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

'ublic Document 



No. 12 



i;f)e Commontoealtt of JHasfsiactusietts! 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1986 




Publication of this Document Approved by Ric Murphy, State Purchasing Agent 
00-6-91-615481 estimated cost per copy $2 57 



To the Honorable Senate and House of Representatives: 

The Annual Report of the Department of the Attorney General, which his- 
torically includes Opinions of the Attorney General ("Opinions") rendered dur- 
ing the fiscal year, was not published for fiscal year July 1, 1985 to June 30, 1986. 
Recognizing the importance to the legal community and the general public of 
publishing the Opinions in a manner that will provide a consistent source for 
reference and citation, and in order to ensure that they are available in their tradi- 
tional form, I herewith issue the Opinions for Fiscal 1986. 

Respectfully submitted, 

SCOTT HARSHBARGER 
Attorney General 



P.D. 



DEPARTMENT OF THE ATTORNEY GENERAL 



Jacqueline Allen 
Richard Allen 
John Amabile 
Dorothy Anderson 
Linda Andros 
Barbara Anthony^ 
Nicholas Arenella 
Donna Arzt^" 
Thomas Barnico 
Madeline Becker''^ 
Annette Benedetto 
Susan Bernard 
Despena Billings 
Lee Bishop 
Edward Bohlen 
Mark Bourbeau 
Kenneth Bowden 
Stephen Bowen^** 
Lee Breckenridge 
Tommy Brewer' 
Roberta Brown 
Cynthia Canavan 
Calvin Carr 
Eric Carriker 
James Caruso 
Francis Chase 
Paul Cirel 
Cheryl Connor 
Harvey Cotton** 
John Cratsley 
Richard Dalton 
Paula DeGiacomo 
George Dean 
Mary DeNevi'' 
Elaine Denniston 
Vincent DiCianni 
Carol Dietz 
Robert diGrazia^ 
Michael Dingle 
John Donohue 
Elizabeth Donovan 
Raymond Dougan 
Suzanne Durrell 
Joan Entmacher 
Leslie Espinoza 
Joanne Farreli'' 
Sharon Feldman 
Susan Fendell'^ 
Allan Fierce 
Kevin Finnerty''^ 



ATTORNEY GENERAL 
FRANCIS X. BELLOTTI 

First Assistant Attorney General 
Thomas R. Kiley 

Assistant Attorneys General 

L. Scott Fitzpatrick 
Christopher Flynn^ 
Dwight Golann'''' 
Steven Goldberg* 
Susan Goldfischer 
Paul Good^'' 
Alexander Gray 
John Grugan^ 
Herbert Hanson 
Craig Havel^** 
Deborah Hiatt 
Virginia Hoefling 
William Howell 
Edward Hughes^^ 
JeflFrey Hurwit 
Ellen Janos 
Michelle Kaczynski 
Richard Kanoff''^ 
John Karagounis 
Stephen Karnas'^ 
Jamie Katz''' 
Linda Katz 
Sally Kelly5« 
Michael Kogut'''* 
Alan Kovacs*^- 
Steven Kramer 
Maria Kyranos-Mendros 
Marek Laas 
Raymond Lamb 
John Landry^ 
Paul Lazour 
Leonard Learner 
Stephen Leonard^^ 
Martin Levin 
Lisa Levy 
James Lewis'''' 
Mark Leymaster 
Maria Lopez 
William Luzier 
Michael Magistrali^^ 
Michael Marks'^ 
Nancy Marks 
George Matthews 
Paul Matthews 
Suzanne Matthews- 
Janet McCabe 
Kathleen McDermott 
Susan McHugh 
Edward McLaughlin 
Georgianna McLouglin''" 



William McVey 
Paul Merry 
James Milkey 
William Mitchell 
Paul Molloy 
Paul Muello 
Mark Muldoon 
Sherry Mulloy 
Kim Murdock 
Thomas Norton 
Henry O'Connell 
Jerrold Oppenheim'" 
Stephen Ostrach 
Howard Palmer 
William Pardee 
Charles Peck 
Kathleen Pendergast" 
Carmen Picknally 
Richard Rafferty 
T. David Raftery 
Frederick Riley 
Susan Roberts 
Frances Robinson 
John Roddy 
Ann Rogers'"*' 
Hilary Rowen 
Joan Ruttenberg 
Dennis Ryan 
Holly Salamido''"' 
Mark Schmidt 
Roberta Schnoor'*' 
Kathleen Sheehan 
Margaret Sheehan'' 
Brison Shipley 
JoAnn Shotwell''' 
E. Michael Sloman 
Barbara A. Smith 
Carol Sneider 
Dianne Solomon 
Donna Sorgi 
Johanna Soris 
Joan Stoddard 
Kevin Suffern 
Christopher Sullivan''^ 
Mark Sutlitf 
Diana Tanaka''- 
Diane Tsoulas 
Carl Valvo 
Charles Walker 
James White"" 



P.D. 12 



John White 
Douglas Wilkins 
Gregg Wilson'' 
H. Reed Witherby 



Carolyn Wood 
Christopher Worthington 
Harry Yee''' 
Judith Yogman 



Andrew Zaikis 
Margaret Zaieski 
Donald Zerendow 
Stephen Ziedman 



Assistant Attorneys General Assigned To Division of Employment Security 



Robert Lombard 
Robin Barclay 
Willie Carpenter^'* 



Chief Clerk 
Edward J. White 



Anne Marie Irwin 
Wendy Thaxter 
Alan Rosenfeld"' 

Assistant Chief Clerk 
Maria Grassia 



APPOINTMENT DATE 

1. 7/8/85 

2. 7/15/85 

3. 8/19/85 

4. 9/1/85 

5. 9/9/85 

6. 9/23/85 

7. 10/7/85 

8. 12/2/85 

9. 1/6/86 

10. 1/13/86 

11. 3/31/86 

12. 4/7/86 

13. 5/23/86 

14. 6/2/86 

15. 6/9/86 

16. 6/23/86 



TERMINATION DATE 

50. 7/5/85 

51. 7/19/85 

52. 7/26/85 

53. 8/2/85 

54. 8/16/85 

55. 8/30/85 

56. 9/27/85 

57. 11/1/85 

58. 11/26/85 

59. 12/31/85 

60. 1/3/86 

61. 3/14/86 

62. 4/11/86 

63. 4/25/86 

64. 5/2/86 

65. 5/9/86 

66. 5/30/86 

67. 6/6/86 

68. 6/13/86 

69. 6/27/86 



P.D. 12 



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12 p.D. i: 

JuK 5. l^NS 

Number 1 

Frank T. Keefc 

Sccretar\()l" Administration and Finance 

State House 

Boston. Massachusetts 02133 

Joseph Barresi 
Inspector General 
One Ashburton Place 
Boston, Massachusetts 02108 

Dear Secretary Keefe and Inspector General Barresi: 

You have asked whether a designer appointed to do a feasibility study on a 
public building project may be appointed to perform subsequent design services 
for the same project under certain conditions. For the reasons discussed below. I 
have concluded that a designer who has been previously appointed to do a 
feasibility study may not be re-appointed to perform subsequent design services, 
either by approval of the Designer Selection Board (DSB) or by appointment of 
the deputy commissioner of the Division of Capital Planning and Operations 
(DCPO) or the Executive Office for Administration and Finance. 

Your joint opinion request arose from a difference of opinion between the 
Inspector General' and the DSB- concerning the proper interpretation of the 
provisions of chapter 7 of the General Laws relating to the selection of designers 
for public construction projects. My opinion was sought to resolve these questions 
of statutory interpretation. 

The overall statutory framework that applies to your request is set forth in G.L. 
c. 7. §§ 38A 1,2 through 380.' These statutes provide a comprehensive scheme for 
the selection of designers for public building projects in the Commonwealth and 
were drafted by the Special Commission Concerning State and County Buildings, 
commonly known as the Ward Commission, a Commission on which I served. 

Two of these statutory provisions are central to your question. Section 38H(d) 
of chapter 7 provides, in pertinent part: 

A designer or programmer appointed to do a feasibility study. 
master plan, or program for a project shall be ineligible for ap- 
pointment to perform the design services for that project. 

Section 381 provides: 

The deputy commissioner may appoint a designer to perform 
continued or extended ser\ ices if the follow ing conditions are met: 

(i) a written statement is filed with the [DSB] explaining the 

reasons for the continuation or extension of services: 
(ii) the program for the design services is filed with the [DSB] 

if one is required by the regulations of the division: and 
(iii) the [DSB] approves the appointment of the designer for 

continued or extended services and states the reasons 

therefor. 



P.D. 12 13 

In accordance with its interpretation of sections 38H(d) and 381, the DSB 
promulgated a "Policy on Employment of Study Consultants for Subsequent 
Design Projects" (DSB Policy) on November 17, 1982.-* The effect of the DSB 
policy is that a designer appointed to do a feasibility study, master plan, or 
program for a project may be appointed by the deputy commissioner to perform 
design development services on that same project, if the procedures outlined in § 
381 are fully complied with. The Inspector General has opposed the implemen- 
tation of the DSB Policy on the grounds that, in his view, it does not conform to 
statutory requirements. 

Based primarily on the clear statutory' prohibition contained in § 38H(d). it is 
my opinion that the DSB Policy is inconsistent with the provisions of chapter 7. 
insofar as the DSB Policy permits a designer who has been appointed to conduct 
a feasibility study to be eligible for appointment to perform subsequent design 
services on the same public construction project. I reach my conclusion by apply- 
ing traditional rules of statutory construction. 

First, and most important, G.L. c. 4, § 6, provides that words and phrases in a 
statute shall be construed according to the common and approved usage of the 
language. The plain language doctrine is founded on the presumption that the 
Legislature meant what the words in a statute plainly say. State Board of Retire- 
ment V. Boston Retirement Board, 391 Mass. 92. 94 (1984). A statute's language is 
the primary source of its meaning, and when the statute is unambiguous, the 
statute must be construed as written. Zoning Board of Appeals of Greenfield v. 
Housing Appeals Committee, 15 Mass. App. Ct. 553, 562 (1983). 

In this instance, the plain language of section 38H(d) absolutely prohibits the 
appointment of a designer who has performed a feasibility study to engage in 
subsequent design services on the same project.'' The plain language of section 
381, in combination with the definition of "continued services" set forth in Section 
38A l/2(b).^ allows a designer who is already working on a project to apply for a 
continued or extended services contract. To apply for a continued services con- 
tract under Section 381. a designer must file a written statement with the DSB 
explaining the reasons for the continuation or extension of design services. The 
DSB may then approve the appointment of the designer for the continued or 
extended services, stating its reasons. If all the conditions set forth in § 381 are 
met. the deputy commissioner may appoint a designer for continued or extended 
services. 

While, on their face, the provisions of sections 38H(d) and 381 may appear to 
conflict, it is possible, and therefore preferable, to read them harmoniously, 
giving efl'ect to each provision. Cf Kargman v. Commissioner of Revenue. 389 
Mass. 784, 788 (1983) (potentially conflicting statutes should, if possible, "be 
construed to have consistent directives so that both may be given effect"). Ac- 
cordingly it is my opinion that these statutes, construed together, permit contin- 
ued design services only by a designer who was not the feasibility designer on the 
same project. 

