, in relevent part that: 

Pupils who . . . attend private schools of elementary and high school 
grades . . . shall be entitled to the same rights and privileges as to trans- 
portation to and from school as are provided by law for pupils of public 
schools (emphasis supplied). 
The express language of this portion of G.L. c. 76, §1, deals with transportation. 
It does not authorize cash reimbursement. Thus, to answer your question one need 
go no further than the statutory language itself. 

Moreover, no support for cash reimbursement can be discerned from the stat- 
ute's legislative history or purpose. The purpose of school transportation, articu- 
lated in the statute itself, is "to protect children from the hazards of traffic and 
promote their safety," and it therefore provides that "cities and towns may 
appropriate money for conveying pupils to and from any schools approved under 
this section." G.L. c. 76, §1. See also, Attorney General v. School Committee 
of Essex, at 333-334. Indeed, cash reimbursement for school transportation might 
well be contrary to the public safety purpose of this provision. For example, par- 
ents providing their own transportation would necessarily increase traffic on the 
roads and highways and thereby create more hazards to the safety of children. 
School buses, on the other hand, operate to decrease extra traffic, making the road 
travel less hazardous. Furthermore, the operation of school buses is governed by 
specific statutory safety standards and motor vehicles laws require other vehicles 
to observe certain rules for the safety of those traveling in school buses. See gener- 
ally, G.L. c. 90, §§7B, 7C, 7D, 7D-1/2. Mere payment of a cash reimbursement 
to parents would not necessarily further the stated purpose of G.L. c. 76. §1. 

The fact that a town or regional school district may transport some public school 
students to out-of-district Chapter 766 programs, vocational -educational programs 
and cosmetology and health care programs does not create an obligation to pro- 
vide transportation for private school pupils attending regular or private school 
programs outside the districts. The Supreme Judicial Court has noted that a school 
committee's transportation of pupils in special needs, vocational and cosmetol- 
ogy programs does not trigger the regular private school transportation obliga- 
tion under G.L. c. 76, §1 , as these school programs are not comparable. Murphy 
V. School Comittee ofBrimfield, 378 Mass. at 33-34 n.3; Quinn v. School Com- 
mittee of Plymouth, 332 Mass. at 414. Under G.L. c. 76, §1, school committees 
are only required to transport private school students to educational programs that 
are comparable to the programs to which it transports public school students. ^ 

For all these reasons, it is my opinion that G.L. c. 76. §1 . requires that a school 
committee provide transportation to private school students only to the same extent 



^ As the Supreme Judicial Court has previously observed, this conclusion may operate to impose a disadvantage to those students attending 
private schools in those school districts where no private school exists and the school committee transports no public school students 
outside the district. This seeming inequality was raised by the Whitman-Hanson Regional School Committee in Murphy v. School 
Commillec ofBrimfield. 378 Mass. at 38 n.8. There, the Supreme Judicial Court expressly rejected the claim that this result was 
problematic under equal protection standards, /d. ; see also, Alloniey General y. School Commillee of Essex. 387 Mass. at 338 n.5 
(1982). 



P.D. 12 99 

provided to public school students. Where, as in this case, no public school stu- 
dents are transported outside the district and where there is no private school located 
within the district, there is no requirement that transportation be provided to the 
private school students. A fortiori, there is no corresponding or independent 
requirements to provide reimbursement to the parents of these private school 
students. While a school committee may decide to provide such transportation 
or to reimburse parents of private school students, G.L. c. 76, §1, imposes no 
requirement on the Department of Education to reimburse school committees for 
these costs. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 

February 14, 1983 
Number 8. 

His Excellency Michael S. Dukakis 
Governor of the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Governor Dukakis: 

In your letter of January 17, you informed me that there were two vacancies 
on the Massachusetts Port Authority. The statute which created the Authority pro- 
vides that no more than four of its members shall belong to the same political party. 
St. 1956, c. 465, §2. In your letter, you informed me that, of the then five mem- 
bers of the Authority, two are unenroUed in any party, two are enrolled as 
Democrats, and one is enrolled as a Republican. ' However, four of the members 
have changed their party affiliations at least once since their appointments, and 
you have requested my advice concerning the effects of these changes on your 
future appointments. Specifically, you seek my opinion with respect to the fol- 
lowing questions: 

1 . For the purpose of appointing a new member to the Authority, 
is the Governor to determine the political affiliations of current mem- 
bers as well as the affiliation of the prospective appointee through appli- 
cation of G.L. c. 4, §12? 

2. How is the determination of political affiliation to be made under 
G.L. c. 4, §12? 

3. May the Governor appoint to the Authority a person who is a 
member of a particular political party when the present membership 
of the Authority includes three members who belong to the same party 
as the proposed appointee, and a fourth member who has changed his 
affiliation to the same party, where the change has not yet taken effect 
under G.L. c. 4, §12? 



infornicd subscquenlly Ihul you ha\c llllcd one viicancv hy appointing a person who is presently unenrollcci 



100 P.D. 12 

4. What action, if any, should be taken if a member of the Authority 
changes his political affiliation and, when the change takes effect pur- 
suant to G.L. c. 4, §12, thereby causes the number of members with 
the same political affiliation to exceed four? 
For reasons which I will set out in the balance of this opinion, my answers to 
these four questions are as follows: 

First, it is my opinion that the provisions of G.L. c. 4, §12, are applica- 
ble to sitting members and to the appointee for the purpose of making 
a proper appointment to the Authority and that the Governor should 
determine the status of members and the potential appointee by focus- 
ing on their party affiliation on the day two years prior to the date he 
makes an appointment. With respect to the third question, it is my opin- 
ion that the Governor may make an appointment which is proper when 
made, notwithstanding that an imbalance on the Authority may arise 
in the future by reason of G.L. c. 4, §12. If such an imbalance does 
arise, it is the Governor's duty to correct the imbalance, if possible, 
in subsequent appointments. Since St. 1956, c. 465, §2, states a limi- 
tation on the Governor's authority, and not a continuing qualification 
to hold office once an appointment is properly made, no further guber- 
natorial action need be taken in respect of an imbalance on the 
Authority. 
The Massachusetts Port Authority was established in 1956 to operate the Mas- 
sachusetts Port, the Logan Airport, and the Mystic River Bridge. St. 1956, c. 465, 
§§1 et seq. Section two of the statute establishes a board of seven individuals to 
govern the operations of the Authority. Certain provisions concerning the com- 
position of this Board have prompted your letter. 
In material part, chapter 465, section 2 of the Acts of 1956 provides that 
Itlhe Authority shall consist of seven members all of whom shall be 
appointed by the governor . . . and shall be residents of the common- 
wealth. Not more than four of such members shall be of the same polit- 
ical party, and shall include persons with extensive experience in the 
fields of engineering, finance and commerce, and shall include a bona- 
fide representative of a national or international labor organization . . . 
(emphasis supplied). 
Similiar provisions relating to party membership have been enacted with respect 
to many other boards, commissions, and authorities. See, e.g. , G.L. c. 268B, §2 
(Ethics Commission); G.L. c. 161A, §6 (MBTA Board of Directors); G.L. c. 55B, 
§1 (Ballot Law Commission); G.L. c. 25, §2 (Public Utilities Commission); G.L. 
c. 23, §15 (Industrial Accident Board); G.L. c. 16, §1 (Public Works Commis- 
sion); G.L. c. 15, §1H (Council on Education); G.L. c. 10, §23 (Lottery Com- 
mission); G.L. c. 7, §41 (Civil Service Commission); G.L. c. 6A, §32 (Rate Setting 
Commission); G.L. c. 6, §§125 (Health and Welfare Commission), 115 (Con- 
sumers Council), 108 (Mobile Homes Commission), 48 (Racing Commission); 
43 (Alcoholic Beverages Control Commission); St. 1952, c. 354, §3 (Turnpike 
Authority); St. 1968, c. 614, §4 (Educational Facilities Authority). See also G.L. 
c. 51 , §18 (Board of Registrars to include members from two principal parties); 



P.D. 12 101 

G.L. c. 51, §16A (Board of Election Commissioners to include members from 
two principal parties). ^ 

At the least, the provision in section 2 means that, when four members of the 
Authority belong to the same political party on the date of an appointment, the 
appointee may not also belong to that party. Your first question, then, is in what 
manner are the political affiliations of the appointee and members of the Authority 
to be determined for the purpose of an appointment? You draw my attention to 
G.L. c. 4, §12, which provides 

[elstablishment. cancellation or change of enrollment in a political 
party shall, for the purpose of any law establishing or limiting the num- 
ber of members of any board, commission or other body who shall 
or may be members of any political party or the same political party 
take effect two years thereafter. 
You ask whether this provision is to be applied to the proposed appointee only 
or to the members of the Authority as well, when you appoint a new member to 
the Authority. 

The answer to this question lies in interpretation of the two statutes "according 
to the intent of the Legislature ascertained from all [the] words construed by ordi- 
nary and approved usage of the language, considered in connection with the cause 
of [the] enactment, the mischief or imperfection to be remedied and the main object 
to be accomplished, to the end that the purpose of [the] framers may be effectu- 
ated." Board of Education v. Assessor of Worcester, 368 Mass. 511, 513 (1975), 
quoting Industrial Fin. Corp. v. State Tax Comm., 367 Mass. 360, 364 (1975). 
The words of chapter 4, section 12, considered by themselves and together with 
the words of chapter 465, section 2, do not purport to be applicable only to new 
appointees. To the contrary, section 12 expressly applies "for the purposes of any 
law . . . limiting the number of members of any board . . . who shall or may be 
members of any political party'' (emphasis supplied). Since the statute expressly 
refers to the composition of the membership of a board, 1 conclude that it estab- 
lishes a test which is to be applied to members and potential appointees alike, at 
least for the purpose of making a proper appointment.^ 

My conclusion is confirmed by examination of the history of St. 1960, c. 295, 
which inserted G.L. c. 4, §12, and by consideration of its purpose." Section 12 
was inserted in chapter 4 of the General Laws by section 1 of the act.^ Chapter 



Similar provisions have also been enacted wilh respect to federal commissions. E.g.. 15 U.S.C, *)-053(c) (Consumer Prixluct Safety 
Commission); 15 U.S.C. S41 (Federal Trade Commission); 2 U.S.C. §437c (Federal Election Commission). 

