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Public Document

No. 12

S^ate Library of Massachusetts'

REPORT

OF THE

ATTORNEY GENERAL

FOR THE

Year Ending June 30,1987

340M3

R467

1987

C.2

Publication of this Document Approved by Ric Murphy. State Purchasing Agent

1500 ■ 3^9 ■ 808741 ESTIMATED COST PER COPY $275

To the Honorable Senate and House of Representatives:

I have the honor to transmit herewith the Report of the Department of the
Attorney General for the year ending June 30, 1987.

Respectfully submitted,

JAMES M. SHANNON
Attorney General

P.D. 12

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P.D. 12 11

COMMONWEALTH OF MASSACHUSETTS

In accordance with the provisions of Section 1 1 of Chapter 12 and of Section
32 of Chapter 30 of the General Laws, I hereby submit the Annual Report for
the Department of the Attorney General. This annual report covers the period
from July 1, 1986 to June 30, 1987 and is the first report I have filed as the
Attorney General of the Commonwealth of Massachusetts.

Fiscal 1987 not only marked the beginning of my first term in this office, but
also marked the end of a distinguished 12 year term by my predecessor, Attorney
General Francis X. Bellotti. Attorney General Bellotti, throughout his tenure,
displayed a strong sense of commitment to working with others in the public
interest and advancing the cause of truth and justice in the Commonwealth. I wish
him luck in his future endeavors.

These first six months have been a period of transition and reorganization.
Together with Attorney General Bellotti, I have strived to make this transition
one that ensures that the public's business be carried on with professionalism and
attention to detail. A search and review process was undertaken to assemble the
most talented and qualified staff for this office with the help of a group of
experts, including law deans and professors, leading members of the bar, leading
representatives of business and labor, and professional advisors in important areas
of the law and law office management.

As I quoted Emerson in my inauguration speech, government should be the
"vehicle of hope" in the lives of all our citizens. Over the next few years, there
shall be no more important task for all of us in this office than to maintain that
trust between the people and their government. Our goal is to strengthen the con-
fidence of people in their government, to expand opportunities for our citizens,
and to enforce the law fairly.

The people who need these laws enforced the most are those who fare worst
when government looks the other way: the poor, the frail, the disadvantaged.
My aim is to be their advocate, to enforce our laws so that the legal system
works— not just for the powerful, but for all of us.

This introduction cannot begin to detail the important work that this office has
begun to do— each of the bureaus handled hundreds of cases during the fiscal
year. A description of their activities is in this report.

12 P.D. 12

CIVIL BUREAU
INDUSTRIAL ACCIDENT DIVISION

The Industrial Accident Division serves as legal counsel to the Commonwealth
in all workers' compensation cases involving state employees. Pursuant to G.L.
c. 152 §69 A, the Attorney General must approve all payments of benefits and
disbursements for related medical and hospital expenses in compensation cases.
In contested cases the division represents the Commonwealth before the Depart-
ment of Industrial Accidents and in appellate matters before the Appeals Court
and the Supreme Judicial Court.

There were 16,130 First Reports of Injury filed during fiscal year 1987 for
state employees with the division of Industrial Accidents, an increase of 3,002
over fiscal year 1986. Of the lost time disability cases, the division reviewed and
approved 3,067 new claims for compensation and 222 claims for resumption of
compensation. In addition, the division worked on and disposed of 165 claims
by way of lump sum agreements, and 9 by payment without prejudice.

The division appeared for the Commonwealth on 1 ,437 fonnal assignments
before the Department of Industrial Accidents . The division also appeared before
the Superior Court concerning enforcement of orders pursuant to G.L. c. 152
§12(1) and before the Appeals Court on appeals from decisions of Industrial
Accident Review Board pursuant to G.L. c. 152 §12(2). In addition to evaluating
new cases, the division continually reviews the accepted cases to bring the medical
reports up to date and to determine present eligibility for compensation.