This construction is also consistent with the legislative historv' contained in the 
Final Report to the General Court of the Special Commission Concerning State and 
County Buildings, (hereafter, the Ward Commission Report). While the Ward 
Commission Report does not discuss the interplay between sections 38H(d) and 
381, the Ward Commission did identify specific "instances of the abuse of con- 
tinued and extended services." 7 Ward Commission Report 203 (December 31, 
1980). The Ward Commission found an inherent conflict of interest where the 



14 P.D. 12 

master planner for a project and the individual architect designing a particular 
building were the same person or from the same firm. Id. at 203-04. The Ward 
Commission Report explicitly disapproved particular examples involving the use 
of a "continued services" contract to award subsequent design work to a designer 
who did the original feasibility study or master plan for the project. Id. In order to 
construe sections 38H(d) and 381, the Ward Commission Report must be given 
weight. It is a well established rule of statutory construction that statutes are 
construed so as to effectuate the purpose of their framers, Commonwealth v. 
Galvin, 388 Mass. 326, 328 (1983), especially in cases involving favoritism and 
corruption in public contracts. Interstate Engineering v. City of Fitchburg, 367 Mass. 
751,758(1975).^ 

In sum, I conclude that a designer or programmer who has already been 
appointed to do a feasibility study is ineligible, pursuant to § 38H(d), to perform 
subsequent design services on the same project. 

Very truly yours, 



FRANCIS X. BELLOTTI 
ATTORNEY GENERAL 



' The Inspector General is charged with investigating waste and mismanagement in 
the expenditure of public funds in public construction contracts. G.L. c. 12A, § 7. 

^ The DSB is an eleven-member, independent, unpaid board, a majority of whom are 
architects and engineers. G.L. c. 7, § 38B. The DSB has a statutorily mandated role in 
the selection of designers for building projects of state agencies, building authorities, 
and certain other public agencies. G.L. c. 7, § 38C. It is required to advertise for 
designers, select three finalists, and transmit a list of its chosen finalists to the deputy 
commissioner of DCPO. G.L. c. 7, §§ 38D, 38F. The deputy commissioner must 
appoint a designer from the list transmitted by the DSB. G.L. c. 7, § 38G. 

^ The designer selection statutes were renumbered effective July 12, 1984. Sections 
30B to 30P of G.L. c. 7, as appearing in St. 1980, c. 579, § 51, were redesignated G.L. 
c. 7, §§ 38A 1/2 to 380 pursuant to St. 1984, c. 189, § 5. This opinion refers to the new 
section numbers. 

^ The DSP Policy provides, in pertinent part, as follows: 

(1) A designer or programmer appointed to do a feasibility study, mas- 
ter plan or program for a project, shall be ineligible for subsequent 
appointment to perform the design services for that project— unless 
formally approved for continued or extended services as provided 
for by Chapter 7, Section [381] 

(2) A designer, programmer or consultant if not employed as the prime, 
designer in the development of a feasibility study, master plan or 
program may be subsequently employed by other firms to perform 
services relating to the project, but may not be appointed to be the 
prime designer for the design services of that program, unless for- 
mally approved in conformance with the provisions of Chapter 7, 
Section [381] of the General Laws. 



P.D. 12 15 

"^ It is a well-settled rule of statutory construction that the word "shall" ordinarily 
indicates that a statutory provision containing directions to public officers is manda- 
tory. Hashimi v. Kalil, 388 Mass. 607, 609-10 (1983); Barclay v. Deveau, 1 1 Mass. App. 
Ct. 236, 243(1981). 

'' G.L. c. 7, § 38A l/2(b), defines "continued services" as "authorization for a designer 
who has been appointed for one stage of a project to act as the designer for a 
succeeding stage or stages of the same project." 

^ With respect to your further question, whether a consultant or subcontractor to a 
designer of a feasibility study, program, or master plan can be selected, under special 
circumstances, to perform design services for the same project, my answer is again in 
the negative, for much the same reasons. Although the statutory language of § 38H(d) 
does not expressly prohibit the use of consultants as it does the use of the original 
designers themselves, I construe the statute broadly to apply to consultants and 
subcontractors as well as designers, in order to effectuate the remedial purpose of the 
statute. 



16 P.D. 12 

July 22, 1985 

Number 2 

Roland R. Piggford, Director 

Massachusetts Board of Library Commissioners 

648 Beacon Street 

Boston, Massachusetts 02215 

Dear Mr. Piggford: 

You have requested my opinion as to whether the Board of Library Commis- 
sioners ("Board") has the authority to promulgate regulations implementing 
G.L. c. 78, §§ 33 and 34,^ and to adjudicate disputes arising under those sections. 
It is my opinion that the Board does not possess such authority. 

Neither § 33 nor § 34 expressly authorizes the Board to regulate or adjudicate 
matters concerning selection of library materials or contracts with library 
employees.-' There is no general rule-making or adjudicatory authority supplied 
in the remainder of chapter 78, either. Although it is true that when a general 
power is given, all authority necessary to carry it out may be inferred by implica- 
tion, Multi-Line Rating Bureau v. Commissioner of Insurance, 357 Mass. 19, 22 
(1970), chapter 78 grants no general power to the Board either to promulgate 
regulations or to adjudicate disputes. Rather, the Board's statutory authority is 
relatively limited. In accordance with §§ 14-21, the Board functions as an advisory 
body to state and certain municipal libraries on matters of funding and library 
services. It is also empowered under § 19 to expend sums appropriated for library 
services, accept federal grants, contract with other state agencies and municipal- 
ities to provide library services, and represent the Commonwealth in the receipt 
and distribution of funds from private sources, as well as to "certify and issue 
certificates to" librarians under § 22. Clearly absent from those specific powers is 
the general authority to promulgate regulations or to conduct adjudicatory hear- 
ings in accordance with the Administrative Procedure Act, G.L. c. 30A, §§ 1 et 
seq., and related regulations 801 C.M.R. §§ 1.00 et seq. 

In contrast, the Board does have certain regulatory and adjudicatory authority 
conferred by G.L. c. 78, §§ 19A-19C and 25, but that authority is specific in 
nature. Sections 19A-19C require the Board to establish certain minimum stan- 
dards of free public library service for municipalities, as well as a comprehensive 
state-wide program of regional public library systems. Consistent with that spe- 
cific statutory authority, the Board has set up a regulatory scheme at 605 C.M.R. 
§§ 4.00 et seq. and 5.00 et seq. Section 25 expressly authorizes the Board to 
regulate state certification of librarians and to adjudicate certification disputes. 
In accordance with this clear legislative directive, the Board has issued regula- 
tions for librarian certification, codified at 605 C.M.R. §§ 3.00 et seq. 

The express regulatory and adjudicatory authority granted in §§ 19A-19C and 
25 contrasts sharply with the lack of such authority in §§ 33 and 34, indicating that 
the omission of such authority in the latter sections was intentional. The presence 
of express authority in one part of a statute and the lack of it in others dealing with 
the same subject matter implies a legislative intent to exclude that authority 
where it is not expressly granted. New England Power Co. v. Board of Selectmen 
ofAmesbun', 389 Mass. 69, 74 (1983). See also American Grain Products Processing 
Institute v. Department of Public Health, 392 Mass. 309, 315 (1984). 



P.D. 12 17 

Furthermore, the provisions in §§ 33 and 34 that expressly delegate authority to 
local officials also evince an intent not to vest such authority in the state Board. 
The first sentence of § 33"* is directed to trustees of free public libraries or, in their 
absence, to the appropriate municipal officials, and requires the local body to 
establish a written policy for the selection and use of librarv' materials and 
facilities in accordance with standards adopted by the American Libran,' Associ- 
ation. Similarly, the clear language of § 34"" directs local officials to execute written 
employment contracts with libran,' employees. Such clear delegation to local 
authorities in both instances reflects a legislative intent making it impossible for 
me to infer that the state Board is vested with similar authority. See 1984 85 Op. 

Atty. Gen. No. 5. Rep. A.G.. Pub. Doc. No. 12 at (1984) (where local 

power to remove local tax assessors from oflfice is vested in local officials, such 
power on the part of the Commissioner of Revenue cannot be implied). 

In sum, it is my opinion that the Board has neither express nor implied author- 
ity to promulgate regulations or to adjudicate disputes concerning local policies 
for selection of library materials or written employment contracts between mu- 
nicipalities and library employees. 

Verv trulv vours. 



FRANCIS X. BELLOTTI 
ATTORNEY GENERAL 



' Those statutes require free public libraries to establish written policies for the 
selection and use of library materials and to execute written contracts with certain 
library employees. 

- You have asked a number of additional questions concerning the application of §§ 
33 and 34 to contracts between librar\ employees and local governments. I must 
decline to address your questions concerning whether municipalities must bear the 
costs of implementing these sections, or whether §§ 33 and 34 could also apply to the 
removal of library materials or acceptance of donations, since answering those ques- 
tions would require factual determinations that must be made on a case-by-case basis. 
1983 84 Op. Atty. Gen. No. 2. Rep. A.G.. Pub. Doc. No. 12 at 2 (1983). Opinions of the 
Attorney General are rendered solely upon factual situations that actually confront a 
given state agency and not upon hypothetical questions or general requests for infor- 
mation. See 1966/67 Op. Atty. Gen. No. 55. Rep. A.G.. Pub. Doc. No. 12 at 1 14 ( 1966). 
Nor need I reach your specific questions concerning which American Library Asso- 
ciation publication(s) may serve as the standard for selection of library materials, 
whether the Board may define the term "free public libran,."" and which employees are 
covered by the statutes or the employment contracts themselves, since, for the reasons 
discussed in this opinion. I have found that the Board lacks authorit\- to regulate such 
matters. 

^ The Board's regulations at 605 C.M.R. §§ 2.00 et seq.. entitled "Regulations for 
Adopting Administrative Regulations." merely set up a rule-making procedure, and 
do not of themselves reflect any general legislative grant of authority tor the Board to 
promulgate regulations. 



18 p.D. i: 

■* Thai section provides: 

The board of trustees of a free public libran in any city or town, or 
in the absence of such board, the city or town official possessing 
the appointive powers of such board, shall establish a written 
policy for the selection of libran* materials and the use of materials 
and facilities in accordance with standards adopted by the Amer- 
ican Library Association. No employee shall be dismissed for the 
selection of libran materials when the selection is made in good 
faith and in accordance with the approved policy adopted pursu- 
- ant to the pro\isions of this section. 

"^ Section 34 provides that: 

The board of trustees of a free public !ibrar> in any city or town, or 
in the absence of such board, the city or town official possessing 
the apf>ointive powers of such board shall, except in the case of 
those employees subject to the provisions of chapter one hundred 
and fifty E. execute a written employment contract with an em- 
ployee of said libran^ outlining the basic conditions of employ- 
ment, including but not limited to the establishment of a proba- 
tionary period and the procedure for dismissal during this period 
and the establishment of a procedure which specifies the cause for 
dismissal after the completion of such probationan- period. 