Even though section 12 applies to members as well as appointees, it does not of its own force determine when the test is to be used. 
Section 12 was designed as a guide in interpretmg a variety of statutes establishing boards or commissions. To determine whether 
the test set up by section 12 is to be used only at the time of an appomiment or all limes as a test of a board's continuing legality 
or right to act, one must look to the statute that creates the particular board. 

Section 2 of that act provides that "(tjhis act shall not affect the tenure of any person who, on the effective date of this act, is a member 
of any board, commission or other body." I take it that this provision was intended to preclude using the new test to reassess the 
qualifications <» the lime of their uppointmenis of sitting members. Arguably, however, the Legislature had in mind the possibility 
that members could become disqualified because of a change in affiliation during their tenure. If the purpose of section 2 was to 
avoid that possibility, the section would be clear evidence that, m general, the affiliations of members as well as appointees would 
be determined by means of the test set forth in section I , since it cannot be supposed that section 2 was intended to be a useless 
act. See Insurance Rating Board v. Commissioner of Insurance, 356 Mass. 184 (1969). 

The original bill would have inserted a new section 17A in chapter 6 of the General Laws Chapter 6 deals generally with boards 
and commissions in the Executive Department. As originally proposed, the bill provided as follows: 

[f|or the purpose of determining the eligibility of a person for appointment to any board the number of members 
whereof of the same political party has been limited by law, any person who has changed his party enrollment 
shall be deemed to be a member of the political party in which he was enrolled prior to such change for a period 
equal to the term of the office to which he may be appointed. 

House No. 253 (1960). 



102 P.D. 12 

295 was the product of significant redrafting in the Legislature. Originally pro- 
posed as House No. 253, "An Act Regulating the Appointment of Members of 
Bi-Partisan Boards, So Called," It was amended by substitution of House No. 2616 
in accordance with a report of the Committee on Bills in the Third Reading. The 
substitute bill retained the original caption and provided that 

[alny person who has changed his party enrollment shall, for a period 
of two years from the date of such change, be deemed to be a mem- 
ber of the political party in which he was enrolled prior thereto, for 
the purpose of determining his eligibility for appointment to a board 
whereon the number of members of the same political party has been 
limited by law (emphasis supplied). 
The bill was passed by the House. However, the Senate substituted a new bill. 
Senate No. 470, which was returned to and passed by the House. As finally enacted, 
the bill was captioned "An Act Relative to the Effective Date of Establishment, 
Cancellation or Change of Enrollment in Cases Affecting the Membership of Bi- 
Partisan Boards, So Called." Comparison of St. 1960, c. 295, §1, with the bill 
just quoted will show that while House No. 2616 clearly established a rule applica- 
ble only to potential appointees, the enacted substitute contains no such limitation. 
The changes in the captions of the various bills show a similar shift in emphasis 
from the appointee to the members. It follows that the act applies both to sitting 
members and to appointees. 

The effect, and by inference the purpose, of the drafts and the act seems clear. 
Under all versions of the act, an applicant for appointment to a bi-partisan board, 
so called,^ who was ineligible because of his affiliation could not make himself 
eligible by changing or cancelling his party enrollment. The enacted version more 
perfectly accomplishes this result because it also prevents a sitting member from 
rendering a potential appointee eligible (or ineligible) by changing his own party 
affiliation. 

For these reasons, I conclude that, when making an appointment to the Authority, 
you are to determine its political composition by applying the provisions of chap- 
ter 4, section 12, to each member and to the potential appointee. 

The second question is, how is political affiliation to be determined under G.L. 
c. 4, §12? There are two viable alternative interpretations of section 12. The first 
would hold that every change in affiliation is simply postponed for two years; or 
put another way, that potential appointees and members are considered to belong 
to the political party, if any, in which they were enrolled on the day two years 
prior to the date of the proposed appointment. The second interpretation would 
hold that a change in affiliadon is to be considered effective if and only if the mem- 
ber or appointee has retained the new affiliation (or has remained unenrolled) con- 
tinuously for two years. Thus, to determine a person's affiliation, you would be 
required to search his enrollment record for the most recent two-year period dur- 
ing which he was continuously enrolled in a party or unenrolled. 



* Since the Authority's statue does not require that members be drawn from the two principal parties, it is not formally accurate to 
call the Authority bi-partisan. Own/'"'"'' G.L. c. 51 . §tjl6A. 18 (members to be drawn from two principal parlies). Moreover, while 
that term may once have been accurate in practice, it is no longer so. This is because of the ease with which a person may enroll 
and cancel his enrollment. G.L. c. 53, §§37, 38. It is well known that large numbers of voters enroll only to vote in a parly primary, 
but do not maintain their enrollment. Thus, it is possible and practicable lo appoint a board whose members technically comply with 
the provision thai no more than a majority may belong to the same parly , but who all share the same political outlook. The phenomenon 
of short-term enrollment makes application of G.L. c. 4,§I2, particularly dilficult and may ultimately require a legislative solution. 
I note that a proposal to amend G.L c. 4, §12, is now pending in the General Court. See footnote 10. infra. 



P.D. 12 103 

Both interpretations are consistent with the Legislature's purpose to neutralize 
opportunistic changes in affiliation by members or by the proposed appointee. 
Beyond that point each view has its advantages and disadvantages. Considerations 
favoring the first view are that it is consistent with a straightforward reading of 
section 12, and it is the only conceivable reading of the earlier drafts of the Act. 
Moreover, it is my understanding that your predecessors have consistently fol- 
lowed this view rather than its alternative. This consistent practice is entitled to 
considerable weight. See, e.g., Lowell Gas Co. v. Commissioner of Corporations 
and Taxation, 311 Mass. 255 (1979). This principle is especially true where rejec- 
tion of that practice could cast doubt on the validity of the many appointments to 
which section 12 applies. 

There are certain practical advantages to the second interpretation, however. 
First, the evolution of section 12 indicates a shift in emphasis by the Legislature. 
In earlier drafts, affiliation was determined by reference to affiliation prior to any 
change; in the enacted version, the emphasis is on when a change is to be consi- 
dered effective. Such a substantial change in emphasis may suggest that the test 
of affiliation set forth in earlier drafts is not the test finally adopted. Second, this 
alternative view of section 12 would seem to provide a more reliable test of polit- 
ical affiliation than does the first alternative.'' Having in mind that section 12 was 
enacted as an aid in the interpretation of statutes "establishing or limiting the num- 
ber of members of any board . . . who shall or may be members of . . . the same 
political party," a test which determines affiliation on the basis of one's enroll- 
ment over a period of time may seem more consonant with that function than a 
test which is based upon the fortuity of affiliation on a single day two years before 
the appointment.^ 5^^ generally Lexington v. Bedford, 378 Mass. 562, 570 (1979) 
(of two possible constructions, that which leads to a logical and sensible result is 
to be preferred). 

However, since I cannot say that the words of section 12 clearly favor this second 
interpretation, I am constrained to adopt the first alternative, thus giving due weight 
to the literal wording of the statute and prior administrative readings of its terms. ^ 
You will note that the choice which I have outlined is significant because of the 
ease with which party affiliation can be cancelled or changed. See G.L. c. 53, §§37, 
38. It seems likely that when the Legislature enacted G.L. c. 4, §12, short-term 
enrollment, e.g., for the purpose of voting in a party primary, was not the 
widespread phenomenon that it has become. See Opinion of the Justices, 385 Mass. 
1201 (1982). Because the difficulty in determining the correct applicafion of see- 



However, while ihK teM might be thought appropriate for statues hiniting the number of members who may belong to the same party, 
it might be thought inappropriate for those statutes requiring representation from the two principal parties E.g., G.L. c.51, §I6A. 
18. In the latter class of statutes, a stricter test— actual current affiliation— would seem to have been intended. 

The use of a probationary period to test the authenticity of an affiliation is by no means unusual. See, e.g.. Storer v. Brown, 415 
U.S. 724 (1974). On the other hand, since a long probationary period is not used for purposes of voting In party primaries or of 
running for office as a party's candidate, it may seem unlikely that such a test was intended by section 12. 

Of course, by the terms of section 12. whichever test you adopt is to be used only for the purpose of making an appointment, it 
does not affect the right to establish, cancel, or change enrollment for the purposes of voting or running for office See G.L, c 52, 

§§37, 38, 48, 



104 P.D. 12 

tion 12 is largely the result of this recent phenomenon, it may be advisable to pro- 
pose a legislative resolution in the light of present circumstances. '° 

Your third question asks whether you may appoint a person who belongs to the 
same party as three members of the Authority, when, because of a change in affili- 
ation by a fourth member which will take effect in the future by virtue of G.L. 
c. 4, §12, an imbalance in the membership will result. 

There are two answers to this question. First, section 12 was enacted in part 
for the purpose of enabling an appointment to be made despite a recent change 
in party enrollment by a sitting member. Were the Governor required to take into 
account the possibility that the change might become effective in the future, thereby 
imbalancing the Authority, section 12 would have failed in its purpose. Second, 
as my answer to the last question will demonstrate, the imbalance hypothesized 
in the question is not inconsistent with the statute and may be remedied in part 
by future appointments. Accordingly, I answer your third question with a quali- 
fied "yes" and turn to consideration of your related fourth inquiry. 

This last question asks what action should be taken if a sitting member changes 
his affiliation and thereby causes the number of members who belong to the same 
party to exceed four. A short answer to your question is that, under St. 1956, c. 
465, §2, the only action which the Governor may take is to redress the imbalance 
through subsequent appointments. But I will go further, because both your third 
and fourth questions reflect concern that an imbalance of this sort violates the stat- 
ute and could therefore cast doubt on the validity of action by the Authority. If 
this were so, the Governor could not afford to make an appointment that might 
result in a future imbalance. 

The resolution of this problem is to be found, not in G.L. c, 4, §12, which is 
simply an interpretive aid, but in St. 1956, c. 465, §2, and it turns upon whether 
the statute sets forth qualifications to hold office, or limitations on the Governor's 
power to appoint members to the Authority. ' ' If the former, then one or more mem- 
bers could be disqualified during their terms by a change in affiliation; if the lat- 
ter, then as long as the members have been properly appointed, it is of no concern 
that an imbalance may arise during their tenure. 