Total disbursements by the Commonwealth for state employee's Industrial
Accidents claims, including accepted cases, Board and Court decisions and lump
sum settlements, between July 1, 1986 to June 30, 1987 follow:

General Appropriation
to Division of Industrial Accidents

Incapacity Compensation $20,000,090.00

Medical Payments 5,802,970.00

TOTAL DISBURSEMENT $25,803,060.00

This division is also responsible for defending the Second Injury Fund set up
by Chapter 152, §65 against claims for reimbursement made under Chapter 152,
§37 and 37A. The Second Injury Fund encourages employment of the handi-
capped by relieving the insurer from the burden of paying the entire compensa-
tion for further disability of the employee due to the combined effect of his previous
injury and one later received in the course of employment.

Pursuant to G.L. c. 33, §§13-1 lA, the Chief of the Industrial Accident Divi-
sion represents the Attorney General as a sitting member on the Civil Defense
Claims Board. The Claims Board reviews and processes claims for compensa-
tion of unpaid civil volunteers who were injured while in the course of their
volunteer duties.

The division also represents the Industrial Accident Rehabilitation Board. When
an insurer refuses to pay for rehabilitative training for an injured employee, the
division represents the case to the Industrial Accident Board on behalf of the In-
dustrial Accident Rehabilitation Board.

P.D. 12 13

CONTRACTS

The responsibilities of the Contracts Division generally fall into three areas:
litigation involving matters in a contractual setting; advise and counsel to state
agencies concerning contractual matters; and contract review.

The Contracts Division represents the Commonwealth, its officers, and agen-
cies, as both party plaintiff and defendant in all civil actions involving contract
and contract related disputes.

Most cases handled by the division concern public building, state highway, and
public work construction disputes. Other typical cases involve claims arising from
the interpretation of leases, employment contracts, statutes, rules, regulations,
and surety bonds.

In contract actions against the Commonwealth, G.L. c. 258, s.l2, is the con-
trolling statute and the Attorney General represents the Commonwealth in Superior
Court in all such disputes.

At the commencement of contract actions, including bid protests, litigants often
seek temporary restraining orders and preliminary injunctions against the Com-
monwealth, its agencies, and officers. The granting of such relief would delay
the execution of contracts, increase contract cost to the public and result in addi-
tional claims for damages. During the fiscal year, division attorneys successfully
resisted all such attempts for injunctive relief.

Government contract disputes are complex litigation involving multiple par-
ties including architects, consulting engineers, subcontractors, suppliers, and surety
companies. The discovery stage often involves the retrieval of massive numbers
of documents which must then be reviewed and analyzed. Trials of public con-
tract actions also involve lengthy hearings before the Court or before Court
appointed masters. As a result, the Contracts Division has begun to consider alter-
natives in resolving disputes which could provide simplified and expedited
substitutes for formal litigation. Such alternatives could better protect state agen-
cies, save taxpayer dollars and provide prompt and fair resolution of dispute for
those doing business with the Commonwealth.

The Attorney General also institutes affirmative litigation to recover money
due to the Commonwealth due to contract breaches. Fifty-two new actions were
commenced during FY 1987 and 36 cases were closed. As of June 30, 1987,
there were 203 pending cases in the Division representing a total dollar exposure
to Massachusetts of $75,582,520.

On a daily basis, the Division receives requests for legal assistance from state
agencies and officials. Problems involve formation of contracts, performance of
contracts, bidding procedures, bid protests, contract interpretation, and many other
miscellaneous matters. The most frequent request dealt with indemnification
clauses in leases and arbitration provisions in construction contracts.

On a weekly basis, the Contracts Division also receives requests for assistance
in purchasing. Division members counsel the Purchasing Agent and his staff,
interpret regulations, and attend informal protest hearings.

The division has a similar relationship with respect to the Department of Public
Works, Metropolitan District Commission, Executive Office of Transportation
and Construction, Board of Regents of Higher Education, the Departments of
Mental Health, Mental Retardation, Youth Services, Environmental Management,

14 P.D. 12

Water Resources, and Public Welfare, State Lottery Commission, and Division
of Capital Planning and Operations.

