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

Public Document 



No. 12 



State Library of Massachuseti^ 
State House, Boston 

(lll|c Olammonuiealtif of iHafiaacIiUHEttH 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1985 




IR 

;U0M3 

-985 
J. 2 



Publication of this Document Approved by Daniel D. Carter, State Purchasing Agent 
15007- b7- 813821 estimated cost per copy s2.93 



'^•^ R^ie- 



3^0 M3 



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, 1985. 

Respectfully submitted, 

FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
FRANCIS X. BELLOTTI 

First Assistant Attorney General 
Thomas R. Kiley 



Assistant Attorneys General 



Jacqueline Allen 
Richard Allen 
John Amabile 
Dorothy Anderson 
Linda Andros^* 
Nicholas Arenella 
Donna Arzt 
Thomas Barnico 
Madeline Becker 
Annette Benedetto 
Susan Bernard^ 
Despena Billings 
Lee Bishop 
Edward Bohlen 
Mark Bourbeau 
Kenneth Bowden 
Stephen Bowen 
Kathleen Bowers^^ 
Lee Breckenridge 
Roberta Brown 
Cynthia Canavan 
Calvin Carr22 
Eric Carriker 
James Caruso 
Francis Chase 
Paul Cirel 
Cheryl Connor 
John Cratsley 
Richard Dalton 
Paula DeGiacomo 
George Dean 
Elaine Denniston 
Vincent DiCianni 
Carol Dietz 
Michael Dingle 
John Donohue 
Elizabeth Donovan 
Raymond Dougan 
Suzanne DurrelH 
Joan Entmacher 
Leslie Espinoza 
Sharon Feldman^i 
Allan Fierce^ 
Kevin Finnerty^o 
L. Scott Fitzpatrick 
Christopher Flynn^s 
Peter Flynn^o 
John Fox^'* 
Robert Gaines^^ 
Dwight Golann 
Susan Goldfischer' ^ 



Paul Good 

John Graceffa^z 

Alexander Gray 

John Grugan 

Herbert Hanson^s 

Michael Hassett^^ 

Craig Havel 

Beverly Hayeses 

Deborah Hiatt3 

Virginia Hoefling^s 

Andra Hotchkiss^" 

William Howell 

Edward Hughes 

Jeffrey Hurwit 

Ellen Janos 

Michelle Kaczynski 

Richard Kanoff 

John Karagounis26 

Jamie Katz 

Linda Katz 

Sally Kelly 

Michael Kogut 

Alan Kovacs 

Steven Kramer 

Maria Kyranos-Mendros^s 

Marek Laas^^ 

Paul Lazour 

Leonard Learner 

Stephen Leonard 

Martin Levin 

Lisa Levy" 

James Lewis 

Mark Ley master^ ^ 

Maria Lopez 
William Luzier 
Michael Magistrali^^ 
Nancy Marl^^ 
George Matthews 
Paul Matthews 
Janet McCabe^ 
Kathleen McDermott" 
Susan McHugh 
Edward McLaughlin 
Georgianna McLoughlin 
William McVey 
Paul Merry 
James Milkey' 
William Mitchell 
Paul Molloy 
Paul Muello 



Sherry Mulloy^ 
Kim Murdock 
Thomas Norton 
Henry O'Connell 
Carlo Obligators 
Stephen Ostrach 
Howard Palmer 
William Pardee 
Charles Peck 
Carmen Picknally 
Richard Rafferty 
T. David Raftery 
Dan Reicheri3's9 
Frederick Riley 
Susan Roberts 
Frances Robinson 
John Roddy 
Ann Rogers 
James Ross^^ 
Hilary Rowen 
Joan Ruttenberg2 
Dennis Ryan 
Holly Salamido 
Mark Schmidt^" 
Kathleen Sheehan^^ 
Brison Shipley 
JoAnn Shotwell 
E. Michael Sloman 
Barbara A. Smith 
Carol Sneider 
Dianne Solomon 
Donna Sorgi 
Johanna Soris 
Joan Stoddard 
Kevin Suffem 
Christopher Sullivan 
Mark SutliffZ" 
Diana Tanaka 
Diane Tsoulas 
Carl Valvo 
Charles Walker 
John Ward56 
John White 
Douglas Wilkins^^ 
H. Reed Witherby 
Carolyn Wood 
Christopher Worthington 
Judith Yogman 
Andrew Zaikis 
Margaret Zaleski 
Donald Zerendow 
Stephen Ziedman 



P.D. 12 



Assistant Attorneys General Assigned To Division of Employment Security 



Robert Lombard 
Willie Carpenter^ 
John Harvey53 



Chief Clerk 
Edward J. White 

Assistant Chief Clerk 
Marie Grassia 



Wendy Thaxter^^ 
Robin Ultcht 



APPOINTMENT DATE 

1. 7/23/84 

2. 8/15/84 

3. 8/20/84 

4. 9/4/84 

5. 9/5/84 

6. 9/10/84 

7. 9/17/84 

8. 9/24/84 

9. 10/1/84 

10. 10/9/84 

11. 10/10/84 

12. 10/15/84 

13. 10/29/84 

14. 11/19/84 

15. 11/26/84 

16. 12/3/84 

17. 12/10/84 

18. 2/4/85 

19. 2/12/85 

20. 2/15/85 

21. 2/19/85 

22. 2/20/85 

23. 2/25/85 

24. 6/3/85 

25. 6/18/85 

26. 7/1/85 



TERMINATION DATE 

50. 8/31/84 

51. 9/4/84 

52. 9/7/84 

53. 9/14/84 

54. 11/30/84 

55. 12/28/84 

56. 3/1/85 

57. 3/4/85 

58. 4/9/85 

59. 5/17/85 

60. 6/13/85 

61. 6/28/85 



RD. 12 



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P.D. 12 11 



COMMONWEALTH OF MASSACHUSETTS 

For the past ten years I have written introductions for this annual report with a 
decidedly parochial slant. The tendency each year has been to write about what I 
have done as Attorney General or to stress the singular accomplishments of the 
Department. The unintended impression that these introductions might convey is 
that we in this office believe we are solely responsible for advancing the cause of 
truth and justice in the Commonwealth. 

The fact of the matter is that the hallmark of this office throughout my tenure has 
been working with others in the public interest. Throughout the office the Depart- 
ment of the Attorney General is imbued with a sense of cooperation. We recognize 
that we are but one cog — albeit an extremely important one — in the machinery 
of government. This year as I near the end of my third term as Attorney General, 
I would like to use these pages to highlight our cooperative efforts to keep that machine 
running. 

Perhaps the clearest examples lie in the domain of the Criminal Bureau. The 
criminal law enforcement network is extremely broad. There are scores of federal, 
state, county and local agencies with various police powers operating in Massa- 
chusetts, even as there are a United States Attorney and eleven district attorneys with 
whom I share prosecutorial responsibilities. Coordinating the activities of all these 
agencies is a critical function, not just because we may duplicate one another's work 
but because we can actually interfere with each other. Recognizing this fact, the 
United States Attorney and I formed a Law Enforcement Coordinating Committee 
at the start of this term. The success of that committee is difficult to measure, but 
communication is at an all time high and I can think of not a single significant govern- 
mental corruption case over the past several years in which there was not some form 
of interagency coordination. 

Another prime example of the cooperative approach to law enforcement lies in 
the efforts of the statewide drug task force, formed by the Governor, this office and 
the eleven district attorneys. The premise of the task force is that an anti-drug pro- 
gram must attack not only those who traffic in drugs — the supply side of the equa- 
tion — but also those who use them — the demand side. While we work with our 
federal counterparts to stem the flow of drugs into the Commonwealth, we are most 
effective breaking up distribution within the state. Hence we have established units 
in each of the district attorneys' offices, staffed by more than one hundred state and 
local police officers, whose activities are supported by computerizing intelligence 
services provided by this Department. During the period covered by this report, the 
statewide task force made 1,377 arrests, seized almost two million dollars in cash 
and drugs valued as high as seventy-five million dollars as well as scores of motor 
vehicles, weapons and even boats. Meanwhile, the Governor has attacked the demand 
for drugs with a comprehensive education program, giving the state an effective battle 
plan in the war against drugs. 

Sometimes our cooperative networks are far less global in scope. During this 
reporting period we worked with the Massachusetts Bay Transit Authority to develop 
cases against 34 "T" employees who had allegedly stolen hundreds of thousands 
of dollars in fares. Similarly, we developed criminal tax cases with the Department 
of Revenue and Division of Employment Security that have produced truly 



12 P.D. 12 

loteworthy effects. The atmosphere of deterence we have created is now so signifi- 
:ant that it is widely credited with boosting collections to an all time high. Working 
with the Inspector General we put together the first significant commercial bribery 
:ases under the statute enacted at the behest of the Ward Commission, cases involv- 
ing hundreds of thousands of dollars allegedly diverted from the M.D.C. 

On other occasions coordination has meant exercising our civil authority in con- 
junction with criminal prosecutions brought by the district attorneys. For instance, 
the district attorneys from Berkshire and Norfolk counties initiated prosecutions of 
their respective treasurers during fiscal year 1985. At various points in time as many 
as five other state agencies were involved in the matter. Furthermore, we filed and 
the legislature enacted a bill authorizing judicial proceedings to remove county 
treasurers, filling a gap in an otherwise comprehensive removal scheme, and then 
brought proceedings under that law resulting in the forced resignation of the Norfolk 
County Treasurer. While this case may be the ultimate example of coordination, 
invoking civil and criminal law enforcement work it is not unique. During the report- 
ing period, staff from the Civil Rights and Environmental Protection divisions 
worked hand in glove with the district attorneys, bringing dozens of injunctive cases 
while the county officials initiated criminal proceedings. Lawyers from the Con- 
sumer Protection Division helped form the Northeast Regional Odometer Task Force 
and filed a series of civil odometer tampering actions, even as the district attorneys 
criminally prosecuted the cases we had developed in cooperation with the Registry 
of Motor Vehicles. 

Cooperation frequently means working with my fellow Attorneys General from 
around the country. Fiscal 1985 may have been the high water mark for such nation- 
wide efforts in the public interest. Three cases involving billions of dollars in con- 
sumer monies dominated these efforts. The first of the three involved overcharges 
passed on to ultimate users of petroleum products by oil companies who contended 
its price was for new oil not subject to federal price control. I chaired the states oil 
overcharge committee through the year, and our efforts in federal court will pro- 
duce more than a hundred million dollars in revenue being returned to Massachusetts. 
Public Protection Bureau staff also directed the activities of the state in the Baldwin- 
United case, resulting in millions of dollars in repayments to purchasers of Baldwin- 
United annuities, and assumed a leadership role for the states in the Johns-Manville 
bankruptcy proceeding, where again hundreds of millions of dollars are at stake. 
Working together, the nation's Attorneys General have proven to be an irresistible 
force in each of these three cases. 

Cooperation is not just a phenomenon in our affirmative, glamorous cases. The 
traditional defensive work of the Department is carried out in the Civil and Govern- 
ment Bureaus. Working with our clients in the various state agencies is the key to 
a successful defense of the programs and policies of the other branches of govern- 
ment. Each of those Bureaus handled hundreds of cases last year, bearing mute 
witness to the way the Commonwealth's various agencies pull together towards a com- 
mon goal. 

To summarize even a handful of those cases is beyond the scope of this introduc- 
tion. Rather than make the attempt, I leave the task to the ensuing pages of this annual 
report, which is submitted in accordance with the provisions of section 11 of chapter 
12 and section 32 of chapter 30 of the General Laws. 



P.D. 12 13 

MONEY RECOVERED AND SAVED 
FOR THE COMMONWEALTH AND ITS CITIZENS 

MONEY RECOVERED FOR THE COMMONWEALTH TREASURY 

A. Charitable Registrations and Certificate Fees 242,250.00 

B. Escheats 350,808.37 

C. Collections, Rent 70,000.00 

D. Collections, General 299,539.42 

E. Delinquent Unemployment Compensation Claims 2,208,120.42 

F. Fraudulent Unemployment Compensation 274,948.73 

G. Criminal Delinquent Tax Recovery 1,400,000.00 

TOTAL $4,855,666.94 

MONEY RECOVERED AND SAVED FOR COMMONWEALTH CITIZENS 

A. Antitrust Recoveries 140,000.00 

B. Judgments, Settlements and Restitution in Consumer 

Protection Division Court Cases 371,393.59 

C. Consumer Recoveries, Non-Court Cases 440,757.51 

D. Insurance Rate Savings 136,000,000.00 

E. Utility Rate Savings 31,350,000.00 

F. Medicaid Fraud Fines and Restitution 1,050,268.00 

G. Civil Penalties-Costs and Grants in Environmental 557,375.00 

TOTAL $169,909,794.10 

TOTAL TABLES I AND II $174,765,461.04 

CIVIL BUREAU 

The responsibility of the Contracts Division generally falls into 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 work 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. 

In contract actions against the Commonwealth, G.L., c. 258, § 12, is, for the 
most part, the controlling statute. 

At the commencement of contract actions, litigants often 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 injunctive relief. 



14 P.D. 12 

Government contract disputes have become increasingly complicated. There has 
been a tendency for the actions to involve multiple parties, including architects, con- 
sulting engineers, subcontractors, materialmen, and surety companies. 

The discovery stage often involves the retrieval of massive numbers of documents 
which, subsequently, have to be reviewed and analyzed. 

Trials of public contract actions often involve lengthy hearings before the court 
or before court appointed masters. The procedure before masters has been cumber- 
some and awkward and has tended to delay rather than expedite the legal process. 
This has resulted in efforts by the attorneys to resist references to masters resulting 
in more trials before the court. At the end of the fiscal year, court rules were modified 
to simplify the procedure before masters, thus, increasing the probability that future 
actions may be resolvable before masters. 

In one instance during the fiscal year, an action was forced to arbitration before 
the American Arbitration Association. The appeal of this action was pending at the 
end of the fiscal year. 

The impact of the Omnibus Bill "To Improve The System Of Public Construc- 
tion In The Commonwealth, C. 579, Acts of 1980, Sponsored By The Special Com- 
mission Concerning State And County Buildings" continued to be evident during 
the fiscal year. A number of actions have been initiated involving interpretation of 
the statute vis-a-vis the validity of the minority and women-owned "set aside" 
provisions. 

Actions pursuant to G.L., c. 30, §39N, andG.L., c. 30, §390, relating to con- 
tract equitable adjustments had also been brought with increasing frequency. 

Seventy-seven (77) new actions were commenced during the fiscal year and 1 10 
cases were closed. As of June 30, 1985, there were three hundred sixteen (316) 
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 numerous 
other miscellaneous matters. The most frequent requests received during the fiscal 
year concerned indemnification clauses in leases and arbitration provisions in con- 
struction contracts. 

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 plays a similar role with respect to the Department of Public Works, 
Metropolitan District Commission, Secretary of Transportation, Board of Regents 
of Higher Education, Data Processing Bureau, Mental Health, Youth Services, 
Environmental Management, Water Resources, State Lottery Commission, and 
Public Welfare, Division of Capital Planning and Operations. 



P.D. 12 15 

C . Contract Review 

The Division reviews many state contracts, leases, and bonds submitted by state 
agencies. All contracts are logged in and out, and a detailed status record is main- 
tained. The average contract is approved within forty -eight (48) hours of its sub- 
mission to the Division. 

During the fiscal year, the Division received for approval as to form a total of 
1,575 contracts. One hundred seventy (170) contracts were rejected and later 
approved after the deficiencies were corrected. 

EMINENT DOMAIN 

The major function of the Eminent Domain Division is the representation of the 
Commonwealth in the defense of petitions for the assessment of damages resulting 
from land acquisition by eminent domain. The Commonwealth acquires land for 
a variety of purposes, including rights of way for roads, land for state colleges, land 
for recreation and park purposes, land for flood control and land for easements. 
The division deals primarily with the Department of Public Works, the Metropolitan 
District Commission, the Department of Environmental Affairs, 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 
purposes; and in some instances, the Division is called upon to testify before the 
Governor's Council prior to their granting approval for the payment of land damage 
cases settled by the Department of the Attorney General. 

Informal advisory services, both written and oral are rendered to practically every 
state agency and many cities and towns. Agencies with eminent domain or real estate 
questions or problems either write or call the division for consultation and advice. 
The division also appears before Legislative Committees to give advice on legisla- 
tion of importance to the Department of the Attorney General as well as other state 
agencies. 

Chapter 79 of the General Laws prescribes the procedure in eminent domain pro- 
ceedings. Under Chapter 79, when property is taken, the taking agency makes an 
offer of settlement known as a pro tanto, which makes available to the owners an 
amount the taking agency feels is fair and reasonable but reserves to the prior owners 
the right to proceed, through the courts, to recover more money. In the event of 
a finding by the court or jury , the pro tanto payment is subtracted from the verdict 
and the taking agency pays the balance, with 10% interest from the date of the tak- 
ing to the date of the judgment. 

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 Bureau 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 



16 P.D. 12 

general public. This includes negotiating settlements, closing out uncollectibles, 
suits to enforce the payment of rent, as well as eviction matters. In those cases 
wherein rent is owed to the Commonwealth and there is a land damage case pend- 
ing, the Eminent Domain Division trial attorney handles both matters at the time 
of trial. During the past fiscal year, 60 rent cases were closed out and approximately 
$70,000.00 was collected and turned over to the State Treasurer. During fiscal 1986, 
approximately 5 1 land damage cases were disposed of, the majority by trial before 
juries in the various Superior Courts throughout the Commonwealth. The disposi- 
tion of these cases resulted in a savings to the Commonwealth of approximately three 
million dollars. There were in excess of two hundred cases disposed of in the Land 
Court as well. 

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 Commonwealth, 
or any of its agencies or departments, has an interest which may be affected by the 
petition. If such a determination is made, no decree issues without the Division being 
given a full and complete opportunity to be heard. Some of these issues are tried 
to a conclusion while others are amicably agreed upon and the rights of the Com- 
monwealth are protected by stipulation. 

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

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

Further, the Land Court determines so-called "water rights." As indicated in 
the reports of past years, this is becoming a new problem area in that many rivers 
and streams have been cleaned and improved as a result of federally funded proj- 
ects, bringing into question the Conmionwealth'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 possession and prescriptive rights in the flats of the tidelands 
and access to beaches. The land registration process continues to involve diverse 
issues. Many railroad rights of way appear in registration cases. Serious questions 
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, has 
acquired railroad rights of way to be used not only for passenger service but for 
recreational purposes as well. The reversionary rights and the effects upon Com- 
monwealth title are important issues. 

The Commonwealth has become involved with problems due to filling and dredg- 
ing that have taken place along the shores and areas developed by beach associa- 
tions, especially on the Cape and Islands. Dredging has been done with the material 
dredged being placed upon the shores, changing private access rights to and from 
the beaches. 



P.D. 12 17 

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 must be reviewed and approved as to form by the Emi- 
nent Domain Division. 

The Division continues to assist the Department of Food and Agriculture to 
expedite and to carry out the mandates of Chapter 780 of the Acts of 1977, known 
as the Agricultural Preservation Restriction Act. This act helps to preserve the 
limited farm land remaining in Massachusetts by providing a method whereby the 
farmers receive compensation for the so-called ' 'developmental rights" in their land 
without destroying its productive capacity and value as farm land. A deed is then 
filed in the appropriate county registry wherein the land use is restricted in perpetuity 
to farming and agricultural uses. Since the inception of this program in 1977, more 
than fifteen thousand acres of farmland have been permanently protected in 
Massachusetts. 

Fiscal 1986 promises another busy year for the Eminent Domain Division. The 
Massachusetts Department of Public Works, as well as the Metropolitan District 
Commission, predicts a heavy workload for fiscal year 1986. 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. These 
ambitious undertakings are expected to cost in excess of 100 million dollars and 
can be expected to result in extensive litigation for this Division. 

In addition, the Massachusetts Department of Transportation is anticipating that 
federal funding and authorization will be received from Congress this year, to 
depress the Central Artery and to construct a third harbor tunnel. Needless to say, 
such an event would give rise to a serious increase in law suits against the Com- 
monwealth, as well as create serious relocation problems for residents of the North 
End as well as the many businesses located in close proximity to the Central Artery 
Corridor. 



INDUSTRIAL ACCIDENT DIVISON 

The Industrial Accident Division serves as legal counsel to the Commonwealth 
in all worker's 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 compensable 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 12,959 First Reports of Injury filed during the last fiscal year for state 
employees with the Division of Industrial Accidents. Of the lost time disability cases 
the division reviewed and approved 2,212 new claims for compensation. In addi- 
tion, the Division worked on and disposed 134 claims by lump-sum agreements. 

The Division appeared for the Commonwealth on 1,098 formal assignments before 
the Industrial Accident Board and before the Courts on appellate matters. In addi- 
tion to evaluating new cases, the Division continually reviews the cases, that is, those 
which require weekly payments of compensation, to bring them up to date medically 
and to determine present eligibility for compensation. 



18 P.D. 12 

Total disbursements by the Commonwealth for state employees' industrial acci- 
dent claims, including accepted cases, Board and Court decision and lump-sum 
settlements, for the period July 1, 1984 to June 30, 1985, were as follows: 

General Appropriation 
(Appropriated to the Division of Industrial Accidents) 

Incapacity Compensation $ 1 1 ,099 , 300 . 86 

Medical Payments 1,861,029.11 

TOTAL DISBURSEMENTS $12,960,329.97 

Metropolitan District Commission 
(Appropriated to M. D. C. ) 

Incapacity Compensation $576,029.85 

Medical Payments 162,976.93 

TOTAL DISBURSEMENTS $739,006.78 

The Industrial Accident Division also has the responsibility of defending the ' 'Sec- 
ond Injury Fund" set up by G.L. c. 152, § 65, against claims for reimbursement 
made under G.L. c. 152, §§ 37 and 37A. During the past fiscal year the Division 
appeared on 145 occasions to defend this fund against claims for reimbursement 
by private insurers. As of June 30, 1985, the financial status of this fund was: 

Unemcumbered Balance $448,289.32 

Invested in Securities 747,000.00 

TOTAL $1,195,289.32 

Payments Made to Fund $1 ,373,492.45 

Payments Made Out of Fund $1,373,443.52 

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

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

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



P.D. 12 19 

TORT DIVISION 

The main activities of the division continued unchanged from the previous year; 
the bulk of the attorneys' time was focused on the defense of tort and civil rights 
suits brought against the Commonwealth and its employees, though the investiga- 
tion and preparation of reports for the district court on Petitions for Compensation 
to Victims of Violent Crime also absorbed significant staff resource. 

The overall case load of the division decreased slightly over the year. New cases 
totalled 252. A total of 174 cases were closed, 57 more than the previous year's 
total. With this increased number of closings, there was a carry-over of 248 cases 
in the past two years, a significant reduction from the 455, cases carried over in 
the previous two year period. However, many of these claims involve potentially 
large awards against the Commonwealth and the once constant trickle of cases which 
reached trial is fast becoming a torrent as suits under the Tort Claims Act reach 
m.aturity. The increased number of attorneys in the Tort Division, the dissemina- 
tion of cases throughout the other divisions and the effective utilization of in- 
vestigators and other support personnel in the Civil Bureau are the fundamental 
reasons for success in the perennial effort to cope with the ever increasing tort 
caseload. There remains, however, the crucial problem of the unavailability of funds 
to settle claims as more cases approach trial. If a viable solution to this problem 
could be reached, a beneficial effect would be created which would reach all tort 
claims. When liability cases can be settled prior to trial, there is generally a substan- 
tial saving for the Commonwealth. 

Some of the more specific cases include several suits against the Commonwealth 
and individual providers of medical services because of fatal or debilitation reac- 
tions to mandated innoculations with DPT vaccine, which is manufactured by the 
Commonwealth. Claims from reactions to DPT innoculations are mushrooming 
into a national problem and the federal government may have to intervene since 
private manufacturers of DPT cannot obtain insurance and have terminated pro- 
duction of the vaccine. 

A number of suits involve claims for the wrongful deaths of patients at various 
mental health facilities alleging a failure to supervise and formulate effective treat- 
ment plans for psychiatric patients. Also, an increasing number of claims involv- 
ing fatal accidents on the state's highways are being pursued under the Tort Claims 
Act, alleging negligent design or maintenance, rather than under the defect statutes 
with their limited recoveries. A pivotal case is now before the Appeals Court which 
may resolve this issue. 

The division attorneys obtained mixed results, of course, from cases tried to con- 
clusion during fiscal 1985. Plaintiffs prevailed in nine cases, three for substantial 
judgments. Verdicts for the Commonwealth were obtained in eighteen cases, as 
opposed to twelve in fiscal 1984. Eleven cases were settled without trial, while 
dismissals or summary judgments were obtained in fifty-six cases. 

There were 469 new Petitions for Compensation to Victims of Violent Crimes 
forwarded to the Torts Division for investigation and, if necessary, litigation. This 
number represents a slight decrease from the previous year's filings. Exactly 
$935,302.63 was paid out by the Treasurer during this period on 219 claims for 
an average of $4,270.79 per claim. In the course of the year, 416 violent crime com- 
pensation cases were closed out by the division, a significant increase in this area. 



20 P.D. 12 

The total amount of money collected on debts due to state agencies through the 
Torts Division in fiscal 1985 was $229,539.42 and 1 14 claims were processed. Both 
figures reflect significant increases. 



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 Criminal 
Investigation Division, 4) The Division of Employment Security. 

Several special units or task forces also operate within the Bureau — the Tax and 
Insurance Prosecution Task Force, the Government Integrity Unit, the Organized 
Crime Information Section, the Governor's Auto Theft Strike Force and the Gover- 
nor's Statewide Drug Task Force, a unit organized to insure an exchange of data 
among drug law enforcement officials throughout the Commonwealth. 

During the 1985 fiscal year, the Bureau continued to prosecute a wide 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 con- 
centrated its resources on certain classes of crime including white collar crime, 
government malfeasance, and the disposal of hazardous waste. 



TRIAL DIVISION 

The following cases are a sampling of the kinds of criminal litigation in which 
the Criminal Bureau has been involved in pursuit of its goal — of keeping the Com- 
monwealth safe for all of its residents. 

M.B.T.A. — Thirty-four employees of the Massachusetts Bay Transportation 
Authority were charged with larceny. All of the "T" workers were involved in 
the surface line revenue collection process and were accused of larceny from three 
vault rooms and the central money room. The investigation of this matter included 
the use of sophisticated video surveillance equipment. 

All thirty-four employees were convicted and eighteen received substantial prison 
or House of Corrections sentences. 

Hazardous Waste — A major national corporation was convicted of failing to 
notify the State Department of Environmental Quality Engineering of a spill of con- 
taminated oil and the corporation was fined $20,000. 

The owner of a truck which discharged the contents of a transformer onto routes 
213 and 495 resulting in property damage to a number of vehicles and personal injury 
to motorists, was convicted of illegal storage of hazardous waste and fined $62,500. 

The president of a metal machine shop pleaded guilty to discharging poisonous 
wastes of a metal plating operation which percolated into the ground water. 

The president and two of the employees of another corporation were convicted 
of transferring possession of hazardous wastes to an unlicensed hauler, illegal 
transportation, and disposal of hazardous waste. 

Welfare Fraud — Three former employees of the Department of Public Welfare 
were arraigned on charges that they were involved in a scheme to defraud the depart- 
ment by illegally cashing welfare recipients' benefits checks. 



P.D. 12 21 

Vouchers totalling as much as $100,000 were stolen by workers at a neighborhood 
service center and redeemed at a local grocer. Four defendants were arraigned on 
larceny charges involving the theft of these vouchers. 

A defendant who worked for LB. M. in Cambridge was convicted of collecting 
welfare at the same time as she received a $29,000 annual salary. 

The co-director of a child care agency contracting with the Department of Social 
Services was arraigned on charges that she had siphoned state funds from a non- 
profit corporation to pay personal expenses such as her mortgage, carpeting for her 
residence, and an expensive automobile. 

Tax — During the fiscal year the tax prosecution program initiated 41 new cases 
involving meals, sales, withholding, income, and special fuel taxes. The total amount 
of taxes identified in indictments during the year amount to slightly less than 
$1,400,000. In half the cases which reached disposition during the fiscal year, a 
jail term was recommended for the tax violator, and in two cases defendants received 
House of Correction sentences. All of the cases have been treated as a criminal viola- 
tion rather than a simple tax collection case. The result of this effort has been an 
increase in voluntary compliance with the tax laws and a commensurate increase 
in tax collection by the Department of Revenue. 

Auto Theft — A joint investigation by this office and the Governor's Auto Theft 
Strike Force resulted in the arraignment of seven people on charges alleging their 
involvement in a stolen luxury car ring. 

Consumer Crime — A defendant was charged with soliciting advertising orders 
from business men for ads to be placed in a local yellow pages when in fact, none 
of the directories were ever delivered. 

Crimes Against Government — A Boston heating oil dealer was charged with 
larceny after he allegedly picked up 3500 gallons of fuel from a community action 
program that assists low income residents with their home fuel bills and subsequently 
delivering only 100 gallons, filing false delivery slips with the agency stating that 
he had delivered the oil. 

A teller in the Registry of Motor Vehicles was convicted of larceny after it was 
proven that he stole money which should have been sent to the Department of 
Revenue for sales tax. 

Commerical Bribery — Two employees of Boston University and two electrical 
contractors were charged with commercial bribery when the employees allegedly 
received kickbacks from vendors in return for favorable treatment in the bidding 
and award of construction contracts. 

Violent Crime — Two defendants were indicted on charges of armed assault in 
a dwelling and assault and battery with a dangerous weapon when they invaded a 
home and beat a 76 year old man and his son with a gun and a blackjack. After police 
responded, one of the defendants held a police officer at gun point before being sub- 
dued by other officers. One defendant was found guilty and sentenced to fifteen 
to twenty-five years at M.C.I. , Cedar Junction. The other defendant had not yet 
been sentenced at the end of the fiscal year. 



22 P.D. 12 

CRIMINAL INVESTIGATIONS DIVISION 

The investigative arm of the Criminal Bureau is the Criminal Investigations Divi- 
sion. The Division is headed by an Assistant Attorney General and is staffed by State 
Police, Boston Police, Metropolitan District Commission Police and civilian in- 
vestigators with specialized expertise in white collar crime and tax investigations. 

In addition to the investigations conducted by the Department of the Attorney 
General, the Division engages in cooperative efforts with the District Attorneys, 
the Inspector General, the United States Attorney as well as state and local police 
departments. The Division has ongoing and continuing relationships with such state 
agencies as the Department of Revenue and the Department of Environmental Quali- 
ty Engineering which assist in the investigation of tax and environmental violators. 
The Governor's Drug Task Force is also coordinated through the Division at the 
direction of the Attorney General, and an Assistant Attorney General assigned to 
the Division acts as counsel to the Governor's Auto Theft Strike Force. 

One example of the types of investigations conducted by the division was the 
investigation and indictment of 16 individuals and 7 corporations in the largest com- 
mercial bribery case in the Conmionwealth's history. The indictments charging 
larceny, conspiracy, violation of pollution control laws, and commercial bribery 
involve the theft of nearly one million gallons of gasoline, oil, and jet fuel from 
Texaco 's terminal in South Boston and Exxon's facility in Everett. The 15 month 
investigation revealed that nearly $250,000 in commerical bribes were delivered 
to oil company executives to facilitate the thefts. 

In addition to that investigation the Division made over 50 arrests for welfare 
fraud, tax violations, illegal hazardous waste disposal, controlled substance viola- 
tions, and organized and white collar crime activities. These were in addition to 
the numerous cooperative efforts with other agencies and continuing investigations. 

The activities undertaken in fiscal 1985 coupled with the assistance of and 
countless referrals to other law enforcement agencies demonstrates the unqualified 
success that a unified command within the Department of the Attorney General can 
have in coordinating law enforcement for the protection of the citizens of the 
Commonwealth. 



CRIMINAL APPELLATE DIVISION 

The number of new cases defended by the Criminal Appellate Division, primar- 
ily involving defense of state correctional authorities, rose to two hundred and six- 
ty in fiscal 1985. An additional one hundred and five prisoner suits were referred 
to the Department of Correction for representation. 

Approximately one hundred and thirty inmate suits challenging conditions of 
incarceration, procedures surrounding disciplinary hearings, and various Depart- 
ment of Corrections regulations were filed in the state trial court. An additional 
twenty-five cases alleging violation of constitutional rights were filed in the federal 
district court pursuant to 42 U.S. C. § 1983. Thirty-seven habeas corpus petitions 
challenging the constitutionality of state criminal convictions were also filed in the 
federal district court. 



P.D. 12 23 

On the appellate side, the Division continued to prevail. In two cases argued in 
the Supreme Court of the United States, the Division sought and obtained reversal 
of decisions of the Supreme Judicial Court regarding constitutionally required pro- 
cedures governing prison disciplinary hearings. The Division also successfully 
opposed five petitions for Writ of Certiorari to the United States Supreme Court. 

Twelve cases were argued in the Court of Appeals for the First Circuit including 
an en banc rehearing of a case involving alleged age discrimination in the 
Massachusetts jury selection system. The Division also intervened in a case in which 
the First Circuit had held the Massachusetts wiretap statute unconstitutional. After 
our intervention, the Court on en banc rehearing reversed itself. 