In my opinion, the question is answered straightforwardly by the words of the 
statute taken in their context. The statute does not state that each member shall 
have certain specific qualifications; it describes the Authority as having seven mem- 
bers appointed by the Governor. Among these seven, not more than four shall be 
of the same party, and the seven "shall include persons with extensive experience" 
in various fields. Plainly, the statute describes the composition of the Authority. 
Such qualities as "experience" are not easily viewed as continuing qualifications. 
If a member has extensive experience in engineering when he is appointed, he will 
not lose it during his tenure. Furthermore, if the Authority does not conform to 



I ndic ihal J pclilion has been filed by the Secretary of the Coninionwealth and others for further amendment of section 12 The 
petition proposes the addition of the following sentence to section 12: "Any enrollment required for appointnieni to such a board, 
commission, or other body must have been maintained continuously during the two years immediately preceding appointment." 

' As 1 base previously noted, similar provisions arc set forth in many statutes Whether a particular statute with such a prov ision states 
a limitation or qualification depends on the words of that statute, I note in particular the variant forms in the following statutes: G,L, 
c, 268B, !i2 ("|a|t no time shall more than three members be from the same political partv"): G,L, c, l.'i, (jl H (similar): Ci L 
c, 6. S.'^'^A (similar): G,L, c, 6. 07 (similar): G,L, c, 7. HI ("Injol more than three , shall be members of the same political 
parly, and. of the members , , who are enrolled as members ot a polilic.il pari) on the \oling list used .it the primaries, not more 
than a ma|orit\ of such members shall be of the same political party "I 



P.D. 12 105 

the criteria set out in St. 1956, c. 465, §2, there is no principle in the statute by 

which to determine which member is disqualified.'^ 

It these provisions are viewed simply as rules limiting the Governor's choice 
of appointees, these problems are obviated. It is a simple matter to determine with 
respect to each appointment whether that appointment is consistent with the 
Authority's composition as it is prescribed by the statute.'^ Moreover, it is fully 
consistent with the legislative purpose to read these provisions as rules to guide 
the application of periodic correctives to the Board's composition rather than as 
conditions of the Authority's continuing validity, or of the right of its members 
to hold office. Indeed, it seems most unlikely that the Legislature would intend 
to make the validity of the Authority's acts turn on the hazard that a member would 
not change his affiliation. '"^ Since my interpretation is consistent with the legisla- 
tive purpose, and since it avoids the serious problems posed by the alternative, 
it is the preferred construction of the statute. "It is an established rule of statutory 
construction that allegedly conflicting provisions of a statute should, if possible, 
be construed in a way that is harmonious and consistent with the legislative design. " 
Peters v. Michienzi, 385 Mass. 533, 537 (1982). Accordingly, I conclude that St. 
1956, c. 465, §2, is to be read as a limitation on the Governor's power to appoint 
members to the Authority, and not as a qualification of their continuing right to 
hold office. See Harrell v. Sullivan, 220 Ind. 108, 1 19, 40 N.E. 2d 1 15, n9 0942) 
(statute of this character imposes limitation on appointment power, not qualifica- 
tion to hold office): State ex rel. Childs v. Hohuan, 58 Minn. 219, 225, 59 N.W. 
1006 (1894). Compare Commomvealth v. Plaisted, 148 Mass. 375, 387 (1889) 
(statute providing that members of board of police are to be appointed from the 
two principal political parties is probably a direction to the Governor rather than 
"element in the tenure of the office"). 

From all the foregoing discussion it should be clear, however, that I regard the 
statutory framework to be imperfect. I therefore close this opinion by reiterating 
an observation I have made throughout: these statutes require legislative attention. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



'^ ll is surely signilicanl in Ihis rcijard thul ihc Lcgisliiiiiirc h.is iiol pnnidcJ a dislincl ivniL'd\ « hen a hoaiil or ciininiisMiin hcconics 
imhalanccd. Ciiiiip,iirG-L t. 51. §19 (piiKcdurc lor rcimn ing registrar of voters when hoard ol registrars heeonies niihalaneed). 

'■'Thus, it is not significant that the Legislature has not specifically established a means for challenging an appointment to the Authority; 
an action by the Attorney General in the nature of quo warranto is well-suited to test an appointment 

'"' A rule disqualifying a member who has changed his affiliation during his tenure could conceivably be susceptible to constitutional 
attack. Bui see Brcmii \: Finkel. 445 U.S. 507, 518 (1980) (dicta) (where state's election laws require judges to be of different parties, 
a judge who changes his registration could legitimately be discharged). 



106 P.D. 12 

February 14. 1984 
Number 9. 

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

Dear Secretary Connolly: 

You have requested my opinion whether you are required to issue commissions 
for gubernatorial appointments to public offices under G.L. c. 30, §12, and to 
record those commissions in the Commonwealth's official records, in four par- 
ticular circumstances.' For the reasons discussed below, I conclude that the role 
of the Secretary of the Commonwealth in the process or gubernatiorial appoint- 
ments is exclusively ministerial and that, in all but one of the instances you describe, 
you are required to issue commissions and make an appropriate record thereof in 
the Commonwealth's official records. 

Initially, 1 note that following your request for this opinion, you issued emer- 
gency regulations governing precisely the extant questions. See 950 CMR 201 .01 
et seq. (Commissions Regulations). Those regulations became effective on Janu- 
ary 28, 1983, and require appointing authorities to follow explicit procedures "[i]n 
order for a commission to be issued and recorded". 950 CMR 201 .05. Implicit 
in the adoption of those Commissions Regulations is the assumption that no nor- 
mal procedures existed prior to their promulgation, and that none were required 
by law. That conclusion would, of course, fully resolve your inquiry. In circum- 
stances where the Attorney General's opinion is not "clearly required", see, e.g. , 
1973-74 Op. Atty.Gen. No. 31, Rep. A. G., Pub. Doc. No. 12 at p. 76 (Novem- 
ber 6, 1974), quoting 6 Op. Atty. Gen. 648, 649 (1922), it is appropriate to decline 
rendering a formal opinion. Your request is unusual, however, because it raises 
state constitutional and statutory questions of significance, and bears upon the 
integrity of the terms of office of several public officers. It would be unwise and 
inappropriate to leave the eligibility of public officers in doubt. Moreover, the Com- 
missions Regulations were issued as a temporary emergency measure, are sub- 
ject to modification after public hearing, and may not become permanent 
regulations.^ Accordingly, I respond to your inquiry. 



You have dcscnhcd Ihosc circumstances in Ihe lolUiwIng manner: 

I An individual has tendered to (he Secretary of State a writing signed hy one duly constituted to adinini.slcr qualifying oaths. 
c. K). 511. and which states that Ihe individual has taken Ihe qualifying oath for a specilic public office. The Secretary of Slate 
has received no other notification or evidence of Ihe appointment from Ihe appointing authority 

2. An individual tenders to the Secretary of Slate a letter appointing the individual to a specific public office and signed by a duly 
authorized appointing authority. The Secretary of Stale has received no other nolificalions of the appointment from the appointing 
authority 

3. An individual advises Ihe Secretary of Slate that he or she has been appointed to a specific public office by a duly authorized 
appointing authority. The Secretary of Slate has received no other notification of the appointment from the appointing authority 

4. The Secretary of Stale receives notice of an appoinlment to a specific public office by a duly authorized appointing authority 
after the expiration of Ihe Icrm of office of the appointing aulhority . The notice of appointment is dated at a time before Ihe 
expiration of the term of the appointing authority. 

Because the circumstances outlined in your request pre-date the Commissions Regulations, ihey play no role in the lollowmg analysis. 
and I express no view upon their validity. 



P.D. 12 107 

Your request addresses appointments made by the governor and governed by 
G.L. c. 30, §12, which provides that: 

A person appointed to an office by the governor with or without the 
advice and consent of the council shall be notified of his appointment 
by the state secretary and his commission delivered to him, and if he 
does not, within three months after the date of such appointment, take 
and subscribe the oaths of office, his appointment shall be void, and 
the secretary shall forthwith notify him thereof and require him to 
return his commission, and shall also certify said facts to the governor. 

Your constitutional role is consistent with the statute's requirement that the state 
Secretary inform a duly appointed public officer of his commission. Thus, Mass. 
Const. Part 2, c. 2, §4, art. 2 provides that "[tjhe records of the Commonwealth 
shall be kept in the office of the secretary . . .and he shall attend the governor and 
council. . .as they shall respectively require." Mass. Const. Part 2, c. 6, art. 4 
provides that "la]ll commissions shall be in the name of the Commonwealth of 
Massachusetts, signed by the governor and attested by the secretary or his deputy, 
and have the great seal of the commonwealth affixed thereto." These are the essen- 
tial statutory and constitutional provisions governing the conduct of the state Secre- 
tary in the process of gubernatorial appointment making. 

The relevant statutory and constitutional provisions make plain that the state 
Secretary functions in a purely ministerial manner with respect to gubernatiorial 
appointments. Thus, commissions are "attested by the Secretary", Mass. Const. 
Part 2, c. 6, art. 4; records are "kept in the office of the Secretary", Mass. Const. 
Part 2, c. 2, §4, art. 2; and public officers "shall be notified" of their commis- 
sions by the Secretary. G.L. c. 30, §12. Each of these functions is mandatory in 
nature. 63 Am. Jur. 2d, Public Officers and Employees, %IIS (1972) (the state 
Secretary acts "in a ministerial capacity, and the duty imposed on him is gener- 
ally regarded as a mandatory one, involving from its very nature no exercise of 
judgment or discretion."). In the absence of any discretion, the state Secretary 
must act in accord with the explicit directives of the statutory scheme and state 
constitution. 

Dispositive of the nature and extent of the state Secretary's role is the decision 
of the United States Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 
137, (1803). In that case, President John Adams appointed several justices of the 
peace immediately prior to his departure from office, but President Jefferson's 
Secretary of State, James Madison, refused to deliver commissions to the Adams 
appointees. Chief Justice Marshall noted the distinction between an appointment 
and the transmittal of a commission. "The acts of appointing to office, and com- 
missioning the person appointed, can scarcely be considered as one and the same," 
wrote Marshall. Id. at 156. Once the executive has taken "the last act required" 
of him, 

[t]he subsequent duty of the Secretary of State is prescribed by 
law ... he is to affix the seal of the United States to the commission, 
and is to record it. This is not a proceeding which may be varied .... It 
is a ministerial act which the law enjoins on a particular officer for 
a particular purpose. Id. at 158. 