P.D. 12 19 

November 6, 1985 

Number 3 

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

Dear Conmiissioner Jackson: 

Pursuant to G.L. c. 58. § lA. *^ 5.^ you have asked my opinion on a question 
relating to computation of the excise tax due from a development proiect pro- 
}X)sed under G.L. c. 121A.- 

Your letter states the facts giving rise to your request as follows. A corporation 
organized under chapter 121 A will acquire the propert\ in question from the Cit\ 
of Boston and would then give a forty-year ground lease to develop and operate 
that propert\" to a limited partnership that would not be organized under that 
statute.- The partnership would demolish the building now on the site and 
construct and operate a large underground garage. The surface of the site would 
be maintained as a park. During the term of that lease the chapter 121A corpo- 
ration would receive a percentage of the partnership's net income together with 
certain fixed sums. The precise question you have referred to me is whether, in 
those circumstances, "it is permissible for the computation of the gross income 
f>ortion of the excise imposed by G.L. c. 121 A. § 10. to be based on the gross 
income of the c. 121 A corporation rather than the gross income of the entire 121 A 
project. "'"^ In the circumstances described by your letter, it is my opinion that it is 
not only "permissible"" but. except as discussed below, ordinarily to be anticipated 
that the computation be based on the income of the chapter 121A corporation. 

My first ground for that opinion is the clear and unambiguous language of the 
statute, which must be given its ordinary meaning. Bronstein v. Prudential Insur- 
ance Co.. 390 Mass. 701. 704 (1984). In relevant^part, G.L. c. 121A. § 10. «" 3. 
provides: 

. . . [S]uch corporation shall pay in each calendar year to the 
commonwealth ... an excise . . . equal to five percent of its gross 
income in such preceding calendar year .... 

The obvious antecedent of "its"" in that provision is "such corporation."" and so 
the intent of the Legislature appears to be that the relevant excise on the corpo- 
ration v\ill be measured soleK by reference to that corporation's income. 

Any contrarv reading would immediately lead to serious difficulties and there- 
fore should be avoided. See Adamowicz v. Ipsv^ich. 395 Mass. 757. 760 (1985) 
(statutes should be construed so as to produce workable restilts). For example, 
looking beyond the mcome of the chapter 121A corporation would clearly be 
inappropriate in the majoritv of chapter 121A projects which involve residential 
development. Obviously, the Legislature did not intend that the amount of a 
chapter 121 A corporation"s excise should depend on the amounts of its tenants" 
personal incomes. Furthermore, even in commercial chapter 121 A prefects, there 
seems to be no basis for looking beyond the corporation"s income. The intended 



20 P.D. 12 

measure of the excise assessed on the gross income of a chapter 1 2 1 A corporation 
that is a commercial lessor logically should be that corporation's own gross 
income rather than the gross income of the various entities that may lease office 
space from it. 

This result follows not only from the plain language of G.L. c. 121 A, § 10, H 3, 
but also from the purpose which I believe underlies the excise imposed by that 
provision. That excise tax is assessed in lieu of the local property tax from which 
the chapter 121A corporation is exempted by G.L. c. 121A, § 10. See Opinion of 
the Justices, 341 Mass. 760, 774 (1960). Gross income derived from occupancy of 
a piece of property is one indication of the property's value, cf. Alstores Realty 
Corp. V. Board of Assessors ofPeabody, 391 Mass. 60, 66-69 (1984), and it is also 
commonly used as a basis for measuring excise taxes. See, e.g. , G.L. c. 63, § 22A 
(gross investment income); Commissioner of Revenue v. Massachusetts Mutual 
Insurance Co., 384 Mass. 607, 612 (1981). On the other hand, the gross income of 
the corporation's lessees measures their individual business success or the value 
of their individual leases to them; in neither case does that income seem rationally 
related to the value of the tax exemptions granted to the chapter 12A corporation. 

The fact that the lease proposed here is a forty-year ground lease to develop the 
property and operate a garage on it rather than a short-term commercial lease for 
office space may have practical and financial consequences for the project, but I 
see no reason to infer that the Legislature intended that fact, standing alone, to 
require different treatment for purposes of section 10. Indeed, chapter 121A 
elsewhere discusses "ground rent," the payment made under a ground lease, in 
terms that suggest that a "ground lease" for purposes of chapter 121A should be 
viewed as simply one specific category of a "lease" rather than as a distinct form 
of legal interest. See G.L. c. 121A, § 15(1) ("expenses . . . including any ground 
rents or other payments under any lease . . ."). See also G.L. c. 121A, § 10, H 9 
("gross income" includes "payments actually made by persons for the right to . . . 
occupy ... all of the project . . ."). 

For these reasons, I conclude that the answer to your question is that the 
relevant income under G.L. c. 121A, § 10, H 3, is that of the chapter 121A 
corporation and not that of the limited partnership.^ 

This opinion is limited to answering the precise question you have asked. I do 
not hereby express any views as to the legality, propriety, or wisdom of the 
proposed project in terms of chapter 121 A or other provisions of law. Cf 1961/62 
Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 199, 200-01 (1962). Your request 
for an opinion notes, and other comments 1 have received argue, that the pro- 
posed project may not be authorized by G.L. c. 121A or may be otherwise 
unlawful.^ 

It would be inappropriate for me to address those arguments for three basic 
reasons. First, I have not been directly asked for an opinion on those matters; your 
specific request relates only to "the computation of the gross income portion of 
the excise" and so is quite narrow. In issuing formal opinions it has been my 
consistent policy to answer only those questions explicitly presented to me and 
those which must necessarily be resolved to answer the questions explicitly asked. Cf 
Opinion of the Justices, 386 Mass. 1201, 1221 (1982) (Supreme Judicial Court advisory 
opinions are confined to the particular questions of law submitted to the Court). 

Second, even if you had explicitly asked for an opinion on one or more of the 
broader questions mentioned above, I would respectfully have to decline an 
answer. It has been my consistent policy, and that of my predecessors, to issue 



P.D. 12 21 

formal opinions on only those questions that involve matters which are within the 
specific area of authority of the officer or agency making the request. 1967/68 Op. 
M\y. Gen. No. 30, Rep. A.G., Pub. Doc. No. 12 at 95, 96 (1967); cf. Opinion of the 
Justices, 386 Mass. 1201, 1219-20 (1982) (Supreme Judicial Court renders advi- 
sory opinions only as necessary to enable state departments to perform their 
duties). Your general duties with respect to G.L. c. 121A are limited and appear 
to involve only the "administration of taxes" rather than oversight over the 
aperation or enforcement of chapter 121A generally. See G.L. c. 121A, § 10, H 5.^ 
Your specific authority to opine on G.L. c. 121 A matters is both conferred and 
limited by G.L. c. 58, § lA, the statute under which your request was made 
explicitly. It is limited to "any question arising under any statute relating to the 
assessment, classification and collection of taxes . . . ."While the narrow question 
y'ou have asked and I have answered above fits that formula, the broader ques- 
tions raised by materials submitted to me and discussed in footnote 6 above 
involve the construction and administration of Chapter 121A generally, rather 
than the specific topic of taxes. Hence they do not fall within the ambit of G.L. c. 
58A, § lA, and I should not answer them. 

There is also a third reason why I decline to express any opinion on the broader 
issues potentially raised by this project. Each of those issues is or may be subject 
to the explicit oversight of another public agency, namely the Boston Redevelop- 
ment Authority, which St. 1960, c. 652, §§ 12-14, designates as the regulatory 
authority for chapter 121A projects in the City of Boston. See Bronstein v. Pru- 
dential Insurance Company, 390 Mass. 701, 705 (1984). Since the Authority has 
not yet finally approved the project, my opinion would seem both premature and 
perhaps unnecessary. Cf. 1984/85 Op. Atty. Gen. No. 5, Rep. A.G., Pub. Doc. No. 

12 at (1984); 984/85 Op. Atty. Gen. No. 8, Rep. A.G., Pub. Doc No. 12 

at (1985). Furthermore, it is certainly possible and perhaps quite likely, 

in view of the material I have received strenuously opposing the project, that 
litigation will be commenced which will raise some or all of the broad issues 
mentioned above. In such circumstances no opinion of this office would resolve 
the matter and so, as has been my consistent practice and that of my predecessors, 
none should be given. 1975/76 Op. Atty. Gen. No. 37, Rep. A.G. Pub. Doc. No. 12 
at 121 (1976); see also G.L. c. 58, § lA, ^ 5 (Attorney GeneraFs opinion, when 
given, is to be "binding"). Significant legal questions such as those mentioned 
above may be resolved through litigation, and where, as provided by St. 1960, c. 
652, §§ 13-14, any private person aggrieved has standing to seek judicial review,*^ 
the courts are the only forum that can provide a definitive resolution that will be 
binding upon all interested parties, both private and public. 

Very truly yours, 



FRANCIS X. BELLOTTI 
ATTORNEY GENERAL 



' That statute provides in relevant part that: 

[the Commissioner of Revenue] shall, at the request of the asses- 
sors of any city or town or upon his own initiative, give his opinion 



22 PD. 12 

to assessors and collectors upon any question arising under any 
statute relating to the assessment, classification and collection of 
taxes or he may obtain the opinion of the attorney general upon 
such question. 

Your request states that your opinion on this question had previously been asked 

by the Commissioner of Assessing of the City of Boston. 

- Chapter 121 A has received extensive attention from both the legislative and judicial 
branches of government. As originally adopted, chapter 121A "was an attempt to 
eliminate substandard living conditions in urban areas by utilizing private capital to 
revitalize decaying urban areas. St. 1945, c. 654, §§ 1 and 3." Bronstein v. Prudential 
Insurance Co., 390 Mass. 701, 704 (1984). In 1960, chapter 121A was amended to 
include construction of commercial, industrial, and other non-residential buildings. 
Id. Despite that change, however, "the fundamental underpinning of the statute 
remained the same, i.e., that such projects be undertaken for a public purpose." Id. at 
704-05 (citing Opinion of the Justices, 341 Mass. 760, 776-77 (I960)). 

This public purpose is accomplished, however, through reliance on private corpo- 
rations or, as permitted by G.L. c. 121A, § 18C, individuals or other entities regulated 
or organized pursuant to chapter 121 A. But see G.L. c. 121 A, § 8 (every chapter 121 A 
corporation "shall be deemed to have been organized to serve a public purpose . . ."). 
Thus "[a]lthough there is some measure of supervision and participation by a public 
agency, urban renewal projects under c. 121 A are primarily conceived of and imple- 
mented by the private corporations which will operate them. Further, these projects 
receive large public benefits [through the tax concessions in G.L. c. 121A, § 10].'" 
Boston Edison Co. v. Boston Redevelopment Authority , 374 Mass. 37, 50 (1977). 

^ At the expiration of the lease, title to the property would be transferred from the 
corporation to the City of Boston. 

"* I assume that by "the entire project" you refer to the partnership that will actually 
develop and operate the underground garage. 

^ Of course in taxing that income, the Department of Revenue may exercise its 
statutory powers to verify the corporation's return and, if warranted, to assess any 
additional tax it finds, as a matter of fact, to be due. See G.L. c. 121A, § 10, H 5; G.L. 
c. 62C, § 26(b); cf. Brown, Rudnick, Freed & Gesmerv. Board of Assessors of Boston, 389 
Mass. 298, 303 (1983); Massachusetts Pike Towers Associates v. Commissioner of 
Revenue, 381 Mass. 584 (1980). 