Six cases were argued in the Supreme Judicial Court and five cases in the Ap- 
peals Court of Massachusetts. Three hundred and fifty-four cases are presently 
pending. 

The Division continues to represent the Commonwealth in all cases involving 
yearly review of inmates' stati as sexually dangerous persons committed to the Treat- 
ment Center at Bridgewater. This year forty-four such petitions were filed and thirty- 
five disposed of in three unified hearings in the Superior Court. 

The Appellate Division also processes the rendition of fugitives from justice. 
Demands from both law enforcement officials of the Commonwealth and Gover- 
nors of other states are examined, and an opinion rendered on the legality of each 
demand. Two hundred and fifteen such opinions were rendered in fiscal 1985. 



EMPLOYMENT SECURITY DIVISION 

The purpose and intent of the Attorney General's Employment Security Divi- 
sion is to provide the Director with whatever legal assistance and representation 
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 technical as 
well as legal. Under the Law, employers with one or more employees become subject 
to c. 151 A and are expected to comply with its provisions. The efficient and 
economical administration of the employment security program in Massachusetts 
depends in large measure on the cooperation and compliance of well-informed 
employers throughout the Commonwealth, for it is they who pay the entire costs 
of its operations. The employment security program also insures individuals who 
become unemployed through no fault of their own a weekly benefit check if they 
meet the requirements of the law 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 required by law or pay the taxes owed by law 
to the Division of Employment Security, civil proceedings are initiated by the Divi- 
sion's Legal Service and judgments are obtained from the court covering damages 
and court costs. If the judgments are not satisfied, the matters are referred to the 
Attorney General's Criminal Division 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 criminal 
prosecutions, creating a savings to the Commonwealth and its taxpayers. 



24 P.D. 12 

During the fiscal year ending June 30, 1985, 1881 employer tax cases were 
handled by this Division. As of July 1, 1984 there were 1768 cases on hand, 113 
additional cases were received during the fiscal year, and 427 cases were closed 
leaving a balance of 1454 employer tax cases on hand as of June 30, 1985. 

Applications for criminal complaints were brought in the Boston Municipal Court, 
charging 313 individuals with 2866 counts of nonpayment of taxes, totaling 
$4,744,358.37 in monies owed the Commonwealth's agency by the delinquent 
employers. The Boston Municipal Court issued complaints against 233 individuals 
for 1865 counts of nonpayment of taxes totaling $3,450, 147.31 . In addition, dur- 
ing the fiscal year ending June 30, 1985, the Division obtained 25 convictions on 
employer tax cases and the court found facts sufficient to warrant a finding of guilty 
in an additional 65 cases. This represents an approximately 180% and 260% in- 
crease respectively over the fiscal year ended June 30, 1984. 

Two million, two hundred and eight thousand, one hundred and twenty dollars 
and forty-two cents ($2,208, 120.42) in overdue taxes were collected during the fiscal 
year ending June 30, 1985 and deposited to die Massachusetts Unemployment Com- 
pensation Fund. 

Whenever individuals are found to be collecting unemployment benefits 
fraudulently on claims they have filed while gainfully employed and earning wages, 
the fraudulent matters are referred to the Employment Security Division for pros- 
ecution of the criminal offenses. Criminal complaints are brought only when the 
facts surounding the offense have been investigated, reviewed with the individual 
involved and the criminal intent substantiated by the evidence obtained. Criminal 
action is brought in the court holding jurisdiction over the offense for larceny under 
G.L. c. 266, §30, and/or under G.L. c. 151 A, § 47, ofthe monies stolen from the 
Commonwealth's agency. 

During the fiscal year ending June 30, 1985, 1284 fraudulent claims for unemploy- 
ment benefits were handled by this Division. As of July 1 , 1984, 1 163 cases were 
on hand, 131 additional cases were received during the fiscal year, and 249 cases 
were closed leaving a balance of 1035 fraudulent cases on hand June 30, 1985. 

Applications for criminal complaints were brought in various courts ofthe Com- 
monwealth holding jurisdiction over the offenses involved, charging 167 individuals 
with 2951 counts of larceny totaling $339,335 in unemployment insurance benefits 
fraudulently collected from the Commonwealth's agency. The courts issued com- 
plaints against 108 individuals for 1752 counts of larceny totaling $211,905. In 
addition, during the fiscal year ending June 30, 1985, this Division obtained 26 con- 
victions on larceny cases and the court found facts sufficient to warrant a finding 
of guilt in an additional 34 cases. This represents an approximate 175 % and 485 % 
increase respectively over the fiscal year ended June 30, 1984. 

The amount of $274,948.73 was collected from the fraudulent claimants during 
the fiscal year ending June 30, 1985, and has been restored to the Unemployment 
Insurance Fund ofthe Massachusetts Division of Employment Security. 

Five ofthe criminal actions involving CETA fraud brought in years past remain, 
pending court disposition. Default warrants have been issued and are outstanding 
after exhaustive searches have been made to locate the defendants. As a result of 
earlier prosecutions made on the CETA claims, the caseload during the fiscal year 
ending June 30, 1985, remained the same minimal cases presently pending court 
disposition. 



P.D. 12 25 

During the fiscal year ending June 30, 1985, there were 21 actions brought against 
or by the Director of the Massachusetts Division of Employment Security. There 
were 38 cases in the Supreme Judicial Court of the Commonwealth that were handled 
by the Employment Security Division during the fiscal year. Twenty-four of which 
were argued before and decided by the Court. 



III. MEDICAID FRAUD CONTROL UNIT 

At the conclusion of fiscal year 1985, Attorney General Francis X. Bellotti issued 
The Attorney General 's Medicaid Fraud Control Unit: Protecting the Public From 
White Collar Crime and Patient Abuse in the Health Care System. That report detailed 
the unit's activities since its inception in August of 1978. Those activities demonstrate 
Attorney General Bellotti's commitment to the prosecution of white collar crime, 
to the improvement of the Medicaid system, and to the protection of those of our 
citizens — particularly the elderly — who are unable to protect themselves. 

Attorney General Bellotti established the Medicaid Fraud Control Unit in 1978, 
and has maintained a highly effective unit ever since that time. Rated as one of the 
most effective state units in the nation, the Massachusetts Medicaid Fraud Control 
Unit has investigated more than a thousand cases, covering the full range of pro- 
vider groups. The Unit has criminally convicted or secured admissions of guilt from 
197 persons — 185 individuals or corporations who defrauded the Medicaid system 
or committed other financial crimes impacting on m.edical costs, and twelve per- 
sons who committed patient abuse. 

In addition to securing these criminal convictions, the Unit has identified more 
than $8 million in money owed to the Commonwealth or to nursing home patients. 
The Unit has collected this money directly or through the courts, or referred the 
amounts to the Department of Public Welfare, or Revenue, or the Rate Setting Com- 
mission, for collection or for reduction in fumre rates. Providers have paid more 
than $600,000 in fines, and damages. 

In the four years since the Patient Abuse Law has been in effect, the Attorney 
General's staff has received more than 400 allegations of possible abuse, neglect 
or mistreatment, investigated more than 200 of the complaints, and prosecuted 14 
cases criminally. In addition, in a number of neglect cases, the Attorney General's 
Public Protection Bureau, working with the Department of Public Health, has ob- 
tained emergency court orders such as injunctions or receiverships to protect patients. 

The Unit's efforts continued in fiscal year 1985. In many of the abuse cases in- 
vestigated, no witnesses to the cause of the injury can be found. Often the victim, 
who is frail, very old, and senile, is unable to testify. Unformnately, therefore, most 
cases cannot be the subject of court proceedings. 

In the 14 cases prosecuted criminally, the Attorney General has brought criminal 
charges of patient abuse and mistreatment, as well as assault and battery, indecent 
assault and battery, and robbery. The courts have found that criminal patient abuse 
was committed in 11 of the 14 prosecutions brought to date under the abuse law, enter- 
ing guilty findings in eight cases, and finding facts sufficient to warrant guilty find- 
ings and imposing probationary periods with conditions in the three other cases. 
In one other case brought before the patient abuse law was in effect, the courts con- 
victed a nursing home orderly of assault and battery. The twelve persons found 



26 P.D. 12 

by the courts to have committed criminal patient abuse include one licensed prac- 
tical nurse, ten nurse's aides or orderlies, and a janitor. 

Because of the complex and specialized nature of financial reimbursement fraud 
by health care providers, the criminal investigations conducted by the Medicaid 
Fraud Control Unit require specialized knowledge and take several months to be 
completed. For this reason the Attorney General has sought, and the Chief Justice 
of the Superior Court has convened, a series of nine Special Grand Juries for the 
specific purpose of investigating Medicaid Fraud, patient abuse, and related crimes. 

Each Special Grand Jury has met for six months, plus any additional time required 
to complete an investigation. The first Special Grand Jury was authorized in 1978. 
The ninth Special Grand Jury is currently in session. In total, the Special Grand 
Juries have been in session for more than 4 Vi years, conducting the majority of in- 
vestigations of health care provider fraud in the Commonwealth and issuing most 
of the indictments resulting from the Unit's efforts. 

By bringing three cases of white collar crime in the Medicaid program to the atten- 
tion of the Massachusetts judiciary , Attorney General Bellotti has had a significant 
impact upon the sentencing of white collar criminals in Massachusetts. The former 
Chief Justice of the Trial Courts, Judge Lynch, has noted that as a result of Medicaid 
fraud prosecutions, he and a number of his judicial colleagues have imposed prison 
sentences upon "first offenders" — convicted health care providers with no previous 
criminal records. 

In the majority of the 197 prosecutions, the courts entered guilty findings and 
criminal convictions. In a smaller number of cases, the courts found sufficient facts, 
but continued the cases for periods of time, without criminal findings, but with pro- 
bationary conditions. Normally, the courts required the defendants whose cases were 
continued to serve probationary periods and to pay restitution and costs. 

In all, the courts convicted 147 persons of crimes (125 individuals and 22 cor- 
porations) and continued 50 cases without findings (38 individuals, 12 corporations). 

Providers found guilty of fraud or related crimes have paid a range of criminal 
penalties, from a sentence of three to five years in state prison to shorter terms of 
probation and community service work. Twenty persons have been sentenced to 
prison or jail. In addition, providers convicted of Medicaid fraud have been sus- 
pended from participating in the Medicaid program. 

In investigating provider groups, the Unit has found certain common patterns of 
fraud. Individual providers have most frequently been found to be billing for serv- 
ices not rendered or billing for more expensive services than they actually provided. 
For instance, dentists have billed Medicaid for filling teeth they did not fill or den- 
tures they did not provide, psychologists have billed for tests they did not perform, 
and doctors have billed for examining family members they did not examine. 
Psychiatrists have spent 15 minutes with psychotherapy patients and billed Medicaid 
for 50 minutes, taxi companies have billed for driving more miles or carrying more 
passengers than they actually did, and an equipment provider has billed for motorized 
wheelchairs and provided ordinary chairs to recipients. Such overcharges can in- 
flate the cost of the Medicaid program considerably, and because Medicaid recipi- 
ents do not ordinarily see the bills for the services they receive, these false billing 
patterns can be difficult to detect and prove. 

In institutions such as nursing homes, a common fraud pattern seen is the claim- 
ing of Medicaid rate reimbursement for goods or services not actually purchased, 



P.D. 12 27 

or, if purchased, not used for the nursing home residents — for instance, billing 
for work not done and keeping false invoices, billing for remodeling done at an 
owner's home, or billing for salaries of employees who did not actually work at 
the nursing home. A second common pattern seen is the stealing of residents' per- 
sonal spending money. 

In addition to the detection of fraud patterns, the recovery of money, and the con- 
viction of white collar criminals for fraud and patient abuse, the Medicaid Fraud 
Control Unit has worked to secure improved Medicaid laws, regulations, and pro- 
gram administration. The Medicaid False Claims Act and the Patient Abuse Report- 
ing Act were adopted in 1980, and the Nursing Home Receivership Act in 1981 . 
The unit has worked for clarified provider billing requirements, improved com- 
puter screening for fraud, and enforcement of the rule that providers may not charge 
more for Medicaid services than they charge to private patients. The unit has con- 
tributed to stronger law and policy at the federal level. It is frequently invited to 
train other states in Medicaid fraud and patient abuse investigations and prosecutions. 

All of these results achieved by the Medicaid Fraud Control Unit demonstrate 
Attorney General Bellotti's active concern with controlling white collar crime, with 
improving the Medicaid system, and with protecting Medicaid recipients — espe- 
cially the frail elderly — from criminal fraud, abuse and neglect. 



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. 
c. 55. In fiscal year 1985 the Office of Campaign and Political Finance reported 
1 17 individual candidates or treasurers who had failed to file the required financial 
disclosure reports. Through administrative action taken by the Division, compliance 
was obtained in 60 instances. The Division brought civil suit against 57 individuals. 

B. Lobbyists 

The Election Division also enforces the state statute that requires legislative agents 
and their employers to file financial disclosure statements with the office of the State 
Secretary. G.L. c.3, §§43,44,47. In fiscal year 1985, 12 violations of these sec- 
tions were reported by the Secretary. As a result of administrative action taken by 
the Elections Division, the required statements were filed by seven of these 
individuals. 

C. Jury Commissioner 

The Division also assisted the State Jury Commissioner in his efforts to have cities 
and towns submit lists of inhabitants in a timely manner so that the new jury selec- 
tion system of "one day-one trial" could be efficiently implemented. Full com- 
pliance with the law was obtained without the need to resort to actual litigation. 



28 P.D. 12 

D. Litigation 

During fiscal year 1985 the Elections Division was involved in several lawsuits 
concerning the preparation and layout of the state primary and election ballots. The 
Division successfully defended decisions of the State Ballot Law Commission con- 
cerning whether candidates had filed the required number of certified signatures. 
The state statute requiring that independent candidates not have been enrolled in 
any political party for the ninety days prior to filing nomination papers was 
successfully defended. The Division was also involved in cases concerning the early 
filing deadline for independent candidates and a lawsuit concerning the right of an 
individual under a limited guardianship to be able to register to vote. 

The Division successfully defended the District Attorney of Bristol County in 
a Federal District Court jury trial against allegations that secretaries employed by 
his office were fired for failure to perform political work. 



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 Veterans 
Services and the Veterans Affairs Division of the Department of the Treasury. 



V. PUBLIC PROTECTION BUREAU 

The Public Protection Bureau is the largest of the Bureaus in the Attorney General's 
Office. Its work is carried out by seven Divisions: Antitrust, Civil Rights, Consumer 
Protection, Environmental Protection, Insurance, Utilities and Public Charities, as 
well as a Complaint Section, an Investigative Section, and a Local Consumer Aid 
Fund coordinator. 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 Engineering, the Out- 
door Advertising Board, the Pesticide Control Board, and the Architectural Bar- 
riers Board. 

The work of the Bureau includes litigation support activities and training programs 
for staff attorneys. The litigation support work includes review of all new complaints 
prior to filing, discussion and approval of settlements, and review of draft briefs due 
in appellate courts. In addition. Bureau attorneys conduct moot courts prior to each 
attorney's argument in the Appeals Court, Supreme Judicial Court, or First Circuit 
Court of Appeals. During fiscal year 1985, the Bureau ran two major training pro- 
grams to improve the skills of the staff. In the late summer of 1984, the Bureau, 
together with the Advocacy Training Institute and the New England School of Law 
conducted a negotiation program in which each participant negotiated various mock 
situations. Both attorneys and non-attorneys participated and each was videotaped 
and then evaluated by experienced attorneys from within and outside the Depart- 
ment. In the winter months, a series of lectures were conducted for the non-legal 



P.D. 12 29 

staff by attorneys from various divisions. These focused on such topics as M.G.L. 
Chapter 93A, the workings of the court system, and concepts of bankruptcy. 

The Bureau participates in the litigation of cases handled in the various Divisions 
as well as conducting selected litigation carried out at the Bureau level. During the 
fiscal year 1985, Bureau attorneys assisted the Consumer Protection Division in 
the Plymouth Memorial Park litigation and various odometer spinning cases, the 
Environmental Protection Division in the DeCotis litigation and in the Seabrook 
nuclear power station licensing and the Antitrust Division in the CRINC and Pepsi- 
Metro litigation. 

The Bureau also committed additional resources and took new steps to pursue 
the Commonwealth's claims in the Johns-Manville bankruptcy. On January 30, 
1985, after months of collecting data on the amount of asbestos in state-owned 
buildings, the Bureau filed a nearly $122 million claim on behalf of the Com- 
monwealth for past and future expenses associated with asbestos removal. The 
Bureau had previously coordinated the effort by Attorneys General nationwide to 
extend the final date for filing such claims from October 3 1 , 1984 to January 3 1 , 
1985. At the same time, the Bureau amended the claim they first made in 1984 on 
behalf of the Commonwealth and 42 cities and towns for defective water pipe from 
$7.5 million to over $71 million. 

The Bureau also coordinates litigation and legislative activity across Bureau lines. 
For example, the Bureau worked closely with the Criminal Bureau in the initiation 
of criminal prosecution of several contempt proceedings. These included criminal 
contempt proceedings against defendants alleged to have violated civil injunctions 
obtained by the Civil Rights Division and a criminal contempt charged against an 
individual for ftind-raising activity in violation of civil restrictions obtained by the 
Public Charities Division. The Bureau also worked closely with the Civil Bureau 
in preparing a comprehensive set of amendments to the Victims Compensation Act 
which were close to enactment as the fiscal year ended. 

Finally, the Bureau represents the Attorney General in several important public 
activities. In January, 1984, shortly after the enactment of M.G.L. Chapter 258B, 
"The Victim's Bill of Rights," Attorney General Bellotti designated the Chief of 
the Public Protection Bureau, as his designee to chair the newly created Vic- 
tim/Witness Assistance Board. As a result, the first distribution of ftinds was made 
to all eleven District Attorneys. Over 40 new victim advocates were hired with the 
approximately $72,000 given to each county. 

Later in fiscal year 1985, the Victim/ Witness Assistance Board began the pro- 
cess of reviewing grants for fiscal year 1986, and after due deliberation chose a 
formula to distribute over two million dollars which was expected to accumulate 
in the Victim and Witness Assistance Fund. This formula takes account of such fac- 
tors as pending cases, population, open criminal sessions, and crime index. 

The Bureau Chief also continued to represent the Attorney General at meetings 
of the Governor's Anti-Crime Council and participated on the Sentencing and 
Corrections Subcommittee in a series of presentations reflecting various roles of 
the Department in the criminal justice system. 

A substantive development of particular significance for the Bureau is the growth 
of alternative dispute resolution mechanisms for consumer matters. In developing 
alternatives to consumer litigation, the Bureau helped establish face-to-face media- 
tion programs in additional local consumer groups bringing total number of face- 
to-face programs to six. 



30 P.D. 12 

The Bureau also continued the work on two important task forces during fiscal 
year 1985 — one on meeting the legal needs of the elderly and the second on health 
care. With respect to the elderly, plans continued for a major conference to be held 
in fiscal year 1985 focusing on how the staff of the entire Department could better 
help elderly advocates. The health care working group, representing the Insurance, 
Civil Rights, and Public Charities Divisions, devoted most of their energies to 
legislation designed to protect medicare recipients from discrimination as 
Massachusetts moves to the federally mandated DRGs (Diagnostically Related 
Groups). 



COMPLAINTS SECTION 

During fiscal year 1985, the Consumer Protection Division's Complaint Section 
opened 6,519 cases, closed 3,633 cases and assigned 3,482 cases to Complaint 
Section personnel. 

The section recovered for consumers $371,393.59 in refunds, savings and the 
value of goods or services they would not have received but for the intervention 
of the Department. 

In addition 3,952 written complaints were referred to other Massachuetts agencies, 
agencies of other states, federal agencies, to local consumer groups, or sent back 
to consumers for lack of jurisdiction or other miscellaneous reasons. 

The telephone information staff received a total of 1 19,777 calls during the past 
year .Asa result of these calls , 15,312 citizens were sent Complaint/Inquiry Forms , 
18,686 were given information, and 85,799 were referred to local consumer groups 
or other state or federal agencies. 

The staff also received 262 calls concerning civil rights issues. As a result of these 
calls, 142 citizens were sent Complaint/Inquiry Forms, and 120 citizens were given 
information relating to civil rights inquiries. 

The section monitored the individual consumer complaints of two major bank- 
ruptcy cases in which the Consumer Protection Division intervened (Puritan Furni- 
ture and Tech Hi-Fi). This involved the handling of consumer calls, correspondence, 
documentation and notification of almost 3,000 consumers who filed complaints. 

The section continued to send out arbitration kits to consumers who were affected 
by the FTC/GM Agreement. As of June 30, 1985, 3,412 arbitration kits were sent 
to consumers. 



INVESTIGATIVE SECTION 

In fiscal year 1985 the Investigative Section continued to upgrade the level of serv- 
ices provided through the hiring of an additional secretary and the recruitment of 
experienced investigators to fill staff vacancies. Reconstruction of existing office 
space affording investigators more privacy and the installation of a word process- 
ing terminal to expedite written reports added to the professionalism of the unit. 

Staff training was emphasized again this year with lectures by Department per- 
sonnel on the structure of the court system. Chapter 93 A and illustrations of the 
various stages of the litigation process. Investigators also participated in a Bureau 
wide negotiation training seminar and attended presentations in the areas of banking, 



P.D. 12 31 

insurance, cable television and bankruptcy. A three day seminar presented by the 
Institute of Governmental Services sharpened investigators' writing skills and helped 
standardize report writing within the unit. 

Investigators worked on cases in the following subject areas: home repair schemes 
{Commonwealth v. Gordon Poulos, Commonwealth v. DeCoste, Commonwealth 
V. Thomas C. Sweeney, etal); condominium conversion problems {Commonwealth 
V. Lewis J. Busconi d/b/a Shadowbrook); landlord-tenant disputes {Commonwealth 
V. Eden Roc, Tucker Constructions, etal); bait and switch tactics {Commonwealth 
V. Warehouse Pools, Inc. /Allied Pool Distributors, Inc.); deceptive practices by 
mortgage lenders {Commonwealth v. Cabot Mortgage); health spas closures 
{Commonwealth v. Woman 's World Health Spas of America, Inc.); travel company 
frauds {Commonwealth v. Michaud Tours); and misrepresentations by professional 
career counselors {Commonwealth v. Ranbar Associates, Inc.). Issues facing elderly 
consumers were specifically investigated in Commonwealth v. Hazel and Irvin 
Whitlow and Commonwealth v. Cranberry Village, Inc. 

The Section expanded its effort to combat odometer tampering through coor- 
dinated efforts with the Registry of Motor Vehicles, the Northeast Region Odometer 
Task Force, the National Highway Safety Authority and the F.B.I. A joint project 
undertaken with the Registry of Motor Vehicles resulted in referrals of informa- 
tion to this unit involving over 750 "spun" odometers by year's end. In each in- 
stance owners of these vehicles were informed of their right to return the auto to 
the seller based on violations of the Commonwealth's implied warranty laws. 

As a result of this project investigators discovered over 200 spinbacks by one 
dealership resulting in fines and restitution to consumers of $120,000. Another major 
case involving five defendants resulting from this project was Commonwealth v. 
Gerald P. Malloy, et al and Commonwealth v. Lagoon Motors, et al involving at 
least 38 odometer alterations and payment of over $25,000 in civil penalties. 

During the past fiscal year several investigations of alleged violations of civil rights 
were conducted resulting in successful litigation. Several other civil rights cases 
involved juvenile defendants. 

In Commonwealth v. Earlene Montgomery, et al, two investigators conducted 
numerous surveillances and interviews over an extended period of time to docu- 
ment that the defendants were providing unlicensed child care in substandard 
facilifies in violation of Office for Children regulations. 

Along with the Division of Public Charities, investigators continued to monitor 
Las Vegas nights and investigate suppliers of gambling equipment throughout the 
state. Section personnel also conducted interviews, prepared affidavits and reviewed 
financial records in Bellotti v. United Funding, et al. Commonwealth v. Charles 
Manfredi, Commonwealth v. M&M Publishing Co. , etal, Bellotti v. Events Inter- 
national, Inc. , et al and Bellotti v. Dumaine d/b/a Project H.E.L.P. cases. 

Working closely with attorneys from the Antitrust Division, investigators con- 
tinued to monitor and respond to allegations that various retailers and redemption 
centers were acting in violation of the state's bottle redemption law. Emphasis was 
also placed on the idenfificafion and invesfigation of businesses engaging in resale 
price maintenance, price fixing and other unfair methods of competition. This effort 
has resulted in the development of a number of pending cases currently being litigated 
by attorneys in the division. 



32 P.D. 12 

The Investigative Section was called upon by the Environmental Protection Divi- 
sion in a number of cases this fiscal year including Commonwealth v. Advance Coat- 
ings Company, Commonwealth v. AVXetal, Metropolitan District Commission v. 
Alpha Industries, Inc. and Commonwealth v. Edward J. Lyons, Jr. With respect 
to these cases investigators were requested to conduct extensive corporate 
background and property histor>' checks on individuals or companies responsible 
for illegal landfills or hazardous waste dumps. Financial investigators performed 
asset checks and reviewed financial statements to determine if a party claiming an 
inability to pay for clean up costs could, in fact, afford to correct the problem. 

Throughout the year investigators assisted in the bureau wide effort involving 
the Johns-Manville Corporation matter and on occasion were called upon to assist 
the Insurance and Utilities Divisions. 

Additionally, investigative resources were sought by other bureaus within the 
Department. Extensive property research was conducted in conjunction with a haz- 
ardous waste case being pursued by the Criminal Bureau. Investigators assisted the 
Government Bureau in matters before the Boards of Registration. 



LOCAL CONSUMER GROUP AND DISPUTE RESOLUTION ACTIVITIES 

In fiscal year 1985, Attorney General BeUotti distributed $459,432 from the Local 
Consimier Aid Fund for consumer complaint resolution services in 26 local con- 
sumer organizations. The funds provide consumer complaint resolution on a local 
level through the efforts of consumer advocates and mediators located in various 
sponsoring agencies. City and town halls, legal services offices, CAP agencies, 
one district attorney's office, and volunteer consumer organizations throughout the 
Commonwealth receive the grants and provide consumer complaint resolution 
services. 

Funds totalling 5391 ,922 were distributed in 1985 and were used to support con- 
sumer self-help and telephone mediation by consumer advocates in 26 locations 
through the state. The remaining S67,510 was awarded to six of these groups to 
fund more intensive face-to-face mediation services which can be used when 
telephone mediation is unsuccessful. 

The 26 local consumer groups received 14,000 written complaints from con- 
sumers in the past year. They assisted an additional 50,000 to 60,000 consumers 
by providing self-help advice to the consumers over the telephone. In all of the 
14,000 written complaints some contact with the business was initiated by the con- 
sumer group, and attempts to negotiate settiements were often effective. On average 
75 7c of the 14,000 written complaints are resolved, with the remaining 25 % of the 
cases being referred to the legal system for further action. 

In addition to providing funding for the local consumer groups the Attorney Gen- 
eral" s office conducted ten in-service training meetings concerning on-going 
developments in consumer law, and three additional training programs for new staff 
in the local groups were conducted by the Attorney General's Public Protection 
Bureau personnel. The groups continue to submit information on each consumer 
complaint for entry into the central consumer protection computer. In this way, the 
local consumer groups continue to help document statewide and local patterns of 
consumer problems which can be reviewed by consumer protection attorneys for 
possible legal action. 



P.D. 12 33 

ANTITRUST DIVISION 

INTRODUCTION 

During fiscal 1985, the Antitrust Division continued its vigorous enforcement of 
the state and federal antitrust laws. The Division continues to place priority upon 
pursuing those violations which directly impact upon the state, its municipalities, 
schools and consumers, namely bid rigging, price fixing and resale price mainte- 
nance. The Division continued its leadership role in oil overcharge litigation involving 
all 50 states and over $2 billion. 

In the Matter of Warner Amex Cable Communications of Lynn, Inc. 

In February 1985. the Commonwealth filed an Assurance of Discontinuance, from 
Warner Amex Cable Communications of Lynn, Inc. , in the Suffolk Superior Court. 
Warner Amex was accused of unlawfully acting to prevent dealers of cable television 
accessories from selling remote control transmitters, compatible with the converters 
distributed by Warner Amex in Lynn and Swampscott, to cable television subscribers 
in those cities. Warner Amex was renting the remote control units to its customers 
for S3. 95 per month and the units had been available for sale for about S20.00 prior 
to the alleged antitrust violations. 

Under the terms of the settlement, Warner Amex agreed to compensate all Lynn 
and Swampscott cable television subscribers, who had been paying the monthl\- rental 
fee for the remote control device (and had potentiall>' been prexented from purchasing 
the device), by allowing them three free months of remote service. Warner Amex 
also agreed not to enter into, or engage in any unlawful agreement concerning the 
distribution of remote control devices to consumers, and paid the Attorney General 
540.000 as reimbursement for the costs of the investigation. 

General Instrument Corporation 

The Attorney General also received a letter of assurance from the General Instru- 
ment Corporation, whose Jerrold Division manufactures cable television accessories, 
including converters and handheld remote control transmitters. In the letter. General 
Instrument agreed not to enter into or engage in any agreement to restrict or limit 
the distribution of the remote control transmitters in Massachusetts. It further agreed 
to fill in good faith all orders for remote control transmitters placed by its customers 
in Massachusetts. 

Commonwealth of Massachusetts v. Ashland-\Mirren, Inc. , (ERG Investments, Inc. , 
etal, and Commonwealth of Massachusetts \. Ashland-Whrren, Inc. etal (Simeone 
Corporation) 

These two actions, alleging that the defendant companies had engaged in bid rig- 
ging and price fixing in connection with the sale of bituminous concrete and the pav- 
ing of roads and state highways in eastern Massachusetts, were filed in Februar>" of 
1982. The Attorney General seeks damages under the federal antitrust laws, on behalf 
of the Commonwealth and cities and towns in Massachusetts, for treble the amount 
that those entities were overcharged for bituminous concrete during the years of the 
alleged conspirac). The Commonwealth has already reached settlement with five 



34 P.D. 12 

of the original defendants in the suit, George Brox, Inc., Keating Brothers, Inc., 
Ashland-Warren, Inc., Tilcon Warren, Inc., and Old Colony Crushed Stone and 
Construction Co. , Inc. The Antitrust Division continues to pursue its claims against 
the remaining six defendants, Trimount Bituminous Products, Co., Essex 
Bituminous Corporation, ERG Investments, Inc., Jowalco, Inc., James Walsh, Inc. 
and the Simeone Corporation. 

Oil Overcharge Litigation 

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 the validity of certain regulations 
issued by the United States Department of Energy during the period of price controls 
concerning the qualification of oil producing properties for certification as producing 
new oil. The oil company plaintiffs challenging the regulations were permitted under 
a court order to charge the higher "new" oil price and pay the difference between 
the new oil and old oil price into the court's escrow during the period of 1978 through 
1981 . The regulations were ultimately upheld in 1983 and the issue pending before 
the District Court is how the money in escrow should be distributed. As of January 
1 , 1984, the escrow account, including interest, contained in excess of one billion 
dollars. 

The District Court referred the question of identifying who was injured by the 
overcharges to the Office of Hearings and Appeals (OHA) of the Department of 
Energy. During fiscal 1985 OHA held 20 days of hearings to determine who was 
injured by the overcharges. The Antitrust Division took a leadership role on behalf 
of 43 states and 3 jurisdictions in this matter during fiscal 1985. A division attorney 
acted as one of the two lead counsel for the States at these hearings and represented 
the States at oral argument in Kansas City in November, 1984. 

OHA issued its decision in June, 1985. The decision was a major victory for the 
States and jurisdictions. OHA found that the refining industry had at most been in- 
jured to the extent of no more than 8% of the total amount of the overcharges. At 
the close of fiscal year 1985, the matter was still pending before the District Court 
and comments on the report by OHA were to be filed. 

U.S. A V. Exxon Corporation 

This action involves the sale of crude oil at the Hawkins Field location in Texas 
during the 1970s. The District Court in 1983 found that Exxon had improperly certi- 
fied oil produced at that property as new oil, not subject to price controls, and ordered 
that the entire amount of the excess charges be distributed to the States and jurisdic- 
tions on a pro rata basis for use in the various energy related programs. Exxon had 
appealed this decision and the Antitrust Division intervened and assisted in the 
writing of a brief submitted to the Temporary Emergency Court of Appeals on behalf 
of 42 States arguing in favor of an affirmance of the District Court's decision. In 
June, 1985 the Temporary Emergency Court of Appeals affirmed this decision. 
Exxon has appealed this decision to the United States Supreme Court. 



P.D. 12 35 

Massachusetts' share of the escrow fund, before distribution to the States, is 
approximately $70 million dollars. 