108 P.D. 12 

Indeed, if the Secretary fails to record or otherwise process the appointment, 
his failure to act does not affect the integrity of the appointment. Thus, "[i]n the 
case of commissions, the law orders the Secretary of State to record them . . .and 
whether inserted in the book or not. they are in law recorded." Id. at 161.^ This 
rule was reaffirmed by the Court in United States v. LeBaron, 60 U.S. (19 How.) 
73 (1856), when a question arose with regard to an appointment made by Presi- 
dent Zachary Taylor but transmitted after his death in office. The Court declared 
that: 

When a person has been nominated to an office by the President, 
confirmed by the Senate, and his commission has been signed by the 
President, and the seal of the United States affixed thereto, his appoint- 
ment to that office is complete. Congress may provide . . .that certain 
acts shall be done by the appointee before he shall enter on the pos- 
session of the office under his appointment. These acts then become 
conditions precedent to the complete investiture of the office; . . .all 
that the Executive can do to invest the person with his office has been 
completed when the commission has been signed and sealed; and when 
the person has performed the required conditions, his title to enter on 
the possession of the office is also complete. 

The transmission of the commission to the officer is not essential 
to his investiture of the office. If, by any inadvertence or accident, it 
should fail to reach him, his possession of the office is as lawful as 
if it were in his custody. It is but evidence of those acts of appoint- 
ment and qualification which constitute his tide .... 

Id. at 78-79. 

Neither the age of these cases, nor their federal origins, detracts from their vital- 
ity or applicability to the issues raised by your request. 

In Massachusetts, a gubernatorial appointment is complete upon the written or 
oral appointment of the governor. The only requirement remaining is the "qualifi- 
cation" of the appointee established by the taking of the qualifying oaths prescribed 
by the laws of the Commonwealth. See, e.g., Mass. Const. Part 2, c. 6, art.l."* 

No form is prescribed by law for a gubernatorial appointment. Thus, the appoint- 
ment may be made by letter, orally, or in some other manner. "[W]here an office 
exists under the law, it matters not how the appointment of the incumbent is made, 
so far as the validity of his acts are concerned. It is enough that he is clothed with 
the insignia of the office, and exercises its powers and functions." Shapleigh v. 
San Angela, 167 U.S. 646, 658 (1897). Accord Opinion of the Justices, 368 Mass. 
866, 874 (1975) (governor has broad discretion to select the means he will use 
in executing a state law duty); 1935 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 
12 at 129-130 (failure of the governor to take oath precisely as required by the 
state constitution did not impair his ability to perform in office). 



" A commission is not necessarily a writlen docunienl, although it may be In Massachusetts it appears to be the practice that only 
notary publics and commissioners authorized to administer oaths are actually presented with a written document, marked with the 
seal of the Commonwealth, as formal evidence of their appointment Although G.L. c. 30, SI2 appears to require the delivery of 
a writlen commission to all gubernatorial appointees, the failure to do so d(U's not undermine the appointment since the commission 
is only evidence of the appointment, and not the appointment itself. Marhury v. Madison. f\ US, ( 1 Cranch) 137. 160 ( 1803). See 
also Uniiecl Sums v LeBtinm. 60 U.S. (19 How.) 73, 78-79 (18.'i6) 

See also G.L. c. .30, S8, which provides, i/iler alia, that "no officer shall enter upon the duties of his office until he is duly qualified 
as provided by law " 



P.D. 12 109 

Once the governor makes an appointment, the appointee is entitled to enter into 
the office for which he has been chosen. United States v. LeBaron, 60 U.S. (19 
How.) at 78. However, that entitlement is conditional upon the state statutory and 
constitutional requirement that the person qualify for his public office. G.L. c. 
30, §8. "[T]he appointment and the qualification are distinct and separate things." 
63 Am Jur. 2d, Public Officers and Employees, §99 (1972). Thus, a public officer 
must be both "selected and qualified" before he can "enter on the discharge of 
the business of his place of office". See Opinion of the Justices, 275 Mass. 575, 
579 (1931); Mass. Const. Part 2, c. 6, art. 1. 

Against this general backdrop of the law, I turn to your specific inquiry, which 
is whether you are required by law, under four particular circumstances, to issue 
and record a commission for a public office. 

In order for the state Secretary to perform the tasks required of him by law, he 
must be informed, in some manner, of an appointment by the appointing authority 
or his duly authorized agent. The forms of both the appointment and the commu- 
nication of the appointment to the state Secretary are not prescribed by law. Some 
evidence of the appointment, however, should be brought to the state Secretary's 
attention by the appointing authority or someone authorized to act on his behalf. 
In the absence of independent verification of an appointment, the Secretary may 
make inquiry of the appointing authority to confirm the appointment. The third 
circumstance you describe provides the clearest example of an instance where 
reasonable doubt might exist about the veracity of an appointment, and where you 
might make inquiry of the appointing authority prior to issuing and recording a 
commission. 

With respect to the remaining circumstances (numbers 1, 2 and 4), they each 
appear to be governed by the general rule that a public officer may enter upon his 
official duties upon his appointment and qualification. In each of those circum- 
stances, it appears that you have received sufficient evidence of an appointment 
from the appointing authority or his authorized agent, and you are required to issue 
and record commissions.^ It is of no consequence that you recieved notice of an 
appointment after the expiration of the appointing authority's term of office, see 
United States v. LeBaron, 60 U.S. (19 How.) at 78, or that the appointee himself 
transmits his letter of appointment to you. In the situation where an individual 
tenders to you a writing which is signed by the governor and which indicates that 
the individual took the qualifying oath for a specific office, that should ordinarily 
be sufficient evidence for you to perform the tasks required by statute and state 
constitution.^ 



Yuu must l^^uc and record a commission even if the appointee has nol yel taken the qualifying oaths. The commission becomes void, 
and you must so mform the individual, if the appointee fails to lake those oaths within ninety days of his appointment, G.L. c. 30, §12. 

I do not understand your request to inquire about the veracity of the governor's signature on any document. I understand that in 
some instances, the governor may make use of a facsimile signature to carry out certain duties. If you had reason to believe the governor's 
facsimile signature was unauthorized, you would be warranted in seeking independent verification of the apointment from the governor 
or his duly appointed agent. Doubt about the integrity of a facsimile signature does not interfere with the appointee's ability lo carry 
out the duties of his office. However, if you determine that the facsimile signature was nol authorized, the appointment is null and 
void and you .should so notify the individual. 



110 P.D. 12 

In sum, you are obligated to issue and record commissions for individuals whose 
appointments are the subject of your request, with the exception of the third cir- 
cumstance you describe.'' In that instance, your duty to issue and record a com- 
mission becomes mandatory upon receipt of some verification by the appointing 
authority or his authorized agent that an appointment was made during his term 
in office. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



March 23, 1983 

Number 10. 

Evelyn B. Murphy 

Secretary Office of Economic Affairs 

Room 2101 

One Ashburton Place 

Boston, Massachusetts 02108 

Dear Secretary Murphy: 

Your predecessor requested my opinion concerning the proper construction of 
G.L. c. 23B, §§1 1-15, relating to the Urban Job Incentive Bureau (the "Bureau"). 
The questions concern the Bureau's responsibility, under those statutory provi- 
sions, to certify the eligibility of certain business facilities for favorable tax treat- 
ment. Specifically, the following questions are posed: 

1 . Is the Bureau required to determine, before exercising its authority 
to renew or extend a certificate of eligibility for a particular business 
facility pursuant to section 15 of chapter 23B, that said facility meets 
each of the requirements for certification established by section 13 of 
said chapter for the taxable year for which such renewal or extension 
has been requested? 

2. If the answer to the first question is in the affirmative, can the 
Bureau nonetheless renew or extend the certificate of eligibility for 
a particular business facility for a taxable year during which said facility 
was no longer located in an "eligible section of substantial poverty," 
as required by section 13( 1), solely because, in the intervening period 
since the facility was initially certified or last had its certificate renewed 
or extended, the area in which the facility is located has ceased to 
qualify as an "eligible section of substantial poverty" as that term is 
defined in section 1 1(a) of chapter 23B'? 



^ A^ noted above, this opinion is rendered Independently of your recent Commissions Regulations. 450 CM R 201 01 ti sci/ . the finality 
and validity of which remain pending. 



P.D. 12 111 

3. Where must a facility be located to satisfy the location requirement 
for an "eligible business facility" established by chapter 23B? 

4. Where must an eligible business facility draw its employees from, 
thereby creating or maintaining at least twenty per cent of its 
employees, but not less than five jobs, as required by section 13(2) 
of chapter 23B? 

I will respond to these inquiries in the order posed. 

In response to the first question, it is my opinion that before lenewing or extend- 
ing a certificate of eligibility under G.L. c. 23B. §15. the Bureau must determine 
that the facility in question continues to meet all the requirements set forth in G.L. 
c. 23B, §13. This conclusion is based on the language of the statute as well as its 
legislative intent. 

Under G.L. c. 63B, §§38E and 38F, favorable tax treatment is made available 
for an "eligible business facility, as defined in section eleven of chapter twenty- 
three E." General Laws chapter 23B, section 1 1(c), defines "eligible business facil- 
ity" as follows: 

a place of business . . . located in a city or town containing one or more 
eligible sections of substantial poverty or in a city or town contiguous 
thereto and for which a certificate of eligibility has been issued by the 
bureau .... A facility for which such a certificate is issued shall be 
deemed an eligible business facility only during the taxable year or 
as of the taxable status date to which such certificate relates, as 
provided in this chapter. (Emphasis added.) 

Thus, in order for a business facility to be "eligible," it must have been issued 
a current certificate of eligibility by the Bureau. This requirement is reiterated in 
section 15(b), which makes it clear that the initial certificate issued by the Bureau 
with respect to a particular eligible business facility may not extend beyond one 
taxable year. Thus, while section 15(c) permits eligiblity to be certified for a 
cumulative total of up to ten years, periodic renewal or extension is nevertheless 
required. 