'' It has been argued that by giving a forty-year ground lease to the partnership, the 
corporation will "transfer in whole or in part the land or interests therein . . ." to an 
entity not organized under chapter 121A and so will violate G.L. c. 121 A, § 1 1, II 3. It 
has also been suggested that the terms of the ground lease between the chapter 121 A 
corporation and the limited partnership may not reflect an ordinary, arms' length 
commercial transaction. Cf 760 C.M.R. § 25.()9(4)(a) (regulations of the Executive 
Office of Communities and Development making 5% of gross rental the maximum fee 
paid by a state-regulated chapter 1 21 A entity to a project manager). Finally, it has also 
been suggested that the limited partnership should itself be considered the true 
developer of the garage and taxed accordingly or that it should be treated as the 
developer of a separate subproject falling under chapter 121A for which a separate 



P.D. 12 23 

excise payment would be due. Cf. G.L. c. 121 A. § 1, ^' 6 ("project" defined as "con- 
struction . . . operation and mainlenance . . .'" without explicit reference to formal 
ownership). On the other hand, the proponents of the project, the City of Boston, and 
certain other officials have responded to each of those arguments and have also 
stressed what they perceive would be the substantial financial and esthetic benefits the 
proposed project would have for Boston and the overall public interest. 

^ However, as noted above, in performing those duties you are authorized to exercise 
all of your authority under G.L. c. 62C. Sec G.L. c. 121 A, § 10, H 5. 

'^ Sec\ e.g.. Boston Edison Company v. Boston Redevelopment Authority, 374 Mass. 37. 
43(1977). 



24 PD. 12 

November 8, 1985 

Number 4 

Miehael Joseph Connolly 

Secretary of State 

State House 

Boston, Massachusetts 02133 

Dear Secretary Connolly: 

You have asked my opinion whether chapter 416 of the Acts of 1985. entitled 
"An Act Requiring the Use of Safety Belts in Certain Motor Vehicles." may be the 
subject of a referendum petition under Article 48 of the Amendments to the 
Massachusetts Constitution. Your opinion request arose because a referendum 
petition caMing for the repeal of this law. signed by ten qualified voters, was filed 
with your office in a timely fashion. For the reasons discussed below. I have 
concluded that the law in question is an appropriate subject for a referendum 
petition. 

A law that relates to any matter excluded from the referendum process may not 
be the subject of a referendum petition. Amendments, art. 48. The Referendum, 
pt. III. § 2. 1 have examined the various provisions of the law and find that it does 
not relate to religion, religious practices, or religious institutions: the appoint- 
ment, qualification, tenure, removal, or compensation of judges; or the powers, 
creation, or abolition of courts. The operation of the law is not restricted to a 
particular town. city, or other political subdivision or to particular districts or 
localities of the Commonwealth. It does not appropriate money for the current or 
ordinary expenses of the Commonwealth or for any of its departments, boards, 
commissions, or institutions. 

Accordingly, I have concluded that the law does not contain matter excluded 
from the referendum process and is appropriately the subject of a referendum 
petition. I have therefore provided you with a fair and concise summary of the law 
for inclusion on the petitions that you must prepare for use in gathering addi- 
tional signatures and for inclusion on the ballot should a sufficient number of 
signatures be filed with your office within the time period allowed by Article 48. 

Very truly yours. 



FRANCIS X. BELLOTTI 
ATTORNEY GENERAL 



P.D. 12 25 

December 11, 1985 

Vumber 5 

rhe Honorable George Keverian 

speaker 

^ouse of Representatives 

itate House 

Boston, MA 02108 

Dear Speaker Keverian: 

On behalf of the House of Representatives, you have asked for my opinion, 
)ursuant to G.L. c. 12. § 9, concerning the constitutionality of a bill presently 
)ending before that body. The bill in question. House 6602, would amend chapter 
of the General Laws to empower municipalities to prohibit vending machines 
n all areasunder their care and control.' Specifically, you have inquired whether 
he proposed law would violate the First Amendment to the United States Con- 
titution or its state counterpart, article 16 as amended by article 77 of the 
Amendments to the Massachusetts Constitution.- You have also asked whether 
lunicipalities are presently authorized under the Home Rule Amendment to 
irohibit or regulate newspaper vending machines. 

For the reasons discussed below, it is my opinion that the proposed law. as 
iresently drafted, would be likely to withstand a facial challenge on First Amend- 
aent grounds. I have further concluded that, even without this law, municipalities 
iresently have the power to regulate or prohibit newspaper vending machines 
inder the Home Rule Amendment. An "as applied" challenge to a municipal 
irdinance or by-law adopted pursuant to House 6602 or the Home Rule Amend- 
nent. however, would turn on factual determinations beyond the scope of an 
ipinion of the Attorney General. Where appropriate in the margin of this opinion I 
lave provided advice concerning the drafting of the bill and its implementation by 
nunicipalities to lessen the likelihood of successful as applied challenges. 

I begin my analysis by noting that the questions presented arise only because it 
s clear from the bilFs title that the proposed law is intended to apply to newspa- 
ler vending machines. ' Vending machines in general are not protected by the 
•irst Amendment since they are not designed to communicate or express ideas or 
^formation. Cf. Caswell v. Licensing Commission, 387 Mass. 864, 867-68 (1983) 
holding that video games are not protected by the First Amendment or by article 
6). It is well established, however, that the right to freedom of speech and of the 
iress secured by the First Amendment extends to the distribution and circulation 
if printed material. Lovell v. Griffin, 303 U.S. at 452; Schneider v. State, 308 U.S. 
47, 160 (1939); Talley v. California, 362 U.S. 60, 64 (1960). Several courts that 
ave considered the question have held that the First Amendment applies to the 
ale of newspapers through newspaper vending machines."^ 

Thus, the application of the proposed law to newspaper vending machines 
urely raises the question of whether the law abridges First Amendment rights. 
But to say the [statute] presents a First Amendment mi/c is not necessarily to say 
hat it constitutes a First Amendment violation^' Members of the City Council of 
.OS Angeles v. Taxpayers for Vincent. 104 S. Ct. 21 18. 2128 (1984). The right to 
ngage in expressive activity is not absolute, but may be regulated as to time. 



26 P.D. 12 

place, and manner in order to accommodate competing governmental interests. 
Such time, place, and manner restrictions are valid, despite their impact on 
protected activity, provided that they are content neutral (that is, justified without 
reference to the content of the regulated speech), that they are narrowly tailored 
to serve a significant governmental interest, and that they leave open ample 
alternative channels of communication.'" 

On its face, the proposed law satisfies these requirements. It is content neutral, 
since it applies with equal force first to all vending machines and second to all 
newspaper vending machines. The First Amendment forbids the government 
from regulating protected activity in ways that favor some viewpoints or ideas at 
the expense of others. City Council v. Taxpayers for Vincent, 104 S. Ct. at 2128. The 
proposed law, in authorizing an absolute ban of all vending machines, would not 
permit officials to discriminate based upon their disagreement with a particular 
newspaper's content.^ 

It is equally like that, even were a municipality to ban ail newspaper vending 
machines, ample alternative means of distributing newspapers would remain.^ 
Newsstands, home-delivery, and ambulatory news vendors would be unaffected 
by the proposed law. It is not dispositive that these methods of distribution may 
be less efficient or more costly. The First Amendment does not guarantee a right 
to the least expensive or most advantageous form of expression. City Council v. 
Taxpayers for Vincent, 104 S. Ct. at 2133; Gannett Satellite Information Network, 
Inc. r. Metropolitan Transportation Authority, 745 F. 2d at 774. Of course, if it could 
be shown that, in a particular municipality, newspaper vending machines were 
the only realistic means of distributing newspapers, an ordinance banning such 
machines would be vulnerable to an "as applied" attack. Cf Philadelphia News- 
papers, Inc. V. Borough Council, 381 F. Supp. 228 (E.D. Pa. 1974). Such hypothet- 
ical factual situations, however, are beyond the scope of this opinion, which 
considers only the facial constitutionality of the proposed law. 

The question is thus reduced to whether the proposed law is narrowly tailored 
to serve a significant governmental interest, an inquiry of somewhat greater 
complexity. I am assuming that the purpose of the proposed law is twofold: to 
protect the safety of the public by eliminating obstacles to traffic on public 
property and to advance esthetic values by prohibiting an intrusive and unattrac- 
tive format for expression. The Supreme Court has recognized the substantiality 
of both these interests. See City Council v. Taxpayers for Vincent. 104 S. Ct at 2130 
(municipalities have a weighty, essentially esthetic interest in proscribing intru- 
sive and unpleasant formats for expression); Schneider v. State, 308 U.S. 147, 160 
(1939) (municipal authorities have duty to keep streets open and available for 
movement of people and property, and conduct of those using streets may be 
lawfully regulated). See also Young v. .American Mini Theatres, 427 U.S. 50, 71 
(1976) (plurality opinion) (city's interest in attempting to preserve or improve the 
quality of life is one that must be accorded high respect). 

It could be contended, however, that the proposed law is not "narrowly tai- 
lored" to serve these interests, since there may be means of accomplishing the 
same objectives short of an absolute prohibition of newspaper vending 
machines.'*^ The Supreme Court has recently made clear, however, that when it is 
the "tangible medium" t)f expression itself that conflicts with the substantial 
governmental interest involved, a law prohibiting that medium curtails no more 
expression than is necessary to accomplish its purpose. City dmncil v. Taxpayers 
for lincent, 104 S. Ct. at 2132 (upholding ordinance prohibiting the posting of 



P.D. 12 27 

signs on public property); Clark v. Community for Creative Non-Violence, 104 S. 
Ct. 3065 (1984) (upholding prohibition on sleeping in certain public parks, and 
assuming that sleeping was protected by First Amendment under circumstances 
presented). See also Gannett Satellite Information Network, Inc. v. Metropolitan 
Transportation Authority, 745 F. 2d at 774-75 (even if licensing fees were so 
prohibitive that they effectively banned newspaper vending machines, fees were 
valid since no less restrictive means existed for raising revenue).*^ 

Furthermore, the requirement that a content-neutral law affecting First 
Amendment expression be "narrowly tailored" does not mean that the law must 
precisely fit the contours of the governmental interests involved. "[ A]n incidental 
burden on speech is no greater than is essential, and is therefore permissible . . . , 
so long as the neutral regulation promotes a substantial governmental interest 
that would be achieved less effectively absent the regulation." United States v. 
Albertini, 105 S. Ct. 2897, 2907 (1985). Accord Clark v. Community for Creative 
Non-Violence, 104 S. Ct. at 3071. 

Therefore, I believe that a content-neutral law, such as the one you have asked 
me to review, authorizing municipalities to ban newspaper vending machines is 
sufficiently related to legitimate state interests to withstand a facial challenge. Again, 
however, it is quite possible that particular ordinances or by-laws enacted pursuant 
to this law would be subject to successful attack in particular factual situations. 