Commonwealth v. Pepsi-Cola Metropolitan Bottling Co., Inc., No. 62882 
(Suffolk Sup. Ct., filed July 15, 1983) 

The Commonwealth's Bottle Deposit Law authorizes the Attorney General to en- 
force its provisions and during fiscal 1985, that responsibility was carried out by 
the Antitrust Division. The complaint against Pepsi-Cola alleges that the defendant 
soft drink distributor unlawfully refused to accept empty beverage containers col- 
lected by several Massachusetts redemption centers. The complaint seeks perma- 
nent injunctive relief and civil penalties. A preliminary injunction was entered in 
August 1983 restraining the defendant from refusing to accept containers from 
redemption centers. In February 1984, the Superior Court ruled in the Common- 
wealth's favor on the sole legal issue of the case: whether a distributor may refuse 
to accept containers from redemption centers which obtain cans and bottles from 
retailers as well as consumers. That ruling was appealed by the defendant to the 
Appeals Court during fiscal year 1985, which in February 1 985 remanded the case 
to the trial court for specific findings of fact and conclusions of law. The case was 
ordered on the advanced section of the jury-waived list in Suffolk Superior Court 
and the parties await its assignment to a trial judge. 

Commonwealth v. Mass. CRInc. , etal. , No. 60280 (Suffolk Sup. Ct., filed March 
7, 1983) 

During fiscal year 1985, the largest case ever brought under the Massachusetts 
Antitrust Act was settled with the entry of a Final Judgment By Consent and the 
payment of $100,000 to the Antitrust Enforcement Fund. The action was brought 
against thirteen beer wholesalers and their wholly-owned container collection ser- 
vice and the complaint alleged that the defendants engaged in price fixing, boycot- 
ting, and monopolization, as well as violating the Massachusetts Consumer Pro- 
tection Act and the Bottle Deposit Law. The consent decree, which has a duration 
of five years, requires Mass. CRInc. to deal with all redemption centers and third 
party collection agents. It also prohibits CRInc. from imposing a commingling fee 
or requiring that dealers, redemption centers, or third party collection agents employ 
CRInc. 's bag-in-box system. Finally, retailers cannot be required to use CRInc. 's 
collection services and they are free to utilize their service of choice. 



CIVIL RIGHTS AND LIBERTIES DIVISION 

A. INTRODUCTION 

A nearly five-fold increase in the number of an injunctive relief filed under the 
state Civil Rights Act highlighted the Division's work in fiscal year 1985. The in- 
crease reflected the on-going training and outreach efforts by the Division; almost 
two-thirds of the cases arose in cities and towns outside of Boston, and almost half 
involved Asian American victims. 



36 P.D. 12 

The Di\ision continued its \\<OT\i in a N^ariet) of other case areas which are described 
below. To enable it to investigate and bring major cases involving panems and prac- 
tices of discrimination, the Division sought legislative authorization for issuing civil 
investigative demands. 

B. .\L-UOR C45£ .^LRE-iS 

1. Chil Rights Aa Enforcement 

The Division filed fourteen actions for injunctive relief in fiscal year 1985. includ- 
ing the first case. Commom^ealih v. Tihon. et al. . filed entireh for the protection 
of witnesses who had testified in an earlier civil rights case. Most of the cases. 
however, involved issues of equal access, protecting the rights of people to live in 
their homes, walk down the street, and go to school or work, without interference 
because of their race, color, or national origin. 

Several such cases were referred to the Di\ ision bs" the Commimit>" Disorders Unit 
of the Boston Police. In Commonwealth \. E.G. . the Anoraey General charged that 
a juvenile had committed repeated attacks on people of Viemamese origin as they 
walked down the street. In Commonweahh v. Mancuso, etal. . the Attorney General 
alleged that eight defendants, both juvenile and adult, had attacked Viemamese resi- 
dents of South Boston, beating one. and smashing the doors and windows of their 
hon^s. V^dahsm. including the writing of ethnic slurs, to a Chinese restaurant and 
the cars of its employees, led to the filing of Commonwealth v. Tiemey. In Common- 
wealth \. Riley, the defendant was charged with threatening a Black and a Hispanic 
child in a predominantiy w hite housing project. In CommonMeahh \. Gardner, the 
defendant was charged with assaulting a Black woman in a place of pubhc accommo- 
dation. Injunctions were obtained in each of these cases. 

In the first civil rights action filed in Worcester. Commonwealth v. Johnson, the 
Attorney General obtained an injunction to protect Viemamese .American workers 
at the Madison Wire plant. The complaint alleged that the defendant had attacked 
one Vietnamese worker and had chased and threatened others. 

Two actions were filed to protect the rights of people of Cambodian origin living 
in Revere. Commonwealth v. AJu\enile and Commonwealth v. Stephens, etal. Inter- 
ference with the rights of Cambodian -Americans Using in Low ell was aUeged in Com- 
monwealth v. Dube, et al. Injunctions were issued in aU three cases. 

Injimctions were also obtained in several cases brought in communities other than 
Boston to protect the right of Black or interracial families to live peacably in their 
homes. These included Commonwealth \. Doe. etal. . in Somer.iIle: Commonwealth 
V. Mannett, et al.. in Brockton: Commonwealth v. Ogara. in Springield; and 
Commonwealth v. Simonetti. in Lowell. 

Injunctions were obtained against a total of fifty-seven defendants in fiscal year 
1985. Most complied with the orders. howe\-er. a few actions for contempt were filed. 
Two actions for civil contempt were resolved b> the entr\" of judgments acknow ledg- 
ing violations and providing for the imposition of specific sanctions for any fumre 
violations. Complaints for criminal contempt were brought against two juvenile 
defendants for violations of orders issued in fiscal year 1985. In one of these cases, 
the defendant was committed to DYS for 90 days, with 10 days to be served in a DYS 
detention fecility, the balance suspended until the defendant's 18th birthday, with 



P.D. 12 37 

strict terms of probation. The other case was pending at the end of the year. Two 

adults were charged w ith criminal contempt for \iolation of an order issued in fiscal 
year 1984: their cases were also pending at the end of the year. 

In Commonwealth \: Grcner. a single justice of the Appeals Court rejected a 
challenge to a Civil Rights Act injunction based on \-agueness and overbreadth. No 
further appellate review v^-as sought. 

The Division engaged in a number of activities other than litigation to increase 
the effectiveness of the Civil Rights Act. To encourage reporting of violations bv- 
groups which fece special linguistic and culmral barriers, the Envision issued a series 
of pamphlets on "Your Civil Rights Under Massachusetts Law " in bilingual formats 
for the Vietnamese. Cambodian, and Laotian communitv". 

Increasing pohce av^areness of the Civil Rights Act is also essential, and is steadily 
improving. In fiscal year 1985. the Massachusetts .Association of Police Chiefe 
adopted the model pohcy on civil rights cases which had been proposed last year. 
Training programs sponsored b\" the Criminal Justice Training Council ^A■ere held 
several times during the year, at different locations. In addition, the E>i%ision partici- 
pated in special programs for pohce in "Worcester. Medford. Universitv' of Massachu- 
setts-Amherst. Norfolk Count}, and the Metropolitan Pohce. 

2. Health Care 

The una\'ailabilit\" of specialized medical ser\ices for Medicaid patients v^as the 
major health care issue addressed bs the Division in fiscal year 1985. The Division 
approached it through enforcement of the communit>" sersice obhgation of the federal 
Hill-Burton Act. which requires that hospitals which received Hill-Burton funds in- 
sure that aU medical ser%"ices provided In the facilit>" are a%ailable to Medicaid pa- 
tients, even if staff physicians do not participate in the Medicaid program. 

The Division reached an agreement with Cape Cod Hospital to insure that 
g>"necological ser%ices were aNailable to Medicaid patients. The hospital agreed to 
continue a referral s>stem among its staff physicians until it expanded the staff at 
obstetrical clinic so it could provide gynecologic sersices as weU. Beverly Hospital 
agreed to require physicians in specialities where there were no Medicaid providers 
to participate in a referral s\stem which it established. The affected specialties in- 
cluded orthopedics, general surgen.' and dermatology. A similar arrangement uas 
worked out with Salem Hospital, where the referrals in\olved orriiopedics. dermaiol- 
og>. and plastic surgen.'. 

The Division also resolved complaints involving alleged refusals to proside emer- 
gencs" care and discriminaton." treatment of Medicaid patients. 

3. Housing 

The Division's work in the housing area in fiscal year 1985 uas focused on the 
Droblem of access to decent, affordable housing. Litigation continued in the case 
:>fBellotti v. Harold Browv. in which the Attome>' General is seeking to obtain defen- 
iant"s compHance v^ith state laws prohibiting discrimination against persons recei\-ing 
lovemmental rental assistance. 



38 P.D. 12 

As a result of intervention by the Division, the City of Holyoke lifted a moratorium 
on the development of subsidized housing. The city began to cooperate with the 
efforts of Nueva Esperanza, a community development corporation seeking to 
develop low cost housing in the Hispanic neighborhood of Holyoke. 

In the course of its community outreach efforts on discrimination and violence 
issues, the Division frequently became aware of other housing problems, such as 
health code violations or illegal evictions. In many instances, in addition to lacking 
familiarity with their rights, the tenants spoke little or no English. The Division 
assisted such complainants to obtain representation by legal services and other non- 
profit agencies. 

4. Education 

In Braintree Baptist Temple, et al. v. Holbwok Public Schools, et al. , a suit chal- 
lenging the constitutionality of the state compulsory education law requiring all 
children to attend an approved school, the federal court dismissed the claims against 
the state defendants. The Court also dismissed eight of plaintiff s twelve substantive 
claims. 

The schedule of hearings and negotiating sessions accelerated in Morgan v. Nucci, 
as the Boston school desegregation case moved toward conclusion. Judge Garrity's 
final orders were expected to be issued soon after the end of fiscal year 1985. 

In several instances, the Division also acted in an advisory capacity to the Depart- 
ment of Education, with regard to bilingual education and equal access issues. 

5. Children 

The Division filed two actions against unlicensed child care facilities. In Common- 
wealth V. Montgomery, et al. , the Division obtained an injunction prohibiting the 
defendants from operating or transporting children to such facilities. In Attorney 
General, et al. v. Donovan, the complaint charged that the defendant continued to 
operate a family day care facility after the emergency suspension of her license. In 
a consent judgment, defendant agreed to cease providing services. 

The Division continued to monitor conditions at a facility for the treatment of emo- 
tionally disturbed children, to insure compliance with state regulations on restraint 
and seclusion. 

6. Employment 

An agreement was reached with Grass Instrument Co. and Cannon Manufacturing 
Company of Quincy to make individual and family health insurance coverage avail- 
able to all employees. Previously, only employees whose family members were 
"dependent" within the companies' definition could elect family coverage, a policy 
the Division alleged adversely affected female employees. Grass and Cannon also 
agreed to modify an employment application to avoid invasion of privacy. 

The Division resolved several other complaints by employees involving privacy 
issues, including the illegal use of lie detectors. 



P.D. 12 39 

7. Voting Rights 

In November, 1984, the Division sent a team of investigators from the offices of 
the Attorney General and the Secretary of State to observe the conduct of the elec- 
tion and to access Worcester's compliance with state voting laws, especially those 
which seek to ensure that registered voters whose names are not on voting lists are 
afforded an opportunity to vote. Certain deficiencies were noted, and steps were taken 
to assist the Registrar of Voters in Worcester to correct these deficiencies. 

8. Insurance 

Jointly with the Insurance Division, the Division presented testimony to the Com- 
missioner of Insurance in support of a regulation which would require insurance 
companies to include maternity coverage in comprehensive health insurance. Such 
coverage, the Division argued, would be consistent with insurance company practice 
in employer group policies, in which maternity coverage is mandated by law, and 
with the Equal Rights Amendment. 

9. Public Records, Fair Information Practices, Open Meeting 

The Appeals Court issued its decision in General Chemical v. Commissioner of 
the Department of Environmental Quality Engineering. The Court ruled that the oper- 
ator of a hazardous waste facility was entitled to judicial review of the Commissioner's 
determination that reports submitted to him by the facility about its activities did 
not contain trade secrets. 

As the designee of the Attorney General on the Records Conservation Board, a 
member of the Division initiated a comprehensive review of the Board's policies 
and procedures in light of the requirements of the state Fair Information Practices 
Act, which regulates the transfer of personal data among state agencies. The review 
was prompted by the opening of a new state Archives Building, which could accom- 
modate many additional records. 

Several Open Meeting Law complaints filed with the Division during fiscal year 
1985 were resolved without litigation, or were referred to the District Attorneys. The 
Division participated in a public forum on the Open Meeting Law sponsored by the 
League of Women Voters. 

10. Citizen Complaints/Community Outreach 

The Division responded to over 400 individual written complaints and inquiries 
in addition to numerous phone calls. Most of the complaints were referred to other 
government agencies or to the private bar, but several resulted in action by the 
Division. 

The Division continued to work with community groups representing a broad range 
of civil rights concerns, including the Greater Boston Civil Rights Coalition. Division 
staff spoke at numerous community meetings and conferences on issues ranging from 
violence against Asian Americans to using the Hill-Burton Act to improve access 
to health care. 



40 P.D. 12 

The Division also continued its work with community groups and governmental 
agencies on civil rights issues affecting individuals who have been settled in the Com- 
monwealth as refugees. This has included close cooperation with the Massachusetts 
Office for Resettlement and the Governor's Advisory Council on Refugee Affairs, 
as well as the mutual assistance associations of the various refugee communities. 



CONSUMER PROTECTION DIVISION 

I. INTRODUCTION 

The Consumer Protection Division brings enforcement actions against businesses 
which use unfair and deceptive practices to injure consumers. The Division concen- 
trates on cases where consumers cannot reasonably obtain relief through their own 
efforts. Its caseload consists primarily of large-scale class actions brought on behalf 
of consumers affected in similar ways by a business's illegal activities. In 1985, the 
Division filed suit against violators in traditional areas such as auto sales, landlord- 
tenant, and construction and home improvement. At the same time, it expanded its 
leading role in national consumer advocacy, developed new legal theories for use 
against "deep pocket" defendants and foiling businesses, and continued to give special 
emphasis to the problems of vulnerable elderly and low income consumers. 

II. NATIONAL LITIGATION /NEW LEGAL THEORIES 

A. Appellate Cases 

In fiscal 1985 the Division established several precedents with national ramifica- 
tions, litigating in state and federal appellate courts, including the Supreme Court 
of the United States. 

For example, in April, the Supreme Court unanimously upheld G.L. c.l75 § 47B, 
a Massachusetts statute that requires insurance companies to include minimum men- 
tal health benefits in their policies, against constitutional challenges by the 
Metropolitan Life Insurance Co. and Travelers Life Insurance Co. The Division sued 
these two companies in 1980 for their failure to provide the required coverage to 
policyholders. The Attorney General's victory ensures that Massachusetts residents 
will receive the full range of mental health care provided by law. 

Another constitutional challenge arose from the Division's enforcement of the 
Massachusetts licensing requirements for debt collection agencies against the 
Pennsylvania-based Allied Bond agency. On this appeal the Massachusetts Supreme 
Judicial Court upheld the constitutionality of Massachusetts' laws, which require 
such companies to be licensed and bonded and to maintain offices in the state. The 
Court's decision could have implications in many other states. According to briefs 
filed by the defendant, 27 states have a license requirement for debt collection agen- 
cies, 30 states require the posting of a bond, and 15 states require a local office. 

In September, 1984, continuing a two-year program of advocacy on behalf of the 
Federal Trade Commission's new Credit Practices Rule, we participated as amicus 
curiae in the case of American Financial Services Association v. ETC, in the District 



P.D. 12 41 

of Columbia Circuit Court of appeals. The credit industry had challenged the rule, 
which prohibits lenders and retail installment sellers from using coercive debt collec- 
tion methods, virtually upon promulgation. 

The rule prohibits such oppressive tactics as creditors threatening to use security 
interests in household goods to seize and sell clothing, furniture, and other household 
possessions of a defaulting debtor. Twenty state Attorneys General joined our amicus 
brief. The Court of Appeals upheld the rule; a Supreme Court appeal is possible. 

B. New Legal Theories: Deep Pocket Liability and Failing Enterprises 

During fiscal 1985, Division lawyers used new legal strategies to deal with problem 
defendants, and obtained encouraging results. The first such strategy was to sue alter- 
native "deep-pocket" defendants whenever the primary business defendant is insol- 
vent and cannot pay restitution or comply with an injunction. The most common 
alternative defendants are the officers and shareholders of defendant businesses and 
other afiliated companies, such as parent corporations and franchisors. 

The second legal theory advanced by the Division was that financially unstable 
companies which take deposits for goods and services must either warn consumers 
of the company's condition or make arrangements to protect consumers, such as buy- 
ing insurance policies or establishing escrow funds for deposits. A company which 
fails to take these protective measures, the Division argued, has violated the Con- 
sumer Protection Act. 

The Division used both theories to recover $117,000 in consumer restitution in the 
Michaud Tours case. In 1983, Michaud took large deposits from hundreds of elderly 
consumers for bus tours, then suddenly closed its doors without either providing 
the tours or refunding the deposits. The Division charged Michaud with deceiving 
consumers by taking payments for services it knew it probably could not provide. 
In addition, since the tour company was insolvent, Michaud's president and an affili- 
ated company were advised that they were to be held responsible as well for having 
participated in the deception. The result was an important settlement on behalf of 
elderly consumers. 

Similar theories were applied to obtain an attachment of $50,000 against the per- 
sonal assets of the president of Puritan Furniture Co. and to obtain a $10,000 con- 
tempt penalty (and later an $80,000 attachment) againt the chief executive officer 
of the Woman 's World Health Spas chain, in lawsuits based on the failure of each 
business to honor consumer contracts. 

In the Warehouse Pools case, the Division protected consumers against a series 
of companies both in and out of state which sold outdoor pools to Massachusetts 
residents by using bait-and-switch advertising and sales tactics. Preliminary injunc- 
tions were obtained against the Massachusetts and New York companies, and also 
against their presidents, for their direct and individual involvement in the deceptive 
scheme. Again, the Division's theories of extended liability were the basis for the 
successful result. 



42 P.D. 12 

III . SPECIAL ENFORCEMENT PROGRAMS 

Certain kinds of unfair and deceptive practices, their nature, subtlety, or applica- 
tion to target groups, are difficult if not impossible for consumers to detect and defeat 
on their own. Schemes to take advantage of the poor and elderly, deceptive advertis- 
ing, and odometer spinning typify these kinds of practices. In 1985 the Division used 
special enforcement projects to identify the most egregious violators in these areas 
and to curtail their illegal practices. 

A. Vulnerable Consumers: The Elderly and the Poor 

Elderly and low income consumers are both especially vulnerable to unfair and 
deceptive business practices and particularly unable to recover their losses through 
self-help or the courts. Last year the Division began to place special emphasis on 
protecting these consumers, and that effort continued in fiscal 1985. 

Nursing home patients epitomize the plight of elderly, poor and physically or men- 
tally handicapped consumers. Because patients are virtually defenseless against inad- 
equate or abusive treatment by unscrupulous nursing home operators, the Division 
aggressively litigates on their behalf. In the Westelm Nursing Home case, for example, 
the Division was called in a few days before Christmas to obtain an emergency order 
to protect the home's elderly and mentally infirm patients from violations of the Pa- 
tient Abuse Statute, G.L. c. Ill, § 72F. The Division's action stopped the home's 
use of psychotropic drugs as chemical restraints and remedied its failure to provide 
necessary medical care or to properly administer prescribed medications to patients. 
The order also provided for independent doctors to immediately reevaluate the 
medical needs of all Weltelm's patients and for those patients to receive adequate 
medical care, as prescribed by the doctors. Later the Division obtained a court order 
appointing a receiver to operate the home in compliance with the stipulation. 

Condominium conversions displace many elderly and low-income consumers. The 
new state condominium conversion status provides protection against the hardships 
of displacement, but the Division was concerned that some profiteers would disregard 
the law, and began an active program to enforce it. For example, in two similar cases, 
Back Bay Restorations and Coventry Gardens, the Division successfully stopped ille- 
gal evictions and conversions and obtained judgments requiring the defendants' com- 
pliance with the condominium law. 

In Back Bay Restorations the court approved a judgment that required the defen- 
dants to maintain four apartment buildings as rental units for at least three years before 
attempting a condominium conversion and to pay relocation benefits to tenants of 
another building who had been illegally displaced. In the Coventry Gardens case, 
the Division obtained a preliminary injunction barring an illegal 84 unit conversion 
and freezing rents and other charges until the case is tried on the merits. The owners 
of Coventry Gardens were in the process of evicting tenants and marketing their apart- 
ments as condo units before the Division obtained the court orders protecting tenants. 

The Division brought another housing-related suit against Cranberry Village, a 
retirement community mobile home park in Carver. When the owner/developer first 
opened the park he induced fixed-income retirees to purchase homes from him and 
become park tenants by giving them a written guarantee that their lot rent would 
remain fixed for their lifetimes. After approximately L25 elderly people bought homes 



P.D. 12 43 

and rented lots from the owner, he raised the rent. Suit was filed and an order freez- 
ing the rents until trial was obtained. After three years of litigation the case came 
to trial last December. The Court's decision was that the park owner's rent increase 
was illegal. A consent judgment was then entered based on the judge's ruling, saving 
the tenants approximately $125,000 

B. Deceptive Advertising 

In fiscal 1985, the Division began an Advertising Project whose goal was to ensure 
compliance with the Attorney General's retail advertising and automobile advertising 
regulations. The Division initiated the project by writing to trade associations, adver- 
tising agencies and the media explaining our enforcement efforts and describing the 
most frequently seen violations. Investigators then systematically reviewed selected 
advertisements in major metropolitan and local media and referred deceptive ads 
to the attorneys assigned to the project. 

The project's most notable victory was the simultaneous entry of consent judgments 
against six major state and national clothing retailers. Anderson Little, CWT, Hit 
or Miss, Chess King, Casual Comer, and Cummings all agreed to judgments barring 
them from using deceptive "former price" comparison tags when our investigation 
showed that they never sold clothes at the "former price" and, had in fact, imported 
clothes which arrived at the Port of Boston with "sale" tags already on them. These 
companies also paid more than $50,000 to the Commonwealth, in lieu of consumer 
restitution. In a seventh case, the Division sued a national retailer. The Limited, and 
obtained an injunction against the company. 

During fiscal 1985, the Division obtained a total of 273 letter agreements, 
assurances of discontinuance and consent judgments from various businesses which 
agreed to terminate deceptive retail advertising practices. 

The Division also obtained more than two dozen consent judgments and assurances 
of discontinuance against auto dealers for deceptive advertising practices. The most 
common violations included dealers who deceptively advertised cars using a bogus 
"invoice price," dealers who advertised prices which were less than the car's actual 
selling price, and dealers who advertised cars at low monthly payments, but failed 
to disclose that the advertised transaction was a lease rather than a sale. 

C. Odometer Spinning 

The Division also actively prosecuted odometer spinners throughout fiscal 1985, 
aided by a new referral program created with the Registry of Motor Vehicles. This 
effort produced numerous consent judgments, which provide collectively for the pay- 
ment of over $225,000 in consumer restitution. Ozella Dodge, which altered more 
than 200 odometers, was the most notorious violator. After investigators discovered 
the extent of Ozella's illegal scheme, attachments and injunctions were obtained to 
stop its practices. The case was settled with a consent judgment which required Ozella 
to pay $120,000 in consumer restitution, the largest amount the Division has ever 
recovered in an odometer spinning case. This money has been distributed to the con- 
sumers Ozella victimized. 



44 P.D. 12 

IV. SUBJECT AREAS 

During the past year, the Division maintained its longstanding presence in tradi- 
tional consumer problem areas such as automobiles, health spas, travel, and retail 
sales, obtaining significant remedial orders and restitution for consumers harmed 
by deceptive schemes. The following cases illustrate the Division's recent work in 
these and other subject areas. 

In many cases consumers have no way of knowing that they have been defrauded, 
because they are given a false measure of the product they purchase. The Festino 
Fuel case typifies this kind of fraud. The Festino company used a hidden "bypass" 
valve on its oil trucks to divert a portion of the oil back into the truck. A judgment 
was obtained against Festino, and enforced by foreclosing a mortgage on Festino's 
property. Festino then agreed to pay $45,000 in cash to settle the case; the proceeds 
were used for consumer reimbursement and the surplus was placed in the Local Con- 
sumer Aid Fund to further community programs for consumer protection. In a similar 
case the Division obtained a final judgment against Ken 's Fuel Oil Service, a home 
heating oil dealer in the Springfield area, which prohibited the defendant from over- 
charging low income fuel aid recipients for home heating oil. 

Other kinds of consumer losses do not lend themselves to individual remedies, 
for example because the business is out of state, or is a large corporation that has 
established an unfair or deceptive policy. Two such cases exemplify the Division's 
intervention on behalf of large groups of similarly situated consumers. 

In Commonwealth v. Castlebleu, Inc. d/b/a Coppercraft Guild refunds were ob- 
tained for consumers in 19 states who were defrauded by this now-defunct mail order 
business. 

In Commonwealth v. General Motors Acceptance Corporation an Assurance of 
Discontinuance was obtained in which GMAC agreed to stop selling repossessed 
motor vehicles at auctions without providing consumers with implied warranties 
of merchantability. The assurance also required GMAC to give consumers contracts 
which comply with the Attorney General's Motor Vehicle Regulations. 

In addition to ongoing litigation against the Commonwealth's largest health spa 
chain. Woman 's World of America, action was taken in fiscal 1985 to protect numerous 
consumers injured by spa closings. For example, when the Feel Fit Health Spa in 
western Massachusetts closed but the owner sought to escape responsibility for mem- 
berships, the Division insisted that the defendant provide restitution. The consent 
judgment obtained in that case also required Feel Fit's owner to post a bond before 
opening any other health spa. 

In Commonwealth v. Adventures Travel Unlimited, Inc. suit was brought against 
a travel agency which failed to provide promised vacations. A final judgment places 
restrictions on the business' practices and requires the defendant to refund deposits 
when trips are cancelled. 

The field of professional services covers a wide spectrum of businesses which pur- 
port to fill particular consumer needs for expertise and assistance. In many cases 
the providers are only ostensibly professional, and inadequately or completely fail 
to perform the expensive service they sold to consumers. Since many such services 
offer only "assistance," consumers often complain that they never received anything 
tangible from the business. In Commonwealth v. Ranbar Associates Inc. , for example. 



P.D. 12 45 

the Division sued a career counseling agency which charged high fees but consistently 
failed to provide services which justified those fees. The resulting consent judgment 
against Ranbar requires it to make a series of affirmative disclosures and bars its 
use of a wide range of deceptive practices. 

In Commonwealth v. Suzanne Champney, an adoption facilitator was sued for 
conducting unlicensed adoption activities and a preliminary injunction obtained 
preventing her from committing numerous unfair and deceptive practices, including 
misrepresenting to prospective parents a child's health, its availability for adoption, 
and the time it would take to complete the adoption process. 

Consumers can lose substantial sums of money to contractors who do shoddy con- 
struction work, whether doing home improvement work or building new homes under 
contract. When such large sums are involved, and a contractor shows a pattern of 
unfair and deceptive business practices, the Division has obtained injunctive relief 
and restitution for injured homeowners. 

One such case was against Thomas Sweeney, a Hingham home improvement con- 
tractor. Sweeney collected money and failed to do any work, did electrical, plumbing, 
and contracting work without the proper licenses, failed to properly do the work 
he did perform, and repeatedly ignored consumer complaints. After suit was brought, 
an injunction was obtained which safeguards consumer deposits with mandatory 
escrow accounts, calls for specific contract terms, and requires disclosures about 
Sweeney's financial status. 

The Division used alternative dispute resolution methods for the first time during 
this past year to establish damages in a case against a housing contractor, Gordon 
Poulos. The Division obtained a judgment against Poulos holding him liable for 
defects in homes purchased by ten consumers and requiring that he participate in 
mediation to establish and pay damages due the ten consumers. Mediated damages 
settlements were reached in all cases and fully paid within 90 days of inclusion in 
the judgment. 

Finally, in a construction-related field, we recently obtained nine Assurances of 
Discontinuance against home inspectors who agreed to stop disclaiming responsibil- 
ity for the accuracy of statements and observations made pursuant to their home in- 
spections. The filing of these assurances culminated a long term project in this new 
field, in which we reviewed the advertisements, brochures and report forms of ap- 
proximately 90 home inspectors throughout Massachusetts. 

V. CONCLUSION 

During the past year the Consumer Protection Division experimented with innova- 
tive legal theories, continued traditional enforcement efforts, and created special 
litigation projects. Each of these efforts contributed to our overall goals, to combat 
deceptive business practices while giving special protection to the most vulnerable 
citizens of the Commonwealth. 



46 P.D. 12 

ENVIRONMENTAL PROTECTION DIVISION 

General Laws c. 12, § IID establishes the Environmental Protection Divison in 
the Department of the Attorney General. The Division is litigation counsel on 
environmental issues for all of the agencies of the Commonwealth, principally those 
within the Executive Office of Environmental Affairs. In this role the Division 
handles all of the Commonwealth's civil litigation to enforce environmental protec- 
tion programs established by state laws and regulations. The Division brings suits 
to enforce the Commonwealth's regulatory programs governing air pollution, water 
pollution, wetlands, hazardous waste, solid waste, pesticides, and billboards, and 
it defends administrative decisions made by state agencies that administer environ- 
mental programs. In addition, based on the Attorney General's broad authority to 
protect the environment of the Commonwealth, the Division initiates and intervenes 
in state and federal litigation and in administrative hearings before federal agencies 
on issues of significance to the environment. 

As a result of its role in environmental enforcement the Division receives substan- 
tial grant money from the United States Environmental Protection Agency. 

During the year the Division recovered through litigation $557,375 in penalties 
and other payments. In addition, many of the Division's cases have resulted in private 
parties undertaking cleanups, at substantial cost, which the Commonwealth would 
otherwise have had to perform. 

Oil and Gas Leasing on Georges Bank 

In September 1984, together with a coalition of environmental groups, the Division 
brought suit in federal court against the United States Department of Interior. For 
the third time since 1978, the Department of the Interior had planned to auction off- 
shore oil and gas leases in an area including Georges Bank, one of the world's richest 
fishing grounds and a vital economic resource for the Commonwealth. United States 
District Court Judge A. David Mazzone enjoined the sale, agreeing with the Divi- 
sion's arguments that the final environmental impact statement prepared by the 
Department of the Interior for the lease sale was inadequate under the National 
Environmental Policy Act, and that the Department's failure to delete tracts critical 
to the Georges Bank fishery, as requested by Governor Dukakis, violated the Outer 
Continental Shelf Lands Act. Hours after the injunction issued, the Department of 
the Interior cancelled the sale for lack of bids. On December 31, 1984, the Depart- 
ment of the Interior also cancelled a planned second phase of the sale and deferred 
further offerings on the Outer Continental Shelf off the New England coast until 
after 1987. 

Silresim Chemical Corporation (Commonwealth of Massachusetts v. Neil H. Pace, 
etal.) 

The Commonwealth has continued to pursue its claims for cost recovery against 
non-settling defendants in the first of its federal court actions under the United States 
and Massachusetts superfund laws (the Comprehensive Environmental Response, 
Compensation and Liability Act, and the Massachusetts Oil and Hazardous Material 
Release Prevention and Response Act). In this lawsuit filed in December 1983, the 
Commonwealth sought recovery of approximately $3 million for hazardous waste 



P.D. 12 47 

cleanup and other measures carried out by the Commonwealth at the site of the bank- 
rupt Silresim Chemical Corporation in Lowell. Settlements with nine additional 
defendants this year brought the Commonwealth's total cost recovery to more than 
$2,023,000 and the total number of settlement agreements negotiated in the case to 
263. The Commonwealth has been actively pursuing the litigation against three 
remaining defendants. 

New Bedford Harbor (Commonwealth of Massachusetts v. AVX, et al.) 

In two consolidated lawsuits filed in federal court in December 1983, the Common- 
wealth of Massachusetts and the United States have sought recovery for costs and 
damages to natural resources in connection with the polychlorinated biphenyl (PCB) 
contamination of the New Bedford Harbor. Following extensive briefing by the parties 
and two days of oral arguments, the United States District Court ruled on March 
26, 1985 on all of the parties' pretrial motions. The Court ruled in favor of the Com- 
monwealth and the United States in granting the plaintiffs' motions to dismiss the 
defendants' counterclaims, and in denying the defendants' motions to dismiss the 
plaintiffs' complaints. The Court's decision disposed of numerous important issues 
under the new state and federal superfund laws. 

Nassr v. Commonwealth of Massachusetts 

In May of 1985, the Supreme Judicial Court issued its opinion in this important 
public nuisance case in which the Division represented the Commonwealth. While 
ruling that the Commonwealth was not entitled to restitution in this case, the SJC, 
agreeing with the Commonwealth, ruled that an "innocent" landowner has a respon- 
sibility to abate a public nuisance on his property created by a third party and may 
be liable for restitution to the Commonwealth for clean up costs. 

Charles George Landfill (Commonwealth of Massachusetts v. Charles George, Sk , 
etal.) 