Futhermore, section 13 itself is phrased in terms of continuing requirements. 
To be eligible, a facility must, generally speaking: (1) serve an area larger than 
the eligible section of substantial poverty which satisfies its location requirement; 
(2) create or retain in that section at least twenty percent of its employees, but not 
less that five; (3) provide an approved training or assistance program, as long as 
the Bureau determines this to be feasible, and assure employed residents of poverty 
areas opportunities for job upgrading and for entry into supervisory positions; (4) 
represent an expansion of employment opportunities for the relevant area. St. 1982, 
c. 658, added a fifth limiting factor based upon the date of acquisition of the 
property . 

My conclusion that these requirements must be met with respect to each year 
for which a renewal or extension is sought is underscored by the language in sec- 
tion 13(3), permitting a relaxation of the training or assistance requirements of 
that paragraph if the Bureau determines that continuation of such a program is no 
longer feasible. By negative implication, this exemption contemplates that without 



112 P.D. 12 

the proviso the discontinuance of such a program would require the rejection of 
an application for a renewal or extension. Furthermore, the Bureau is authorized, 
by section 15(f), to revoke certificates "if there has been a material change" in 
the facts relevant to the requirements of section 13. This provision is a further indi- 
cation that a facility must, for continued eligibility, remain in compliance with the 
requirements of section 13. 

This interpretation is also consistent with the legislative intent underlying the 
Act. As a familiar general rule, 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 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." 
Commomvealth v. Galvin, 388 Mass. 326, 328 (1983), quoting Board of Educa- 
tion V. Assessor of Worcester, 368 Mass. 511,513 (1975). Considering the essential 
purpose of the Act, providing employment opportunities and job improvement to 
residents of areas of substantial poverty within the Commonwealth, see G.L. c. 
23B, §12, it would make little sense to suggest that a corporation may satisfy the 
requirements of section 13 for one year only, but remain eligible for nine further 
years of favorable tax treatment in disregard of those requirements. Rather, the 
Act as a whole clearly appears to be directed at providing tax advantages only in 
exchange for continuing benefits to the Commonwealth. Therefore, it is my opinion 
that before renewing or extending a certificate of eligibility, the Bureau must deter- 
mine that the facility continues to meet the requirements of G.L. c. 23B, §13. 

One of the requirements set forth in section 13 is that a facility be located in 
or contiguous to an eligible section of substantial poverty. SeeG.L. c. 23B, §13(1). 
In response to the second question, it is my opinion that this particular require- 
ment must be satisfied at the time of each renewal or extension. 

That question arises from the observation that the economic conditions in the 
area in which the facility is located may change after the initial certification and 
thereby preclude eligibility in later years. Although such a change may occur for 
reasons beyond the control of the affected business, it is "a salient principle of 
statutory construction" that "the statutory language itself is the principal source 
of insight into the legislative purpose." Hoffman \\ Howmedica, Inc. , 373 Mass. 
32, 37 (1977). A statute cannot be extended by construction or enlargement beyond 
its fair import, although a hardship or unintentional omission results. Mitchell v. 
Mitchell, 312 Mass. 154, 161 ( 1942). Although it might have been a stronger incen- 
tive to impose the location requirement for only the initial year, the Legislature 
has not done so. 

Furthermore, the location requirement is contained not only in section 13(1), 
but also in each of the other paragraphs of section 13. "Eligible business facil- 
ity" is expressly defined as a place of business which "'is located in a city or town 
containing one or more eligible sections of substantial poverty or in a city or town 
contiguous thereto." G.L. c. 23B, §1 1(c) (emphasis added). It would run con- 
trary to that definition to conclude that a facility could remain an "eligible busi- 
ness facility," due to once having been located in an area so defined, even though 
it is no longer so located. Significantly, the references to the facility location 
requirement in section 13 also are in the present tense. Therefore, it is my opin- 
ion that the Bureau may not renew or extend the certificate of a facility which does 
not continue to meet the location requirement of the statute. 



P.D. 12 113 

The third question asks what, precisely, is that location requirement. This ques- 
tion arises because each statutory reference to the location requirement contains 
a slightly different phrasing.' Thus, this statute, like the one at issue in Mas- 
sachusetts Commission Against Discrimination v. Libert}' Mutual Insurance Com- 
pany, 371 Mass. 186 (1976), "in certain respects lacks precision and verbal 
consistency," id. at 190, and therefore must be given a "reasonable construction," 
consistent with the legislative intent. American Family Life Assurance Company 
V. Commissioner of Insurance, 388 Mass. 468, 473 (1983). Such a construction, 
in my opinion, leads to the conclusion that, in order to be eligible, a facility must 
be located in a city or town containing one or more eligible sections of poverty 
or in a city or town contiguous to such a municipality. 

Tax benefits, which are the reason a business entity seeks eligibility, are avail- 
able only with respect to "an eligible business facility, as defined in section eleven 
of chapter twenty-three B." G.L. c. 63, §§ 38E and 38F. Section 1 1(c) of c. 23B, 
in turn, defines the location requirement with clarity and precision: the facility 
must be located "in a city or town containing one or more eligible sections of sub- 
stantial poverty or in a city or town contiguous thereto." 

The other references to location, by contrast, appear to be more in the nature 
of shorthand references to the definition set forth in section 11(c). None of the 
paragraphs of section 13 appears to be intended to substitute a different defini- 
tion; they are, rather, each primarily directed to different requirements for cer- 
tification. Thus, for example, section 13(1) primarily requires that the area served 
by the facility be larger than the eligible section of substantial poverty. Section 
13(2), similarly, is not directed at defining the facility's location but, rather, to 
requiring the creation or retention of jobs within a particular area. Sections 13(3) 
and 13(4) are further variations on this theme; section 13(3) establishes the necessity 
of a training or assistance program and of opportunifies for upgrading, and sec- 
tion 13(4) is directed principally to requiring that the facility constitute an expan- 
sion of employment opportunities rather than a replacement of an existing business. 
The references to location in each of those sections are secondary to the primary 
purposes of those sections and therefore are not intended to supersede the precise 
definition of the term "eligible business facility" contained in section 1 1(c). There- 
fore, 1 conclude that in order to satisfy the location requirement, a facility seek- 
ing certification must be located in a city or town containing one or more eligible 
sections of substantial poverty or in a city or town contiguous to such a municipality. 

The fourth question concerns section 13(2), which provides that a facility may 
not become an "eligible business facility" unless it 

creates or retains in the eligible section of substantial poverty in which 
it is located at least twenty per cent of its employees, but not less than 
five jobs. 

The question is whether such employees must be drawn from the eligible section 
of poverty itself or whether they may be drawn from some larger area. 

As discussed in response to the preceding question, 1 have concluded that the 
facility itself need not be located in an eligible section of substantial poverty. 



' Section 1 1(c) provides that an eligible business facility must be "located in a city or twon containing one or more eligible sections 
of substantial poverty or in a city or town contiguous thereto." G.L. c. 23B. §1 1(c). However, section i3( 1 ) refers to the "eligible 
section of substantial poverty in which [the facility] is located or contiguous to" ; section 13(2) refers to "the eligible section of substantial 
poverty in which |the facility] is located"; section 13(3) requires training of residents of "the eligible section of subsianlial poverty 
in which such facility is located or contiguous to"; and section 13(4) refers to "the eligible city or town in which the facihty is located." 



114 P.D. 12 

However, in response to the fourth question, it is my opinion that this provision 
expressly requires that "twenty per cent of [a facility's] employees, but not less 
than five jobs" must be created or retained from the eligible section of substantial 
poverty itself. 

This conclusion is based on a literal reading of section 13(2). I also consider 
it significant that section 13(3) refers to the necessity that the employed persons 
be "residents"— defined in section 11(d) as domiciliaries of an eligible section 
of substantial poverty.^ In short, the statute draws a distinction between the area 
in which a facility may be located and the area from which a minimum number 
of employees must be drawn. The statutory language, which is the primary basis 
for construction, Hoffinan v. Howmedica, Inc., supra, provides clearly that the 
employees in question must be drawn from the eligible section of substantial poverty 
itself. G.L. c. 23B, §§13(2), 13(3). 

A broader interpretation of this requirement, which would permit such employees 
to be drawn from the entire city or town containing an eligible section of substan- 
tial poverty, would arguably serve the Bureau's purpose "to enlarge and improve 
the skills of the work force, especially those within urban areas containing sec- 
tions of substantial poverty." G.L. c. 23B, §12. However, although a statute should 
be construed to enable achievement of its purposes, United States Trust Company 
V. Commonwealth, 348 Mass. 378, 383 (1965), the legislative intent is to be ascer- 
tained primarily from the statutory language. Registrar of Motor Vehicles v. Board 
of Appeal on Motor Vehicle Liability Policies and Bonds, 1981 Mass. Adv. Sh. 
415, 420. In my opinion, such an interpretation would conflict with the statutory 
language. To the extent that the statutory language limits the practical scope of 
the Act, such a limitation must be taken as part of the expression of the Legisla- 
ture's intent. Commonwealth v. Galvin, supra; Mitchell v. Mitchell, supra. 

Furthermore, although this requirement may limit the applicability of the Act 
with respect to facilities of substantial size, a looser construction could undercut 
the purposes of the Act by permitting eligibility even though residents of depressed 
areas were not being employed, trained, or offered opportunities for advancement 
by the facility. It is unlikely that the Legislature intended to permit a business facil- 
ity, in order to enjoy the tax advantages of the Act, to locate near an area of poverty 
but draw its necessary twenty percent of employees from those who were not resi- 
dents of that section. 

I therefore conclude that the twenty per cent requirement is met only by employ- 
ing residents of the eligible section of substantial poverty near or in which the facil- 
ity is located. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



Moreover, the tax deduction provided by G.L. c. 63, §38F, applies only to the wages paid to "individuals domiciled in an eligible 
section of substantial poverty." This indicates a statutory purpose to confine that tax incentive to correspond to the benefit to the 
populace of the particularly poor sections them.selves, rather than to the broader urban areas containing such sections. 



P.D. 12 115 

Number 11. April 11, 1983 

William M. Shipps, Commissioner 
Department of Labor and Industries 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Shipps: 

You have requested my opinion as to whether there presently exists a right of 
appeal from your wage determinations under G.L. c. 149, §27 A. For the reasons 
discussed below, I conclude that such a right of appeal does exist. 