In response to your second question, it is my opinion that municipalities pres- 
ently have the authority under the Home Rule Amendment to the Massachusetts 
Constitution, art. 89, § 6, to enact ordinances or by-laws regulating or prohibiting 
the placement of newspaper vending machines in public areas. Indeed, pursuant 
to my authority under G.L. c. 40, § 32, to approve or disapprove town by-laws, I 
have approved a number of town vending machine by-laws which, on their face, 
appear to be reasonable, content neutral, and narrowly tailored to achieve legit- 
imate municipal objectives, such as protecting public safety, ensuring accessibility 
to public facilities, and maintaining the neatness and orderliness of public areas.''^ 

Under the Home Rule Amendment, municipalities "may enact legislation to 
advance the common good so long as it is not inconsistent with State law." 
Marshfield Family Skateland, Inc. v. Marshfield, 389 Mass. 436, 440, appeal dis- 
missed, 464 U.S. 987 (1983). As discussed above, depending on particular factual 
circumstances, local legislation prohibiting or regulating newspaper vending ma- 
chines might well be characterized as advancing the public good. Nor am I aware 
of any state statutes precluding local action of this nature. To the contrary, state 
law expressly authorizes municipal officials to "grant permits for the placing and 
maintaining of . . . structures projecting into or placed on or over public ways." 
G.L. c. 85, § 8. 

I therefore conclude, subject to the reservations expressed above, that the 
proposed law could be successfully defended against a facial attack on First 
Amendment grounds and that, even without the proposed law, municipalities 
presently have the power to enact ordinances or by-laws reasonably regulating or 
prohibiting the placement of newspaper vending machines in public places. 

Very truly yours, 



FRANCIS X. BELLOTTI 
ATTORNEY GENERAL 



28 P.D. 12 

' The proposed law is worded as follows: "A city acting by and through its council and 
a town acting by and through its board of selectmen may prohibit vending machines in 
all areas of said city or town under their care and control." On a point unrelated to the 
subject of your opinion request and recognizing that my role under G.L. c. 12, § 9, 
includes advising you on proposed legislation, I would suggest you substitute "town 
meeting" for "board of selectmen," since the town meeting, not the selectmen, would 
be the body empowered to enact the ban authorized by the proposed law. See G.L. c. 
39, § l;c.40, §21. 

~ The First Amendment, which by its terms applies only to laws enacted by Congress, 
is made applicable to the states by the Fourteenth Amendment. Lovell v. Griffin, 303 
U.S. 444. 450 (1938). Since "the criteria . . . forjudging claims arising under the First 
Amendment . . . are equally appropriate to claims brought under cognate provisions 
of the Massachusetts Constitution." it is not necessary to analyze separately the 
article 16 issue. Opinions of the Justices, 387 Mass. 1201. 1202 (1982). But cf. Com- 
monwealth V. Sees, 374 Mass. 532, 536-3 (1978) (Massachusetts Constitution provides 
greater protection to nude dancing in bars than does United States Constitution 
because of lack of preferred position of alcoholic beverages under state Constitution). 

-^ The bill is entitled "An Act Permitting Cities and Towns to Ban Newspaper Vending 
Machines." A different title, making it clear this is a bill intended to address the public 
safety and esthetic features of all vending machines, might be advisable. 

^ See, e.g. , Gannett Satellite Information Network, Inc. v. Metropolitan Transp. Auth. , 
745 F. 2d 767, 772 (2d Cir. 1984); Miami Herald Publishing Co. v. CityofHallandale, 734 
F. 2d 666, 673 (11th Cir. 1984); Gannett Satellite Information Network, Inc. v. Town of 
Norwood, 579 F Supp. 108, 1 14 (D. Mass. 1984); Southern N.J. Newspapers, Inc. v. N.J. 
Dep't of Transp., 542 F. Supp. 173, 183 (D.N.J. 1982). 

■' Clark V. Community^ for Creative Non-Violence, 104 S. Ct. 3065, 3069 (1984); City 
Council V. Taxpayers for Vincent, 104 S. Ct. at 2130; Perry Educ. Ass'n v. Perry Local 
Educ. Ass 'n, 460 U.S. 37, 45 (1983). Accord Gannett Satellite Information Network, Inc. 
V. Metropolitan Transp. Auth., 745 F. 2d at 773 (applying above criteria to regulation of 
newspaper vending machines). 

" To the extent that an ordinance adopted pursuant to the proposed law would ban all 
newspaper vending machines in a particular municipality, such an ordinance would 
not be subject to challenge on the ground that it vests an impermissible degree of 
discretion in local officials to select which machines will be permitted. Compare 
Gannett Satellite Information Network v. Town of Norwood, 579 F. Supp. 108 (D. Mass. 
1984) (town by-laws vested virtually unbridled discretion in town officials to issue 
permits for newspaper vending machines); Miller Newspapers, Inc. v. City ofKeene, 546 
F. Supp. 831 (D.N.H. 1982) (seizure of newspaper vending machines in absence of 
ordinance setting forth appropriate procedures and standards subjected newspapers 
to exercise of officials' unbridled discretion and violated due process). It is therefore 
my advice that any bill you enact on this subject matter restrict the discretion of municipal 
authorities, channeling it in a manner discouraging content-based discrimination. 

^ The proposed law concerns the placement of vending machines only on property 
under the care and control of a municipality. I have assumed for purposes of this 



P.D. 12 29 

opinion that any ordinance adopted pursuant to this law would effectively prohibit all 
newspaper vending machines on public property within a particular municipality. It 
would remain open to newspaper publishers to place their machines on privately 
owned property, however. Municipalities in which realistic alternative means of dis- 
tribution do not exist would be ill-advised to adopt by-laws or ordinances of the type 
contemplated by the bill. 

^ For example, municipalities could limit the number of newspaper vending machines 
or require that they be placed a certain distance apart or that they conform to certain 
esthetic standards. Such time, place, and manner restrictions may be permissible 
under the First Amendment, as long as adequate standards are provided to guide the 
regulators' discretion. See note 6, supra. 

^ In Vincent, the Court characterized as inapposite its previous decisions such as 
Schneider v. State, supra, striking down absolute prohibitions on the distribution of 
handbills and leaflets. In such cases, the interest advanced in support of the ordinance, 
e.g., anti-littering, could be addressed without prohibiting the distribution of printed 
material. In contrast, where the substantive evil addressed by a law is not merely a 
possible by-product of protected activity, but is created by the medium of expression 
itself, e.g., a sign, absolute prohibition may be justified. City Council v. Taxpayers for 
Vincent, 104 S. Ct. at 2132. 

•" For instance, I have approved by-laws prohibiting the placement of newspaper 
vending machines in a way that would endanger the safety of persons or property, 
unreasonably preclude the flow of pedestrian traffic, or preclude entrance or exit from 
business premises or lawfully parked vehicles. The approved by-laws also prohibit 
placement of such machines on sites used for public transportation or public utility 
purposes, impose size restrictions on the machines, and require that they be kept in 
good condition. In approving those by-laws, as in answering your first question, I 
confine my analysis to their facial validity, recognizing that an as-applied challenge 
will turn on factual determinations beyond my purview. 



30 P.D. 12 

December 26, 1985 

Number 6 

A. Joseph DeNucci, Chairman 

Committee on Human Services and Elderly Affairs 

State House— Room 22 

Boston, Massachusetts 

Dear Chairman DeNucci; 

On behalf of the Committee on Human Services and Elderly Aifairs of the 
House of Representatives, you have requested my opinion, pursuant to G.L. c. 12, 
§ 9, as to whether a bill presently being considered by the General Court, H. 6921, 
would be preempted by the consent decrees that have been entered in the case of 
Williams v. Lesiak, United States District Court, District of Massachusetts, C.A. 
No. 72-57 1-Mc. For the reasons explained below, it is my opinion that the consent 
decrees would not preempt the proposed legislation as presently drafted. 

General Laws chapter 12, section 9, contemplates not only that I issue opinions 
to the General Court and its committees, but that I advise you in the preparation 
of legislative documents. In this instance the advice I render is as important as my 
opinion itself. I advise you not to add an emergency preamble to H. 6921, thereby 
deferring its effective date and permitting me to move to modify the referenced 
consent decrees. If those decrees are modified, no preemption issue will be 
presented. 

The bill in question would place the Treatment Center for Sexually Dangerous 
Persons (hereafter the Treatment Center) exclusively within the Department of 
Correction. Under the current statute, the Treatment Center is "subject to the 
jurisdiction of the department of mental health" but is located "at a correctional 
institution approved by the commissioner of correction." G.L. c. 123A, § 2. The 
proposed legislation would thus end the bifurcated administration of the Treat- 
ment Center by placing the facility within a single state agency. The bill does not 
address any of the treatment programs or other aspects of the daily operation of 
the facility. 

The federal litigation that you have cited has a long and complex history. It was 
originally brought on behalf of the patient population at the Treatment Center 
challenging both the conditions of confinement and the types of therapy and 
treatment programs that were provided. Several separate consent decrees were 
agreed to by the parties and approved by the court. In addition, the court entered 
numerous other specific orders addressing particular aspects of the operation of 
the Treatment Center. 

As part of a consent decree entered by the court on June 14, 1974, the parties 
agreed that the Treatment Center was to be treated as a facility of the Depart- 
ment of Mental Health and more particularly that the clinical staff of the De- 
partment of Mental Health was to have primary responsibility for the handling of 
patients other than dealing with security problems. This consent decree amplified 
the legislative determination contained in G.L. c. 123A, § 2, and clarified the 
operational distinction between treatment and security, with the Department of 
Mental Health having responsibility for the former and the Department of Cor- 
rection the latter. 



P.D. 12 31 

My opinion that the proposed law is not foreclosed by this consent decree rests 
on three grounds. First, the General Court is not a party to the Williams v. Lesiak 
lawsuit, and its prerogatives cannot be constrained by an agreement by agencies 
of the executive branch of the state government. See Massachusetts Association for 
Retarded Citizens, Inc. v. King, 668 F. 2d 602, 609 (1st Cir. 1981). 

Second, the consent decree was based on the pre-existing state statute. If the 
statute were to be amended, the change should be sufficient reason for the federal 
court to modify the consent decree. Changes in the statutes have repeatedly been 
found to be sufficient justification for modification of a consent decree. System 
Federation No. 91 v. Wright, 364 U.S. 642 (1961). See also Fortin v. Commissioner 
of Massachusetts Department of Public Welfare, 692 F. 2d 790, 799 ( 1st Cir. 1982). 
If this law is enacted, as litigation counsel for the defendants in the Williams v. 
Lesiak case, I would seek to have the consent decree modified to conform with the 
newly enacted state law. For this reason, I reiterate the advice given in the 
beginning of this opinion: enact this law without an emergency preamble to 
provide me the necessary time to go before the federal court with a motion to 
modify the consent decree, thereby avoiding any possible conflict between the 
state law and the federal consent decree. 

Third, if the court declined to modify the consent decree, I believe the law 
would nevertheless be defensible as a valid exercise of the sovereign power of the 
state to govern its agencies. I would defend the statute by advancing the legal 
proposition that a consent judgment, approving a non-litigated settlement, does 
not constitute a "Law of the United States" and therefore does not preempt state 
law under the Supremacy Clause. See, e.g., Gibbins v. Ogden, 22 U.S. (9 Wheat.) 
1 (1824). Cf New York State Association for Retarded Children v. Carey, 631 F. 2d 
162 (2nd Cir. 1981) (an express obligation under a consent decree to maintain a 
review panel was held not to preempt a subsequently enacted state law preventing 
the Governor from funding the review panel). 

For the foregoing reasons, I answer your request for my opinion and advice by 
concluding that the enactment of H. 6921 is not preempted by existing federal 
court consent decrees. 

Very truly yours. 