The Charles George Land Reclamation Trust Landfill in Tyngsboro has been the 
subject of ongoing litigation in state and federal courts. Improper disposal pracUces 
and the use of the landfill for hazardous wastes has caused contamination of the 
ground and surface waters near the landfill and has necessitated the closure of several 
private water supply wells. In June 1985 the Division filed suit in United States 
District Court to recover more than $2 million in past costs and anticipated expendi- 
tures by the Department of Environmental Quality Engineering to clean up the landfill 
and to install a pipeline to provide nearby residents with an alternate water supply. 
The suit was filed against members of the Charles George family who owned and 
operated the landfill and against the Charles George Trucking Company, Inc. which 
transported wastes to the site. The complaint also alleges fraudulent conveyance by 
Charles George family members of real estate valued at more than $1.2 million. The 
case is being pursued in coordination with a similar suit by the U.S. Environmental 
Protection Agency. 



48 P.D. 12 

DEQE V. Robert Silva and Wiley Taylor 

Following a week-long trial in Suffolk Superior Court in August of 1984, a judg- 
ment was issued by the Court in December of 1984 against both defendants for 
$124,575. This judgment covers costs the Commonwealth spent to clean up a site 
in Rehoboth owned by Silva near a public water supply where Taylor had dumped 
hundreds of barrels of waste oil and chemicals. 

Metropolitan District Commission v. Alpha Industries 

The Division filed suit against Alpha Industries in Wobum alleging a six-year 
history of illegal discharges to the sewer system, including discharges of toxic organic 
chemicals and acidic wastes. The Division negotiated a consent judgment with Alpha 
Industries that required it to install pretreatment equipment, to conduct a study to 
determine how best to control its organic wastes, and to pay a penalty of $60,000. 

Commonwealth of Massachusetts v. Alto-Tronics Corporation 

In December 1984, the Division and the U.S. Environmental Protection Agency 
as co-plaintiff obtained a consent judgment against Alto-Tronics Corporation of 
HoUiston. The company agreed to pay $125,000 in penalties to settle the governments' 
claims that it discharged untreated industrial wastes containing metals and toxic chem- 
icals into the Metropolitan District Commission sewer system. Alto-Tronics also 
agreed to comply with a rigorous schedule to upgrade its treatment system and to 
pay additional penalties to the Commonwealth and the United States if it fails to oper- 
ate its treatment system properly in the future. 

Department of Environmental Quality Engineering v. Coastal Metal Finishing 

The Division brought suit against Coastal Metal Finishing for a major spill of indus- 
trial waste containing heavy metals. Following negotiations, the company agreed 
to pay a $15,000 penalty for the spill and to institute strict monitoring and recording 
procedures in order to prevent future incidents. 

Department of Environmental Quality Engineering v. Microwave Research Corpora- 
tion, et al. 

The Division filed a lawsuit against Microwave Research Corporation of North 
Andover alleging discharges of untreated toxic metal wastes into the ground and un- 
lawful storage and transport of hazardous waste. The Division obtained an agreed 
preliminary injunction requiring immediate cessation of all discharges to the ground. 
The Division continued to pursue issues of remedial action and penalties. 

Commonwealth of Massachusetts v. Sandri, Inc. 

In June 1985, the Division obtained a consent judgment against Sandri, Inc. of 
Greenfield for payment of a $20,000 penalty in a lawsuit brought under the Massa- 
chusetts Hazardous Waste Management Act. The Commonwealth's complaint alleged 



P.D. 12 49 

that Sandri, Inc. violated an administrative order of the Department of Environmental 
Quality Engineering requiring the company's facility to be licensed as a hazardous 
waste storage facility. 

Department of Environmental Quality Engineering v. King, et at. 

A suit was brought to stop the daily discharge from a laundromat of thousands 
of gallons of contaminated industrial sewage into a field near a playground. Under 
a settlement agreement negotiated by the Division, the owner paid a penalty of $10,000 
and nearly $6000 in costs, and the owner and potential purchaser agreed not to resume 
operations until an approved treatment facility was constructed. 

Acid Rain 

The Division has continued to be actively involved in lawsuits challenging the 
failure of the Environmental Protection Agency to take action on acid rain under 
the federal Clean Air Act. Following oral arguments in August 1984, the United States 
District Court for the District of Columbia ruled in favor of Massachusetts, six other 
states, and several environmental groups on motions for summary judgment challeng- 
ing EPA's delay in ruling on pending administrative proceedings. It ordered EPA to 
take action on administrative petitions that sought to limit the air pollution emis- 
sions of Midwestern states that are the major cause of acid rain in the Northeast. 
When EPA subsequently denied the petitions, Massachusetts again joined with a 
coalition of states and environmental groups in seeking judicial review of the agency's 
decision in the Court of Appeals for the District of Columbia. 

In January 1985, Massachusetts and other states and environmental groups also 
presented arguments to the Court of Appeals for the Sixth Circuit in a pending case 
concerning the EPA's relaxation of air pollution limits for two Ohio power plants. 



INSURANCE DIVISION 

The Insurance Division of the Public Protection Bureau represents the interests 
of Massachusetts citizens who purchase insurance. The Division's budget was 
doubled in fiscal year 1985 and the Division expanded to seven attorneys, one admin- 
istrative assistant and two secretaries. The Division intervenes in adminstrative 
hearings held to review insurance companies' requests for rate increases and bring 
affirmative litigation on behalf of victims of unfair and deceptive insurance sales 
practices, fraud and other illegal insurance activities. In addition, the Division 
became involved in litigation and administrative hearings concerning the rights of 
consumers and financial services. As a result, the Division assisted in saving 
Massachusetts consumers over 136 million dollars this fiscal year. 

A. ADMINSTRATIVE HEARING 

1. Automobile Insurance Hearing 

The Insurance Division intervened in a major administrative hearing relating to 
a 101 million dollar (7.9%) auto insurance rate increase proposed by the insurance 
industry for 1985. The Division in its advisory filing on these auto insurance rates. 



50 P.D. 12 

recommended that auto insurance rates be decreased by 2.5% in 1985. Following 
a 47 day hearing the Insurance Commissioner announced his decision to decrease 
the rates by 2% resulting in savings of 127 million dollars to consumers. 

2. Blue Cross/Blue Shield — Nongroup 

The Division intervened on behalf of approximately 110,000 non-group health in- 
surance plan subscribers of Blue Cross and Blue Shield in opposition to the rate in- 
creases of 11.5 % and 3.8 % requested by Blue Cross and Blue Shield. In its advisory 
filing, the Division contended that the requested $9.6 million rate increase was at 
least $5 million too high. The Insurance Conrunissioner rejected the proposed in- 
creases and Blue Cross and Blue Shield have appealed this decision. 

3. Blue Cross/Blue Shield — Medex 

The Insurance Division, recommended that the Commissioner of Insurance reject 
a Blue Cross and Blue Shield request for 11.2% , or $22 million increase in Medex 
rates. Medex is purchased by approximately one half million Massachusetts senior 
citizens to supplement Medicare coverages. The Division's filing reconmiended no 
more than a 2.3% rate hike. The difference between the two recommendations 
amounts to more than $17 million or approximately $35 per elderly subscriber per 
year. The Commissioner rejected the BC/BS requested increase resulting in a $22 
million savings to Medex subscribers. 

4. Auto Insurance Competition Hearing 

The Division appeared at a hearing held to determine if automobile insurance rates 
should be competitively established for 1986. The Division presented testimony 
which opposed competitively set rates for 1986, arguing that the automobile insurance 
market in Massachusetts was not currently suitable for competitively setting insur- 
ance premiums and that consumers would not benefit from a competitive market 
until certain reforms were established. The Commissioner of Insurance decided that 
he would establish automobile insurance rates for 1986. 

5. Pregnancy Benefits Hearing 

The Division appeared in a hearing held by the Commissioner of Insurance con- 
cerning availability of pregnancy benefits and strongly urged the adoption of a pro- 
posed regulation which would require inclusion of maternity benefits in all health 
insurance policies and would prohibit the capping of maternity benefits at lower levels 
than other medical services. This regulation was adopted. 

6. Physician Reimbursement Hearing 

The Division participated in a hearing on physician reimbursement conducted by 
the Commissioner of Insurance. The Division presented expert testimony which iden- 
tified the important issues that must be evaluated and resolved to develop a system 
which can control the growth in health care costs while maintaining consumer access 
to and quality of care. A decision is pending on this hearing. 



P.D. 12 51 

B. Affirmative Litigation 

1. Baldwin- United 

The Division continued to actively represent the interests of Massachusetts 
residents who purchased single premium deferred annuities ("SPDAs") from the 
insurance subsidiaries of Baldwin-United. 

The Division monitored settlements in eighteen private class actions against certain 
brokerage firms who sold Baldwin-United SPDAs. Under this settlement, the brokers 
will pay approximately $140 million to their customers. In addition, the Division 
pursued litigation against certain brokers who are not participating in the national 
settlements. 

We are also working with the many parties involved in an effort to negotiate an 
overall Enhancement Plan which would provide Baldwin-United policyholders with 
increased security and a higher rate of return on their money. 

2. American Income Life 

The Division reached a settlement with the American Income Life Insurance Com- 
pany in litigation resulting from the sale of cancer insurance during 1974-1979. The 
Division alleged that the company's agents had sold the cancer insurance in a manner 
which overemphasized the catastrophic financial risk associated with the disease 
and had inaccurately described the coverage or benefits offered by the policy. Under 
the terms of the settlement American Income paid $110,000 to the Division which 
has been distributed to approximately 4,000 Massachusetts policyholders. 

3. Allan Metal Fab. 

The group health insurance plan established by Allan Metal Fab. was cancelled 
by Travelers due to nonpayment of premiums by the employer. Sixteen employees, 
who continued to have deductions taken from their paychecks for their insurance 
after the insurance was canceled, incurred over $40,000 of medical claims. The Divi- 
sion secured funds from Travelers Insurance Company to settle the outstanding medi- 
cal claims of the former employees of Allan Metal Fab. 

4. Group Health Insurance 

The Division has initiated action against several companies for failure to provide 
mandated benefits under their group health insurance plans including failure to allow 
an employee to continue his or her insurance for 39 weeks after an involuntary layoff 
and failure to provide outpatient psychiatric benefits. 

C. Individual Consumer Complaints 

The Division continues to mediate individual consumer complaints related to insur- 
ance and monitors these complaints for patterns of unfair business practices. 



52 P.D. 12 

D. Legislation 

The Division continues to assist in the drafting of and support of legislation on 
insurance issues. The Division has been actively working on legislation which would 
ban sex discrimination in the sale of life insurance, annuities and other insurance 
products. 



PUBLIC CHARITIES DIVISION 

The Division of Public Charities was established pursuant to G.L. c. 12, § 8B. 
The purpose of the division is to "enforce the due appUcation of funds given or appro- 
priated to public charities within the Commonwealth and prevent breaches of trust 
in the administrtion thereof." G.L. c. 12, § 8. To fulfill this role, the first line of defense 
in enforcement by the division of statues regulating annual financial reporting (G.L. 
c. 12, §§ 8A-8M) and charitable solicitation (G.L. c. 68, §§ 18-33). These statues 
require registration and detailed annual financial disclosure. They also provide broad 
powers to carry out the division's stated purpose. 
The actual activities of the division fall into three main areas: 
(I) Affirmative litigation aimed at protecting the public from misapplications of 
charitable funds and from fraudulent or deceptive solicitation; (II) Participation in 
numerous estates and trusts in which there is a charitable interest; and (III) Various 
administrative functions regarding annual financial reporting and solicitation man- 
dated by G.L. c. 68, §§ 19, 21 and 23. This year the division has also been active 
with legislation and miscellaneous activities. 

I. LITIGATION 

During the fiscal year ended June 30, 1985 some of the significant litigation is 
as follows: 

1. Bellotti V. Hannemann Hospital Corp. et al. 

On February 13, 1985 a petition was filed in the Supreme Judicial Court seeking 
to determine the validity of the first ever attempt by a Massachusetts non-profit acute 
care hospital to sell itself to a for-profit health care corporation. This case is being 
closely watched nationally in that there is a nationwide trend toward for-profit health 
care institutions purchasing financially troubled non-profit hospitals. The Division 
believes continuation of the trend will severely affect access to health care by the 
less affluent as well as affect the types of health care provided to the public. The 
case also raises, for the first time, the issue of whether a charitable corporation may 
terminate its affairs by selling all of its assets and good will without court approval. 
Such an act is generally illegal in a charitable trust setting. 

2. Commonwealth of Massachusetts v O.S.C Corporation et al. 

On January 21, 1985 the Superior Court handed down a decision in this deceptive 
police solicitation case. The decision is of major importance in the division's cam- 
paign against deceptive police solicitation and in terms of the constitutionality of 
the Massachusetts Charitable Solicitation Act. 



P.D. 12 53 

The court imposed a severe preliminary injunction including affirmative disclosure 
of the fact the defendants receive 65-80% of the proceeds. This case will be appealed 
to the Supreme Judicial Court on a variety of grounds, the most important being 
the free speech and equal protection constitutional claims. 

3. Bellotti V. United Funding et at. 

On June 6, 1985 the largest deceptive solicitation award ever in Massachusetts was 
entered by way of consent judgment. The judgment requires the defendants to pay 
$20,000 in G.L. c. 93A contempt penalties, $30,000 to the Local Consumer Aid 
Fund as settlement of coercive fines, and $8,000 to the Commonwealth for costs and 
fees. The judgment also requires an offer of restitution which could total $70,000. 
The defendants are also barred from operating in Massachusetts for four years as 
well as subject to severe fines and penalties for non-payment. 

4. Commonwealth v. Charles Manfredi 

On May 23, 1985 the division filed its first ever criminal action in a deceptive solic- 
itation case. This criminal contempt complaint alleges numerous violations of a prior 
court order. The complaint alleges that deceptive fund-raising practices occurred 
including failure to pubUsh adbooks contracted for, receiving 50% -80% of the reve- 
nues as his fees in violation of the 15% compensation limit imposed by G.L. c. 68, 
§ 21 and failing to register or post bond. 

5. Commonwealth v. M&M Publishing Co. et al. 

A Civil Contempt trial commenced on November 13, 1984. The Division alleges 
that defendants have violated virtually all the provisions of a 1981 Consent Judgment 
regarding false and decepfive solicitation in the names of local sports and senior asso- 
ciations; that defendants have failed to make the disclosures required by the Consent 
Judgment and that they have misappropriated charitable assets. After two and one- 
half days of trial, the defendants announced in court they would concede by admitting 
all violadons and facts alleged by the Division. 

Briefs have been filed and the matter has been taken under advisement. The crucial 
remaining issue is the relief awarded. The Division seeks dissolution of the corpora- 
tion, a five-year ban on solicitation activities by the individual defendants, restitution 
to local sports and senior programs and a $140,000 civil contempt fine. Such drasfic 
relief is essential to make an effective statement in our campaign against false and 
deceptive solicitation. 

6. Bellotti V. Events International, Inc. et al. 

In October 1985, the division filed another deceptive solicitation case. This case 
has major importance in that it squarely confronts the constitutionality of the 15 % 
professional solicitor compensation limit imposed by G.L. c. 68, § 21. The defen- 
dants allege such a limit violates their free speech rights. 



54 P.D. 12 

7. Bellotti V. Dumaine d/b/a Project H.E.L.P. 

On May 8, 1985, this lawsuit was filed against Paul Dumaine to enjoin unfair and 
deceptive business practices violative of G.L. c. 93A and G.L. c. 68, §§ 27 and 30(e). 

The complaint alleges that Dumaine makes his profits by deceiving businesses 
to believe that they are contributing to charity. 

On May 8, 1985, a temporary restraining order was entered enjoining the defendant 
from misleading the public to believe he is a charitable organization; soliciting 
charitable contributions for his private benefit; employing unfair and deceptive busi- 
ness practices in conjunction with solicitations, including failure to disclose the for- 
profit nature of his business, and failure to disclose that he is not affiliated with bona 
fide, existing organizations which serve handicapped or retarded children. 

8. Bellotti V. Kidnapped, Inc. , et al. 

On May 15, 1985 the Attorney General brought this action to compel the defendant 
charitable corporation. Kidnapped, Inc. ("Kidnapped"), to comply with the reporting 
and accountability laws in the Commonwealth governing public charities. G.L. c. 
12, §§ 8E and 8F; c. 68, §§ 18 etseq. In addition, the complaint seeks to enjoin cer- 
tain unfair and deceptive practices of the defendants in their conduct of a raffle. 

The defendant "Kidnapped" has not filed with the Division and has failed to sub- 
mit any financial records. 

A preliminary injunction which requires the defendants to register and to file finan- 
cial reports as required by c. 12, § 8F, prohibits the defendants from engaging in 
solicitation activity until they had received a certificate of registration as required 
by c. 68, § 19, and prohibits them from employing unfair and deceptive practices 
in conjunction with charitable solicitations in violation of c. 68 § 30(e) and c. 93A 
§ 2(a) was obtained. 

9. Bellotti V. Everett Lions Club 

This case was filed alleging violations of Chapters 12 and 68, specifically failure 
to register, failure to file financial reports, and failure to obtain a certificate of registra- 
tion. The complaint also alleges violations of Chapter 93A in that the charity hires 
a professional solicitor who uses unfair and deceptive methods to solicit funds on 
behalf of the Lions Club. 

A consent judgment was entered, and the defendants were ordered to comply with 
the provisions of Chapters 12 and 68. They were also ordered to comply with c. 93A 
by requiring any professional solicitor who raises funds for the Lions Club to disclose 
that the fund-raising is being done by professionals and what percentage of funds 
raised will actually go to the Lions Club. 

10. Commonwealth v. John Hanafin d/b/a Associated Planners and Consultants 

A final judgment by consent enjoins the defendant from, inter alia faising funds 
by implying the local organizations endorse his fund-raising activities when such 
is not the case, misrepresenting to potential donors that he or his employees are local 
police or fire officers when such is not the case, and contracting with a charitable 



P.D. 12 55 

organization to receive in excess of 15% of the gross revenue as his own fee. The 
judgment also requires him to pay $500 in costs to the Commonwealth and, for three 
years, to deliver a copy of the judgment to anyone with whom he intends to contract 
for purposes of fund-raising. 

II . PARTICIPATING IN ESTATES AND TRUSTS WITH CHARITABLE INTERESTS 

The Attorney General is an interested party in the probate of each estate where 
there is a charitable interest. This year 28 new wills were received and reviewed 
of which 718 involved charitable bequests of over $5000. After review, it was deter- 
mined that the Attorney General had an interest in 1238 of these estates. Six hundred 
and thirty-eight executer accounts and 1711 trustee accounts. 

In addition, the Division reviewed and approved 109 petitions for the sale of real 
estate, 31 petitions for appointment of trustees and was involved in 2048 miscellane- 
ous probate legal actions. 

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

In addition to these routine matters, the Division attorneys handled 174 probate 
litigation cases. 

III. ADMINISTRATIVE FUNCTIONS 

The Division has numerous administrative and routine responsibilities including: 
(1) receiving annual financial statements from 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 fund-raising counsel; and (4) representing the state treasurer in the 
public administration of estates escheating to the Commonwealth. 

1. Annuals Registrations Under G.L. c. 12, § 8F 

The Division has completed the process of computerizing registration information. 
During the past fiscal year a computerized registration information has become oper- 
ational. These computer programs significandy enhance the Division's enforcement 
program. This year 1182 new charitable organizations' Articles of Organization 
received from the Secretary of State's Office were reviewed, determined to be chari- 
table and entered on the computer. 

Fees paid to the Commonwealth in fiscal 1985 arising from the annual filings 
amounted to $222,940. 

2. Regulation of Charitable Solicitations 

Under G.L. c. 68, § 19, every charitable organization soliciting funds from the 
public must apply to the Division for a Certificate of Registration prior to engaging 
in solicitation. Each such application must be reveiwed for compliance with the statu- 
tory requirements. For the period from July 1, 1984 to June 30, 1985, 1931 applica- 
tions were received. Certificate fees received were $19,310. 



56 P.D. 12 

3. Registration of Professional Solicitors and Fund-raising Counsel 

Under G.L. c. 68, §§21 and 23, all persons acting as solicitors or fund-raising 
counsel for soliciting organizations must register with the Division and file a bond. 
Each registration and each professional solicitation contract must be approved by 
the Director if it meets statutory requirements. During the fiscal year ending June 
30, 1985, 87 registrations were received and approved, and total fees were $870. 

4. Public Administration 

The Division represents the State Treasurer in the public administration of inter- 
state estates where the decedent has no heirs. Such estates escheat to the Com- 
monwealth. During fiscal year 1984, $350,808.37 in escheats were received. 



IV. LEGISLATION 

The Division filed legislation designed to completely re-write and modernize the 
Massachusetts Charitable Solicitation Act. The current law is over twenty years old 
and has been seriously eroded by United States Supreme Court and Supreme Judicial 
Court decisions. In addition, new methods of fund-raising have arisen which are 
not expressly covered by the current act. Since the charitable solicitation is estimated 
to exceed one billion dollars a year in Massachusetts, modernization of the statute 
is essential. 

On a national level, the Division played a leadership role in the National Associa- 
tion of Attorneys General model solicitation law project. The model law project will 
develop a new disclosure type of solicitation law which will eliminate unconstitu- 
tional regulatory mechanisms currently found in many state statutes. The model law 
will also provide the possibility of a uniform approach to regulating charitable 
solicitation throughout the United States. 



V. MISCELLANEOUS 

A statewide review of charitable trust funds held by the various cities and towns 
in the Commonwealth was commenced through a mailing of financial reporting forms 
to all cities and towns. Last year a pilot review project focused on 18 cities and towns 
in the Boston area. The full scale review began after the pilot project disclosed that 
Salem had over $800,000 in unexpended charitable income available for use. The 
project requires submission by each town of a comprehensive review of its charitable 
trust funds to the Division, review and analysis of the report, and court proceedings 
to pursue wrong-doing or to eliminate outdated restrictions so that these assets may 
be put to full use. The other major elements of the program are to educate local town 
counsel regarding legal and fiduciary obligations of the cities and towns in relation 
to their charitable trusts and to establish that our office intends to compel full utiliza- 
tion of these funds. 



P.D. 12 57 

POLiCE SOLICITATION 

The Division wrote to each of the 351 local police chiefs, as well as the Chiefs 
of the State, Capitol, MDC and MBTA police departments, that all police relief 
organizations which raise or receive in excess of $5,000 per year in public contribu- 
tions will be presumed to have to register and account to the Division pursuant to 
G.L. c. 68, §19, and to comply with the other provisions of the Charitable Solicita- 
tion Act, including the 15% limitation of the compensation of professional solicitors. 
The letter is designed to underscore the office's concern regarding deceptive, 
fraudulent or high pressure solicitation done in the name of the police. 

On September 19, 20 and 21, 1984 the Division hosted the national conference 
for state charities officials. The meeting was in two parts. On September 20 and 21, 
the federal NAAG/NASCO meeting commenced. The September 20 session was 
open to the public; the September 21 session was limited to government participants. 

CHARITABLE GAMBLING 

Enforcement efforts have continued this year under the charitable gambling regula- 
tions promulgated in 1982. Tax returns from the Lottery Commission are examined 
to ensure compliance with the two per year requirement. Function halls which host 
frequent Las Vegas events are investigated to determine whether the sponsoring 
organizations are legitimate and complying with the regulations. When a violation 
of the two per year rule is discovered, a letter of assurance of future compliance 
is required from the sponsoring organization. In connection with this program, 
numerous investigations were conducted and seven comphance letters were obtained. 

Investigation of suppliers continues — both investigation of new suppliers and 
monitoring compliance with the seventeen court orders previously obtained. 

The National Association of Gambling Regulatory Agencies (NAGRA) organ- 
ized to provide a forum for the exchange of information, intelligence and regulatory 
procedures relating to charitable gambling. As head of the newsletter committee, 
we published the first NAGRA newsletter. Sixteen states, the District of Columbia 
and numerous cities and towns are members of NAGRA. 



UTILITIES DIVISION 

A. Introduction 

The Attorney General has been involved in utility matters on behalf of 
Massachusetts ratepayers since 1973. The Utilities Division continues to operate as 
the major, and in most instances, the only representative of consumer interests in 
gas, electric, and telephone rate cases and related matters within Massachusetts. 
These matters are heard and decided by the Department of Public Utilities (D.P.U.) 
and the Energy Facilities Siting Council (E.F.S.C). The Division also appears on 
behalf of Massachusetts ratepayers before the Federal Energy Regulatory Commis- 
sion (F.E.R.C). 



58 P.D. 12 

The work of the Utilities Division underwent significant change in the past year. 
In prior years, most of the Division's time and resources were devoted to retail rate 
cases before the Department of Public Utilities. This year, only two retail rate in- 
crease cases were filed and/or decided. By far the bulk of the Division's resources 
in fiscal year 1985 were devoted to litigation involving the Seabrook nuclear 
generating project, of which Massachusetts utilities own approximately 30 percent. 
In the past, the Division was typically placed in a reactive posture with repect to 
the filings and proposals of utility companies. This fiscal year the Division moved 
affirmatively in several areas, adding a new dimension to our representation of 
Massachusetts consumers. Finally, the restrucmring of the telecommunications 
industry has led the Division to focus on the long-term future of that industry from 
the consumer's perspective. 

A more detailed description of the Utilities Division's work in fiscal year in 1985 
follows. 

I. Seabrook Litigation 

The Division devoted an unprecedented level of staff and financial resources to 
Seabrook-related litigation in fiscal year 1985. At the beginning of the year the proj- 
ect faced imminent collapse resulting from the near bankruptcy of its lead partici- 
pant. Public Service Company of New Hampshire, the "conditional cancellation" 
of Seabrook Unit 2, and from a long history of escalating cost estimates for the 
project. The Utilities Division won a significant victory in the spring of 1984 when 
the D.P.U. held, in a case involving Eastern Edison Company, that it would review 
utility construction projects in the context of financing proceedings held under G.L.C. 
164, §§ 14 and 17. In that decision the D.P.U. held that Eastern Edison had failed 
to prove that Seabrook was "reasonably necessary" under these statutes, and denied 
parts of the financing request. Following this decision, four Massachusetts utilities 
filed a petition with the D.P.U. seeking an investigation to determine the likely cost 
and on-line date for Seabrook 1. The D.P.U. then opened the so-called "generic case" 
to investigate those subjects. 

The Utilities Division introduced expert testimony in the "generic case" which 
was critical of the utilities' official cost estimates of $4.5 to $4.7 billion for Unit 1, 
and which presented an independent cost estimate of $5.8 to $6.2 billion. The D.P.U. 
adopted the Utilities Division's presentation concerning the unit's cost and schedule, 
and in April, 1985 issued an order denying the financing requests filed by the four 
companies absent an undertaking by the utilities that shareholders and not ratepayers 
would bear the risk of going forward with Seabrook 1. The D.P.U. also held that the 
Massachusetts Municipal Wholesale Electric Company should not be permitted to 
finance its Seabrook participation under any circumstances. This order was appealed 
to the Supreme Judicial Court by the utilities, and the Court afiirmed the D.P.U. order. 

In addition to the Seabrook 1 financing litigation, the Utilities Division was active 
in three other cases in which utilities sought to charge their customers for their 
investment in Seabrook Unit 2. In the first case, filed at the D.P.U. by Fitchburg Gas 
and Electric Light Company (FGE), the Division successfully argued that the utility 
withheld necessary information during the hearings, and that as a result no recovery 
should be allowed. The D.P.U. denied recovery, and permitted FGE to re-file their 
request. FGE's second request is pending at this writing. The Utilities Division is 



P.D. 12 59 

also active in two other pending Seabrook 2 cases; requests filed by Montaup Elec- 
tric Company and New England Power Company with the Federal Energy Regulatory 
Commission. 

II. Affirmative Litigation 

The Utilities Division has implemented a program of affirmative litigation designed 
to add an additional level of ratepayer representation at both the state and federal 
levels. These affirmative cases included electric rate reductions as the retail level, 
and an investigation of a major outage of electric power plants. These are described 
below. 

A. Rate Reduction Cases 

At the state level the Division began a program of monitoring the earnings of 
Massachusetts utilities, to determine whether certain companies were enjoying excess 
profits. This program of investigation began in July, 1985 and resulted in three 
negotiated rate reductions totalling approximately $18 million. On November 7, 1984, 
the Department of Public Utilities accepted a stipulation filed by the Attorney General 
and Cambridge Electric Light Company, which provided for a reduction of $2.6 
million. On November 15, 1984, the Attorney General and Massachusetts Electric 
Company filed a stipulation with the state D.P.U. providing for a rate reduction of 
$10 million. This was followed in April 1985 by a second stipulation between 
Massachusetts Electric Company and the Attorney General. This second agreement 
provided for a reduction of $5 million. The Utilities Division will continue this 
monitoring program in the future, to ensure that ratepayers share the benefits of the 
utilities' sound financial condition. 

B. Brayton Point 

On December 6, 1983, the Massachusetts Attorney General, together with other 
certain parties, requested the Federal Energy Regulatory Commision (FERC) to ini- 
tiate an investigation of an accident which occurred at the New England Power Com- 
pany's Brayton Point Unit 3 generating unit on August 26, 1983. This accident caused 
this unit to remain out of service for six months and forced New England Power Com- 
pany to purchase substitute power from other utilities. The FERC granted this request 
and the Division filed expert testimony on September 26, 1984, analyzing the effects 
of the outage on New England Power Company's ratepayers. The Division concluded 
that New England Power Company had been negligent in its handling of the unit 
and requested that the FERC order the Company to refund $28 million with interest. 
The Massachusetts affiliate of New England Power Company, the Massachusetts 
Electric Company, has approximately 750,000 ratepayers whose interest the Attorney 
General sought to protect in this proceeding. An initial decision is expected from 
an Administrative Law Judge in the fall of 1985. 



60 P.D. 12 

III. FERC Wholsale Rate Litigation 

A. Montaup Electric Company 

Montaup filed with the FERC for permission to charge its customers for its $10.5 
million lost investment in the abandoned Pilgrim 11 project. The Division intervened 
in opposition to this request and filed the testimony of two experts who recommended 
that, due to Montaup's imprudence in agreeing to hold the lead owner of the proj- 
ect, Boston Edison, harmless for all its actions, Montaup's customers should not 
be charged for the loss. 

On April 9, 1985, the Presiding Administrative Law Judge ruled that due to its 
imprudence, Montaup would be required to refund approximately $2.75 million, 
with interest, to Montaup's customers. The parties to this case have taken exception 
to the Judge's decision with the Commission and final briefs were filed with the Com- 
mission on June 27, 1985. 

IV. Retail Rate Cases 

During the fiscal year the Utilities Division intervened in four gas and electric 
rate cases filed with the D.P.U. Two of these were rate increase proceedings, and 
two were rate reduction cases described above in Section II. In the two rate increase 
cases, $5,837,113 have been granted out of $12,679,678 requested resulting in a sav- 
ings to the consumer of $6,842,565. The Utilities Division can legitimately claim 
responsibility for much, if not all, of these savings. 

RATE CASE COMPILATION 

Colonial Gas Company, D.P.U. 84-94— Filed in April 1984 for an increase of 
$2,599,000 for Lowell division and $1,730,000 for the Cape Cod division. The Divi- 
sion recommended a decrease of $33,000 for Lowell and a decrease of $816,000 for 
Cape Cod. The D.PU. allowed the Lowell Division $1,675,000 and the Cape Cod 
division $1,162,000. 

Fitchburg Gas & Electric Light Company, D.PU. 84-145— Filed in July 1984 for 
increase of $6,899,685 for its Electric division and $1,450,985 for its gas division. 
The Utilities Division and the Company agreed on a settlement. The D.P.U. allowed 
$2,183,895 for its electric division and $816,218 for its gas division. 

Cambridge Electric Light Company, D.PU. 84-165— Filed in April 1985. The Com- 
pany proposed a temporary one-year reduction of its rates in the amount of 
$2,260,000. The Division convinced Cambridge Electric, after months of negotia- 
tion, not only to make the credit permanent but also to roll back the Company rates 
by an additional $348,000. The D.P.U. approved the final settlement to reduce rates 
by $2,608,000. 



P.D. 12 61 

Massachusetts Electric, D.P.U. 84-240— In July 1984 the Utilities Division notified 
Massachusetts Electric that it was beginning an investigation of its rates. The Com- 
pany met with the Division several times during the summer and fall to provide 
requested information and negotiate. Finally, on November 15th an agreement to 
settle the case by reducing its rates by $10 million was reached. The D.P.U. approved 
this settlement, effective January 1, 1985. 

V. Electric Fuel Clause Intervention 

Each electric utility is permitted to collect fuel and purchased power costs through 
a fuel adjustment clause, changes in which are filed every quarter with the Depart- 
ment of Public Utilities. In addition, the D.P.U. reviews each utility's power plant 
performance on an annual basis. The Division is provided a separate assessment 
of $75,000 per year to enable it to participate in these cases on behalf of electric com- 
pany ratepayers. During the year the Division intervened in the quarterly fuel clause 
cases of those companies which have a substantial percentage of their power costs 
regulated by the D.P.U. The Division also participated in hearings aimed at 
establishing rigorous generating unit performance standards. 