The facts which gave rise to your request are as follows: On February 9, 1983, 
the Board of Selectmen of the Town of Rowe appealed, pursuant to G.L. c. 149, 
§27 A, from a determination of minimum wage rates made by you on January 1 1 , 
1983, for construction of a fire station in that town. • Section 27A provides, in per- 
tinent part, that certain interested parties "may appeal to the associate commis- 
sioners from a wage determination . . . made by the commissioner, by serving 
on the commissioner a written notice to that effect. Thereupon the commissioner 
shall immediately cause the associate commissioners to hold a public hearing on 
the commissioner's action appealed from. " However, you have informed me that 
you can no longer follow this appeal procedure because St. 1981, c. 351, §230, 
abolished the positions of "associate commissioner."^ 

Under these circumstances, you have asked whether you are required to hold 
a public hearing on the Town of Rowe's appeal and, if so, before whom such a 
hearing should be held. Essentially, your question is whether, by abolishing the 
positions of associate commissioner, the Legislature, in effect, eliminated the right 
to appeal wage determinations contained in G.L. c. 149, §27A. As a matter of 
statutory construction, I have concluded that the right of appeal contained in sec- 
tion 27 A continues in effect, despite the abolition of the positions of associate 
commissioner. 

This conclusion is based, first of all, on the fact that St. 1981, c. 351, §230, 
amended only G.L. c. 23, §1, and did not directly amend G.L. c. 149, §27A, in 
any manner.^ Thus the appeal procedure set forth in G.L. c. 149, §27A, remains 
literally in place, including all references to "associate commissioners." Since 
G.L. c. 149, §27 A, has not been expressly amended or repealed, each word should 
be given full effect if at all possible. See In the Matter of a Civil Investigative 
Demand Addressed to Yankee Milk, Inc., 372 Mass. 353, 358 (1977); Common- 
wealth V. Brooks, 366 Mass. 423, 428 (1974). Furthermore, the provision as a 
whole must be construed to be an effective piece of legislation. See Commonwealth 
V. Mercy Hospital , 364 Mass. 515, 521 (1974). Conversely, an interpretation ren- 
dering a statute meaningless is to be avoided. See Insurance Rating Board v. Com- 
missioner of Insurance, 356 Mass. 184, 189 (1969); O'Shea v. Holyoke, 345 Mass. 
175, 179 (1962). 



The Commissioner of Labor and Industries is required to set the minimum wage rate paid in the construction of public works. G.L. 
c. 149. §26, 

St. 1981. c. 351, §230 provides: 

Section 1 of chapter 23 of the General Laws, as most recently amended by section 8 of chapter 864 of the acts of 1977, is hereby 
further amended by striking out, in lines 4 to 6, inclusive, the words:— , and three associate commissioners, one of whom shall 
be a representative of labor and one a representative of employers of labor. 

It is notable that St. 1981 , c. 351, §231, also amended G.L. c. 23, §2, by abolishing each reference to "associate commissioner" 
contained therein. 



116 P.D. 12 

Another principle of statutory construction which is applicable here relates to 
repeal by implication. Since G.L. c. 149. §27A, has not been expressly repealed, 
any repeal would necessarily be by implication. Such repeals are strongly disfa- 
vored. T.J. Hartnett Beverage Co. v. Alcoholic Beverages Control Commission, 
350 Mass. 619. 622 (1966); Registrar of Motor Vehicles v. Board of Appeal on 
Motor Vehicle Liability Policies and Bonds, 1981 Mass. Adv. Sh. 415, 420-21. 
In addition, it is also significant that St. 1981. c. 351, §230, was an outside sec- 
tion of a general appropriation bill.-* The policy disfavoring repeals by implica- 
tion is even stronger when the act from which a repeal is inferred is an appropriation 
act. TVA V. Hill,, 437 U.S. 153. 190 (1978); Preterm, Inc. v. Dukakis, 591 F. 
2d 121. 131, 134(lst Cir. 1979). 

Given these principles, an analysis of G.L. c. 149. §27A. in conjunction with 
St. 1981 . c. 351 . §230, leads to the conclusion that the appeal procedure contained 
in section 27A remains effective. First, G.L. c. 149, §27A, is presumed to be effec- 
tive and not meaningless. Commonwealth v. Mercy Hospital, supra at 521 . Second, 
no express repeal exists here. Third, the presumption against repeal by implica- 
tion has not been overcome. T.J. Hartnett Beverage Co. v. Alcoholic Beverages 
Control Commission, supra. Section 230 of chapter 351 of the Acts of 1981 did 
only one thing: it abolished the positions of 'associate commissioner"' in the Depart- 
ment of Labor and Industries. Nothing in section 230 (or in its companion section 
231) indicates in any direct or indirect manner that the Legislature intended to 
eliminate the appeal mechanism of G.L. c. 149. §27A. Rather, the legislative his- 
tory of that section indicates that its purpose, along with other outside sections of 
the same act, was to reorganize several departments and divisions (including the 
Department of Labor and Industries) into a "logical and more efficient structure." 
Mass. S. Doc. No. 2222 at 29-21 (1981). More fundamentally, the elimination 
of "associate commissioner" does not bear upon the principal thrust of G.L. c. 
149, §27A, that is, to provide for review of minimum wage determinations. The 
fact that the "associate commissioners" are named as the hearing functionaries 
in section 27A is secondary to the principal purpose of that provision. In sum, St. 
1981. c. 351. §230, does not repeal G.L. c. 149, §27A. either expressly or by 
clear implication. 

In addition, it is significant that G.L. c. 149, §27 A. can be given full effect even 
though there are no longer any associate commissioners. One means of doing so 
would be to request the use of a hearing officer from the Division of Hearing 
Officers within the Executive Office for Administration and Finance to conduct 
hearings on wage determination appeals.'' Another means of effectuating G.L. c. 



■* Such (lutsidc scclions to the general budget arc now prohibited. G.L e. 24. S7L. cis aim-ndal h\ St 1981 . e fi90. Comiwir (Jpiiiion 
of the JiisiHcs lo the House of Represaihilives. 1981 Ma>s. Adv. Sh. 2071,2077, 

' General Laws chapter 7. section 4H. provides in pertinent part: 

Any officer or agency of the commonwealth authorized to conduct adjudicatory proceedings may . subject to the 
approval of the secretary of the executive office within which .such officers is employed or such agency is liK-atcd. 
request the division to conduct one or more classes of such proceedings or appeals on behalf of the officer or 
agency. The chief hearing officer may, subject to the approval of the secretary of administration and finance, 
grant any such request but shall, when neccs.sary, promulgate regulations governing the additional class orclas.scs 
of proceedings or appeals to be so conducted or heard prior to conducting or hearing any such proceedings or 
appeals. 



P.D. 12 117 

149. §27A, would be to designate alternative hearing officers from within the 
Department of Labor and Industries.^ Such a designee should be someone who 
was not involved in the wage determination appealed from. See 4 B. Mezines, 
Administnitive Lciw, §§36.01 and 36.02 (5th ed. 1982). Alternatively, individuals 
could be hired from outside the Department to perform this function.^ 

In sum. it is my opinion that the right of appeal contained in G.L. c. 149. §27A. 
remains in effect. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Atlornex General 



May 11, 1983 
Number 12. 

Paul Levy, Chairman 
Department of Public Utilities 
1210 Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mr. Levy: 

Your predecessor requested my opinion on several questions relating to recent 
efforts by some Massachusetts municipalities to restrict the use of herbicides on 
utility company rights of way in their communities through regulations promul- 
gated by municipal boards of health or similar local agencies. The first question 
posed by your predecessor is whether such local regulations are preempted by the 
Massachusetts Pesticide Control Act, G.L. c. 132B. In the event that such local 
herbicide control regulations are not preempted by the provisions of G.L. c. 132B, 
your predecessor asked whether G.L. c. 166, § 27, gives the Department of Pub- 
lic Utilities (DPU) authority to approve or disapprove local regulations that re- 
strict the use of herbicides along the rights of way of utility companies and, if so, 
whether such local regulations may be enforced by municipalities prior to being 
reviewed and approved by the DPU. Finally, if the DPU has authority under G.L. 
c. 166, § 27, to review and approve or disapprove such local regulations govern- 
ing the use of herbicides, your predecessor asked for guidance concerning the 
interplay between the DPU, the Pesticide Board and the Department of Enviromen- 
tal Quality Engineering regarding each agency's authority to regulate the use of 
herbicides by utilities along their rights of way. 

For the reasons set forth in the balance of this opinion, I must respectfully decline 
to answer the first and last questions. My response to the second and third questions 



General Laws chapter 23. section 3, provides in perlinenl part: 

The commissioner shall be the executive and administrative head of the department. Except as otherwise provided. 
he shall have charge of the administration and enforcement of all laws and mav assign the officers and 

employees of the department to the several divisions thereof 

^ General Laws chapter 23. section 4. provides in pertinent part: 

The commissioner may employ, for periods not exceeding ninety days, such experts as may be nccessarv to assist 
the department In the performance of any duty imposed upon It by law .... 



118 P.D. 12 

is that the DPU has no authority under G.L. c. 166, § 27, to approve or disapprove 
local board of health regulations affecting utility company rights of way and that 
such regulations may therefore be enforced by municipalities without DPU 
approval. 

I must decline to answer the first question — whether local regulations restrict- 
ing the use of herbicides on utility company rights of way are preempted by the 
Massachusetts Pesticide Control Act — for several reasons. First, under the 
standards set forth by the Supreme Judicial Court, the question of whether local 
regulations are preempted by state law' involves a determination of whether the 
regulations in question actually conflict with state law or, rather, are consistent 
with, although possibly more stringent than, state law. See, e.g. Lovequist v. Con- 
servation Commission of Dennis, 379 Mass. 7, 15 (1979); Beard v. Salisbury 378 
Mass. 435, 440 (1979); fi/oomv. Worcester, 363 Mass. 136, 155-156 (1973).'Such 
a determination must be made on a case-by-case basis depending on the particular 
subject matter, scope, and effect of the regulation in question. Since the regula- 
tions promulgated by various cities and towns may differ in those respects, I am 
unable to render a general pronouncement on the issue of preemption. 