FRANCIS X. BELLOTTI 
ATTORNEY GENERAL 



32 P.D. 12 

February 11, 1986 

Number 7 

Maria Matava, Commissioner 
Department of Social Services 
150 Causeway Street 
Boston, Massachusetts 

Dear Commissioner Matava: 

You have requested my opinion regarding the legality of proposed regulations 
which would allow the Department of Social Services (the "Department") to 
report incidents of suspected child abuse directly to district attorneys, thereby 
eliminating the need for so-called "letters of interchange" from this office. Hav- 
ing reviewed the proposed regulations, 110 C.M.R. §§ 4.50 et seq.} I opine that 
they will indeed obviate the need for these letters of interchange.- 

To explain the basis for this conclusion, a brief analysis of the powers and duties 
of the Attorney General and district attorneys vis-a-vis criminal prosecution is 
necessary. In his capacity as "chief law officer of the Commonwealth," Common- 
wealth V. Kozlowsky, 238 Mass. 379, 389 (1921), the Attorney General "may 
institute, conduct, and maintain all such suits and proceedings as he deems 
necessary for the enforcement of the laws of the State, the preservation of order, 
and the protection of public rights." Id. at 390-91. Of course, the management 
and prosecution of criminal matters are included in such suits and proceedings. 
Id. at 388. 

However, criminal prosecution is not exclusively the province of the Attorney 
General; the office of district attorney embodies similar powers. The statutory 
scheme that governs the office of district attorney and articulates its powers and 
duties establishes concurrent jurisdiction with the Attorney General in certain 
matters, including the institution and prosecution of criminal actions. G.L. c. 12, 
§ 27. In fact, criminal prosecutions have traditionally been recognized as an 
ordinary function of the district attorney. Kozlowsky, 238 Mass. at 387; G.L. c. 12, 
§ 27.-^ Since district attorneys have original jurisdiction in criminal matters, crimes 
or suspected violations of law may be reported directly to them without the need 
for intervention from this office. Therefore, it is consistent with the powers of the 
district attorney to receive reports of suspected child abuse and act on them 
without any involvement of the Attorney General. 

Your question also cannot be answered intelligently without a description of 
the letters of interchange program, an administrative scheme which is predicated 
upon the prosecutorial powers the district attorneys and I share. The Fair Infor- 
mation Practices Act, G.L. c. 66A, §§ 1 et seq. (hereafter "FIFA") generally 
precludes an agency such as yours from disseminating personal data of the type 
contained in your files to persons (including other state agencies) other than the 
data subject. The principal non-consensual exception to this general rule of 
interdiction is contained in G.L. c. 66A, § 2(c), which permits disclosure of 
personal data when "authorized by statute or regulations which are consistent 
with the purposes of [FIPA] . . . ." Id. 



P.D. 12 33 

At the time your predecessors in office devised the letters of interchange 
program, there was no statute directly and explicitly authorizing the disclosure to 
any prosecutor of personal data contained in files pertaining to alleged incidents 
of child abuse. There was, however, a regulation in place authorizing all agencies 
within the Executive Office of Human Services to give access to such data "to 
authorized investigative agents of the Attorney General . . . acting in furtherance 
of their official duties." 101 C.M.R. § 8.06(7) (1979). A regulation so limited to 
investigative agents appears consistent with FIPA. See Torres v. Attorney General, 
391 Mass. 1, 12 (1984). Because the Attorney General may himself obtain per- 
sonal data pursuant to the regulation, is statutorily authorized to interchange 
duties with the district attorneys, G.L. c. 12, § 27, and to designate whatever 
investigative agents he chooses, G.L. c. 12, § 2, your predecessor suggested that 
she could turn personal data over to the district attorneys if we would draft letters 
of interchange. Since your current regulations authorize direct release to the 
district attorneys, this cumbersome process is now unnecessary. 

Not only is direct reporting to the district attorney consistent with the respec- 
tive authority of the Attorney General and the district attorneys, but this proce- 
dure is also consistent with the present"^ statutory scheme relative to the reporting 
requirements of the Department in known or suspected cases of child abuse. As 
provided throughout G.L. c. 1 19, §§ 51 A and 5 IB, the Department is statutorily 
obligated to notify a district attorney of certain incidents of reported abuse or 
neglect. Further, G.L. c. 119, § 51B, provides that while the Department is 
statutorily required to report certain instances of abuse or neglect, it is by no 
means precluded from reporting other incidents it believes merit involvement of 
the district attorney. Rather, the specific language of G.L. c. 119, § 51B(4)(e) 
encourages the Department of report any incident of child abuse, stating, "noth- 
ing herein shall be construed to prevent the department from notifying a district 
attorney relative to any incidents reported to the department" (emphasis sup- 
plied). Therefore, it appears consistent with legislative intent for the Department 
to report incidents of child abuse or neglect directly to the district attorney, 
thereby obviating the need for inter\'ention from this office. 

The lingering outstanding issue is whether disclosure of information to a dis- 
trict attorney relative to suspected cases of child abuse or neglect violates laws 
relating to confidential information or privileged communications. Reference to 
G.L. c. 1 19, § 51B(4)(e), readily disposes of this question. That section expressly 
relieves the Department of any liability for unlawful disclosure by so reporting: 
No provision of chapter sixty-six A, section one hundred and 
thirty-five of chapter one hundred and twelve and sections fifty- 
one E and fifty-one F of this chapter relating to confidential data 
or confidential communications shall prohibit the department 
from making such notifications or from providing to the district 
attorney any information obtained pursuant to clause (1).^ 

In conclusion, I believe the proposed regulations, 110 C.M.R. §§ 4.50 et seq., 
which allow direct reporting of incidents of child abuse to the district attorneys, 
totally eliminate the need for my participation in such reporting by way of letters 
of interchange. 



34 P.D. 12 

Very truly yours, 



FRANCIS X. BELLOTTI 
ATTORNEY GENERAL 



' The proposed regulations provide for mandatory reporting of certain cases and 
discretionary reporting of others and establish procedures for releasing background 
information and documents to the district attorneys. 

^ To the extent you have asked me to go further and opine as to the general legality of 
the regulations, I must decline to do so for two reasons. First, like my predecessors, I 
traditionally decline to answer such hypothetical, abstract questions; and, second, 
assessing the validity of regulations is primarily a judicial function. See G.L. c. 30A, § 7. 

^ While it has long been held that district attorneys may prosecute criminal matters, 
such power is tempered by the fact that they must accede to the supervision and 
intervention of the Attorney General, if and when he chooses to exercise it. Burlington 
V. District Attorney of the Northern District, 381 Mass. 717 (1980); Kozlowsky, 238 Mass. 
at 390. 

'* At the time procedures relative to "letters of interchange" were established, G.L. c. 
119, § 51B, was not specific as to the exchange of information between the Depart- 
ment and the Attorney General or district attorneys. See St. 1973, c. 1076. However, 
the enactment of St. 1983, c. 288, articulates a statutory scheme encouraging the free 
flow of information to the district attorneys. 

^ Subsection (l)of§51B relates to investigations and accumulation of information 
regarding any reported case of suspected abuse or neglect. 



P.D. 12 35 

February 28, 1986 

Number 8 

Roland R. Piggford, Director 

Massachusetts Board of Library Commissioners 

648 Beacon Street 

Boston, Massachusetts 021 15 

Dear Mr. Piggford: 

You have requested my opinion on three questions relating to the authority of 
the Board of Library Commissioners ("Board") under G.L. c. 78, § 19A (1984 ed.) 
("section 19A").' To paraphrase your request, the questions you pose are: 

(1) May the Board waive the conditions of grant eligibility set forth in 
section 19A? 

(2) In determining a municipality's eligibility for state funding, may the 
Board include, as part of a municipality's annual budget for free 
pubhc library services, fund appropriated for capital expenditures? 

(3) In determining a municipaHty's eligibility for state funding, may the 
Board exclude, as part of a municipality's annual budget for free 
public library services, an appropriation for capital expenditures 
that is to be funded by a loan order and bond issue?^ 

For the reasons discussed below, it is my opinion that: (1) the Board may not 
waive the conditions of grant eligibility set forth in section 19A; (2) the Board may 
not, for purposes of determining grant eligibility, include, as part of a municipal- 
ity's annual budget for library services, funds appropriated by a municipality for 
capital expenditures; and (3) the Board may exclude, as part of a municipality's 
annual budget for library services, an appropriation by a municipality for capital 
expenditures that is to be funded by a loan order and bond issue. 

The starting point for my analysis is the statutory scheme pertaining to the 
Board itself. Pursuant to G.L. c. 78, §§ 14-21 (1984 ed.), the Board functions as an 
advisory body to state and certain municipal libraries on matters of funding and 
library services. See Generally 1985/86 Op. Atty. Gen. No. 2, Rep. A.G., Pub. Doc. 

No. 12 at (1985). Section 19 empowers the Board to "expend such sums 

as may be appropriated for the extension and encouragement of library services 
within the commonwealth," designates the Board as the state agency to deal with 
the federal government with regard to federal grants promoting library services, 
and authorizes the Board to contract with other state agencies and municipalities 
to provide library services and to represent the Commonwealth in the receipt and 
disbursement of funds from private sources. Id. 

Section 19A is a critical components of that scheme. It imposes certain require- 
ments on municipalities that wish to receive state funding. For purposes of this 
discussion, two of those requirements are particularly relevant. First, the munic- 
ipality must be certified by the Board "to have met certain minimum standards of 
free public library service established by" the Board. -^ Second, no municipality 
that appropriates in a given year less than six dollars per capita for free public 
library service "shall receive any money" if such appropriation is below the 



36 P.D. 12 

average of its annual appropriations for such service for the immediately preced- 
ing four years. These are the statutory conditions you inquire about waiving in 
your first question. 

For purposes of this first question, the relevant language of section 19A is clear 
and unambiguous. "In construing a statute, words are to be accorded their ordi- 
nary meaning and approved usage." Hashimi v. Kalil, 388 Mass. 607, 609 (1983) 
and cases cited. "The word 'shall' is ordinarily interpreted as imposing a manda- 
tory or imperative obligation." Hashimi, 388 Mass. at 609-10 and cases cited. In 
addition, as a general rule, directives to public officials for the exercise of power 
or authority to protect private rights or the public interest are mandatory. 2A C. 
Sands, Sutherland Statutory Construction, § 57.14 (4th ed. 1972); Hashimi, 388 
Mass. at 610. This is especially true with regard to statutes regulating public 
expenditures and directing the levying of taxes. 2A C. Sands, supra at §§ 57.14, 
57.20. Because the Board was created by the Legislature, it has "only the powers, 
duties and obligations expressly conferred upon it by . . . statute ... or such as are 
reasonably necessary ... [to carry out] the purpose[s] for which it was estab- 
lished." See Saccone v. State Ethics Commission, 395 Mass. 326, 335 (1985). Here, 
the Legislature has spoken clearly. Thus, while the Board may, within the confines 
of sections 19A and 19B, amend the minimum standards of free public library 
service set forth in 605 C.M.R. §§ 4.00 and 5.00 et seq. , see generally 1985/86 Op. 

Atty. Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at (1985), it may not alter 

or waive either the first or the second grant eligibility requirement of section 19A. 
Therefore, I concur with the Board's own answer to its first question: it is pro- 
hibited from certifying municipalities that are not in strict compliance with the 
statutory conditions of eligibility. 