The most significant quarterly fuel charge proceeding this fiscal year involved 
Boston Edison Company. The Utilities Division represented ratepayers in an in- 
vestigation into the reasonableness and prudence of Boston Edison Company's 
management of a 55-week outage at Pilgrim Nuclear Power Plant. Pilgrim was out 
of service from December 10, 1983, until December 30, 1984. In April 1985 the 
Department of Public Utilities began hearings regarding Boston Edison's manage- 
ment of this outage. The Utilities Division presented the expert testimony of a nuclear 
engineer on behalf of ratepayers. At the conclusion of those hearings the Depart- 
ment of Public Utilities found Boston Edison Company liable for the imprudent action 
of one of its contractors and also found the Company imprudent in certain aspects 
of its planning for the outage. $4.2 million dollars was refunded to ratepayers of 
Boston Edison Company in the August-October fuel charge representing the amount 
of replacement power costs which was determined to have been imprudently incurred 
by Boston Edison Company. The amount refunded included interest on the power 
costs which had been previously collected from ratepayers. 

This case established an important principal: Utilities will be held directly respon- 
sible for the imprudent actions of contractors performing work on the utility's behalf. 
Ratepayers will not be required to pay for such imprudence. This decision has been 
appealed by the company to the Supreme Judicial Court. 

VII. Miscellaneous Cases 

A. Cogeneration Rulemaking 

The Energy Office petitioned the Department of Public Utilities to issue revised 
PURPA rules, which govern the rates at which electric utilities must purchase energy 
produced by cogenerators and small power producers. Cogenerators include those 
firms and institutions which produce energy for their own heating and lighting pur- 
poses and which have available excess energy which can be sold back to the utilities. 
Small power producers generally refer to hydro power plants. 



62 P.D. 12 

The Utilities Division intervened in the proposed rule-making proceeding, and 
sponsored testimony which endorsed rules reform designed to induce optimal levels 
of cogeneration and small power production. It is the position of the Utilities Divi- 
sion that there is a vast potential of energy in Massachusetts which would be forth- 
coming if the current sub-optimal rates were increased. Proper signals must be given 
to investors that there is a viable market for the energy produced by cogenerators 
and small power producers." 

The Commission showed significant interest in this proceeding, as evidenced by 
the fact that the entire Commission heard the testimony of approximately 30 witnesses 
during the proceeding. No proposed rules have been issued since the close of the 
hearing. 

B. Boston Edison Coal Conversion 

In July, the Department of Public Utilities denied Boston Edison's request to finance 
the conversion of its oil-fired New Boston Station to coal. The conversion would 
have cost BECo ratepayers over $2 billion during the next 15 years. The D.P.U. agreed 
with the Utilities Division that, considering the evidence produced on cross examina- 
tion, there wasn't substandal probability that the conversion would save more than 
it cost. The Department therefore denied BECo's request that its ratepayers finance 
the project. 



VI. WESTERN MASSACHUSETTS DIVISION 

The Western Massachusetts Division of the Department of the Attorney General 
continued to provide a wide range of legal representation for the Commonwealth, 
its agencies and citizens throughout the four western counties of Massachusetts: 
Berkshire, Franklin, Hampden and Hampshire. Throughout the fiscal year the 
Division was responsible for a number of referrals from most of the Bureaus and 
Divisions within the Department as well as for a number of consumer protection 
matters originating in the Western Massachusetts Division. 

In addition to the usual types of cases referred by the various divisions during the 
fiscal year, the Western Massachusetts Division also handled Department of Employ- 
ment Security Criminal prosecutions, Industrial Accident Board claims hearings 
in the four western counties and personnel from the Springfield office served on the 
Board of Appeal on Motor Vehicle Liability Policies and Bonds. 

In addition to the active cases, attorneys in the Western Massachusetts Division 
resonded to a number of requests to make court appearances on behalf of the various 
divisions in Boston. These court appearances ranged from answering calls of the 
trial list to filing various pleadings and/or motions before the court. At these times, 
attorneys from the Western Massachusetts Division will appear in court on that par- 
ticular matter but not handle the entire case. The ability of the Western Massachusetts 
Division to respond on short notice to these requests contributes to the overall effi- 
ciency and effectiveness of the Department as a whole because of the savings that 
result from not having to send an attorney from the Boston office. 

Investigators assigned to the consumer protection section conducted numerous 
investigations of firms or individuals suspected of unfair and deceptive practices. 
The investigations covered a wide range of businesses including but not limited to 



P.D. 12 63 

automobile sales and service, business franchise sales, rental listing firms adver- 
tising practices, charitable solicitations, home improvement firms, heating oil sales, 
health insurance sales and firewood sales. 

During this past year the Division continued investigating automobile dealers 
suspected of odometer tampering. These investigations resulted in the filing of civil 
suits against five (5) used car dealers. In conjunction with the filing of the civil com- 
plaints, court orders were obtained attaching the bank accounts of the defendants. 
The suits sought restitution of $126,000 and fines and penalties of $21,500. 

In another matter, a final judgment was entered against a home heating oil dealer 
in the Springfield area prohibiting the defendants from overcharging low income 
fuel aid recipients for home heating oil. The judgment also requires the defendants 
to pay $800 in fines. Restitution of approximately $4,000 was paid to the fuel 
assistance program as part of the settlement. It should be noted that the local fuel 
assistance program was extremely helpful in developing and resolving this case. 

The actions taken by the public protection section resulted in 9 judgments, 11 
assurances of discontinuance, 12 letter agreements and restitution to consumers in 
the amount of $172,004 and penalties and costs of $27,005. 

In addition to investigations involving widespread patterns of deceptive practices, 
the Division attempts to resolve consumer complaints where there is no local con- 
sumer group or where a merchant refuses to negotiate with the local group. 

During the fiscal year, the Western Massachusetts Division continued to provide 
a high level of service to the various divisions of the Department of the Attorney 
General and the citizens of Western Massachusetts. 



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 1985 in each of these areas follows. 

A. 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 admin- 
istrative 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 1985, the Bureau opened 428 new cases and closed a total of 
358 previously active cases. In addition, the Bureau supervised and monitored the 
trial court defense, by Department of Public Welfare attorneys, of 160 new welfare 
benefits cases. 

The Government Bureau represented the Commonwealth successfully in several 
cases decided by the Supreme Court in FY 1985. In Northeast Bancorp, Inc. v. Board 
of Governors of the Federal Reserve System, the Court examined G.L. c. 176A, 



64 P.D. 12 

§ 2, which permits Massachusetts banks to be acquired only by bank holding com- 
panies based in another New England state affording reciprocal privileges to 
Massachusetts bank holding companies. The Court held that the Massachusetts 
statute was valid under the federal Bank Holding Company Act and that it violated 
neither the Commerce Clause, the Compact Clause, nor the Equal Protection Clause 
of the federal constitution. In Atkins v. Parker, the Supreme Court upheld the validity 
of a Department of Public Welfare notice mailed to 16,000 food stamp recipients 
informing them of changes in federal law. In so doing, the Court reversed a decision 
of the First Circuit (Foggs v. Block, decided in FY 1984) which held that 
Massachusetts had violated the Food Stamp Act and the Due Process Clause of the 
Constitution. In United States v. Maine, et al. , the special master appointed by the 
Supreme Court decided that Vineyard Sound is historic inland waters and, therefore, 
within the coastal boundaries of the Commonwealth. Massachusetts may also claim 
title to Nantucket Sound if it is not required to prove its case by evidence that is "clear 
beyond doubt." The final resolution of the ownership of these coastal waters should 
be decided by the Supreme Court during FY 1986. Finally, in Tovm of Burlington 
V. Department of Education the Supreme Court affirmed a decision of the state's 
special education authorities requiring a local school department to reimburse 
retroactively parents who secured at their own expense private special education for 
their child while the appropriate level of education was being litigated. 

Government Bureau lawyers argued 11 cases before the Court of Appeals for the 
First Circuit which resulted in reported opinions during fiscal year 1985. ^ 

In two of these, the Bureau represented the Commonwealth in appeals arising from 
the affirmative action obligations of various state agencies. In Devereaux V. Geary, 
the Bureau successfuly defended an eight-year old affirmative action consent decree, 
setting minority hiring and promotional goals in five state agencies, against a 
challenge based on the Supreme Court's decision in Firefighters v. Stotts. The Stotts 
decision also figured in the First Circuit's final disposition oi Boston Chapter, NAACP 
V. Beecher In this case, which had been remanded from the Supreme Court for recon- 
sideration in light of Stotts, the Court ruled that the controversy was moot. 

In other cases before the First Circuit this year, the Government Bureau obtained 
favorable results in Danvers Pathology Associates v. Atkins (upholding the Massa- 
chusetts system for reimbursing hospital-based laboratories for Medicaid services). 
School Committee of Town of Rockland v. Massachusetts Department of Education 
(upholding a ruling by the state to deny a federally-funded vocational education grant 
to a town that had reftised to comply with state vocational education law), Mahoney 
V. Trabucco (upholding as a bona fide occupational qualification for the State Police 
a state law imposing mandatory retirement at age 50), Limerick v. Greenwald 
(affirming a summary judgment in favor of a former banking commissioner in 
a personal damages action), Grendel's Den v. Larin (substantially reducing the 
amount of attorneys' fees awarded to plaintiffs' counsel by the district court), and 



The Government Bureau briefs and argues many more appeals in the United States Court of Appeals, the Supreme 
Judicial Court, and the Massachusetts Appeals Court than result in reported decisions. Although briefing and argu- 
ment of these cases requires the same professional effort as any others, the issues presented in such cases are rela- 
tively insignificant or are already settled and, consequently, are disposed of in unreported summary decisions or by 
rescript opinion. Such cases are not included in the description of the Government Bureau's appeallate decisions for 
this fiscal year. 



P.D. 12 65 

Casagrande v. Agoritsas (holding that decisions of the Civil Service Commission 
and the state courts were protected from collateral attack in federal court under the 
guise of a civil rights action). 

A considerable portion of the Government Bureau's resources was dedicated in 
fiscal 1985 to the litigation of cases in the United States District Court. Among the 
more significant of the many federal district court cases are those involving the follow- 
ing issues: the relationship of the federal and state governments in the context of grant 
programs (e.g. , Hogan v. Heckler); various issues arising from programs to assist 
handicapped and learning disabled children in residential or special educational 
placements (e.g., Burlington v. Department of Educaton, DeSisto Schools, Inc. v. 
Lawsori); implementation of consent decrees concerning the state institutions for 
the mentally retarded {Massachusetts Association for Retarded Citizens v. Dukakis 
and consolidated cases); the validity, under the antitrust laws, of Blue Shield's ban 
on balance billing {Kartell v. Blue Shield; and affirmative action (e.g., Devereaux 
V. Geary, Massachusetts Association of Afro-American Police, Inc. v. Boston Police 
Dept.). 

Government Bureau lawyers were involved in 46 cases decided by the Supreme 
Judicial Court during the fiscal year. Among them were fourteen cases involving 
the defense of the Commissioner of Revenue, whose energetic enforcement and col- 
lection activities has led to increased Utigation in the tax area. Typical of these revenue 
cases are Lambeth Corp. v. Commissioner of Revenue, in which the Court held that 
the imposition of a use tax upon a yacht bought out of state does not violate the Com- 
merce Clause, Tdcon-Warren Quarries v. Commissioner of Revenue, in which the 
Court upheld a ruling that a quarry operation that produces sand and gravel is not 
a manufacturer for purposes of a statutory tax exemption, and Coca-Cola Bottling 
Co. of Northampton v. Commissioner of Revenue, in which the Court affirmed the 
Commissioner's refusal to abate the use tax on the company's purchase of empty 
containers from out-of-state vendors. Another significant victory in the tax enforce- 
ment area was achieved in Walden v. Board of Registration in Nursing, in which the 
Court upheld a provision of the REAP legislation that requires all persons holding 
professional licenses from the state (except lawyers) to certify their compliance with 
the tax laws as a condition of licensure. One case with especially significant revenue 
impact decided this year was Polaroid Co. v. Commissioner of Revenue in which 
the Bureau unsuccessfully defended the Commissioner's claim of authority to impose 
unitary allocation of income to multi-corporate groups. 

The Bureau successfully defended the Department of Public Utilities in two signifi- 
cant cases involving nuclear power. In the first, Fitchburg Gas & Electric v. Depart- 
ment of Public Utilities, the Court found no error in the DPU's denial of approval 
of a proposed issuance of securities pending completion of an investigation of the 
company's role as a joint owner of the Seabrook project. In the second case, Boston 
Edison Co. v. Department of Public Utilities, the Court approved the DPU's deci- 
sion to deny Edison recovery of higher fuel costs incurred during the 1981-1982 outage 
of the Pilgrim I plant on the ground that Edison's imprudent conduct delayed the 
return of Pilgrim I to service, resulting in higher costs of power. 

Fiscal 1985 saw fewer appeals from the Division of Insurance than in previous 
years, but the two that reached the Supreme Judicial Court generated mixed results. 
In Massachusetts Ass 'n of Older Americans v. Commissioner of Insurance, the court 
affirmed the Commissioner's Medex rate decision against challenges by both Blue 



66 P.D. 12 

Cross and a group representing the purchasers of Medex coverage. In Medical 
Malpractice Joint Underwriting Ass 'n v. Commissioner of Insurance, the Commis- 
sioner's attempt to control the soaring cost of medical malpractice insurance was 
reversed as incorporating the incorrect burden of proof and unsupported by the 
evidence. 

Proposition 2 V2 continues to be a subject of litigation as the Court held in Town 
of Lexington v. Commisioner of Education that St. 1983, c. 663, is ineffective to 
require Lexington and Wellesley to provide school transportation to private students 
because it does not comply with the "local mandates" requirement of Proposi- 
tion 2 Vi . 

The Attorney General's disapproval of a local by-law was upheld in Town of Wendell 
V. Attorney General. The Court approved the Attorney General's action, holding that 
the by-law was not a proper exercise of municipal powers under the Home Rule 
Amendment because it permitted a local decision-maker to decide certain pesticide 
matters that the Legislature has committed to a state agency, thus frustrating the 
legislative purpose of creating a uniform and centralized regulatory scheme. 

In the area of privacy and public records, the Court continued a trend toward 
disclosure. In George W. Prescott Publishing Co. v. Register of Probate, the Court 
decided that the interest of a public official in maintaining his privacy with respect 
to matters which he is required to disclose to his wife in a divorce action is outweighed 
by the general principle of publicity and the specific interest in the conduct of public 
officials. 

In addition to the foregoing casses, the Supreme Judicial Court decided four appeals 
from the various boards of registration, in each case upholding the ruling of the board. 
By contrast, the Court ruled against the Commissioner of Welfare in the five cases 
in which adverse benefits decisions reached the high court this year. The remaining 
cases decided by the Court in 1985 involved routine matters arising from the Teachers 
Retirement Board's rulings on teacher dismissals, custody and adoption petitions 
by the Department of Social Services, liability for program costs and attorneys' fees 
in special education cases, health care provider rate determinations by the Rate Set- 
ting Commission, the conduct of trial court judges sought to be reviewed by the 
Supreme Judicial Court under its superintendency powers, and a ruling by the 
Alcoholic Beverages Control Commission on the licensure of an establishment 
serving liquor. 

Government Bureau lawyers also participated in eight cases decided in the 
Massachusetts Appeals Court this year. Two of these involved tax issues, and the 
others determined questions arising from the application of the state building code, 
the administration of teachers retirement, the sanctioning of a liquor establishment, 
the application of the electrical code, welfare benefits, and continuing education 
requirements for nurses. 

B. 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 requires resort to state or federal 
courts. Affirmative litigation cases which the Government Bureau brings may be 
divided into four broad and sometimes over-lapping categories: (1) advocacy litiga- 
tion; (2) federal program litigation; (3) enforcement litigation; and (4) quasi-criminal 



P.D. 12 67 

litigation. The first category includes cases commenced on behalf of a state agency 
with an advocacy responsiblity or in the furtherance of the Attorney General's 
independent obligation to advance the public interest or to protect the interest of the 
Commonwealth as a sovereign. The second category, litigation related to federal 
programs, continues to account for a substantial portion of the Bureau's affirmative 
litigation efforts. These cases also tend to be the most significant ones in terms of 
financial value since federal government programs involve hundreds of millions of 
dollars due to the Commonwealth and its citizens. In cases of the third category, the 
Bureau performs the traditional enforcement function of the Attorney General by 
commencing suit on behalf of state regulatory and licensing agencies. The final 
category involves suits for civil recovery of funds criminally obtained from state agen- 
cies. 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 an unusual example of advocacy litigation, the Government filed a brief with 
the Supreme Judicial Court opposing a petition for adoption of rules creating a press 
shield rule. The Attorney General, together with other public officers including the 
President of the Senate and several District Attorneys, argued that the proposed rules 
should not be adopted because there was a lack of consensus or even substantial agree- 
ment on either the merits or the form of such rules among news organizations and 
the public, and because the serious policy and constitutional issues involved in the 
area made it unsuitable for resolution by rulemaking. The Supreme Judicial Court 
agreed and rejected the proposed rule. 

The Bureau also participated either as a plaintiff or as amicus curiae in several 
cases in which municipalities used their zoning ordinances to frustrate efforts to 
establish small residential facilities to provide care and treatment for mentally 
retarded or emotionally disturbed persons. These actions, usually initiated on behalf 
of the Department of Mental Health, are designed to further the public policy of 
mainstreaming retarded or emotionally disturbed citizens by maximizing their op- 
portunity to participate in ordinary life. 

In another example of advocacy litigation, the Government Bureau continued its 
practice of bringing actions against nursing homes and other health care instiutions 
to obtain appointment of receivers to take over their operation. In Attorney General 
V. Avalon School, Inc. , the Bureau completed its involvement in a case begun in 1984 
in which it obtained appointment of a receiver for a group of schools in Berkshire 
County providing special education to approximately two hundred special needs 
children. The receivership was necessary to prevent financial collapse and the 
resulting harm to the children residing at the schools. The receiver reorganized the 
schools and put them on a sound financial footing. The schools have now been sold 
and are operated by a new corporation which will ensure continuance of needed care 
for the children involved. 

An example of federal program litigation is Commonwealth v. Auchter, in which 
the United States Court of Appeals in Philadelphia ruled on a petition for review 
of regulations issued by the Secretary of Labor which would preempt Massachusetts' 
right to know law. Although ruling against the Bureau's position on several points 
relating to protection of workers, the court did accept the Attorey General's argu- 
ment that the federal regulation did not preempt the community right to know pro- 
visions of state law. Another example of federal program litigation is Commonwealth 



68 P.D. 12 

V. Heckler, an action commenced by the Government Bureau challenging the 
disallowance by the federal Grant Appeals Board of approximately $6 million in 
medicaid reimbursement for treatment of clients at the state's intermediate care 
facilities for the mentally retarded. After the close of the fiscal year the United States 
District Court ruled in the Commonwealth's favor. 

A case which represents both advocacy and federal program litigation is the con- 
tinuing case of Avery v. Heckler. The original purpose of that intervention was 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 cease its practice of ignoring adverse legal precedents. That result 
has now been achieved by statute, and the Bureau's involvement in Avery is intended 
to ensure the proper implementation of that statute, both prospectively and retroac- 
tively. Continued prosecution of Avery is designed to benefit both the disabled, many 
of whom were improperly denied disability benefits due them, and the Com- 
monwealth itself which has to pay General Relief to some of those who have been 
denied such federal benefits. After passage of the new statute, the United States 
District Court remanded the case to the federal government to notify improperly 
terminated persons and to restore the benefits due them, and that decision was 
affirmed by the Court of Appeals. 

As in past years, the Government Bureau brought several lawsuits to enforce the 
licensure requirements, regulations, and orders of state agencies. For example in 
Attorney General v. Sheriff of Suffolk County, the Bureau sued the Sheriff and, subse- 
quently, other Suffolk County officers, to compel progress on construction of a new 
Suffolk County jail to replace the present jail which was built in 1848. The size and 
condition of the present jail were insufficient to provide care for all persons ordered 
to be held by the Sheriff which resulted in a crisis with prisoners being kept over- 
night in the courthouse because of a lack of jail space. The Attorney General argued 
that in such circumstances the county was failing to satisfy its statutory duty to pro- 
vide an adequate jail. A single justice of the Supreme Judicial Court issued an 
injunction establishing a schedule for construction of a new jail and the full court 
unanimously affirmed that order. 

The Bureau has also continued to assist the Department of Revenue's stepped up 
tax enforcement program by filing several seizure and forfeiture actions. In those 
cases, the Bureau, on behalf of the Commissioner of Revenue, files actions seizing 
the property of businesses with large unpaid state tax bills after other, less drastic 
efforts at tax collection have failed. 

Another case, which combines enforcement with federal program litigation, is 
Northeast Bancorporation v. Board of Governors of the Federal Reserve System, in 
which the Bureau filed a brief with the United States Supreme Court in a case 
involving the constitutionality of the Massachusetts interstate banking statute which 
limits acquisition of Massachusetts banks to banks located in New England. This 
statute had been challenged by other banks, principally several very large banks 
located in New York. The Supreme Court affirmed a lower court decision upholding 
the Massachusetts statute. 



P.D. 12 69 

C. Opinions and By-Laws Division 

(1) Standards for Issuing Opinions 

The Attorney General is authorized by G.L. c. 12, § 3 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 state agencies, departments, and the officials who 
head those entities. Opinions are not rendered to individual employees of a state 
agency; questions posed by county or municipal officials or by private persons or 
organizations are not answered. 

The questions considered in legal opinions must have an immediate, concrete rela- 
tion to the official duties of the state agency or 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 that concern collective bargaining. Ques- 
tions relating to the wisdom of legislation or administrative or executive policies 
are not addressed. Generally federal stamtes are not construed and the constitu- 
tionality of state or federal legislation is not determined. 

(2) Procedures for Requesting Opinions 

In an effort to make the opinion-rendering function as effective, helpful , and effi- 
cient as possible, the Opinions Division has established a number of procedural 
guidelines to govern opinion requests. 

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

There are two reasons for this rule. The first concerns efficiency. Opinions of the 
Attorney General, because of their precedential effect, are thoroughly researched 
and prepared. If a question can be satisfactorily resolved more quickly within the 
agency or executive office — by agency legal counsel or otherwise — everyone is 
better served. The second reason relates to the internal workings of the requesting 
agency and its executive office. It would be inappropriate for 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 agenc>' and its executive office 
speak with one voice insofar as Opinions of the Attorney General are concerned. 

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

When an agency request raises questions of direct concern to other agencies, 
governmental entities, or private individuals or organizations the Opinions Divi- 
sion solicits the views of such interested parties before rendering an opinion. 



70 P.D. 12 

The issuance of information opinions is strongly discouraged. Informal opinions 
are often relied upon as if they were formal Opionions of the Attorney General. 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. 

(3) By-Laws 

Town by-laws, home rule charters, and amendments thereto are reviewed and must 
receive the approval of the Attorney General prior to becoming effective. The review 
function is performed by attorneys in the Government Bureau. During the fiscal year 
ending June 30, 1985, the Bureau reviewed over 1525 by-laws and 17 home rule charter 
actions. 

The by-laws received this year consisted of 694 general by-laws and 831 zoning 
by-laws. General by-laws pertain to town govenmient and the exercise of municipal 
power. The zoning by-laws are a continuing exercise of the police power over the 
use of land by all the owners thereof. 

This year saw a diminishing concern with time sharing but an increased attempt 
to control or regulate growth. The two most prevalent approaches to control growth 
were moratoriums on development of the imposing of overlay districts to protect 
ground water sources. 



July 12, 1984 

James S. Hoyte, Secretary 

Executive Office of Envirormiental Affairs 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Secretary Hoyte: 

You have requested my opinion concerning the use and dissemination of pre- 
qualification statements filed by bidders on public contracts. Specifically, you 
question whether the Metropolitan District Commission (MDC) may disclose 
information contained in such statement to the Inspector General.'' For the reasons 
set forth below, it is my opinion that when the Inspector General has reason to believe 
that a contractor has submitted fraudulent information in order to qualify to bid on 
an MDC contract, he is authorized to have access to the pre-qualification statement 
submitted by that contractor. 

You have informed me that in the course of an investigation, the Inspector General 
gathered certain information indicating that an MDC contractor had submitted 
fraudulent information in a particular prequalification statement. When the Inspector 
General asked to inspect that prequalification statement to ascertain whether the state- 
ment submitted was fraudulent, the MDC denied the request on the basis that the 
provisions of G.L. c. 29, § 8B, preclude any such disclosure without the contrac- 
tor's consent. Fearing that his investigafion would be compromised by communica- 
tion with the contractor, the Inspector General declined to ask the MDC to obtain 



^ The MDC is one of the agencies within the Executive Office of Environmental Affairs. 



P.D. 12 71 

the contractor's consent. As a result, the Inspector General has been unable to 
investigate the allegation that a fraudulent prequalification statement was filed by 
the contractor in question. In order to resolve this controversy, which is likely to 
recur in the future, you join with the Commissioner of the MDC and the Inspector 
General in requesting this opinion. 

Your request turns essentially on the terms of two arguably conflicting laws. The 
first of those statuatory provisions is G.L. c. 29, § 8B, which provides, in pertinent 
part, as follows: 

The commissioner of public works or the commissioner of the 
metropolitan district commission . . . shall require that any person pro- 
posing to bid on any such work . . . submit a statement under the penalties 
of perjury setting forth his qualifications to perform such work. 

Any such statement filed with either such commissioner by a prospec- 
tive bidder shall be used only by the department of public works or the 
metropolitan district commission, as the case may be, in determining 
the qualifications of such prospective bidder to perform work for said 
department or commission . . . No information contained in such state- 
ment shall be imparted to any other person without the written consent 
of said bidder. 

At apparent odds with this statutory provision is G.L. c. 12 A, § 9, which authorizes 
the Inspector General to: 

. . . have access to all records, reports, audits, reviews, papers, books, 
documents, recommendations, correspondence, including information 
relative to the purchase of services or anticipated purchase of services 
from any contractor by any public body, and any other data and material 
that is maintained by or available to any public body involved in the 
expenditure of public funds . . . which in any way relate to the programs 
and operations with respect to which the Inspector General has duties 
and responsibilities except records under the provisions of section eight- 
teen of chapter sixty-six as defined in section three of said chapter 
sixty-six. 2 

He may request such information, cooperation and assistance, including 
information relative to the purchase of ser\'ices or anticipated purchase 
of services from any contractor by any pubUc body, fi"om any state, country 
or local governmental agency as may be necessary for carrying out his 
duties and responsibilities. 

Upon receipt of such request each . . . public body involved in the 
expenditure of public funds .... shall furnish to the Inspector General 
. . . suchinformation. cooperation and assistance, except records under 
the provisions of section eighteen of chapter sixty-six as defined in sec- 
tion three of said chapter sixty-six. 



This exception, which pertains to records of the General Court and the Office of Veterans" Services, is not pertinent here. 



72 P.D. 12 

On the one hand, the plain language of G.L. c. 29 § 8B, prohibits the use of pre- 
qualification statements for any purpose other than determining the qualifications 
of a contractor to bid on a public contract . On the other hand ,G.L.c.l2A,§9, plainly 
evidences a legislative intent that the Inspector General have access to all records 
related to activities within the jurisdiction of his office. 

Although if literally applied these two statutes are in apparent conflict, a cardinal 
rule of statutory construction requires me to construe these statutes together in order 
to constitute a harmonious whole consistent with their legislative purposes so that 
both may be given effect. Attorney General v. School Committee of Essex, 387 Mass. 
326 (1982) ; Registrar of Motor Vehicles v. Board of Appeals on Motor Vehicle Liability 
Policies and Bonds, 382 Mass. 580, 585 (1981); Board of Education v. Assessor of 
Worcester, 368 Mass. 511, 513-14 (1975); County Commissioners of Middlesex County 
V. Superior Count, 371 Mass. 456 (1977). Such a construction must begin with an 
analysis of the legislative history of each statute. 

Chapter 12 A of the General Laws, establishing the office of the Inspector General, 
was drafted by the Special Commission on State and County Buildings^ and was 
passed by the Legislature in response to findings of widespread corruption and waste 
in the award and performance of public design and construction contracts. See Final 
Report to the General Court of the Special Commission Concerning State and County 
Buildings (December 31, 1980). By combining both an auditing and investigative 
function in a politically independent agency, the office of the Inspector General was 
intended to serve as watchdog over the expenditure of public funds by governmental 
bodies for the procurement of construction, supplies, and services. Accordingly, 
G.L. c. 12 A, § 7, authorizes the Inspector General: 

to prevent and detect fraud, waste and abuse in the expenditure of public 
funds, whether state, federal or local, in programs and operations 
involving the procurement of any supplies, services or construction, by 
agencies, bureaus, divisions, sections, departments, offices, commis- 
sions, institutions and activities of the commonwealth . . . 

He is required to carry out this mandate in two ways : (1) by making recommendations 
for legislative or administrative action, G.L. c. 12A, § 8; and (2) by conducting 
investigations or audits relating to individual contractors or vendors which may serve 
as the basis for a referral to an appropriate prosecutorial agency for criminal or civil 
prosecution. G.L. c. 12 A, §§ 10, 11. As a necessary adjunct to the Inspector General's 
mandate to prevent, discover, and expose dishonesty and maladministration in pro- 
curement by publicly funded agencies, the Legislature empowered the Inspector 
General to seek and obtain relevant information from both public and private entities 
engaged in the contracting process. G.L. c. 12A, § 9. 

Like chapter 12A, G.L. c. 29, § 8B, is designed to insure that MDC contracts are 
awarded only to those who establish, through the information they provide in a pre- 
qualification statement, that they are qualified to perform the work. It provides that 
prequalification statements are to be submitted "under penalties of perjury" and 



^ The Special Commission was established by Chapter 5 of the Resolves of 1978 and was generally referred to as the 
"Ward Commission." 



RD. 12 73 

further states that those persons convicted to knowingly and willfully filing false 
statements are disqualified from submitting bids on other contracts for one year from 
the date of said conviction. By holding bidders accountable for the truth of their 
statements, this provision ensures that public monies are not needlessly expended 
on contractors who are not qualified or who misrepresent their capabilities. 

The provisions of both statutes thus serve the same underlying purpose, to prevent 
the needless expenditure of public funds. To give effect to this shared legislative pur- 
pose, appropriate law enforcement agencies must have access to a prequalification 
statement if the veracity of its content is in question. If the confidentiality provisions 
of G.L. c. 29, § 8B, are interpreted to preclude disclosure of a prequalification state- 
ment to a law enforcement agency conducting an investigation of possible perjury, 
the sanctions for submitting false statements, also contained in § 8B, would be devoid 
of any practical signficance. Further, to conclude that the MDC could withhold these 
statements from the Inspector General would frustrate the discharge of the very func- 
tion for which the office of the Inspector General was created, "to prevent and detect 
fraud." G.L. c. I2A, § 7. An analogy may be drawn to the Supreme Judicial Court's 
conclusion that the Attorney General must have access to personal income tax returns 
in order to properly discharge his duty to prosecute tax cases, despite statutory provi- 
sions generally prohibiting the dissemination of information contained in such returns. 
Opinion of the Justices, 354 Mass. 804 (1968). Similarly, I think it is clear that the 
Inspector General must have access to prequalification statements in order to fulfill 
his legislative mandate. 

By reaching this conclusion, I am not suggesting that the confidentiality provi- 
sions contained in § 8B should be construed as superfluous. Requiring that pre- 
qualification statements be kept confidential is intended to ensure open and com- 
petitive bidding on public contracts by denying competing contractors access to each 
other's trade secret, commercial, or financial information. See 1966/67 Op. Atty. 
Gen. No. 20, Rep. A.G., Pub. Doc. No. 12 at 70 (1967); Final Report of the Chapter 
579 Task Force at 136-38 (February 1, 1983) . This intent is not frustrated by disclosure 
of the statements to law enforcement officials conducting an investigation. 