A second reason why I must decline to answer the first question is that it relates 
more to the authority of municipal officials than to your own official duties. The 
Attorney General is authorized by G.L. c. 12, § 3, to render opinions to state offi- 
cials only on "matters relating to their official duties. ' ' It would therefore be beyond 
the scope of my authority to issue an opinion on this issue. 

Third, it is my understanding that the issues raised by the first question are cur- 
rently the subject of litigation in the state courts. In such circumstances, the Attor- 
ney General traditionally declines to issue opinions but rather defers to judicial 
resolution of such matters. 

The second question raised by your predecessor is whether G.L. c. 166, § 27,- 
gives the DPU authority to approve or disapprove regulations prohibiting or re- 
stricting herbicide use along utility company rights of way. For the following rea- 
sons, I conclude that G.L. c. 166, § 27, empowers the DPU to review only 
regulations adopted by local authorities pursuant to G.L. c. 166, § 25.^ 

The outer limits of the DPU's authority to review local regulations affecting the 
"erection, maintenance or operation of a line for the transmission of electricity" 
were demarcated by the Supreme Judicial Court in Boston Edision Co. v. Sud- 
bury, 356 Mass. 406, 418-20 (1969). In that case, the court was asked to deter- 
mine whether certain local building code by-laws applied to the construction of 



Yi)ur predecessor did nol ask and I express no opinion as to whether such regulalions arc preenipled by federal law. in parlicular 
Ihe Federal Insecticide. Fungicide, and Rodenlicide Act (FIFRA). 7U.S-C, «)!) 1 .16 <■/ .i<(/. The Attorney General traditionally declines 
to render opinions on the issue of federal preemption ot stale or local law but rather advises state officials of their duly to enforce 
and comply with slate statutes until such lime as such statutes are held to be preempted by a court of competent lurisdiction. Sec 
1979- 1980 Op. Ally. Gen. No. 10. Rep AG,. Pub. Doc, No, 12 at 119 n 6(19X0). 197K 1979 0p Ally Gen, No 6. Rep A.G . 
Pub, Doc, No, 12 at 109. II 1 (1979) 

General Laws chapter 166. section 27. provides; 

No ordinance or regulation of a city of town, or regulation or reslnclion imposed m a grant of location, affecting the erection, 
maintenance or operation of a line for the transmission of electricity lor light, heal or power extending or intended to extend from 
some point in one city or lown through or to some point in another city or town, shall lake effect until approsed h\ the department 
ol public utilities. 

The selectmen may, within their towns, permit telegraph, telephone or television lines to be laid under any public way or place and 
may establish reasonable regulalions for Ihe erection and maintenance of all lines for Ihe transmission of inlelligenee by telegraph, 
telephone or television, or for Ihe transmission of elcelricily for light, or for heal or power except for the use of street railway companies, 
by every person having authority to place such structures in or under public ways or places, including all lines owned or used by 
said towns Regulations established by a city hereunder shall be made by ordinance. 



P.D. 12 119 

a proposed electrical transmission line through Sudbury and several neighboring 
communities. Before reaching its conclusion that the local building code by-laws 
at issue did not apply to the proposed construction of an electrical transmission 
line, the court made a preliminary determination that the DPU lacked authority 
under G.L. c. 166, § 27, to review and approve or disapprove a building code 
by-law even if such by-law could have some application to the erection or main- 
tenance of electrical transmission lines. The court observed that G.L. c. 166, § 
25, empowers town selectmen to establish "reasonable regulations for the erec- 
tion and maintenance of all lines ... for the transmission of electricity." Boston 
Edison Co. v. Sudbury, 356 Mass at 419. The statute also directs that similar regu- 
lations may be established by cities as ordinances. The court then noted that sec- 
tions 25 and 27 had "originally appeared in one section as St. 1914, c. 742, § 132. 
The sections, without explanation, were separated in the 1921 recodification of 
the General Laws." Boston Edison Co. v. Sudbury, 356 Mass. at 419. This inti- 
mate alignment of sections 25 and 27 led the court to conclude that: 

the word "ordinance" in the first line of § 27, in the light of the lan- 
guage of § 25 (originally the first sentence of the 1914 statute, § 132), 
can refer only to action by a city under § 25, that ' 'regulation ' ' in that 
line refers only to regulations of selectmen made under § 25, and that 
the word "regulation" and the word "ordinance" in § 27 are not broad 
enough to include a town building by-law which must be adopted by 
the town in meeting and not merely by the selectmen. 
Boston Edison Co. v. Sudbury, 356 Mass. at 419 (emphasis added). 
The Supreme Judicial Court's decision in the Sudbury case delimits the DPU's 
authority under section 27. When a city or town acts under section 25 to regulate 
"the erection and maintenance of all lines for the transmission . . . of electricity," 
it must obtain approval from the DPU in accordance with section 27 before the 
regulation may become effective. If, however, the city or town issues ordinances 
or regulations under authority granted to it by the Legislature in provisions other 
than section 25, such ordinances or regulations become effective without the prior 
approval of the DPU even if the local measures may have some indirect applica- 
tion to the property or rights of way of utility companies located in the commu- 
nity. Therefore, only when municipal officials adopt regulations pursuant to their 
authority under section 25 is the DPU empowered by section 27 to review and 
approve or disapprove local regulations. 

Applying these principles to the particular regulations that have been adopted 
by the boards of health of the towns of Brewster, Wellfleet, and Barnstable (copies 
of which were attached to your predecessor's request), I conclude that since those 
regulations were established by boards of health rather than by the town select- 
men, they do not fall within the scope of G.L. c. 166, § 25, and therefore not sub- 
ject to review and approval or disapproval by the DPU pursuant to G.L. c. 166, 
§27. 

The answer to your predecessor's third question — whether local regulations 
governing the use of herbicides on utility company rights of way may be enforced 
prior to DPU approval — also follows directly from the language of G.L. c. 166, 
§ 27, as construed by the Supreme Judicial Court in the Sudbury case. Section 27 
expressly provides that "tn]o ordinance or regulation of a city or town . . . affecting 



120 P.D. 12 

the erection, maintenance or operation of [an electrical transmission] line . . . shall 
take effect until approved by the department of public utilities." Since the words 
"ordinance" and "regulation" have been construed to apply only to ordinances 
or regulations established pursuant to section 25, Boston Edison Co. v. Sudbury, 
356 Mass. at 419, it follows that local regulations enacted pursuant to section 25 
may not be enforced prior to DPU approval. If, however, local regulations or 
ordinances are not adopted under the authority granted to local governments by 
section 25, such regulations may become effective without the prior approval of 
the DPU despite any indirect effect the regulations may have on utility company 
property or rights of way.'* 

I must decline to provide the guidance requested in the fourth question, con- 
cerning the interplay among the DPU, the State Pesticide Board, and the Depart- 
ment of Enviromental Quality Engineering with respect to herbicide regulation, 
for several reasons. First, your predecessor has not alluded to any actual conflict 
among these agencies with respect to herbicide regulation; and, moreover, although 
municipalities may be subject to regulation by all three agencies, it does not neces- 
sarily follow that a conflict would arise. Therefore, this question is too specula- 
tive to form the basis for an opinion at this time. Second, if such an administrative 
dispute among state agencies should arise, it would be more appropriately resolved 
by the Governor, pursuant to G.L. c. 30, § 5, than by an opinion of the Attorney 
General. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



June 15, 1983 

Number 13. 

James Gutensohn, Commissioner 
Department of Environmental Management 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Gutensohn: 

Your predecessor requested my opinion with respect to whether the Department 
of Environmental Management may, consistent with the provisions of chapter 79 
of the General Laws, settle a land damages claim pursuant to G.L. c. 79, §39, 



Aparl triini the issue (if DPU approval, however, general municipal health regulations (such as those established by the boards of 
health of Brewster. Welltlcet and Barn.stable), purporting to prohibit or restrict the use of herbicides on utility company rights of 
way, might be unenforceable on other grounds which are beyond the scope of this opinion. C/. Busum Kilison Co. v. Siuilniry. 356 
Mass. at 420 (general building code by-laws are applicable to electrical transmission lines and supporting structures, as opposed 
to buildings of a type usually subject to building codes); cf. also New Eiii>kmd Power Co. v. Board of Sclccimeii of Ameshury. 389 
Mass 64 ( 1483) (municipal hoard of selectmen's authority to revoke a prior grant of street crossing IcKations for overhead transmission 
lines IS preempted by Legislature's delegation to DPU of broad authority to regulate construction and use of transmission lines); 
New Eiifilaml Tetephotie ami Telei;rai>h Company v Ciiy of Lowell. 369 Mass. 83 1 (1 976) (city ordinance requiring that all construction 
plans calling for open trenches in or near public ways must be approved by a Registered Land Surveyer or Registered Protessional 
Engineer was invalid as applied to a utility company subject to DPU jurisdiction because the utility's surveyors and engineers are 
exempt from regi.slration requirements). 



P.D. 12 121 

after a pro tanto payment has been made to the landowner. For the reasons set forth 
below, I conclude that the Department's conduct, as your predecessor described 
it, constitutes an appropriate attempt to settle a land damages claim and is consis- 
tent with the applicable statutory scheme. 

Your predecessor informed me that the Department approved an award for the 
taking of 22.4 acres of land in Northbridge. That award was based upon the lower 
of two appraisals for the land in question, which were obtained by the Department 
pursuant to G.L. c. 79, §7A. The award was accepted by the landowner as a pro 
tanto payment, without prejudice to the right to claim a larger sum in proceedings 
before the appropriate tribunal. G.L. c. 79, §8 A. The Department sought to avoid 
the anticipated litigation of the damages claim by making a settlement pursuant 
to G.L. c. 79, §39. The amount of that settlement offer was less than the Depart- 
ment's second appraisal of the property. That offer has been accepted by the land- 
owner in full satisfaction of all claims against the Commonwealth. 

Your predecessor informed me that the Comptroller has not authorized payment 
of the settlement because of his view that the agreement may be inconsistent with 
the statutory scheme, in that after a payment pro tanto, the remedy available to 
a landowner is a petition for the assessment of damages as provided in G.L. c. 
79, §14. The Comptroller's reluctance to act until this issue is resolved has 
prompted this opinion request. 