Your second and third questions are related and will be discussed together. 
The answer turns on the meaning of the phrases "appropriate for its free public 
library service" and "appropriation for free public library service" in paragraph 
four of section 19A. You ask whether those phrases include funds appropriated 
for capital expenditures or an appropriation for a capital expenditure that is to be 
funded by a loan order and bond issue. I am assuming that by "capital expendi- 
tures," you mean expenditures that are, in general, extraordinary and non- 
recurring, such as for the construction, renovation, improvement, expansion, or 
repair of a library building. 

Neither the term "free public library service" nor the term "library service" is 
defined in G.L. c. 78^* or in the regulations promulgated by the Board pursuant to 
sections 19Aand 19B. 5ee 605 C.M.R. §§ \.{){)etseq. Given the lack of a conclusive 
statutory or regulatory definition,'' the lack of relevant case law, the the lack of 
relevant legislative history, I construe the word "service" in accordance with its 
common and ordinary meaning in a manner that promotes the object to be 
accomplished by section 19A. See Dedham Water Co. v. Dedham, 395 Mass. 510, 
517-18 (1985); Department of Community Affairs v. Massachusetts State College 
Building Authority, 378 Mass. 418, 427 (1979); DEQE v. Hingham, 15 Mass. App. 
Ct. 409, 411 (1983) and cases cited. Under the circumstances, it is appropriate to 
consult a dictionary. Milligan v. Tibbetts Engineering Corp. , 391 Mass. 364, 368 (1984). 

Webster's New World Dictionary 1301 (2d college ed. 1974) indicates that both 
the etymology and modern usages of "service" are closely linked to laborers and 
labor for the provision of a benefit. The meaning that is most applicable here 
defines "service" as "the act . . . or method of providing . . . people with the use of 



P.D. 12 37 

something, as electric power, water, transportation, mail delivery, etc." This 
definition suggests that repetition and maintenance of a routine is central to this 
meaning of "service," since the word "method" means or implies a regular, 
orderly procedure or way of doing something. See Webster's, supra at 894. See also 
Webster's Ninth New Collegiate Dictionary 141 (1983). Webster's Ninth New Col- 
legiate Dictionary 1076 (1983) and Webster's Third New International Dictionary 
2075 (1964) offer the definition of "service" as "useful labor that does not pro- 
duce a tangible commodity," such as are performed by railroads, telephone 
companies, and physicians. This definition focuses on non-material, non-capital 
products or benefits. These definitions of "service," like the definition of "library 
services" in the Public Library Services and Construction Act, 20 U.S.C. §§ 351a 
et seq., as amended,^ suggest that non-recurring expenditures to construct new 
library buildings or to renovate, remodel, or expand existing library buildings are 
not contemplated by section 19 A. 

Such an interpretation would be consistent with G.L. c. 78, §§ 14-32, and the 
Board's powers and duties thereunder. See, e.g.,Saccone, 395 Mass. at 334 (where 
two or more statutes relate to the same subject matter, they should be construed 
together so as to constitute an harmonious whole). Pursuant to G.L. c. 78, § 15 
(1984 ed.), the Board may advise librarians or trustees regarding "the selection or 
cataloguing of books and any other matter pertaining to the maintenance or 
administration of such library." As discussed above, pursuant to section 19, the 
Board is authorized, among other things, to expend appropriated sums "for the 
extension and encouragement of library services within the commonwealth" and 
is designated as the state agency to deal with the federal government with respect 
to federal grants to the Commonwealth "for promoting library services." Signif- 
icantly, the Board is not, at least expressly, designated as the state agency to deal 
with the federal government with respect to federal grants for "construction" of 
public libraries. See footnote 6, supra. Section 19E, which provides for a compre- 
hensive statewide program for the improvement and development of library and 
media "resources," also suggests and distinction between library "services" and 
"construction" or "reconstruction" of public libraries. Compare G.L. c. 78, § 
19E(l)-(5) with § 19E(6) and § 19E(6)(a) with § 19E(6)(b). Chapter 693 of the 
Acts of 1963, providing for an interstate library compact, repeatedly distinguishes 
between "library facilities" and "library services," again suggesting that an ap- 
propriation for capital expenditures by a municipality is not considered an ap- 
propriation for "library service" under section 19A. 

Such an interpretation of the phrase "library service" is also consistent with the 
purpose of section 19A. See Saccone, 395 Mass. at 328 (a statute is to be inter- 
preted "according to the intent of the Legislature, as evidenced by the language 
used, and considering the purposes and remedies intended to be advanced"). 
Section 19A establishes the average of four prior years' appropriations as the 
standard for measuring whether a current library budget qualifies a municipality 
for state aid. Including a one-time, anomalous sum for a capital expenditure in 
any one of the four years presumably would defeat the purpose of averaging, since 
the average figure would not reflect the routine level of funding. As a result, 
municipalities might be discouraged from making needed capital expenditures 
for fear of losing state aid for ordinary operating expenses. In contrast, excluding 
sums for capital expenditures would promote generous routine yearly appropri- 
ations to maintain a library system, would avoid rewarding a municipality that 
would otherwise be ineligible for state aid because of the paucity of its routine 



38 P.D. 12 

expenditures, and would protect the eligibility of municipalities that need or 
desire to make an unusual increase in one year for a capital expenditure. 

In light of the foregoing, I have concluded, with regard to your second and third 
questions, that funds appropriated by a municipality for capital expenditures may 
be excluded as part of a municipality's annual budget for library services in 
determining a municipality's eligibility for state funding under section 19A. 

Very truly yours, 



FRANCIS X. BELLOTTI 
ATTORNEY GENERAL 



' That section provides, in relevant part: 

The state treasurer shall annually . . . pay from the General Fund to 
each city or town certified by the board . . . to have met certain 
minimum standards of fi-ee public library service established by said 
board a sum of money for its free public library or libraries which 
shall be determined as follows: 

(1) To each town having a population of less than two thousand 
five hundred a sum equivalent to the amount appropriated 
by it for free public library service during the preceding year, 
but in no event more than one thousand two hundred and 
fifty dollars; 

- - (2) to each city and to each town having a population of two 

thousand five hundred or more, a sum not exceeding fifty 
cents for each resident therein; provided, that such city or 
town appropriates during the preceding year for its free public 
library service at least one thousand two hundred and fifty 
dollars. 

No city or town which appropriates for its free public library 
service in any one year an amount less than six dollars per capita of 
population shall receive any money under this section if such ap- 
propriation is below the average of its appropriation for free public 
library service for the four years immediately preceding. 

(Emphasis added.) 

- While a literal reading of section 19A might suggest that it is the state Treasurer's 
authority, and not that of the Board, which is implicated by section 19A, I have been 
advised by the state Treasurer that it is his practice to rely exclusively on the certifi- 
cations provided by the Board and to make the payments from the General Fund 
accordingly. Thus, you appear to be the appropriate state officer to seek my opinion on 
these three questions of law. 

3 Pursuant to section 19A and G.L. c. 78, § 19B (1984 ed.), the Board has promulgated 
such standards. See 605 C.M.R. §§ 4.00 and 5.00 et seq. 



P.D. 12 39 

■* G.L. c. 78, § 1 9 ( 1 984 ed.), gives the Board the power to "contract with any other state 
agency, city or town, pubhc or private hbrary to provide improved library sen'ices in an 
area, or to secure such services as may be agreed upon, which sen'ices may include, but 
need not be limited to, the lending of books and related library material, the estab- 
lishment of branch libraries, depositories or bookmobile service, and to cooperative 
purchasing and processing of books, recordings, films, and related library materials" 
(emphasis added). However, this section expressly does not define the full contours of 
the term "library services." 

■" The Board could promulgate a regulation defining the term "library service." That 
definition might exclude "capital expenditures," in which case the regulation might 
also define what is meant by "capital expenditures." This would provide guidance to 
the Board and to municipalities and resolve any ambiguity that might otherwise exist. 

^ This federal statute authorizes the appropriation of monies to make grants to states 
for, among other things, "library services," "public library services," and "construc- 
tion." 20 U.S.C. § 351b. "Library service" is defined as "the performance of all 
activities of a library relating to the collection and organization of library materials 
and to making the materials and information of a library available to a clientele." 20 
U.S.C. § 35 la(3). "Public library services" are defined as "library services furnished by 
a public library free of charge." 20 U.S.C. § 35 la(6). The term "construction" includes 
"construction of new buildings and acquisition, expansion, remodeling, and alteration 
of existing buildings . . . ." 20 U.S.C. § 351a(2). 



40 P.D. 12 

April 23, 1986 

Number 9 

Roy A. Hammer, Esq. 

Chairman, lOLTA Implementation Committee 

20 West Street, 3rd Floor 

Boston, MA 02111 

Dear Mr. Hammer: 

You have asked my opinion concerning the operation of the Massachusetts 
Interest on Lawyers' Trust Account (lOLTA) program established pursuant to 
the decision in Petition by the Massachusetts Bar Association and the Boston Bar 
Association, 395 Mass. 1 (1985). In particular, you have asked whether, under 
Massachusetts law, the "entire beneficial interest" in the interest-bearing ac- 
counts for clients' funds to be established by lawyers under the lOLTA program 
will be held by the three tax-exempt charitable entities designated by the Su- 
preme Judicial Court to receive the interest or dividends on such accounts.' For 
the reasons discussed below, it is my opinion that these three entities will hold the 
"entire beneficial interest" in such accounts even though they are not the legal 
owners of the accounts.- 

In Petition by the Massachusetts Bar Association, supra, the Court amended 
Canon 9, DR 9-102, of Rule 3:07 of the Rules of the Supreme Judicial Court to 
authorize a lawyer or law firm, on a voluntary basis, to create and maintain 
interest-bearing trust accounts for clients' funds which, in the judgment of the 
lawyer or law firm, are nominal in amount or are to be held for a short period of 
time, subject to certain restrictions. 395 Mass. at 9-11. One of these restrictions 
is that all interest earned on such accounts must be paid, as directed by the 
attorney or law firm establishing the account, to one of the three tax-exempt 
entities designated by the Supreme Judicial Court for that purpose, see n. I, supra, 
for use in (1) improving the administration of justice or (2) delivering civil legal 
services to those who cannot afford them. Id. at 10. 

Prior to this rule change, clients' funds that were small in amount or were to be 
held for a short period of time were frequently co-mingled and placed in non- 
interest-bearing accounts held in trust for the individual client.-^ Id. at 4. The 
lOLTA program will achieve its objectives only if attorneys can pool and deposit 
such clients' funds in interest-bearing, negotiable order of withdrawal (NOW) 
accounts, because "traditional" checking accounts do not earn interest and other 
interest-bearing checking accounts do not provide for withdrawal of funds on 
short notice. Id. at 7. 

NOW accounts were authorized nationwide by the Consumer Checking Ac- 
count Equity Act of 1 980, 1 2 U.S.C. §§ 1 832 et seq. The unique feature of the NOW 
account, when compared to the "traditional" checking account, is the interest 
that may be earned on deposited funds. See S. Rep. No. 96-368, 96th Cong., 2nd 
Sess. (1979), reprinted in 1980 U.S. Code Cong. & Ad. News 236, 238-43. How- 
ever, NOW accounts are permitted: 

only with respect to deposits or accounts which consist solely of 
funds in which the entire beneficial interest is held by one or more 
individuals or by an organization which is operated primarily for 



P.D. 12 41 

religious, philanthropic, charitable, educational, or other similar 
purposes and which is not operated for profit. 