Nor would disclosure of such information to the Inspector General necessarily 
lead to the more general dissemination which § 8B was intended to avoid . Investigatory 
material compiled by the Inspector General, as by other investigatory officials and 
law enforcement agencies, is confidential and exempt from disclosure as a public 
record under the general exemption for such material provided in G.L. c. 4, § 7, 
clause 26(f). More specific, however, is the express exemption contained in G.L. 
c. 12 A, § 13, which provides that all records of the office of the Inspector General 
are confidential and shall not be considered public records. These statutory exemp- 
tions are a product of the Legislature's recognition that the public disclosure of 
investigatory material could have a deleterious effect on law enforcement in deroga- 
tion of the public interest. See Bougas v. Chief of Police of Lexington, 371 Mass. 
59 (1976). A tangential result of these exemptions, relevant here, is that a bidder's 
expectation of confidentiality of trade secrets or other personal information contained 
in a prequalification statement is effectively met. Of course, if the Inspector General's 
investigation ultimately leads to the prosecution of the bidder for submitting fraudulent 
information, the information will be publicly disclosed. In that situation, however, 
a reasoned reading of both statutory provisions leads inescapably to the conclusion 
that, in the judgment of the Legislature, privacy concerns must yield to the greater 
societal interest in detecting and eradicating fraud and waste in the expenditure of 



74 P.D. 12 

public funds . In Re Hampers .651F.2dl9(lstCir. 1981). Accordingly , I conclude 
that my interpretation of the two statutes as consistent furthers the legislative pur- 
pose behind both provisions.* 

Even if I were not certain that the two statutes could be read harmoniously. I 
remain confident in the conclusion I reach. A fundamental rule of statutory inter- 
pretation provides that the Legislature is presumed to be aware of existing stamtes 
when enacting legislation. To\mi ofHadley \\ Town of Amherst, 312 Mass. 46, 51 
(1976). I must presume, therefore, that in 1980 when the Legislature acted on the 
recommendation of the Ward Commission and created the office of Inspector General 
by inserting chapter 12A into the General Laws, it was aware of all statutory provi- 
sions . including G . L . c . 29 . § 8B . that regulated the award and performance of pubHc 
design and construction contracts. Condon v. Haitsma, 325 Mass. 371 , 373 (1950). 
Indeed, a companion bill to the Inspector General measure. St. 1980, c. 579, exten- 
sively amended the provisions of chapter 29, including revisions affecting G.L. c. 
29. § 8A. Chapter 579 was enacted upon the recommendation of the Ward Commi- 
sion. Thus the principle that later acts of the Legislamre may modify the application 
of an earlier stamte without expressly or impliedly repealing that earlier stamte is 
particularly relevant here. Walsh x. Ogorzalek, 372 Mass. 271 (1977). In accor- 
dance w ith that principle . to the extent that these two stamtes may conflict, the more 
recently enacted Inspector General stamte must control. 

In sum. to construe chapter 29, § 8B. so as to preclude the MDC from disclosing 
prequalification statements to the Inspector General would frustrate the intent of 
the General Court and compromise the ability of the Inspector General to perform 
his stamtor>' mandate to detect and prevent illegality or inefficiency in government. 
To avoid this unintended result. I conclude that G.L. c. 12A § 9. and G.L. c. 29. 
§ SB. construed together and light of legislative intent, authorize the Insj)ector General 
to have access to a prequalification statement submitted to the MDC. where the 
Inspector General has reason to believe that a contractor has committed perjury in 
connection with a bid on a public contract. s 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



* My conclusion should wA be read broadly . 1 do not read these statutory provisions as authorizing access to prequalifica- 
tion statements by any state agency or as a matter of routine to law enforcement agencies: instead. 1 view these provi- 
sions as extending no fiirther than to require disclosure in connection with a specific investigation conducted by th 
Inspeaor General. Cf. Torres v. Anomey General, 391 Mass. 1 (1984) (personal data compiled by one state agency 
may be disclosed to the office of the Anomey General only when requested in connection with an affirmative 
investigation). 

5 Of course, this construction need only be employed where, as in the situation presented by your request, seeking 
the contractor's consent to release of his prequalification statement would compromise the Inspector General's 
investigation. Otherwise, an attempt to obtain such a release, pursuant to G.L. c. 29, § 8B, should be made prior 
to disclosure. 



P.D. 12 75 

September 4, 1984 

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

Dear Secretary Connolly: 

By letter dated August 2, 1984. you transmitted a series of proposed ballot ques- 
tions to me and requested my opinion whether they are "public policy'" questions 
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 ques- 
tions on the ballot. This year your request forces me to consider, first, whether the 
matters presented are of purely local concern and hence excludable from the ballot, 
and second, whether they present appropriate matters for any type of legislative 
action at all. See Thompson v. Secretary of the Commonwealth, 265 Mass. 16 (1928). 

As I have noted in past years. I am of the opinion that the term "public policy" 
asusedinG.L. c. 53, § 19. should not be given an overly restrictive meaning. 1982/83 

Op. Atty. Gen. No. 3, Rep. A.G. , Pub. Doc. No. 12 at (1982); 1980/81 

Op. Atty. Gen. No. 6, Rep. A.G. , Pub. Doc. No. 12 at 109 (1980). I have consistently 
opined, however, that each question must concern an important public matter in which 
every citizen of the Commonwealth would have an interest. Id. Still, even when a 
question appears to concern a small geographic area, if the problem it addresses 
is one of concern to the Commonwealth in general, then the question may be con- 
sidered one of public policy. See 1982/83 Op. Atty. Gen. No. 3. Rep. A.G., Pub. 
Doc. No. 12 at 84 (1982). 

For instance, one question was submitted from the 18th Suffolk Representative 
District concerning whether the representative districts from the Allston-Brighton 
areas of Boston should be redrawn so that one representative would be elected from 
Ward 21 of Boston and another representative would be elected from Ward 22 of Boston . 
If this is viewed as simply a question of whether these particular representative districts 
should follow municipal ward boundaries, it is difficult to characterize the question 
as one of concern to every citizen of the Commonwealth. The question may be 
viewed in a larger context, however, because it concerns the broader subject of how 
the representative districts of the General Court are drawn. This is a matter clearly 
within the purview of the state Legislature and equally clearly one in which every 
citizen of the Commonwealth has an interest. On the basis of an unbroken line of 
precedent. 1 1 adopt the broader view and conclude that the question is one of public 
policy within the meaning of G.L. c. 53, § 19. and should appear on the ballot. 

Another seemingly local question, filed from the 1st Hampshire Representative 
District, seeks to have Northampton declared a nuclear free zone. Although the peti- 
tion is directed at a particular geographic area, it concerns the broader subject of 
the proliferation and deployment of nuclear weapons, which is of vital concern to 
all citizens of the Commonwealth. See, e.g. , 1974/75 Op. Atty. Gen. No. 13. Rep. 
A.G. . Pub. Doc. No. 12 at 56 (approving a question calling for the closing and dis- 
mantling of nuclear power plants in Rowe. Massachusetts, and Vernon. Vermont). 
Accordingly, it is my opinion that the subject matter of this seemingly local question 
is also a public policy question within the meaning of G.L. c. 53, § 19. 



^ See. e.g. . 1980/81 Op. Atty. Gen. No. 6, Rep. A.G.. Pub. Doc. No. 12 at 110 (1980); 1978/79 Op. Atty. Gen. Nos. 
16, 17, and 18. Rep. A.G., Pub. Doc. No. 12 at 121-23 (1978): 197677 Op. Atty. Gen. No. 7. Rep. A.G., Pub. Doc. 
No. 12 at 89 (1976); 1974 75 Op. Atty. Gen. Nos. 11, 13, 22. Rep. A.G., Pub. Doc. No. 12 at 54, 56. 62-63 (1974). 



76 P.D. 12 

A separate issue is raised, however, concerning whether declaring any area to be 
a nuclear free zone is an appropriate subject for legislative action. This issue arises 
because the instruction contained in each public policy question must be consistent 
with the powers of the Legislature, and the subject matter must be fit for legislative 
action. Thompson v. Secretary of the Commonwealth, 265 Mass. at 19; 1980/1981 
Op. Atty. Gen. No. 6. Rep. A.G. , Pub. Doc. No. 12 at 109 (1980). Unlesss the petition 
concerns a matter appropriately subject to some type of legislative action, it is not 
an appropriate public policy question. See 1978/79 Op. Atty. Gen. No. 8, Rep. A.G. , 
Pub. Doc. No. 12 at 114 (1978) (disapproving a petition asking the Legislature to reject 
changes proposed by a local charter commission). 

The United States Constitution, article I, section 8, clause 1, provides that Con- 
gress shall have the power to provide for the common defense. A state or a subdivi- 
sion thereof cannot interfere with this power granted to the United States by adopting 
a legislative enactment establishing "nuclear free zones." Pauling v. McElroy, 278 
F.2d 252, 254 (D.C. Cir.), cert, denied, 364 U.S. 835 (1960); Holbridge v. United 
States of America, 282 F.2d 302, 303 (8th Cir. 1960). Cf Stetson v. Kempton, 13 
Mass. 271 (1816) (local community may not appropriate money for the purpose of 
providing for the common defense). I fmd it crucial, however, that the petition as 
filed instructors the Representative to vote not in favor of legislation but in favor of 
a resolution. Because it is within the prerogative of the Legislature to memorialize 
Congress2 to declare Northampton to be a nuclear free zone, I have concluded that 
the question, as rephrased, is one of public policy within the meaning of G.L. c. 53, § 19. 

The requirement that the matter presented must be fit for legislative action is perhaps 
best illustrated by a discussion of the one question I have elected to reject. A petition 
was submitted from the 14th Suffolk Representative District in the following form: 
"Want licenses issued to Schaefer Paper Company and Suffolk Services for the storage 
and transportation of hazardous wastes to be rescinded by the (D.E.Q.E.) Depart- 
ment of Environmental and Quality Control of the Commonwealth of Mass." This 
petition does not call for any type of legislative action. The authority to issue and 
rescind licenses to store and transport hazardous waste rests with the Department 
of Environmental Quality Engineering, under G. L. c. 21C, § 7, not with the Legislature. 
Indeed, if the Legislature attempted to rescind particular licenses, grave constitu- 
tional issues would be raised under Article I, section 10, cl. 1, and the Fourteenth 
Amendment of the United States Constitution as well as under the Massachusetts 
Constitution, Pt. 1, Articles 10 and 30. See Commissioner of Public Health v. The 
Bessie M. Burke Hospital, 366 Mass. 734 (1975); Boston Gas Co. v. Department 
of Public Utilities, 387 Mass. 531 (1982). Cf Dickinson v. New England Power Co. , 
257 Mass. 108 (1926); Paddock v. Brookline, 347 Mass. 230 (1964). Accordingly, 
I have concluded that this petition does not present a question that may appropriately 
receive action by the General Court and therefore should not appear on the ballot. 

The issue of fitness for legislative action is also squarely presented by a number 
of questions which concern changing internal procedures of the General Court. These 
questions require additional analysis in light of my decision last year that an initiative 
peition calling for reform of the rules of the General Court could not be placed on 
the ballot under Amendments, Article 48. That decision was upheld by the Supreme 
Judicial Court in Paisner v. Attorney General, 390 Mass. 593 (1983). 



See Thompson v. Secretary of the Commonwealth, 265 Mass. at 19. 



P.D. 12 77 

As recognized by the court in Paisner, the power of the Legislature is broader than 
simply the power to make laws and includes the ability to establish rules of proceedings. 

[I]n addition to those law making powers, the respective branches of the 
General Court possess many unicameral powers, most of which are 
bestowed on them by Part n, c. 1, §§ 2 and 3. . . . The power to "choose 
its own President, appoint its own officers, and determine its own rules 
of proceedings" is conferred exclusively on the Senate by Pt. 11, c. 1, 
§ 2, Art. 7. While the members of the House of Representatives possess 
the corollary power to "choose their own Speaker, appoint their own 
officers, and settle the rules and orders of proceeding in their own House 
. . ." by virtue of Pt. U, c. 1, § 3, Art. 10. 

Paisner, 390 Mass. at 599. However, as further recognized by the Supreme Judicial 
Court, the power reserved to the people by the popular initiative is merely the power 
to enact laws or consitiutional amendments and does not extend to the full panoply 
of legislative powers. "It is clear to us that the popular initiative is confined to laws 
and constitutional amendments." Id. at 598. Accordingly, the court upheld my deter- 
mination that a proposal modifying the rules of procedure of the Legislature was 
not proper under the provisions of Amendments, Article 48. 

Public policy questions, unlike initiative petitions, are not restricted to providing 
instructions only on questions of law making; instead they extend to any question 
of important public concern that may appropriately receive attention or action by 
the General Court. Thompson v. Secretary of the Commonwealth, 265 Mass. at 19. 
Under the provisions of the Massachusetts Constimtion, Pt. 1, article 19. the people 
of the Commonwealth have the right to provide instructions to legislators. This power 
is not expressly or implicitly restricted to any particular type of legislative action, 
nor does G.L. c. 53, § 19, contain any such restriction. Accordingly, public policy 
questions may concern subjects excluded from the popular initiative as long as they 
remain appropriate subjects for some type of action by the Legislature. 

As noted above, the members of the Legislature have the power to establish the 
rules of procedure of their respective branches. Therefore, I have concluded that 
the questions concerning the reform of procedures followed in the Legislature are 
ones of public policy within the meaning of G.L. c. 53, § 19, and should appear on 
the ballot. See 1978/79 Op. Atty. Gen. No. 14, Rep. A.G., Pub. Doc. No. 12 at 119(1978). 

I end this general discussion of the merits of your request with the caveat that cer- 
tain additional requirements must be satisfied before the questions may appear on 
the ballot. These requirements, contained in G.L. c. 53, §§ 19, 20, and 21, involve 
determinations of fact. For example, a question that is a fit subject for legislative 
action and presents an important public issue may not appear on the ballot if the 
question is substantially the same as one that 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 districts, and therefore, 
you are in abetter position that I to make such facmal determinations. Consequently, 
and in accordance with prior practice, 3 I have made no independent inquiry as to 



1982/83 Op. Atty. Gen. No. 3, Rep. A.G., Pub. Doc. No. 12 at 84 (1982); 1980/81 Op. Atty. Gen. No. 6. Rep. AG. 
Pub. Doc. No. 12 at 109 n. 1 (1980); 1958/59 Op. Att>. Gen. No. 12. Rep. A.G.. Pub. Doc. No. 12 at 44 (1958). 



78 P.D. 12 

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. 
With the above considerations in mind, it is my opinion that the following ques- 
tions should appear on the ballot in the following form: 

Representative Districts: 5th Essex and 
six other Representative Districts'* 

Shall the Representative from this district be instructed to vote in favor of legisla- 
tion, resolutions, or constitutional amendments to balance the state and federal budgets 
and to retire the national debt, not by increased taxes, additional fees, expanded bor- 
rowing, or other revenue-enhancement measures, but by a reduction in spending? 

Senatorial District: 4th Middlesex 

Shall the Senator from this district be instructed to vote in favor of legislation repeal- 
ing the seven and one-half percent surtax on the five percent Massachusetts income tax? 

Representative Districts: 1st Barnstable and 
four other Representative Districtss 

Shall the Representative from this district be instructed to vote in favor of legisla- 
tion repealing the seven and one-half percent surtax on the five percent Massachusetts 
income tax? 

Representative Districts: 2nd Barnstable and 
thirty-eight other Representative Districts^ 

Shall the Representative from this district be instructed to vote in favor of a resolu- 
tion calling upon the United States Congress and the President of the United States 
to immediately withdraw any and all troops and military advisors from El Salvador 
and Honduras; to stop any and all military aid to El Salvador, Honduras, and 
Guatemala; to stop any and all aid to the forces fighting to overthrow the government 
of Nicaragua; and to direct funds now used for such purposes to the domestic economy 
to create jobs and improve services? 

Representative District: 18th Suffolk 

Shall the Representative from this district be instructed to vote in favor of legisla- 
tion redrawing the representative districts for Allston-Brighton so that one represen- 
tative shall be elected to serve all of Ward 21, and one representative shall be elected 
to serve all of Ward 22? 



* 15th and I7th Essex; 4th, 14th, 16th, and 17th Middlesex. 

5 1st, 21st, and 23rd Middlesex; 17th Essex. 

6 Cape and Islands; 7th and 17th Essex; 1st and 2nd Franklin; 5th, 10th, Uth, 12th, 25th, 26th, 27th, 28th, 29th, 30th, 
31st. and 32nd Middlesex; 7th and 15th Norfolk; 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th. 
14th, 15th, 16th, 17th, 18th, and 19th Suffolk. 



P.D. 12 79 

Representative District: 1st Hampshire 

Shall the Representative from this district be instructed to vote in favor of a resolution 
calling upon Congress and the President of the United States to declare Northampton 
a nuclear free zone where no nuclear weapons may be produced, deployed, or stored 
within the city limits? 

Representative Districts: 5th Norfolk and 7th Plymouth 

Shall the Representative from this district be instructed to vote in favor of legislation 
or orders eliminating the extra pay for legislative committee chairmen, requiring 
legislative committees to act promptly on legislation, and permitting committee 
chairmen to be elected rather than appointed by the Speaker of the House? 

Representative Districts: 7th and Dth Essex 

Shall the Representative from this district be instructed to vote in fevor of an order 
requiring the election of committee chairmen by the full membership of the House, 
substantially reducing the bonus pay given to committee chairmen and other members 
of the House leadership, and allowing the State Auditor and Inspector General to 
have access to the records of the Legislature? 

Representative District: 8th Plymouth 

Shall the Representative from this district be instructed to vote in favor of an order 
reforming the rules of the House of Representatives by requiring roll call votes on 
all legislative pay increases and by providing for election of the Speaker by secret 
ballot, election of committee chairmen by committee members, elimination of the 
additional $7,500 in pay for committee chairmen, and allowance of television coverage 
of all House sessions? 

Representative Districts: 2nd Barnstable and 
three other Representative Districts^ 

Shall the Representative from this district be instructed to vote in favor of an order 
changing the rules of the Massachusetts House of Representatives to eliminate extra 
pay for legislative committee chairmen, to require legislative committees to act 
promptly on legislation, and to permit committee chairmen to be elected rather than 
appointed by the Speaker? 

Very trulv yours, 
FRANCIS X. BELLOTTI 

Attorney General 



7 21st and 22nd Middlesex; 11th Worcester. 



80 P.D. 12 

October 2, 1984 

Honorable Arthur M. Mason 

Chief Administrative Justice of the Trial Court 

New Court House 

Pemberton Square 

Boston, MA 02108 

Dear Judge Mason: 

You have requested my opinion as to whether G.L. c. 30, § 46(12), prohibits 
a county employee from receiwingperdiem compensation from the Commonwealth 
for service as a court officer if that employee also receives annual compensation 
from a county in excess of $20,000. ^ For purposes of this opinion, I have divided 
your request into two subsidiary questions: (1) v/hethtv per diem court officers are 
state "employees" within the meaning of G.L. c. 30, § 46(12), and (2) whether 
the operation of the Trial Court is an ' 'undertaking of the Commonwealth' ' under 
that statute. For the reasons set forth below, I answer both of those questions in 
the affirmative and therefore conclude that a county employee who currently2 
receives more than $20,000 per year from a county may not also receive compensa- 
tion from the Commonwealth for service as a court officer. 

You have informed me that your opinion request arises in connection with your 
administration of the Trial Court of the Commonwealth, pursuant toG.L.c.211B, 
§ 9. You have also informed me that certain county correctional officers who are 
compensated by counties in amounts in excess of $20,(X)0 per year for their duties 
are also employed as court officers by the Superior Court Department of the Trial 
Court, pursuanttoG.L.c. 213, §13, andG.L.c. 211, §§69 er^e^., and are compen- 
sated for those duties by the Commonwealth on a per diem basis. 

My analysis of G.L. c. 30, §46(12), begins with the general rule that "a statute 
must be interpreted according to the intent of the Legislature ascertained from all 
its words construed by ordinary and approved usage of the language, considered 
in connection with the cause of its enactment, the mischief or imperfection to be 
remedied and the main object to be accomplished, to the end that the purpose of 
its framers may be effectuated." Registrar of Motor Vehicles v. Board of Appeal 
on Motor Vehicle Liability Policies and Bonds , 382 Mass. 580, 585 (1981). The 
plain language of the statute serves as the initial and principal guide to legislative 
intent. Bronstein v. Prudential Insurance Company of America, 390 Mass. 701, 
704 (1984.) 

Section 46(1 2) of Chapter 30 was inserted by St. 1981, c. 293, §5, and amended 
by St. 1984, c. 234, § 15. The subsection currently provides in full: 



■■ You actually inquired about payment to those county employees whose annual county compensation is in excess 
of $ 1 5 ,000. This is because at the time of your request G . L. c . 30, § 46( 1 2) , permitted those county employees whose 
annual compensation was $15,000 or less to also receive compensation from the state. AsofJuly 1, 1984, however, 
the "triggering" salary contained in that statute was raised to $20,000. St. 1984, c. 234, §§ 15 and 108. The statutory 
change has led me to rephrase the question you posed, but it does not alter the thrust of your request nor the basic 
reasoning of this opinion. 

2 See note 1 , supra. 



P.D. 12 81 

Notwithstanding the provisions of any general or special law to the con- 
trary , no employee shall receive compensation from any agency, depart- 
ment, commission, board or other undertaking of the commonwealth 
if said employee is also an employee of a county and would receive com- 
pensation from such county in excess of twenty thousand dollars. Any 
employee covered by the provisions of this paragraph shall have thirty 
days prior to separation from the payroll of the commonwealth within 
which to resign from the employ of such county. 

Since the critical terms "employee," "compensation," and "agency, depart- 
ment, commission, board, or other undertaking of the Commonwealth" are not 
defined in G. L. c. 30, my construction of those terms must be based on the ordinary 
meaning of the terms and their usage in other analogous statutes. 

In my opinion, county correctional officers who also serve as per diem court 
officers are ' ' employees ' ' of both the Commonwealth and their respective counties , 
since they are paid for services performed for both governmental bodies. The part- 
time nature of their service as court officers does not exempt them from ' 'employee' ' 
status. Elsewhere in the general laws, the term "employee" is defined to include 
persons who hold employment "on a full, regular, part-time, intermittent, or con- 
sultant basis." SeeG.l.. c. 268A, §§ 1(d), (g), ondiq).^ See also G.h. c. 258, § 
1, and 1983/84 Op. Atty. Gen. Nos. 1 and 2, Rep. A.G., Pub. Doc. No. 12 (1983) 
(construing the term "public employee" in G.L. c. 258, ^%etseq. , the Massachusetts 
Claims and Indemnity Act, to include part-time employees.* 

The useofthe term "compensation" inG.L. c. 30, §46(12), in conjunction with 
the term ' 'employee" fortifies my conclusion. "Compensation' ' is defined elsewhere 
in the General Laws as "any money, thing of value or economic benefit conferred 
on or received by a person in return for services rendered. " G.L. c. 268 A, § 1(a). 
The term "compensation" sweeps far more broadly than other phrases concerning 
payment, such as the term "salary. "s Read together with the term "employee," 
use of the term "compensation" demonstrates legislative intent to apply G.L. c. 
30, § 46(12), to a person who receives money from the Commonwealth for part- 
time service. I therefore construe "compensation" to include the remuneration 
received by the per diem court officers. 



' The definitional guidance provided by G.L. c. 268A, which governs conflicts of interest and ethics in government, 
is particularly opposite here , since the ' ' mischief to be remedied ' ' and the ' ' main object to be accomplished, ' ' Registrar 
of Motor Vehicles. 382 Mass. at 585, by G.L. c. 268AandG.L. c. 30, §46(12), are related. Chapter 268 A therefore 
provides an appropriate source of "ordinary and approved usage" of the language of § 46(12). Id. at 585. 

* Compare Bumside V. Bristol County Board of Retirement. 352 Mass. 4Sl,4S3-U {\967) (where G.L. c. 32, §1, 
defines "employee" as one "regularly employed," intermittent service as court officer does not qualify person 
as an "employee" eligible to join retirement system). 

5 SeeG.L. c.4, §7, clause twenty-seventh (salary "shall mean annual salary ");5ee a/50 G.L. c. 30, §21 (prohibiting 
receipt of more than one "salary" from the treasury of the Commonwealth); 1981/82 Op. Atty. Gen. No. 7, Rep. 
A.G., Pub. Doc. No. 12 at 127 (1982) (distinguishing between "salary" and "wage"). 



82 P.D. 12 

I next consider whether the operation of the Trial Court constitutes an ' ' undertak- 
ing of the commonwealth" within the meaning of G.L. c. 30, § 46(12). Most of 
the other provisions of G.L. c. 30 appear to apply solely to employees of the exe- 
cutive department of the state government. The title of G.L. c. 30 refers exclusively 
to "State Departments, Commissions, Officers, and Employees"; it does not refer 
to employees of the judiciary. Similarly, the salary schedule in G.L. c. 30. § 46, 
It 1-11, does not apply to the salaries of employees of the judiciary; salaries for 
those employees appear in a separate schedule submitted annually to the Legislature 
for approval. S^^G.L. c. 211 B, § 10. The terms immediately preceding the phrase 
' 'other undertaking of the commonwealth, ' ' viz. , ' 'agency. ' ' ' 'department, ' ' ' 'com- 
mission, " ' and ' 'board' ' are used elsewhere in the General Laws to refer to subdivi- 
sions of the executive branch. s 

These considerations suggest that if the terms of G.L. c. 30, § 46(12), limited 
its application to ' ' any agency , department , commission , [or] board , ' ' there might 
be some merit to a construction of the statute that excluded employees of the judicial 
branch. However, the additional phrase "or any other undertaking of the com- 
monwealth" sweeps beyond the executive branch and evidences an intent to extend 
the statutory prohibition to employees of all enterprises of the Commonwealth. I 
must presume that the Legislature, at the time of the passage of St. 1981, c. 293, 
§ 5 , knew the statutory terminology which it had previously employed to limit appli- 
cation of the law to the executive branch. See, e.g. , St. 1962, c. 779, §§ 1(d) and 
l(q) (members of judiciary exempt from original G.L. c. 268A).7 Moreover, in 
selecting the phrase "any other undertaking of the commonwealth" (emphasis 
added, )8 it appears that the Legislature envisioned liberal application of the pro- 
scription, ^ since it is hard to conceive of broader language. I therefore conclude 
that the operation of the Trial Court is an "undertaking of the commonwealth" within 
the meaning of § 46(12). 



^ See, e.g., G.L. c. 30A, § 1 (definitionof "agency" in Administrative Procedure Act excludes legislative and judicial 
branches), and G.L. c. 7, §§ 3, 4 (terms "departments, commissions, offices and boards" used to describe subdivi- 
sions of executive branch). 

^ See Condon v. Haitsma. 325 Mass. 371, 373 (1950); Commonwealth v. Burke, 390 Mass. 480, 485-86 (1983) (if 
Legislature intended certain construction, other language could have been used): American Grain Products Process- 
ing Institute v. Department of Public Health. 392 Mass. 309, 315 (1984). 

^ The term "undertaking" rarely appears in the General Laws. But see G.L. c. 29, § 8A (requirements for public 
contractsapply to officers "having charge of any office, department, or undertaking"); G.L. c. 29, § 9B (allotments 
to "executive and administrative offices, departments and undertakings") 

' See lannella v. Fire Commissioner of Boston ,331 Mass . 250, 252 ( 1 954) (fact that some sections of statute expressly 
exclude Sundays and holidays in appeal period is strongly indicative that Sundays and holidays are not excluded 
in those sections which are silent on that issue). 



P.D. 12 83 

A similar provision in G . L . c . 30 supports my conclusion . Section 2 1 of that chapter 
provides: "A person shall not at the same time receive more than one salary from 
the treasury of the commonwealth . " In a previous opinion I concluded that this pro- 
scription applies to employees of the judicial branch who, by operation of the Court 
Reform Act of 1978, G.L. c. 29A, §§ 1 etseq. , asaddedbySt. 1978, c. 478, changed 
their status from county to Commonwealth employees and found themselves "on 
two Commonwealth payrolls." 1980/81 Op. Atty. Gen. No. 3, Rep. A.G., Pub. 
Doc. No. 12 at 101 (1980). While the language of G.L. c. 30, § 46(12), and G.L. 
c. 30, § 21, differ slightly, the similar breadth of their terminology supports my 
conclusion that § 46(12) also applies to employees of the judicial branch. io 

Where "the words of a statute are clear and unambiguous and . . . given their 
ordinary meaning . . . yield a workable and logical result, there is no need to resort 
to extrinsic aids in interpreting the statute. " Hashimi v. Kalil, 388 Mass. 607, 610 
(1983). I therefore conclude, on the basis ofthe language of G.L. c. 30, §46(12), 
that county employees who receive more than $20,000 in annual compensation for 
their services may not TQceive per diem compensation from the Commonwealth for 
services as court officers. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



October 12, 1984 

The Honorable Michael C. Creedon 

Chairman 

House Committee on Ways and Means 

Legislative Office 

State House, Room 250 

Boston, Massachusetts 02133 

Dear Representative Creedon: 

In your capacity as Chairman ofthe House Committee on Ways and Means and 
pursuant to G.L. c. 12, § 9, you have requested that I advise the Committee as to 
the constitutionality of a proposed amendment to a bill presently pending before 
it. The bill (H. 2 154) would provide state assistance for the removal, containment, 
or encapsulation of asbestos in the schools. The proposed amendment would ex- 
pand the asbestos removal assistance program to encompass private as well as public 



''"I note that the second sentence of §46(12) refers to "the payroll ofthe commonwealth," a phrase similar to one 
used in § 2 1 , viz. , "the treasury ofthe commonwealth . ' ' Neither section employs any language suggesting an exemp- 
tion for the judicial branch. My construction affords more consistent treatment of employees of the judiciary under 
sections 21 and 46(12) than the alternative interpretation. See Killam v. March. 316 Mass. 646, 649(1944) (section 
of statute should "be interpreted so as to be harmonious"). 



84 P.D. 12 

schools, and accordingly raises concerns under the so-called Anti-aid Amendment 
to the Massachusetts Constitution, art. 18, § 2, as amended through art. 103. i I 
believe, however, that the proposed legislation is not facially unconstitutional. 2 

The Anti-aid Amendment prohibits the authorization of any grant of public money 
"for the purpose of founding, maintaining or aiding" any non-public primary or 
secondary school; and the proposed amendment would authorize grants of public 
monies to private schools for asbestos removal, containment, or encapsulation. 
Therefore, the validity of the proposed amendment depends upon whether the grants 
which it contemplates are for the purpose of maintaining or aiding such schools. 
This question in turn revolves primarily around the meaning attributed to the word 
"purpose" in article 18. 

In addressing this constitutional term, I do not write upon a blank slate. On the 
contrary, the Supreme Judicial Court has recently considered the validity of other 
legislation authorizing public aid to private schools which was challenged under 
the Anti-aid Amendment. In Commonwealth v. School Committee of Springfield, 
382 Mass . 665 ( 1 98 1 ) , the court held that the disbursement of public funds to private 
schools under the special education law, St. 1972, c. 766, did not violate the Anti- 
aid Amendment. In Attorney General v. School Committee of Essex, 387 Mass. 326 
(1982), the court held that the statute requiring school committees to provide trans- 
portation to students attending private schools did not violate the Anti-aid Amend- 
ment. In each case, the Court inquired into the purpose of the legislation, its effect, 
and its avoidance of the political and economic abuses which prompted the passage 
of the constitutional prohibition. An analysis of those criteria in this case leads me 
to conclude that the inclusion of the proposed amendment in the pending bill would 
not contravene the Anti-aid Amendment. 

I note first that the proposed assistance to private schools would be as part of a 
general measure, the purpose of which is to protect and benefit school children, 
and that the measure would be enacted in response to increasing evidence that low- 
level asbesto exposure is a serious health hazard. See Policy Report #13 : "Asbestos 
in the Commonwealth's Public Buildings," 1985 Budget of the Senate; 1982 An- 
nual Report of the Special Commission Relative to Evaluating the Extent of the Use 
of Asbestos in the Schools and Public Buildings of the Commonwealth . The purpose 
of promoting the general health, safety, and welfare through insulating the children 
of the Commonwealth from asbestos inhalation is unquestionably a valid state 
interest, which legitimately extends beyond the public school system to all children. 
It is my perception that the proposed amendment is predicated upon such legitimate 
legislative concerns; there appears to be no reason to suspect a hidden, contrary 
purpose to maintain or aid private schools. 



'* In my opinion, no serious claim of unconstitutionality under the Establishment Clause of the First Amendment to 
the United States Constitution could be made. See Lynch v. Donnelly, 104 S. Ct. 1355 (19^); Lemon v. Kunzman. 
403 U.S. 602(1971). 

2 Any analysis of whether the proposed legislation would be unconstitutional as appUed in particular circumstances, 
which are not foreseeable, is necessarily beyond the scof)e of this opinion. 



P.D. 12 85 

The Constitution proscribes ' 'a use of public property for the purpose of aiding 
[private] schools in carrying out their essential ftinctions. ' ' Bloom v. School Com- 
mittee of Springfield, 376 Mass . 35 ( 1 978) . In Bloom, a statute requiring local school 
committees to loan textbooks to private school students was held invalid; the court 
emphasized the central role of textbooks to the schools' educational function. By 
contrast, the removal or encapsulation of asbestos is quite remote from the essential 
teaching function of private schools. The removal of asbestos is much more closely 
analogous to the provision of school transportation at public expense, which was 
upheld in Essex. It is "a community safety measure like police and fire protection. 
Essex, 387 Mass. at 332 (quoting Bloom, 376 Mass. at 47). 

Nevertheless, the proposed amendment may still be invalid if it has the effect of 
providing "substantial assistance" to private schools. Essex, 387 Mass. at 332 
(quoting Commonwealth v. School Committee of Springfield, 382 Mass. at 679). 
But in this case, as in Essex, the proposed aid would be "quite remote" from the 
educational function of the schools. Id. at 334 (quoting Bloom, 376 Mass. at 47). 
From a public health and safety viewpoint, the pupils and other occupants of the 
schools would "consume" the benefits of an asbestos-free environment directly; 
the schools themselves would benefit only indirectly. 