I begin with a review of the comprehensive statutory scheme which governs emi- 
nent domain takings by agencies of the Commonwealth and which provides reme- 
dies to aggrieved landowners. For purposes of this review, I have in mind that 
statutes must be interpreted by ascertaining legislative intent from the ordinary 
and approved meaning of the language used, " 'considered in connection with the 
cause of its enactment, the mischief or imperfection to be remedied and the main 
object to be accomplished.' " Registrar of Motor Vehicles v. Board of Appeal on 
Motor Vehicle Liability' Policies and Bonds, Mass. Adv. Sh. (1981) 415, 420 (quot- 
ing Board of Education v. Assessor of Worcester, 368 Mass. 511, 513 (1975)). 
"Futhermore, where two or more statutes relate to the same subject matter, they 
should be construed together so as to constitute an harmonious whole consistent 
with the legislative purpose." Id. 

Section 3 of chapter 79 provides that upon recording of the order of taking, title 
to the property taken vests in the "body politic or corporate on behalf of which 
the taking was made," and the right to damages vests in the former owner of the 
property. Section 8A requires the Department, within sixty days of the taking, to 
offer a reasonable amount as an award of damages to the former owner "either 
in settlement under section thirty-nine of all damages for such taking with interest 
thereon ... or as a payment pro tanto." If the former owner elects to accept the 
award as a pro tanto payment, "such election shall be without prejudice to or waiver 
or surrender of any right to claim a larger sum by proceeding before an appropriate 
tribunal." Id. 

A pro tanto payment and a settlement pursuant to section 39 are distinct remedial 
measures intended to provide just compensation for the governmental taking of 
private property. A pro tanto award is a partial payment made by the government 
upon a taking, without prejudice to the landowner's right to bring legal action for 
the full amount he believes is due. G.L. c. 79, §8A. A setdement under section 



122 P.D. 12 

39, unlike a pro tanto payment, conclusively disposes of a landowner's entitle- 
ment to reasonable compensation without litigation. G.L. c. 79, §39. The distinc- 
tion between these two approaches is longstanding. 

Prior to the enactment of G.L. c. 79, §8A, in 1959, section 39 provided that 
an agency, upon exercising its taking power, "may after the right to such damages 
has become vested offer in writing to pay [damagesl to the person entitled to receive 
the same .... Acceptance thereof may be either in full satisfaction of all damages 
so sustained, or as a payment pro tanto without prejudice to any right to have the 
remainder thereof assessed by the appropriate tribunal." That version of section 
39 was interpreted to furnish 

a means by which either a settlement may be effected without a trial 
or an offer made which will reduce the liability for interest. We think 
that when the Legislature gave to the department power to take land 
by eminent domain "under chapter sevety-nine" it intended to give 
to the department full and complete power to carry the necessary 
proceedings through to a final termination, with all the incidents and 
alternatives set forth in c. 79. 

Willar V. Commonwealth , 297 Mass. 527, 528 (1937). 

Amendments to the statutory scheme have not altered the availability of settle- 
ment without a trial as a way of conclusively resolving an eminent domain claim. 
In 1957 and 1958, the Judicial Council of Massachusetts recommended amend- 
ments to section 39 which would "provide for a mandatory, formal, reasonable 
offer . . . and a mandatory pro tanto payment of the amount of the offer. ..." 
Thirty-third Report of the Judicial Council of Massachusetts, P.D. 144 (1957) at 
72-73 (Thirty-third Report). See also Thirty-fourth Report of the Judicial Coun- 
cil of Massachusetts, P.D. 144 (1958) at 93; Mass. H. Jour. 354-55 (1959). The 
addition of section 8A, and subsequent amendments thereto and to section 39, 
implemented the Judicial Council's recommendations. The discretionary authority 
to offer a pro tanto payment was eliminated from section 39 and made mandatory 
in section 8A. ' However, the discretionary authority to settle damages claims was 
left intact in section 39. See Thirty-third Report at 72 ("[0]f all the land-taking 
cases few are tried to a jury. Most cases are settled."). As the statutory scheme 
now stands, section 8A requires the offer and payment of a reasonable pro tanto 
award within 60 days of the recording of the order of taking. Section 39 provides 
that: 

Whenever damages may be recovered under this chapter, the body 
politic or corporate liable for such damages may after the right to such 
damages has become vested effect such settlement of the damages with 
the person entitled thereto as it may deem to be for its best interest .... 
Every settlement under this section shall be in writing and in full satis- 
faction of all damages for such taking with interest thereon and taxa- 
ble costs, if any. 



The niandalory pni lanio of section 8A was designed "lo stop interest on |the amount of Ihc offer to the landowner], thus protecting 
taxpayers, and to enable the landowner, whose life, business and financial c<indition may be seriously interfered with, to get simw 
pay mem with reasonable promptness without waiving his claim for more, if he wishes to .submit his claim lo a judge or jury." Thirty - 
third Report at Tl-li (emphasis in original) 



P.D. 12 123 

There is nothing in the interplay of section 39 and section 8A which suggests 
that agencies do not have the authority to enter into a settlement agreement fol- 
lowing a pro tanto payment and conclusively dispose of a damages claim. Indeed, 
section 8A makes plain that an agency may offer either a section 39 settlement 
"of any damages" or a payment pro tanto without prejudice to a claim for damages. 
It would be an unreasonable construction of the statutory scheme to suggest that 
once a partial payment has been made and accepted pro tanto, a damages claim 
can be disposed of only by an action against the agency. Moveover, "[i]t would 
be strange if a department which has authority to take the land and to make the 
initial award required by §6 of c. 79 should be powerless when it becomes advis- 
able to effect a settlement under §39 of that chapter." Willar v. Commonwealth, 
297 Mass. at 528. 

In this case, the Department made an award and, pursuant to section 8A, it was 
accepted. Subsequent to its acceptance, the Department and the landowner agreeed 
to a settlement which would conclusively dispose of all damages claims. There 
was no attempt to amend the pro tanto award or to make a second pro tanto award. ^ 
Compare 1972-73 Op. Atty. Gen. No. 4, Rep. A.G., Pub. Doc. No. 12 at 46-47 
(1972). Because the Department has the authority under section 39 to conclusively 
settle a damages claim outside the context of litigation, it is my opinion that the 
Comptroller may act favorably on the Department's request for release of the funds 
necessary to implement its settlement agreement. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



' A second pro tanto award could not have been made hccause the slatutoi^ lime resliclions prohibited it SeeG.L.c. 79. §6- Moreover, 
a second pro tanio payment would frustrate the ultimate purpose of the statutory scheme— the conclusive resolution of a landowner's 
claims against the Commonwealth. Sec Thirly-third Report at 72-73 



124 P.D. 12 

INDEX OF OPINIONS 

TOPICS OPINION PAGE 

Appeal, Right to 

Right of appeal from wage determinations 11 

Appointments 

1) Political affiliations of members of boards 

and commissions 8 

2) Issuance and recording of commissions for 

appointments to public office 9 

Banks and Banking 

Reinsurance powers of Massachusetts savings bank 

life insurance departments 6 

Boards and Commissions 

Political affiliations of members 8 

Bonds and Notes 

Issuance under Government Land Bank Act 1 

Chapter 455. Acts of 1982 

Use of referendum petition for repeal 4 

Conviction 

Whether payment of traffic fine by mail is conviction 2 

Eminent Domain 

Settlement of land damage claim after pro tanto payment 13 

Employment 

Certification of business facilities by Urban Job 

Incentive Bureau 10 

Government Land Bank 

Issuance of bonds and notes under Government Land Bank 

Act I 

Herbicides 

Restrictions on use of herbicides on utility company 

rights of way 12 

Initiative and Referendum 

1) Proper form and texts of "public policy" questions 3 

2) Use of referendum petition to repeal Chapter 455, 

Acts of 1982 4 

Insurance 

Reinsurance powers of Massachusetts savings bank 

life insurance departments 6 

Licenses - Suspension 

Whether payment of traffic fine by mail is conviction 2 

Minimum Wages 

Right of appeal from wage determinations II 

Motor Vehicles, Moving Violations 

Whether payment of traffic fine by mail is conviction 2 

Oaths and Affirmations 

Issuance and recording of commissions for 

appointments to public office 9 



P.D. 12 



125 



INDEX OF OPINIONS (Cont.) 

TOPICS OPINION PAGE 

Pharmacy and Pharmacists 

Verification by restricted pharmacies of prescriptions 

filled by mail 5 

Pro Tanto Award 

Settlement of land damage claims after pro tanto payment .... 13 

Public Lands 

Issuance of bonds and notes under Government Land Bank 

Act 1 

Public Office 

Issuance and recording of commissions for 

appointments to public office 9 

"Public Policy"" Questions 

Proper form and texts 3 

Public Utilities 

Restrictions on use of herbicides on utility company 

rights of way 12 

Salaries 

Use of referendum petition to repeal Chapter 455, 

Acts of 1982 4 

Schools, Private Instruction 

Responsibility of school committee for transportation of 

non-public school students 7 

Statutes - Administrative Interpretation 

Reinsurance powers of Massachusetts savings bank 

life insurance departments 6 

Statutes - Clear Legislative Intent 

Verification by restricted pharmacies of prescriptions 

filled by mail 5 

Statutes - Repeal by Implication 

Right of appeal from wage determinations 11 

Statutory Construction 

1) Verification by restricted pharmacies of prescriptions 

filled by mail 5 

2) Political affiliations of members of boards 

and commissions 8 

Taxation and Revenue 

Certification of business facilities by Urban Job 

Incentive Bureau 10 

Traffic Laws 

Whether payment of traffic fine by mail is conviction 2 

Transportation 

Responsibility of school committee for transportation 

of non-public school students 7 

Urban Job Incentive Bureau 

Certification of business facilities by Bureau 10 



126 P.D. 12 

INDEX OF REQUESTING AGENCIES 

AGENCY OPINION PAGE 

Economic Affairs, Executive Office of 10 

Education. Department of 7 

Environmental Management. Department of 13 

Governor of the Commonwealth 8 

Labor and Industries, Department of 11 

Motor Vehicles. Registry of 2 

Pharmacy, Board of Registration in 5 

Public Utilities, Department of 12 

Savings Bank Life Insurance. Division of 6 

Secretary of State 3.4,9 

Treasurer and Receiver General 1