(Emphasis added.) 12U.S.C. § 1832(a)(2). 56-^^/50 12C.F.R. § 217.1(e)(3)(i)-(ii). 

In Petition by the Massachusetts Bar Association, supra, the Supreme Judicial 
Court held that the interest or dividends earned on nominal or short-term trust 
deposits in NOW accounts under the lOLTA program would not be the property 
of the attorney or his client for constitutional purposes. The court reasoned that 
since the lOLTA program involves only those funds that traditionally would not 
be earning interest for the attorney or the client, neither loses anything as a result 
of the lOLTA program. Rather, the practical effect of the lOLTA program is to 
shift a part of the economic benefit from the depository institution to one of the 
tax-exempt designated entities. There is no economic injury to the client or the 
lawyer, nor are they deprived of any property because the lOLTA program 
creates income where there was none before. Id. at S-?.'* For similar reasons, the 
court also held that the lOLTA program would not contravene relevant ethical 
considerations because clients lose nothing and there is no financial benefit to the 
participating lawyer. Id. at 7. 

With these general considerations in mind, 1 now turn to your question of 
whether, under Massachusetts law, the "entire beneficial interest" in the interest 
or dividends earned on clients' funds held in NOW accounts under the lOLTA 
program belongs to the designated tax-exempt entities that receive such interest 
or dividends. 

There does not appear to be any Massachusetts statute or case law that defin- 
itively interprets the term "beneficial interest" for these purposes. In light of this, 
the term "beneficial interest" should be construed in accordance with its common 
and ordinary meaning. See, e.g. , Dedham Water Company v. Town ofDedham, 395 
Mass. 510, 517-18 (1985) (where the statutory language was not specific and 
legislative intent was unclear, court looked to the "usual and accepted meanings" 
including other legal sources and dictionary definitions). Since the lOLTA pro- 
gram involves trust accounts, it is appropriate to consider first the meaning of 
"beneficial interest" as that term has been construed under general principles of 
trust law and administration. Under the general common law of trusts and trust 
administration, the person who enjoys the advantages of the administration of a 
trust by a trustee is the "beneficiary," and any right given by the trust instrument 
to receive a benefit from the trust constitutes a "beneficial interest" in the trust. 
Hammond v. United States, 584 F. Supp. 163, 172-73 (D. Conn. 1984) and author- 
ities cited; Sasso v. Gallucci, 447 N.Y.S. 2d 618, 620, 112 Misc. 2d 865 (Sup. Ct. 
1982); Restatement (Second) of Trusts § 3(4) (1959); 1 G. Bogert, Trusts & Trustees 
§ 1 (rev. 2d ed. 1979); II A. Scott, The Law of Trusts § 128.2 (3d ed. 1961) and cases 
cited; 5 Words and Phrases, Supplement at 43 (1985). 

A similar interpretation of the term "beneficial interest" exists under well- 
established principles of property law: 

The expression, beneficial use or beneficial ownership or interest, 
in property is quite frequent in the law, and means in this connec- 
tion such a right to its enjoyment as exists where the legal title is in 
one person and the right to such beneficial use or interest is in 
another, and where such right is recognized by law, and can be 
enforced by the courts. 



42 P.D. 12 

Montana Catholic Missions v. Missoula County, 200 U.S. 118, 127-28 (1906). 
Accord Christiansen v. Department of Social Security, 15 Wash. 2d 465, 131 P. 2d 
189, 191 ( 1942). See also Nomian G. Jensen, Inc. v. Federal Maritime Commission, 
497 F. 2d 1053, 1057 (8th Cir. 1974) (The traditional meaning of the term "ben- 
eficial interest" is "the right to the use and enjoyment of property. This interest 
is normally owned by the legal titleholder, but by agreement or operation of law 
can be placed in another."). 

In these circumstances, it is also appropriate to consult a dictionary. See Ded- 
ham Water Company, supra; Milligan v. Tibbetts Engineering Corp., 391 Mass. 364, 
368 (1984) (court defined "improvement" as used in G.L. c. 260, § 2B, according 
to its usual and natural meaning including dictionary definitions). Black's Law 
Dictionaty 142 (5th ed. 1979) defines "beneficial interest" as the "profit, benefit or 
advantage resulting from a contract, or the ownership of an estate as distinct from 
the legal ownership or control." See also 5 Words and Phrases at 439, 449 (1968) 
and Supplement (1985) at 39. Webster's Third New International Dictionary 203 
(1964) defines the term "beneficial" as "receiving or entitling one to have or 
receive in one's own right and for one's own benefit an advantage, use, or benefit 
that need not be monetary." It defines "interest" as the "right, title, or legal share 
in something." Id. at 1178. Webster's New World Dictionary 131 (2d College ed. 
1974) defines the word "beneficiary" as "a person named to receive the income or 
inheritance from a will, insurance policy, trust, etc." (emphasis added). 

Also relevant are the definitions of "beneficiary" and "interest in property" 
found in G.L. c. 191A, §§ 1 et seq. (1984 ed.), which governs the disclaimer of 
certain "interests in property," including an interest in a trust. "Beneficiary" is 
defined as "any person to whom, and any estate, trust, corporation or other legal 
entity to which, an interest in property would pass in any manner described in 
section two . . . ," including under a trust. An "interest in property" is defined as: 

( 1 ) any legal or equitable interest or estate, whether present, future or 
contingent, in any real or personal property or in any fractional part, 
share, or portion thereof, or in any specific asset or assets thereof; 

(2) any power to appoint, consume, apply, or expend property or any other 
right, power, or privilege relating thereto; 

(3) any fractional part, share or portion of any interest described in 
clause (1) or (2). 

(Emphasis added.) 

The well-established, traditional interpretation of the terms "beneficial inter- 
est," "beneficiary," and "interest" under common law principles of trust law and 
administration, and property law, the dictionary definitions of these terms, and 
the statutory definitions of "beneficiary" and "interest in property" contained in 
G.L. c. 191A, § 1 (1984 ed.), lead me to conclude that the three charitable entities 
designated by the Supreme Judicial Court to receive the interest and dividends 
generated by funds held in lawyers" trust accounts under the Massachusetts 
lOLTA program hold a"" "beneficial interest" in such accounts even though they 
are not the legal owners of the accounts.^ 



P.D. 12 43 

Very truly yours, 



FRANCIS X. BELLOTTI 
ATTORNEY GENERAL 



' The three tax-exempt charitable entities so designated are the Massachusetts Bar 
Foundation, the Boston Bar Foundation, and the Massachusetts Legal Assistance 
Corporation. Petition by the Massachusetts Bar Association, 395 Mass. at 10 n. 1. 

- As discussed below, the genesis of your request is an eligibility restriction the United 
States Congress placed on the use of negotiable order of withdrawal (NOW) accounts, 
accounts which are critical to the success of the lOLTA program. Under 12 U.S.C § 
1832(a)(2), NOW accounts are permitted only with respect to deposits or accounts 
which consists solely of funds in which the "entire beneficial interest" is held by one or 
more individuals or by a non-profit organization with charitable, educational, or 
similar purposes. Interpretation of the term "entire beneficial interest" in 12 U.S.C. § 
1832(a)(2) is, at least in part, a question of federal law. However, according to your 
opinion request, you cannot obtain the necessary federal financial agency approvals 
(i.e., the Federal Reserve Board, the Federal Home Loan Bank Board, and the 
Federal Deposit & Insurance Corporation) for the use of NOW accounts under the 
lOLTA program unless you receive my opinion on the meaning of that term under 
Massachusetts law. In view of this and the fact that the Attorneys General of several 
other states have issued such opinions, see n. 5, infra, I have proceeded to issue this 
opinion, although I do not ordinarily issue opinions as to the interpretation of federal law. 

■* In contrast, large sums of money held for a client by an attorney for an indefinite 
period or long-term period traditionally could be and were placed in separate interest- 
bearing accounts for the benefit of the clients. Id. at 4. This practice is not affected by 
the rule change. 

^ As the court recognized, its holding is consistent with the Internal Revenue Service 
ruling that interest earned on a lawyer's trust account and paid to a charitable entity 
under an lOLTA program is not includable in the client's gross income so long as the 
client cannot exercise any control over the creation or destiny of the earnings gener- 
ated on his attorney-held funds. Id. at 8 (citing Rev. Ruling 81-209, 1981-2 C.B. 16, and 
26 C.F.R. § 1.61-7). That ruling, which involved the lOLTA program in Florida, states 
that it is limited to the facts described therein, but the Massachusetts lOLTA program 
appears to be substantially the same as the Florida lOLTA program. 

"^ Since they are the only entities who may receive the interest or dividends, they hold 
the '"entire beneficial interest" therein. See also II A. Scott, The Law of Trusts § 128.2 
(3d ed. 1967) and cases cited. 

^ I note that my opinion is consistent with those of Attorneys General in other states 
under similar lOLTA programs, including those of the Attorney General of Florida 
(August 21, 1981); the Attorney General of Maryland, 67 Op. Atty Gen. Md. 248 
(August 19, 1982); the Attorney General of Illinois, 1983 Op. Atty Gen. 111. 36 (Sep- 
tember 14, 1983); the Attorney General of New Mexico (October 3, 1984); and the 
Attorney General of Missouri (April 2, 1985). 



44 - P.D. 12 

INDEX OF OPINIONS 

TOPICS 

Administrative procedure 

Adjudicatory and rulemaking authority of Board of 
Library Commissioners 

Beneficial interest 
lOLTA program 

Chapter 121A 

Computation of excise tax 

Child abuse 

Report of incidents directly to district attorneys 

Consent decree 

Preemption of proposed legislation 

Constitutionality 

Prohibition of vending machines in municipalities 

Design services 

Appointment of designer for public building project 

Excise tax 

Computation for Chapter 121 A corporation 

Initiative and referendum 

Safety belt law as subject of referendum 

lOLTA 

"Interest on Lawyers Trust Accounts" program 

Libraries 

Adjudicatory and rulemaking authority of Board of 
Library Conmiissioners 

Grant eligibility 

Preemption 

Preemption by consent decree of proposed legislation 

Public buildings 

Appointment of designer for public building project 

Public funds 

Grant eligibility for libraries 

Rulemaking power 

Adjudicatory and rulemaking authority of Board of 
Library Commissioners 

Safety belts 

Subject of referendum 

Vending machines 

Prohibition in municipalities 



OPINION 


PAGE 


2 


16 


9 


40 


3 


19 


7 


32 


6 


30 


5 


25 


1 


12 


3 


19 


4 


24 


9 


40 


2 


16 


8 


35 


6 


30 


1 


12 


s 


35 


2 


16 


4 


24 


5 


25 



P.D. 12 45 

INDEX OF REQUESTING AGENCIES 

AGENCY OPINION PAGE 

Administration and finance, Secretary of 

Human Services, House Committee on 

Inspector General 

lOLTA Implementation Committee 

Library Commissioners, Massachusetts Board of 

Revenue, Department of 

Secretary of State 

Social Services, Department of 

Speaker, House of Representatives 



1 


12 


6 


30 


1 


12 


9 


40 


2,8 


16,35 


3 


19 


4 


24 


7 


32 


5 


25