Admittedly , these grants of funds would not benefit the students exclusively . The 
removal or containment of asbestos may increase a school's ability to attract or 
retain students and also could be viewed as an improvement to the school buildings, 
of possible tangible benefit to the private institution as such. However, the thrust 
of the legislation is to advance the health and safety of all school-age children in 
the Commonwealth , in response to the relatively recent public awareness of the serious 
health hazards from asbestos inhalation. It is therefore my opinion that any benefits 
to non-public schools resulting from the removal or containment of asbestos should 
be viewed as incidental to the public health benefits of the program. See Essex, 387 
Mass. at 333. 

The purposes underlying the principal amendment to the Anti-aid Amendment, 
art. 46, § 2, were to stem the politically divisive and financially wasteful practice 
of directing aid to private schools and sectarian institutions. See Commonwealth 
V. School Committee of Springfield, 382 Mass. at 683. 1 conclude that the inclusion 
of private schools in the asbestos removal assistance program, as a law of general 
application directed to a serious public health issue, would not be legislation of the 
character which the Anti-aid Amendment was designed to prevent. 

The purpose and effect of the proposed amendment being to promote the general 
health and safety of children rather than the maintenance of private schools, I con- 
clude that, if enacted, the bill (with the proposed amendment) would be defensible 
against a challenge under the Anti-aid Amendment. 

Very truly yours, 

FRANCIS X. BELOTTI 

Attorney General 



86 P.D. 12 

November 20, 1984 

Ira A. Jackson, Commissioner 
Department of Revenue 
100 Cambridge Street 
Boston, MA 02204 

Dear Commissioner Jackson: 

You have requested my opinion regarding your authority to remove locally elected 
or appointed tax assessors from office . Specifically , you ask whether : ( 1 ) you have 
the statutory authority to remove such assessors if you determine that they have 
failed to perform their duties; (2) if so, whether you may initiate administrative pro- 
ceedings pursuant to G.L. c. 30 A and the Standard Rules of Adjudicatory Procedure 
to accomplish that result; and (3) if not, how you may seek removal of such assessors. 
For the reasons set forth below, it is my opinion that you lack the statutory authority 
to remove locally elected or appointed assessors from office, since that removal 
power, where it exists, is vested in local officials. As a result of this determination, 
I need not address your question concerning the means by which you might accomplish 
such removal. The extent of your power in this regard is to advise the municipal 
authorities of any problems which come to your attention, for appropriate local action. 

Resolution of the questions you pose requires that I examine the extent to which 
assessors are subject to the supervision and control of the Commissioner of Revenue. 
While assessors are "public officers," Assessors of Haverhill v. New England 
Telephone & Telegraph Co. , 332 Mass. 357, 360 (1955), they "are not State offi- 
cers in the ordinary sense of the term, and are not subordinates of the commissioner. ' ' 
Sudbury v. Commissioner or Corporations and Taxation, 366 Mass. 558, 563 (1974). 
Instead, they have been regarded as municpal officers, since they are locally elected 
or appointed and act on behalf of, and are paid by, the municipality. Williams v. 
City Manager of Haverhill, 330 Mass. 14, 15 (1953); Dowling v. Assessors of Boston, 
268 Mass. 480, 484-85 (1929); Hobart v. Commissioner of Corporations & Taxa- 
tion, 311 Mass. 341, 344 (1942); Commonwealth v. Dowe, 315 Mass. 217, 223 
(1943). The court in 5M^Z7Mry thus observed that "in the performance of their statutory 
duties the assessors act under the direction of the commissioner only so far as the 
power of direction is conferred upon him by statute." 366 Mass. at 563 (quoting 
Hobart v. Commissioner of Corporations and Taxation, 311 Mass. at 344). 

The applicable statute, G.L. c. 58, § 1 Ai empowers the Commissioner, among 
other things, to enforce all laws relating to the valuation, classification, and assess- 
ment of property , and to supervise the administration of such laws by local assessors . 
G.L. c. 58, § 1 A, 1 1 . The Commissioner may also inspect the work of assessors 
and require necessary information from them, as well as require them to take such 
action as will tend to produce uniformity in the valuation, classification, and assess- 
ment of property for local taxation. G.L.c.58,§§lA,6,10. He may cause assessors 
to be prosecuted for any violation of law relative to assessment of taxes or classifica- 
tion of property. G.L. c. 58, § lA. 

The Legislature has also provided in G.L. c. 58, § 4, a means by which the Com- 
missioner may attempt to correct improper methods used by local assessors where 
it appears that a city or town has failed to comply with the law in meeting standards 



■• Added by St. 1979, c. 797, § 3. The powers and duties of the Commissionerwere found previously at G.L.c. 58, § 1. 



P.D. 12 87 

established by him. Pursuant to that statute, the Commissioner may examine the 
pertinent records and then "direct . . . assessors to meet the minimum standards 
required ..." Particularly relevant here is the mandate that: 

On failure by the assessors ... to comply with such directions of the 
commissioner, for any reason, he shall forthwith notify the mayor or 
the selectmen, in writing, of said failure and of any requirements which 
he deems necessary or expedient to insure proper performance, valua- 
tion and classification of property for taxation according to law . . . G.L. 
c. 58, §4. 

If a city or town continues to fail to comply with proper assessing practices after 
the notice provided for in G.L. c. 58, § 4, is given, the Commissioner may either 
contract on behalf of that city or town to provide such services as will bring the 
municipality into compliance or petition a Single Justice of the Supreme Judicial 
Court either to order the mayor or selectmen to so comply or to order the assessors 
to value property as required by law. G.L. c. 58, §4A. Thus is is clear that the 
Legislature has provided a statutory mechanism by which the Commissioner may 
seek proper compliance by local assessors. 2 

Noticeably absent from the sanctions available to the Commissioner, however, 
is any express authority to remove assessors who fail to perform their duties. The 
answer to your question therefore mms on whether the power to remove local assessors 
can be inferred from the Commissioner's limited authority to appoint them under 
G.L. c. 41, § 27,3 as you suggest. I conclude that it cannot. 

The "[p]ower to remove a public official is not a necessary and inherent incident 
of the authority to appoint. Frequently they are disjoined. ' ' Opinion of the Justices, 
216 Mass. 605, 606 (1914). See also Attorney General v. Stratton, 194 Mass. 51 , 
53 (1907) ("In the cities and towns of Massachusetts, there is no power to remove 
public officers except that which is given by statutes."). Indeed, the general rule 
is that "the right of removal is not implicit in an appointing power in the absence 
of some constitutional or statutory provision, where the term of the official is fixed 
by law for a given period. " /4J/^ v. Mayor of Holyoke , 303 Mass. 295, 301 (1939). 
The actual power of removal is sometimes incident to the of power appointment, 
but only "in the absence of some constitutional or stamtory provision to the con- 
trary . " /J. at 300 (citations omitted) . Here , the tax assessors' terms are in fact fixed, 
G.L.c.41,§§l,24 and 25; and, as demonstrated below, the only statutory provi- 
sion for their removal vests that power in the local governements. 



^ Consistently , a prior Opinion of the Attorney General stated ; ' 'When the [Revenue] Commissioner determines that 
. . . local assessors are not assessing property at its full and fair cash value ... he shall notify them ... [as well 
as] themayorand/ortheselectmenof the given community of such failure." 1963/64 Op. Atty. Gen., Rep. A.G., 
Pub. Doc. No. 12 at 211 (1964). 

^ That statute reads: 
If assessors, or selectmen acting as such, shall fail to perform their duties, the commissioner of revenue may appoint 
three or more persons to be assessors for such town, who shall be sworn, shall hold office until the offices of assessors 
are filled by the town, and shall receive from the town compensation as assessors. 

Chapter 4 1 , § 27 , simply provides a means by which assessors who have left office or have been removed in accord- 
ance with G.L. c. 41, §§22 and 25; c. 39, §8A; ore. 43. § 105, may be replaced, on a temporary basis, until new 
original appointments to those positions are made by the city or town. See 1963/64 Op. Atty. Gen., Rep. A.G., 
Pub. Doc. No. 12 at 210-1 1 (1964). Nor does G.L. c. 59, § 27. providing that "[i]f assessors neglect to assess a 
... tax required by law, the commissioner shall forthwith appoint other persons in accordance with [G.L. c. 41, 
§ 27],"' give the Commissioner any express removal power. 



88 P.D. 12 

Inferring a removal power from the Commissioner's limited appointment power 
would also be contrary to the statutory scheme as a whole, which clearly delegates 
removal powers to municipal officials rather than to the Commissioner. It is an elemen- 
tar>- rule of statutory construction that statutes relating to the same subject matter 
should be construed together so as to constitute a harmonious whole consistent with 
the legislative purpose. See Registrar of Motor Vehicles v. Board of Appeal on Motor 
Vehicle Uability Policies and Bonds, 382 Mass. 580, 585 (1981); Board of Education 
V. Assessor of Worcester, 368 Mass. 511, 513-14 (1975). 

Just as local governments have the power to appoint assessors pursuant to G.L. 
c. 41. §§ 1, 4, 21. 22, 24, 25, and 26, it is clear that those municpal authorities also 
have the express power to remove them. For exmple, G.L. c. 41, § 21, authorizes 
selectmen of a town to act as or appoint certain local officers, including assessors, 
and section 22 grants express authority to the selectmen to remove those appointed 
officers.* Even more explicitly, section 25 of that same chapter provides that town 
selectmen shall appoint assesors, and then "may remove them at any time for cause 
after a hearing." 

Similarly, assessors appointed by a city may be removed by that municipality. 
"Assessors, like other public officers not provided for in our Constitution, are sub- 
ject to the right of the Legislature to create or abolish the office . . . and provide 
for the election, appointment and removal of the encumbent" (emphasis added). 
Williams v. City Manager of Haverhill, 330 Mass. at 15 (citing Taft v. Adams, 69 
Mass. (3Gray) 126, MO {\%5A))\ Attorney General v. Stratton, 194 Mass. at54; Johnson 
V. Mayor of Quincy, 198 Mass. 411 (1908). s Indeed, the Legislature has provided for 
both the local appointment and the local removal of city officials in two situations. 
First . to the extent that a city council has determined that assessors shall be appointed 
and supervised by the city manager, the latter is authorized by G.L. c. 43, § 105,6 
both to appoint and to remove those assessors. To the extent that assessors are not 
among the citv^ officers supervised by a city manager, G.L. c. 39, § 8A,'^ authorizes 
a cit\" council to remove any officer or official appointed or elected by that city coun- 
cil. Courts have also construed G.L. c. 39, § 8A, to apply where a city charter or 
ordinance does not cover the process of removing local officers: 



* G.L.C.41. §22, reads: ''OfficenappoimedbsaulbontyofayoteundeTrhepTscediagsectionshailhoUoffice until 
remcnedby the selectmen , and shall receive such salary as the selectmen may determine, subject to the appropriations 
of the town therefor: andanj- vacancies existing in an>' of said offices uiKkr the supervision and control of the selectmen 
shall be fiUed in the manner of an original appointment" (emphasis added). 

5 The court in Williams observed fuitiier that [the] "power and responsibility for the proper and faithful conduct of 
municipal (rfRcers and departments" is vested in the local city government. 330 Mass. at 16. 

It is noteworthy that the current version of the statute at issue here, G.L. c. 41, § 27, was effective when Williams 
was decided, with the exception of the word "revenue" which was subsequentiy substituted for "corporations and 
taxation." St. 1978. c. 514. § 21. 

^ That statute reads, in pertinent part: "Such officers and employees as the city council, with the advice of the city 
manager, shall determine are necessary for the proper administration of the dqjaxtments, commissions, boards and 
offices (tf the city for whose administration the city manager is re^xxisible shall be appointed, and may be removed, 
by the dry manager . . . (emphasis added). 

7 That statute provides: " Unless otherwise provided in any general law or in any ^Kcial law relating to a city, any q^er 
or official appointed or elected by the city council may be removed by said council . . '.' femphasis added). 



P.D. 12 89 

[W]here the power to remove is not expressly given or implied from 
the power to appoint, Mw/7?/i\v. Webster, 131 Mass. 482, 488(1881); 
Attorney General V. Vamum, 1 67 Mass. 477, 480 (1897), the cit>' coun- 
cil, the appointing or electing body, shall be the removing body. See 
Adie V. Mayor ofHolyoke, supra at 301-302. 

Williams v. City Manager of Haverhill, 330 Mass. at 17 (emphasis added). 

In sum, the specific inclusion of express removal powers in conjunction with 
appointments found in G.L. c. 41, §§ 22 and 25; c. 39. § 8A; and c. 43, § 105, 
discussed above, implies an intentional omission of those powers in G.L. c. 41, 
§ 27 . See First National Bank of Boston v. Judge Baker Guidance Center. 1 3 Mass . 
App. Ct. 144, 153 (1982) (where specific language appears in one part of statute, 
but not in others that treat the same topic, language cannot be implied >Ahere not 
present). Those clear grants of authority thus obviate any suggestion that the power 
to remove town assesors is vested at the state, rather than local, level. 

Your questions also relate to popularly elected asessors. Unlike the above-described 
situation, pertaining to assessors elected or appointed by a cit>' council or its equivalent, 
there do not appear to be any statutes expressly authorizing the removal of popularly 
elected assessors by anyone. Therefore, any suggestion that the Commissioner, or 
some other state or local body, should be empowered to remove elected assessors 
is best addressed to the Legislature. « An attempt to supply such authorit>- omitted 
from the statute would be "tantamount to adding a meaning not clearly intended 
by the Legislature. ' " Boylston Water District v. Tahanto Regional School District. 
353 Mass. 81. 84 (1967) (if stamtor>' omission intentional, no coun can supply it; 
if due to inadvertance . attempt to supply it adds meaning not intended by Legislature) . 

It is there fore my opinion that, although the Commissioner of Revenue has broad 
authority to oversee local tax assessment practices, that authority does not include 
the power to remove locally elected or appointed assessors from office. 

Ver\ tnilv vours. 

FRANCIS X. BELOTTI 

Attorney General 



Februar> 4. 1985 

George McCarthy. Chairman 
Alcoholic Beverages Control Commission 
100 Cambridge Street 
Boston. Massachusetts 02202 

Dear Mr. McCarthy: 

You have requested my opinion whether the Alcoholic Beverages Control Com- 
mission is authorized to adopt regulations concerning the posting of prices by 
wholesalers of alcohohcbeNerages. and. if so. whether those regulations would violate 
the federal antitrust laws. It is my opinion that the Commission is authorized to 



' C/! G.L. c. 2 1 1 , § 4, which grants cypress authorir. to a majorit) of the justices of the Supreme Judicial Court to 
remove certain popularly elected officials upon sufficient cause for the " "public good." 



90 P.D. 12 

promulgate the regulations in question. Although I must decline to render a formal 
opinion as to whether the proposed regulations would violate federal antitrust laws, 
I believe the regulations would be defensible against an antitrust challenge. 

In substance, 1 the Commission proposes to adopt regulations requiring alcoholic 
beverage wholesalers to file a list of prices and discounts on the fifth day of the month 
preceding the month during which the prices will be in effect. The lists thus filed 
would be made available for public inspection, and between the fifth and fifteenth 
day of the month, any wholesaler would be permitted to amend downward any price 
or discount to meet, but not go below, competing prices or discounts for the same 
product. 

I am informed that this plan represents little change in substance from current 
practice . Under existing regulations , wholesalers must distribute price and discount 
lists to their customers, and must file an affidavit with the Commission affirming 
that they have done so, before they sell to any retailer or wholesaler. 204 C.M.R. 
§ 2.14. By statute, these lists must remain in effect for at least thirty days. G.L. 
c. 138, § 25 A. By long-standing policy of the Commission, price and discount 
schedules must be filed with the Commission, and wholesalers are permitted to amend 
prices downward to meet competition in the same product. 2 Thus, the proposed 
regulafions are apparently intended to formalize the existing system. 

Your first question is whether the Commission is authorized to adopt the pro- 
posed regulations. A response to that question requires an examination of the Com- 
mission's statutory powers. The Commission is vested with the power of ' 'general 
supervision of the conduct of the business of manufacturing, importing, exporting, 
storing, transporting and selling alcoholic beverages . . . and also of the quality, 
purity and alcoholic content thereof. " G.L. c. 6, § 44. The Commission is author- 
ized by G.L. c. 138, § 24, to 

make regulations not inconsistent with the provisions of this chapter 
for clarifying, carrying out, enforcing and preventing violation of, all 
and any of its provisions for inspection of the premises and method of 
carrying on the business of any licensee, . . . for the proper and orderly 
conduct of the licensed business, for establishing maximum prices 
chargeable by licensees under this chapter, and regulating all advertis- 
ing of alcoholic beverages . . . 



'* You have outlined two alternative plans, which differ in that one would rely on the Massachusetts Beverage Journal 
to publicize the price lists while the other would simply make proposed lists available for public inspection at the 
Commission's offices. Since the difference is not material to the questions posed, I treat the two alternatives as substan- 
tially the same for the purposes of this opinion. 

2 In essence, this same system was prescribed by § 25B between 1946 and 1970. See St. 1946, c. 304. In 1970, § 
25B was redrafted to delete the statutory scheme, as it applied to sales to retailers. See St. 1970, c. 140, § 2. Before 
this amendment could take effect, however, the Commission promulgated Rules 55. 1-55.4 on an emergency basis. 
Those rules, now codified at 204 C.M.R. §2. 14, required wholesalers to distribute their price and discount schedules 
to all retailers with whom they did business. In 1971 , the Legislature amended § 25A to add the second paragraph, 
requiring price lists and quotations to any licensee to remain in effect for thirty days. St. 1971 , c. 494. Because § 
25B already so provided with respect to sales to wholesalers, this amendment of § 25A clearly signifies legislative 
knowledge and approval of the Commission's regulations, and forecloses any inference that the 1970 amendment 
of § 25B was intended to restrict the Commission's regulatory authority . See Board of Assessors of Melrose v. Driscoll, 
370 Mass. 443 (1976) (Legislature is presumed to act with knowledge of existing regulations). 

On August 23. 1973, the Commission issued a written policy that price and discount schedules should once again 
be filed with the Commission, and that wholesalers would be permitted to amend their schedules before their effective 
date to meet the prices and discounts offered by competitors for the same product. 



P.D. 12 91 

In sum, ' ' [t]he commission has comprehensive powers of supervision over licensees . ' ' 
Boston Licensing Board v. Alcoholic Beverages Control Commission, 367 Mass. 
788, 795 (1975). See also J. &J. Enterprises, Inc. v. Martignetti, 369 Mass. 535, 
538 (1976) ; Connolly v. Alcoholic Beverages Control Commission , 334 Mass. 613, 
6 1 6- 1 7 & n . 1 ( 1 956) . In view of the Commission ' s broad charter , authority to act 
in a particular instance or on a particular issue within the Commission' s subject area 
need not be specifically delegated in a statute. See Levy v. Board of Registration 
& Discipline in Medicine, 378 Mass. 519, 524, 525 (1979).3 Of course, the Com- 
mission may not act inconsistently with its enabling statutes and "must diligently 
respect the policy limits set by the Legislature in enacting a particular statute . " M. //. 
Gordon & Son, Inc. v. Alcoholic Beverages Control Commission, 371 Mass. 584, 
589 (1976). 

You propose to adopt the above-described regulations to implement G. L. c. 138, 
§ 25A, which provides as follows: 

No licensee authorized under this chapter to sell alcoholic beverages 
to wholesalers or retailers shall discriminate, directly or indirectly, in 
price, in discounts for time of payment or in discounts on quantity of 
merchandise sold, between one wholesaler and another wholesaler, or 
between one retailer and another retailer purchasing alcoholic beverages 
bearing the same brand or trade name and of like age and quality. 

All price lists or price quotations made to a licensee by a wholesaler 
shall remain in effect for at least thirty days after the establishment of 
such price list or quotation. Any sale by a wholesaler of any alcoholic 
beverages at prices lower than the price reflected in such price list or 
quotation within such thirty day period shall constitute price discrimina- 
tion under this section. 

Were I to confine my attention to this section, § 24, and G.L.c.6,§44,I would 
not hesitate to conclude that the proposed regulation is within the Commission's 
authority to promulgate. In effect, § 25 A provides that a wholesaler must sell alcoholic 
beverages at the same price or discount to all retailers with whom he does business, 
and that once listed or quoted, prices and discounts must remain in effect for thirty 
days; and, similarly, a seller may not discriminate among wholesalers by price or 
discount . The Commission ' s plan to require each wholesaler to file monthly a schedule 
of prices and discounts, to remain in effect for thirty days, appears well within the 
Commission'sauthority to "make regulations . . . for clarifying, carrying out, en- 
forcing and preventing violation of § 25A. See G.L. c. 138. § 24. In the absence 
of a requirement that price schedules, available for public inspection, be filed 
regularly, it might be very difficult to police the requirements that prices remain 
in effect for thirty days, and that no discrimination occur between retailers or 
between wholesalers. 



^ The court there said that 
Where an administrative agency is vested with broad authority to effectuate the purposes of an act "the validity of 
a regulation promulgated thereunder will be sustained so long as it is "reasonably related to the purposes of the ena- 
bling legislation." 



92 P.D. 12 

The Commission ' s proposal would allow ten days during which wholesalers could 
amend their price and discount schedules downward to meet (but not go below) lower 
prices or greater discounts offered by their competitors for the same product. Although 
§ 25 A does not expressly provide for amendments of schedules to meet competition, 
I conclude that this provision , too , is consistent with the Commission ' s powers under 
that section .First , since in the Commission ' s scheme all amendments would be made 
before the effective date of the schedule, this provision would not be inconsistent 
with the requirement of § 25 A that a price list or quotation remain in effect for thirty 
days. 

Second, the proposed provision would steer a middle course between extremes, 
both of which appear inconsistent with legislative policy. On the one hand, if no 
amendments were permitted, the requirement that a price schedule remain in effect 
for thirty days could lead to the destruction of wholesalers who fail to anticipate 
the prices or discounts of their competitors . It is fair to say , however , that one overall 
purpose of legislation regulating the industry is to preserve competition in the long 
run by protecting the existence of many wholesalers. See, e.g. , James J. Sullivan, 
Inc. V. Cann 's Cabins , Inc. ,309Mass. 519(1 94 1) (Legislature intended to discourage 
vertical integration of industry by enacting § 25); St. 1946, c. 304 (Sections 25A 
and 25B were enacted to combat "[t]he practice of manufacturers and wholesalers 
in granting discounts, rebates, allowances, free goods, and other inducements to 
favored licensees."). On the other hand, if amendments were freely permitted, a 
situation could arise in which there were unsupervised price-fixing, with the Com- 
mission acting as a clearinghouse through which the wholesalers could settle upon 
a mutually agreed price. Such a situation is not consistent with the legislative policy 
as described in M.H. Gordon & Son, Inc. v. Alcoholic Beverages Control Commis- 
sion, 386 Mass. 64, 71-73 (1982) (Legislature intends Commission to exercise 
control over prices). 

In sum, the proposal to permit amendments of price schedules only to meet the 
lower prices or more favorable discounts of competitors is consistent with the 
legislative policy embodied in § 25A.4 My answer is somewhat complicated, 
however, by § 25B. By that section, the Legislature has mandated a system to govern 
sales to wholesalers which is similar to that proposed by the Commission to govern 
sales to retailers . This section , therefore , raises the question whether the Legislature ' s 
detailed action governing sales to wholesalers implies that the Commission may 
not promulgate a similar scheme to govern sales to retailers. 

It is my judgment that the legislative specification of a detailed scheme to govern 
sales to wholesalers does not imply a lack of authority on the Commission's part 
to implement a similar scheme to govern sales to retailers. As I have already noted, 
the Commission has broad authority to regulate the liquor industry, and it has specific 
authority to promulgate regulations to clarify and implement the provisions of G.L. 
c. 138. G.L. c. 138, §24. That authority is not specifically limited with respect 
to § 25 A, and the mere fact that the Legislature itself chose to elaborate a system 
for insuring nondiscrimination in sales to wholesalers does not imply a limitation 
on the Commission's authority. Cf. Levy v. Board of Registration & Discipline in 



I assume that the Commission would j>ermit amendments of schedules in certain other circumstances to avoid hard- 
ship arising from the requirement that prices remain in effect for thirty days. See G.L. c. 138, §§ 25B(d), 25C(f), 
(g). See also G.L. c. 93, § 14G. 



P.D. 12 93 

Medicine, 378 Mass. at 523-25 (statute listing grounds for license revocation does 
not preclude Board from establishing additional grounds) . The difference in legislative 
treatments permits the conclusion that the Legislature found that conditions required 
the detailed statutory specification of a scheme to prevent discrimination in sales 
to wholesalers. It does not permit the conclusion that the Legislature intended that 
sales to retailers should be free from similar regulation, but only that a legislatively 
prescribed scheme to regulate such sales was deemed unnecessary. It is entirely 
consistent with this determination by the Legislature that the Commission retained 
authority and discretion to implement § 25 A by adopting a scheme, similar to that 
established in § 25B, to govern sales to retailers if it should find such course to be 
necessary or desirable. See, e.g. , Grocery Manufacturers of America, Inc. v. Depart- 
ment of Public Health, 379 Mass. 70, 76-77 (1979) (detailed grant of authority to 
require disclosure in certain cases does not negative power under more general grant 
to require disclosure in other cases); Cambridge Electric Light Co. v. Department 
of Public Utilities, 363 Mass. 474, 494-96 (1973) (statute dealing generally with 
termination of utility service and providing hearing when service is refused or shut 
off does not preclude regulation allowing hearing at earlier point in dispute); see 
also n. 2, supra. Furthermore, it is extremely unlikely that the Legislature could 
have intended to delegate power to enforce § 25 A to the Commission, and at the 
same time to forbid a sensible, otherwise lawful, enforcement scheme. Accord- 
ingly, I conclude that the specific scheme prescribed by § 25B to govern sales to 
wholesalers does not preclude the Commission from adopting a similar scheme to 
govern sales to retailers. 

For these reasons, my answer to your first question is that the proposed regula- 
tions are within the Commission's authority to promulgate and are consistent with 
the law. 

Your second question is whether the proposed regulations would violate the federal 
antitrust laws . It has been the practice of the Attorney General to refrain from giving 
his opinion as to the proper interpretation of federal statutes. See, e.g. , 1982/83 
Op. Atty. Gen. No. 12 Rep. A. G., Pub. Doc. No. 12 at 118 n. 3 (1983); 1978/79 
Op. Atty. Gen. No. 6, Rep. A.G., Pub. Doc. No. 12 at 109, 111 (1979). Accord- 
ingly, I decline to render a formal opinion whether the proposed regulations would 
violate federal antitrust laws and leave that question to judicial resolution in an 
appropriate case. However, based on existing caselaw, I believe that the proposed 
regulatory scheme would be defensible. s 

In M.H. Gordon & Son, Inc. v. Alcoholic Beverages Control Commission, 386 
Mass. at 7 1-73 , the Supreme Judicial Court held that the scheme established by G. L. 
c.l38,§§25B,25D,is immune from antitrust scrutiny . That decision would appear 
to control here as well, since both § 25B and the proposed regulations implement 
§ 25A, and since the proposed regulations would establish a system for regulating 
sales to retailers which is substantially similar to that applicable to sales to wholesalers 
under § 25B. 



5 It is not the function of the Attorney General to express an opinion concerning the wisdom or desirability of the Com- 
mission's proposals, 1961/62 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 199, 200 (1962); accordingly, I 
have restricted myself to the question whether the proposed regulations would be legally defensible. 



94 P.D. 12 

Moreover, if one were to ignore the fact that the proposed regulations would be 
an integral part of the regulatory system sustained in M. H. Gordon , and were instead 
to view the regulations in isolation, it seems clear that they could still be defended 
against an antitrust challenge. The regulations would not authorize or institute price 
maintenance. Each wholesaler would be free to determine his own prices, provided 
that, once determined, they would remain in effect for thirty days, and provided also 
that he does not discriminate among his customers.^ Since the scheme would not 
constitute price maintenance, it would not be invalid under California Liquor Dealers 
V. Midcal Aluminum, 445 U.S. 97 (1980), in which the Supreme Court held that a 
statutory price maintenance system under which the state permitted wholesalers to 
fix prices without active state supervision was invalid. 

It is true that the proposal would not permit completely unrestrained competition, 
but that is the effect of the statute even without the proposed regulations. The statutory 
requirements, that prices must remain in effect for thirty days and that there may 
be no discrimination in prices or discounts between retailers, themselves may operate 
to restrain competition in some measure. ^ But these are policies clearly expressed 
by the Legislature and vigorously supervised by the Commonwealth through the Com- 
mission. Accordingly, the staute itself, and with it any regulations which, like those 
proposed, simply interpret and implement it, would seem to be immune from 
antitrust scrutiny under the state action doctrine. 8 

I note, finally, that regulatory schemes like that proposed by the Commission have 
recently been upheld in Battipaglia v. New York State Liquor Authority, 745 F.2d 
166, 170-75 (2d Cir. 1984); Intercontinental Packaging Co. v. Novak, 348 N.W.2d 
330 (Minn. 1984); and Wine and Spirits Specialty, Inc. v. Daniel, 666 S.W.2d 416 
(Mo. 1984), appeal dismissed, 105 S.Ct. 56 (1984). If the question had not already 
been decided by the Supreme Judicial Court, I would find the careful and scholarly 
reasoning of these cases persuasive. 

Accordingly, I conclude that the regulations proposed by the Commission are within 
its authority and would be defensible under federal antitrust laws. 

Yours truly, 

FRANCIS X. BELLOTTI 

Attorney General 



^ Of course, the seller also must comply with the Unfair Sales Act, G.L. c. 93, §§ 14E-14K. I of course consider only 
whether the proposed regulations are defensible on their face, since no facts concerning their effect on competition 
in practice are before me. 

^ Because those provisions preserve retailers from destructive competition and because they tend to discourage vertical 
integration in the liquor industry, see Opinion of the Justices. 368 Mass. 857, 865 (1975), they may well promote 
competition in the long run. 

^ Because the statute does not set up a system which would constitute a perse violation of the antitrust laws, it would 
also appear to be sustainable under the preemption analysis of Rice v. Norman Williams Co. , 458 U.S. 654, 661 (1982). 



P.D. 12 95 

March 1, 1985 

Robert A. Crane 

Chairman 

State Retirement Board 

One Ashburton Place, Room 1219 

Boston, MA 02108 

John J. McGlynn 

Commissioner 

Public Employee Retirement Administration 

100 Cambridge Street, Room 1101 

Boston, MA 02108 

Dear Chairman Crane and Commissioner McGlynn: 

You have each requested my opinion, on behalf of the State Retirement Board and 
the Public Employee Retirement Administration (PERA), respectively, concerning 
the proper application of the presumption contained in section 94 of chapter 32 of 
the General Laws, commonly known as the "heart Iaw."i Your inquiry specifically 
concerns the proper roles of the Rating Board, 2 the State Retirement Board, and 
PERA in determining whether "competent evidence" exists to overcome the presump- 
tion that a heart ailment is service-related. 

For the reasons discussed below, I have concluded that, in the case of State Police 
officers, 3 the Rating Board is responsible for determining, as a factual matter, 
whether competent evidence exists that a heart ailment is not service-related and, 
if so, whether that evidence is sufficient to overcome the presumption that heart 
ailments are service-related. If the Rating Board determines, after weighing the 
"presumption" against any contrary evidence, that the ailment is service-related, 
the State Retirement Board is required to grant a pension to the State Police officer 
involved . Upon review of a pension granted to a State Police officer by the State Retire- 
ment Board, PERA may not re-weigh the evidence before the Rating Board. Rather, 
PERA's scope of review is limited to determining whether the State Retirement Board's 
decision to grant a pension is unsupported by substantial evidence, made upon unlawful 
procedure, arbitrary or capricious, or based on fraud or misrepresentation. 



General Laws. c. 32. § 94. provides, in pertinent part: 

[A]ny condition of impairment of health caused by hypertension or heart disease resulting in total or 
partial disability or death of a . . . permanent . . . member . . . ofthe state police . . . shall, if he suc- 
cessfully passed a physical examination .... which examination failed to reveal any evidence of such 
condition, be presumed to have been suffered in line of duty, unless the contrary be shown by competent 
evidence. 



The Rating Board is comprised ofthe state surgeon, the commissioner of public health, and the commissioner of 
public safety. G.L. c. 32, § 26(1). 

Since the original opinion request arose from a case involving a State Police officer, this opinion relates primarily 
to that situation. However, except as otherwise noted below, the conclusions reached are generally applicable to all 
public employees covered by the heart law. 



96 RD. 12 

Your respective opinion requests arose from an application by a State Police offi- 
cer for an accidental disability retirement pension based on a heart ailment. In 
accordance with G.L. c. 32, § 26(2)(a),* the officer was examined by a physician 
appointed by the Rating Board, who found the officer was permanently incapacitated 
from performing his duties as a police office due to coronary atherosclerosis. Con- 
tained in the physician's report were the following relevant comments: "Although 
he [the officer] has some risk factors for coronary disease (a 20-pack year smoking 
habit prior to December 1983, hypertension for four years, mild hypercholesterolemia 
and a suggestive family history), his coronary disease seems more advanced than 
one might predict from the above epidemiologic data." Based on that report and a 
report from the officer's treating physician, the Rating Board reported to the State 
Retirement Board that it found the officer permanently incapacitated from perform- 
ing his duties, through no fault of his own, due to coronary artery disease. 

The State Retirement Board accordingly granted the officer's application for acci- 
dental disability retirement benefits, pursuant to G.L. c. 32, § 26. On review of this 
matter, pursuant to G.L. c. 32, § 21(l)(d),5 PERA ruled that the presence of one or 
more cardiac risk factors in the officer's medical history, as noted in the appointed 
physician's report, constituted "competent evidence" sufficient to overcome the 
presumption that his heart ailment was service-related. PERA therefore remanded 
the matter to the State Retirement Board with instructions that the Rating Board weigh 
the inference that the heart disease was job-related against what PERA considered 
the competent contrary evidence on causation. The Rating Board and the State Retire- 
ment Board took exception to PERA's remand. The present opinion was jointly sought 
by the State Retirement Board and PERA in order to resolve this immediate dispute 
as well as to provide guidance in future cases. 

Based primarily on the language of G.L. c. 32, § 26, 1 conclude that it is the Rating 
Board which is responsible for determining whether a heart ailment suffered by a 
State Police officer is service-related. That section expressly delegates to the Rating 
Board the responsibility for determining, "after an examination of such officer by 
a registered physician appointed by it," whether an illness suffered by a State Police 
officer was "incurred through no fault of his own in the actual performance of duty." 
G.L. c. 32, § 26(2)(a)(i). See 1941/42 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 
12 at 43 (1941). Also pertinent to this conclusion is the fact that at least one of the 
members of the Rating Board is a physician, i.e. , the State Surgeon, and the Rating 
Board's findings must be based on the results of an examination of a physician 
appointed by it. G. L. c. 32 , § 26(1) and (2) . Because of the Board's medical expertise, 
the General Court logically concluded that the Rating Board is the best suited of the 
three agencies involved to make the medical determination of the cause of an illness. 



* That status provides, in pertinent part: 

Any . . . officer of the ... state police . . . shall be retired by the state board of retirement in case 
the rating board, after an examination of such officer by a registered physician appointed by it, shall 
repxjrt in writing to the state board of retirement that such officer is physically or mentally incapacitated 
for the performance of duty by reason of . . . illness incurred through no fault of his own in the actual 
performance of duty . . . and that such incapacity is likely to be permanent. 

^ That statute authorizes the Commissioner of PERA "to review all accidental and ordinary disability pensions granted 
by the retirement boards." 



P.D. 12 97 

Where, as here, the illness involved is caused by hypertension or heart disease, 
the Rating Board must apply the presumption contained in section 94 in determining 
whether the illness is service-related. Application of section 94 is a two-step proc- 
ess. First, the Rating Board must determine "whether there was evidence that the 
disease was not service connected." McLean v. Medford, 340 Mass. 613, 617 (1960). 
If the Rating Board^ finds no evidence that the disease was not service-connected, 
then, by operation of the presumption contained in section 94, it must conclude that 
the disease was service-connected, and the analysis stops at this threshold. ^ McLean 
V. Medford, 349 Mass. at 120. If, however, the Rating Board finds evidence that the 
disease was not service-connected, it must then proceed to the second step of the 
analysis and determine whether the evidence is sufficient to overcome the presump- 
tion that heart ailments are service-related. McLean v. Medford, 340 Mass. at 618. 
The mere existence of evidence that a heart ailment is not service-related does not 
cause the statutory presumption to disappear entirely. Rather, a presumption con- 
tinues to constitute evidence of service-relatedness that may or may not be out- 
weighed by the contrary evidence. R Liacos, Handbook of Massachusetts Evidence 
55 (5th ed. 1981) (citing McLean v. Medford, 340 Mass. 613). 

In the case that gave rise to the present request, the physician appointed by the 
Rating Board reported that the State Pohce officer involved "has some risk factors 
for coronary disease (a 20-pack year smoking habit . . . , hypertension . . . , mild 
hypercholesterolemia and a suggestive family history) ," but nevertheless concluded 
that "his coronary disease seems more advanced than one might predict from the 
above epidemiologic data." Based on that physician's report and other medical 
evidence, the Rating Board found the officer "incapacitated ... by reason of cor- 
onary artery disease through no fault of his own in the actual performance of duty." 
In its report to the State Retirement Board, the Rating Board made no mention either 
of the presumption or of contrary evidence. While it may have been preferable for 
the Rating Board to have made an express finding that the contrary evidence was 
not sufficient to overcome the presumption, such a finding can be inferred from the 
Rating Board's conclusion that the disease was service-related in the face of the physi- 
cian's report citing the contrary evidence. 

Upon receipt of the Rating Board's report that the officer's disease was service- 
related, the State Retirement Board had no choice but to grant the disability benefits 
in question. G.L. c. 32, § 26(2) (if the Rating Board submits such a report, a State 



® In the case of employees under the jurisdiction of county or municipal retirement boards, this analysis is conducted 
by the retirement board, rather than by the Medical Panel (which corresponds, in some respects, to the Rating Board 
here) . See McLean v. Medford, 340 Mass. at 617; McLean v. Medford, 349 Mass. 116, 120 (1965 ) ; Mathewson v. CRAB, 
335 Mass. 610, 615 (1957). Unlike the State Retirement Board, the county and municipal retirement boards are not 
required to grant a pension uf)on a repwrt by the Medical Panel that an illness is service-related. Compare G.L. c. 
32, § 26(2) (a) with G.L. c. 32, § 7(1). While the county and municipal retirement boards are authorized to conduct 
their own review of the evidence including but not limited to the report of the Medical F^el , G. L . c. 32 , § 7(1) ; Mathewson 
V. CRAB, 335 Mass. at 614, the State Retirement Board is required to grant a pension in cases where the Rating Board 
reports that the illness is service-related. G.L. c. 32, § 26. 

^ The same result would follow if the Rating Board made no findings on the issue of causality, in which case the presump- 
tion alone would suffice to establish that the ailment is service-related. See Mathewson v. CRAB. 335 Mass. at 616; 
McLean v. Medford. 340 Mass. at 617-18; 1956/57 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 38 (1957). 



98 P.D. 12 

Police officer "shall be retired" by the State Retirement Board). As concluded by 
one of my predecessors, the State Retirement Board "has no authority to disapprove 
such an application accompanied by such a report in writing." 1941/420p. Atty. Gen., 
Rep. A.G., Pub. Doc. No. 12 at 43 (1941).« 

Pursuant to G.L. c. 32, § 21(d), PERA "is authorized to review all . . . disability 
pensions granted by the retirement boards." Its scope of review, however, is strictly 
limited. It may remand a matter to the retirement board for further proceedings only 
if it finds that the retirement board's decision is "(1) made upon unlawful procedure, 
(2) unsupported by substantial evidence, (3) arbitrary and capricious, or (4) a result 
of fraud or misrepresentation." G.L. c. 32, § 21(d). This limited standard of review, 
which parallels that contained in G.L. c. 30A, §14, for judicial review of administra- 
tive agency decisions, does not permit PERA to "displace [a retirement] board's choice 
between two fairly conflicting views, even though [it] would justifiably have made 
a different choice had the matter been before it de novo." Zoning Board of Appeals 
V. Housing Appeals Commitee, 385 Mass. 651, 657 (1982). Rather, the retirement 
board "is the sole judge of the . . . weight of the evidence before it." Number Three 
Lounge, Inc. v. ABCC, 7 Mass. App. Ct. 301, 309 (1979); see also Board of Assessors 
ofLynnfieldv. New England Oyster House, Inc. 362 Mass. 696, 702 (1972) (weight 
to be given to evidence is for the trier of facts) . PERA, therefore, may not "substitute 
[its] views as to the facts" for those of a retirement board . Arthers v. Board of Registra- 
tion in Medicine, 383 Mass. 299, 304 (1981). 

More particularly, it is my opinion that upon review of the State Retirement Board's 
granting of disability benefits to a State Police officer suffering from a heart ailment, 
PERA may not re-weigh any evidence in the record that the illness is not service- 
related against the presumption that it is. This opinion is based on my view that the 
Rating Board's determination of whether there is sufficient evidence to overcome 
the presumption that a heart ailment is service-related is a factual determination, 
rather than a legal one. In accordance with the principles discussed above, that deter- 
mination may not be second-guessed by PERA. See Coomey v. Board of Assessors, 
367 Mass. 836, 837-39 (1975) (question of whether presumption required granting 
of abatement is essentially one of weighing the evidence). Under normal circum- 
stances, the presumption alone constitutes "substantial evidence" in support of the 
State Retirement Board's decision. It is therefore my opinion that PERA's remand 
of the present matter to the State Retirement Board for further consideration of whether 
the officer's heart ailment was job-related or attributable to pre-existing cardiac risk 
factors was unwarranted. 

Of course this particular opinion is based, in part, on the inference that the Rating 
Board identified and weighed contrary evidence and concluded that the continuing 
effect of the section 94 presumption was controlling. When it appears to PERA that 
the two-part analysis outlined above has not been followed, then it may remand the 
matter to the relevant retirement board on the grounds that the retirement board's 
decision was "made upon unlawful procedure." G.L. c. 32, § 21(d)(1). 



' As noted above, municipal and county retirement boards are not so bound by reports of their respective Medical Panels. 
See n. 6, supra. 



P.D. 12 99 

In sum, it is my opinion that it is up to the Rating Board to determine, by weighing 
the heart law presumption against any evidence to the contrary, whether a State Police 
officer's heart ailment is service-related. If the Rating Board reports to the State Retire- 
ment Board that such an ailment is service-related, the State Retirement Board is 
required to retire the officer with disability benefits. PERA's review of the allowance 
of such benefits does permit it to determine whether the decision was based on unlawful 
procedure, but not to re-weigh the evidence before the Rating Board as to whether 
a heart ailment is, in fact, service-related. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



May 7, 1985 

Michael J. Connolly 

Secretary of State 

Office of the Secretary of State 

State House 

Boston, MA 02133 

James S. Hoyte, Secretary 

Executive Office of Environmental Affairs 

100 Cambridge Street 

Boston, MA 02202 

Dear Secretaries Connolly and Hoyte: 

You have requested my opinion concerning the interpretation of the Massachusetts 
Historical Commission Act ("MHCA"), G.L. c. 9, §§ 26-27D. While you have 
phrased your questions differently, essentially each of you has asked whether in the 
case of a private development that requires a state permit, the state permit-granting 
body is required to review the effect on historic places of the entire development 
or only the part of the development covered by the permit in question. My conclusion 
on this question is that a state body is required to determine the effect only of activ- 
ity covered by its own permit. 

You have also both asked whether the state body must withhold a requested permit 
and consult with the Massachusetts Historical Commission ("Commission"), if the 
Commission disagrees with the state body's determination that the issuance of a per- 
mit would have no effect on historic places. My conclusion with respect to this ques- 
tion is that the state body is not required by the MHCA or the regulations promulgated 
thereunder to withhold the permit and consult with the Commission in this 
circumstance. 

While my opinion is intended to be general in scope and application, my analysis 
is informed by the the particulars of a development called "International Place," a 
complex of structures to be built on land adjacent to the Custom House Historic 
District, an area in downtown Boston that is listed in the State Register of Historic 
Places. This privately funded development sought a sewer connection permit from 
the Division of Water Pollution Control of the Department of Environmental Quality 
Engineering ("DEQE"), see G.L. c. 21, § 43; 314 C.M.R. §§ 7.00 et seq. , and an 
industrial user discharge permit from the Metropolitan District Commission 
("MDC"), see G.L. c. 92, §§ 6A, 8A; 350 C.M.R. § 11.04(2). DEQE and MDC 
determined that the issuance of the requested permits would have no effect on the 



100 P.D. 12 

Custom House District. In making this determination, those agencies considered 
only the effect of the activities covered by their respective permits, not the effect 
of the development as a whole. The Commission has objected to the DEQE and MDC 
determinations on the grounds that, in its view, the agencies were required to deter- 
mine the effect of the entire development, not just of the state-permitted activity, 
and that, in its view, other aspects of the development would have an adverse effect 
on the Custom House District. ^ 

The questions raised as a result of these events have required me to examine the 
MHCA and other related statutes. The MHCA creates the Massachusetts Historical 
Commission and includes provisions designed to protect the cultural, archaeological, 
and historical resources of the Commonwealth. Among these provisions is G.L. c. 
9, § 27C, which requires, inter alia, that 

[a]s early as possible in the planning process of any project undertaken 
by [a state body] and prior to such state body funding, licensing or ap- 
proving any private project, such state body shall determine if the project 
will affect any property listed on the state register of historic places 
["listed property"]. 

If the state body so determines, it is to notify the Commission, which is then to deter- 
mine whether the project will "adversely affect a listed property." If the Commis- 
sion makes the latter determination, 

the commission and the state body shall meet to discuss alternatives to 
the project and means of mitigating any adverse effect. The state body, 
in implementing its final plans, shall adopt all prudent and feasible 
measures that eliminate or mitigate the adverse effect. 

The questions that you have raised lead me to focus on the word "project" as it 
appears in the above-quoted provisions. State agencies often issue permits for par- 
ticular aspects of a proposed development — here, for instance, sewer connection 
and sewer discharge permits. The question therefore arises whether the "project" 
in such instances is merely the specific activity permitted — the sewer connection 
and discharge — or is, instead, the entire development. If the former, "narrow," 
reading is correct, the state body is required to review only the specific state-permitted 
activity to determine whether that activity will affect a listed property. If the latter, 
"broad," reading is correct, the state body must determine the effect of the overall 
undertaking, irrespective of the subject matter of the state permit. For the reasons 
that follow, I have concluded that the narrow reading is the correct one, at least as 
to private developments such as International Place, where the state body's participa- 
tion consists only of the issuance of permits. 2 



'' The Commission is in the Department of the State Secretary, who is the chairman of the Commission; DEQE and 
MDC are within the Executive Office of Environmental Af&irs. Hence each of you is entitled to my opinion in this matter. 

2 Because developments undertaken or funded by a state body are not at issue here, they will not be discussed further 
except as it is necessary to contrast them with the type of development that is at issue here. 



P.D. 12 101 

In attempting to ascertain the meaning of the word "project," I must first examine 
the language and provisions of the MHCA. If the MHCA yields a plain and unambig- 
uous meaning, no other source is necessary. See James J. Welch & Co. v. Deputy 
Commissioner ofDivision of Capital Planning and Operations, 387 Mass. 662, 666 
(1982) . The MHCA does not define the term "project." The general mandate to inter- 
pret stamtory terms "according to the common and approved usage of the language," 
G.L. c. 4, § 6, is also of no particular help here because the dictionary definitions 
of "project" are so various. See Webster's Seventh Nev^ Collegiate Dictionary 681 
(1965) ("a specific plan or design" ; "a planned undertaking") ; Webster's New World 
Dictionary 1136 (2d ed. 1974) ("a proposal of something to be done"; "a special unit 
of work"). 

The context in which the term "project" is used provides some, albeit inconclu- 
sive, guidance as to its intended meaning. Cf. International Brotherhood of Electri- 
cal Workers v. Western Massachusetts Massachusetts Electric Co. , 15 Mass. App. 
Ct. 25, 27 (1982) ("A general term in a statute or ordinance takes meaning from the 
setting in which it is employed.") The term is used in § 27C to refer to developments 
that differ in the amount of state participation involved, i.e. , developments that are 
state-undertaken, state-funded, state-licensed, or state-approved. That the Legislature 
intended to differentiate among various types of developments, at least to some degree, 
is shown by the different procedural requirements that apply to them. Section 27C 
establishes different notification and mitigation requirements for projects undertaken 
by the state than it does for projects merely licensed by the state. State-undertaken 
projects require notice of an effect on a listed property early in the state body's plan- 
ning process, while state-licensed projects require notice prior to the issuance of 
the license. At the end of the review process, the state body is to adopt certain 
mitigation measures "in implementing its final plan." By its terms, this mitigation 
requirement can apply only to projects for which state bodies have "plans," namely 
state-undertaken projects subject to the "planning process" referred to in the open- 
ing phrase of § 27C. State permit-granting bodies do not have a "planning process" 
or "final plans" for the issuance of permits.^ 

Thus the Legislature used the term "project" loosely to describe various types 
of developments that differ in their level of state involvement and, as a consequence 
of the amount of involvement, in their procedural and mitigation requirements." 
Whether the Legislature intended different review requirements as well is not clear. 



3 There is a mitigation requirement that applies to the issuance of state permits. It is found in § 61 of the Massachusetts 
Environmental Policy Act, G.L. c. 30, §§ 61-62H. That section requires state agencies, inter alia, to use "all prac- 
ticable means and measures to minimize damage to the environment," including historic districts and sites. These 
measures may result from consultation under MHCA between the state permit-granting body and the Conrunission. 

* This "looseness" is apparent elsewhere in the statute and makes its interpretation difficult. For example, the last two 
sentences of the first paragraph of § 27C read as follows: 

Within thirty days of receiving notification, the commission shall determine if the project will ad- 
versely affect a listed property, and shall send an advisory report to the state body describing and docu- 
menting its findings. If the commission does not notify the state body within thirty days, the state body 
may proceed with the project. 
When thirty days have passed without commission notification on a privately financed project, what does the phrase 
"the state body may proceed with the project," authorize the permitting agency to do? In my opinion, the agency 
is authorized to issue the permit, making the terms "project" and "permit" synonymous in this context at least. As 
it is first used in § 27C, however, the word "project" appears to be a synonym for "development." 



102 P.D. 12 

Indeed, rather than being "clear and unambiguous," the statute is so vague that fur- 
ther legislative action is imperative. My task, nevertheless, is to opine on the statute 
as it is written, and I turn to other pertinent sources in seeking a workable definition 
of the term "project." The relevant sources here are the legislative history of § 27C; 
the Commission's regulations implementing MHCA, "Procedures to Protect the 
Historic and Archaeological Properties of the Commonwealth ,"950C.M.R.§§71 .00, 
etseq. ; and the provisions of other related statutes. Murphy v. Bohn, Til Mass. 544, 
548 (1979) (statutes should be interpreted in connection with their development and 
progression through the legislature and with prior legislation). 

The legislative history shows that the primary purpose of the Commission in spon- 
soring the 1982 amendments to the MHCA , which included the amendment of § 27C 
to add the provisions at issue here, was two-fold: to consolidate the various listings 
of historical resources into a State Register of Historic Places and to provide a struc- 
ture to ensure that inadvertent harm to historic properties would not be caused by 
"state actions." Patricia L. Weslowski, Executive Director, Massachusetts Histor- 
ical Commission, Testimony before the Committee on State Administration H. 3550: 
An Act to Amend Preservation [LJegislation. The legislative history does not reveal, 
however, whether the Legislature viewed the "state action" subject to MHCA as the 
licensed activity alone or the entirety of a development that receives a state license 
for limited aspects of the development. 

The Commission's regulations provide some assistance in resolving this question. 
The relevant regulation defines "project" as follows: 

Project means any action , activity or program undertaken by a State Body, 
or any private action, activity or program which is funded, licensed or 
approved by a State Body. Projects include actions which are: 

(a) directly undertaken by a State Body; 

(b) supported in whole or in part through state contracts, 
grants, subsidies, loans, loan guarantees, or other forms of 
direct and indirect funding assistance; or 

(c) carried out pursuant to a state lease, permit, license, cer- 
tificate, approval , or other form of entitlement or permission . 

950 C.M.R. § 71.03. This regulatory interpretation of the statute is entitled to 
deference. 5 See Consolidated Cigar Corp. v. Department of Public Health, 372 
Mass. 844, 855 (1977); American Family Life Assurance Co. v. Commissioner of 
Insurance, 388 Mass. 468, 474-75 (1983). Where only a state permit is involved, 
the regulations define the "project" whose effect the state body must determine as 
the "action [or] activity . . . which is . . . licensed ... by a State Body." The clause 
"which is . . . licensed ... by a State Body" suggests that the terms "action" and 
"activity" are narrow ones, encompassing only the specific work done in conform- 
ance with a state permit. This conclusion is buttressed by the second sentence of 
the Conmiission's definition, which resolves any possible ambiguity and clarifies 



* It should be noted that the Commission sponsored the amendment to § 27C, provided the testimony in support of 
the legislation, and drafted the regulations. Given the Commission's participation in the legislative process, the assumption 
that the agency charged with enforcement of the statute drafted regulations in harmony with the statute and with legislative 
intent is of special force here. Cf. Board of Education v. Assessor of Worcester. 368 Mass. 511, 516 (1975) (greater 
weight given to agency's interpretation of statute where agency participated in drafting the legislation). 



P.D. 12 103 

the distinction between the different meanings of "project" : a project is all of a state- 
undertaken or supported action, even if it is supported only in part; but in the case 
of private developments, a project is only the action "carried out pursuant to" the 
state license or permit. "Pursuant to" is a restrictive term that means "in conform- 
ance to or agreement with." Black's Law Dictionary 1112 (rev. 5th ed. 1979). Only 
the activities covered by a particular state permit are carried out "pursuant to" that 
permit; other aspects of the development are not. 

The Commission's relatively narrow definition of the action that the state body 
must review is consistent with the limited authority of permit-granting agencies as 
established by their respective enabling acts. Although the limited scope of an agency's 
authority may not preclude its making a determination about the effect of an entire 
development on a historic property, its authority to mitigate such wide-ranging effects 
is limited to the particular activity that the agency is authorized to regulate. Even 
if an agency reviewed the entire development, it would be powerless to mitigate an 
extra-permit effect. ^ It cannot be assumed that the Legislature intended agencies 
with specific expertise to review matters outside that expertise, especially where, 
as here, the agency is not empowered to take action based on that review. Such review 
would be a fruitless waste of agency and Commission resources. A sounder conclu- 
sion is that in enacting MHCA, the Massachusetts Environmental Policy Act 
("MEPA"),7 and other statutes that regulate development in historic districts, all of 
them dealing with the same general subject, the Legislature intended to confer the 
authority to review the potential effect of actions within their jurisdiction upon those 
entities with the power to regulate those actions. See Registrar of Motor Vehicles 
V. Board of Appeal, 382 Mass. 580, 585 (1981) (two or more statutes relating to the 
same subject matter should be construed together so as to be harmonious with 
legislative purpose). 

MEPA and MHCA, both of which provide for state review of state action, overlap 
to some extent. MEPA calls for state environmental review of projects involving state 
action that may cause significant damage to the environment and empowers, indeed 
requires, state licensing agencies to act on the basis of that review. G.L. c. 30, § 61. 
A collateral review takes place under MHCA, under which all effects of state action 
on historic properties are examined, including intangible impacts on historical 
resources not necessarily protected by MEPA,^ and under which the specialized 
expertise of the Commission is utilized in the area of historic preservation if the state 



® In the case of International Place, the permits are sewer connection and industrial user discharge permits. The state 
agencies' enabling legislation does not given them authority to impose permit conditions that are unrelated to the 
subject matter of the permits. See G.L. c. 21, § 43; 314 C.M.R. §§ 7.00, el seq. (DEQE); G.L. c. 92, §§ 6A, 8A; 
350 C. M . R. § 11 .04(2) (MDC) . There is no indication in § 27C or in the legislative history of the MHCA of a legislative 
intent to authorize state permit-granting agencies to regulate private developments in their entirety, and I will not 
infer such a radical change in state law. International Organization of Masters. Mates & Pilots, Atlantic & Gulf Maritime 
Region v. Woods Hole. Martha 's Vineyard & Nantucket Steamship Authority, 392 Mass. 811, 817 (1984) ("We will 
not interpret a statute, unclear on its face, to require a drastic alteration in existing law unless we can discern that 
the Legislature intended to achieve this result.") This is not to say, however, that state permit-granting agencies may 
not impose a broad range of conditions that are related to the subject matter of their permits. 

^ General Laws, chapter 30, §§ 61-62H. 

* Section 61 of MER\ refers only to historic districts or sites; section 26C of MHCA covers a broader range of his- 
torically significant properties. Section 26B of MHCA defines the "effect" the agency is to determine, which is broader 
in some respects than the "damage to the environment" defined in § 61 of MEPA. 



104 P.D. 12 

body determines that there will be an effect on a historic property. Some projects 
involving state action are excluded from MEPA review, generally on the basis of size; 
but if they will affect a listed property, they do not escape scrutiny under MHCA, 
as is appropriate to the sensitive nature of historic resources. 

A "narrow" reading of the term "project" as it is used in MHCA leads to a har- 
monious construction of MEPA and MHCA, two complementary statutes enacted 
to prevent state-caused harm to the natural and historical environment. See Board 
of Education v. Assessor ofWorcestor, 368 Mass. at 513-14. In both statutes, state 
action triggers the review process, and the degree of state involvement determines 
the amount of state control that may be imposed on the development. In both statutes, 
state-undertaken projects are subject to fiill review, and the state is required to exer- 
cise its full control over the project to prevent environmental harm, by adopting either 
"prudent and feasible measures" (MHCA) or "practicable means and measures" 
(MEPA), or both. This process is entirely appropriate, for where a state agency itself 
is the developer, it must of necessity evaluate the impact of the entire development. 
Additionally, where the agency has overall charge of the development, it has not only 
the responsibility to effect broad changes by virtue of the language of MHCA and 
MEPA but also the authority to do so. Where the state controls only licensing or 
permits, on the other hand, it lacks the expertise and resources to evaluate the entire 
development; and it is without authority to act on such an evaluation. 

This narrow construction is consistent with the overall statutory scheme for his- 
toric preservation. In addition to the state review provided by MEPA and MHCA, 
the statutory scheme provides for review of other aspects of development that may 
affect historic properties. This review is undertaken by entitites with both the exper- 
tise necessary for such an evaluation and the authority to require changes. This Historic 
Districts Act, G. L. c. 40C, §§ 1-17, empowers municipalities to establish local historic 
districts and historic district commissions whose members include those 
knowledgeable in this field. G.L. c. 40C, §§ 3, 4. The commissions are authorized 
to regulate virtually every exterior architectural feature of buildings and other work 
in the historic districts, and no alterations or construction may take place, nor may 
a building permit for construction or exterior alteration issue, without a certificate 
from the local commission. G.L. c. 40C, §§ 5, 6. 

In addition, the Legislature has enacted a number of special acts that protect cer- 
tain historically important properties by establishing specific historic districts and 
site-specific historic district commissions. ^ As is the case under the Historic 
Districts Act, these commissions regulate every visible aspect of development in 
a historic district, ^o 

9 See. e.g., St. 1956, c. 447 (Lexington); St. 1958, cc. 314, 315 (Beacon Hill); St. 1960, c. 345 (Concord); St. 1963, 
c. 697 (authorizing establishment of municipal historical commissions); St. 1964, c. 118 (Bedford); St. 1965, cc. 694 
(Yarmouthport), 101 (Marblehead), 48 (Chatham); St. 1966, cc. 211 (Petersham), 502 (Hingham); St. 1970, c. 395 
(Nantucket); St. 1972, c. 708 (Nantucket); St. 1975, c. 772 (Boston); St. 1978, c. 268 (Battle Green, Lexington); St. 
1979, c. 631 (King's Highway). 

^° The Boston Landmark Commission Act ("BLCA") St. 1975, c. 772, like the Commission's regulations, 950 C.M.R. 
§ 71.03, authorizes regulation of development in the vicinity of the designated properties that it protects. The BLCA 
authorizes the establishment of "protection areas" for regulation of a 1200-foot radius around landmarks, landmark 
districts, and architectural conservation districts, but does not f)ermit protection areas in the downtown area, the 
location of the development at issue here. It is of some significance that the Legislature thus chose to exclude from 
BLCA review developments that are not in historic districts or are not designated properties. A broader reading 
the MHCA than I have found appropriate here could lead to overall review of such developments by state bodies, 
notwithstanding the absence of such review by local or site-specific commissions, who have more expertise on the 
subject. It seems unlikely that the Legislature intended such a paradoxical result. 



P.D. 12 105 

Thus the overall statutory scheme authorizes detailed review of development in 
a historic district by expert site-specific bodies, additional review under the MHCA 
of the effect of state permits by the state permit-granting agency, agency consultation 
with the Conmiission if granting the permit will affect a listed property, and MEPA 
review on the same and other impacts if the project is of a certain magnitude. The 
Legislature has placed the responsibility for review in each instance on those who 
have the expertise to perform it and the authority to enforce the findings that result 
from the review. 

Your second question is whether the permit-granting agency is required to with- 
hold the permit and consult with the Commission if the Commission disagrees with 
the agency's determination that issuance of the permit will not affect a listed prop- 
erty. The question stems from the Commission's disagreement with DEQE's and 
MDC's conclusion about the effect of granting the permits. 11 This question is 
answered by reference to the plain language of § 27C itself. See James J. Welch & 
Co. V. Deputy Commissioner of Division of Capital Planning and Operations, 387 
Mass. § 666. Under that section, the state body is to determine whether the project 
will affect any listed property and, if so, to notify the Commission before issuing 
a license. The Commission's role is limited to determining whether the effect antic- 
ipated by the agency will be adverse and advising the state body of its findings. Sec- 
tion 27C does not empower the Commission to require consultation if the state body 
determines that the project will not affect a listed property, and therefore the state 
body need not withhold the requested license or approval. 12 



'•'' The Executive Director did not disagree with these DEQE and MDC determinations, but instead disagreed with 
those agencies' interpretation of the scojje of what they were to review, asserting that they should review the effect 
of the entire development. 

'2 I note, however, that the Commission's regulations require a ten-day p>eriod after a "Determination of No Effect" 
before the state body proceeds, in order to provide the Executive Director of the Commission time to review the 
determination and any objections to it and to advise the state body and objecting party of the Executive Director's 
findings. 950 C.M.R. § 71.07(l)(b)l. This procedure is consistent with the directive to the Commission in § 26 of 
the MHCA that the Commission encourage governmental bodies to consult with it to avoid adverse effects to historical 
assets. State bodies may find it helpful , given the Executive Director's expertise, to avail themselves of such comments 
before making a final decision to issue the permit. 



106 P.D. 12 

I note in conclusion that providing answers to your questions was made substan- 
tially more difficult by the ambiguity of § TIC. Especially in the absence of clear 
indications of legislative intent, such an ambiguous provision is difficult to interpret. 
In the course of answering your specific questions, I noted other equallly trouble- 
some problems with both the MHCA and the regulations promulgated thereunder, 
all of which are beyond the scope of this opinion. i3 I strongly recommend that, to 
avoid further confusion and disagreement over the scope and application of the MHCA , 
the statute receive legislative attention. I would be pleased to assist in any endeavor 
that is undertaken in this regard. 

Very truly yours, 

FRANCIS X. BELLOTTI 

Attorney General 



" I cannot help noting one drafting problem of marginal interest with respect to the International Place development. 
Section 27C requires a state body and the Commission to determine, respectively, whether a project will "affect" 
and whether it will "adversely affect" a listed property. These terms are not defined. "Effect" and "adverse effect" 
are, however. Both definitions refer to "sites." G.L. c. 9, §26B. The word "site" is in turn defined as "any building, 
structure, district or area . . . that is one hundred and fifty years old or more and [historically] significant . . ." The 
Custom House was completed in 1847, and its tower added 68 years later, arguably making the structure 138 years 
old. In any event, while the definitions section suggests that MHCA review may be triggered only by a determination 
that a project will change characteristics of a building, structure, district, or area that is at least 150 years old, under 
G.L. c. 9, § 27C, MHCA review may be triggered by a determination that a project will affect any property listed 
on the state register of historic places. I presume that such properties include buildings, structures, districts, or areas 
that are not 150 years old. The statutory provisions are thus inconsistent. 



P.D. 12 107 

INDEX OF OPINIONS 

TOPICS OPINION PAGE 

Alcoholic beverages 

Posting of prices by wholesalers 6 

Asbestos 

State assistance for removal of asbestos in private schools 4 

Assessors 

Authority to remove from office 5 

Constitutionality 

State assistance for removal of asbestos in private schools 4 

Contracts 

Prequalification statements, disclosure 1 

County officers and employees 

Per diem compensation for court officers 3 

Disability 

Presumption that heart ailment is service-related 7 

Employees, public 

Per diem compensation for court officers 3 

"Heart Law" 

Presumption that heart ailment is service-related 7 

Historic sites 

Interpretation of Massachusetts Historical Commission Act ... 8 

Land development 

Interpretation of Massachusetts Historical Commission Act ... 8 

Municipal officers 

Per diem compensation for court officers 3 

Public bidding 

Prequalification statements, disclosure 1 

"Public Policy" questions 

Proper form and texts 2 

Salaries 

Per diem compensation for court officers 3 



108 P.D. 12 

INDEX OF REQUESTING AGENCIES 

AGENCY OPINION PAGE 

Alcoholic Beverages Control Commission 6 

Environmental Affairs, Executive Office of 1,8 

Public Employee Retirement Administration 7 

Retirement, State Board of 7 

Revenue, Department of 5 

Secretary of State 2,8 

Trial Court, Chief Administrative Justice 3 

Ways and Means, House Committee on 4