The division reviews many state contracts, leases, and bonds submitted by state
agencies. All contracts are logged in and out, and a detailed statue record is main-
tained. The average contract is approved within 48 hours of its submission to
the division.

During the fiscal year, the Division received 58 1 contracts for approval as to
form. Forty-two contracts were rejected and later approved once the deficiencies
were corrected.

EMINENT DOMAIN

The Eminent Domain Division represents the Commonwealth in the defense
of petitions for the assessment of damages resulting from land acquisition by emi-
nent domain. The Commonwealth acquires land for a variety of purposes,
including rights of way for roads, land for state colleges, land for recreation and
park purposes, land for flood control and land for easements. The division deals
primarily with the Department of Public Works, the Metropolitan District Com-
mission, the Department of Environmental Affairs, state colleges, the Universi-
ty of Massachusetts, the Armory Commission, the Department of Food and
Agriculture, the Department of Fisheries & Wildlife and Environmental Law
Enforcement and the Department of Capitol Planning and Operation.

The division also provides legal assistance to the Real Estate Review Board
in settling damage claims on takings of government-owned land for highway pur-
poses. Additionally, the division is sometimes asked to testify before the Gover-
nor's Council prior to their approving payment of land damage cases settled by
the Department of the Attorney General.

Informal advisory services on eminent domain questions are rendered to prac-
tically every state agency, and the many cities and towns.

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

If occupied buildings are situated on parcels acquired by eminent domain, the
occupants remaining become tenants of the Commonwealth and are obligated to
pay rent. Rent collection is handled by a Special Assistant Attorney General who
is assigned fulltime to the Department of Public Works (DPW). While reporting
directly to the agency, the Special Assistant Attorney General's performance is
reviewed by the Eminent Domain Division.

His primary responsibility is representing DPW in all maters related to state-
owned property being leased or rented to the general public. This includes
negotiating settlements, closing out uncollectibles. filing suits to enforce the rent
payment, as well as eviction. In those cases where rent is owed to the Com-

P.D. 12 15

monwealth and there is a land damage case pending, the Eminent Domain Divi-
sion trial attorney handles both matters at the time of trial.

During the past fiscal year, 50 rent cases were closed out and $198,239 was
collected and turned over to the State Treasurer. During FY 1987, about 80 land
damage cases were disposed of, the majority by trial before juries in Superior
Courts throughout the Commonwealth. The disposition of these cases resulted
in a savings to the Commonwealth of approximately $10 million. In addition,
more than 275 cases were disposed of in the Land Court as well.

The Eminent Domain Division also has the responsibility of protecting the Com-
monwealth's interests in all petitions for registration of land filed in the Land
Court. In each case, a determination is made whether or not the Commonwealth,
or any of its agencies, has an interest which may be affected by the petition. If
such a determination is made, the division is given a full hearing before a full
decree is issued. Some issues are tried to a conclusion while others are amicably
agreed upon with the rights of the Commonwealth protected by stipulation.

Land Court matters involve the full-time activities of an Assistant Attorney
General. The court's jurisdiction covers every type of land transaction from
foreclosure and tax takings to determination of title absolute as well as all the
equity rights arising from their determination.

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

Land Court also determines so-called "water rights". This is becoming a new
problem area because many rivers and streams have been cleaned and improved
through federally-funded projects, bringing into question the Commonwealth's
rights and responsibilities. Additionally, the tidal areas of the Commonwealth
are creating continual litigation, particularly where the Colonial Ordinances are
concerned. Litigation is developing whereby the public is asserting possession
and prescriptive rights in the tideland flats and beach access.

The land registration process continues to involve diverse issues. Many railroad
rights of way appear in registration cases. Many pose serious questions regard-
ing abandonment and the effect upon the total railroad right of way. The Com-
monwealth, by way of the Secretary of Transportation, has acquired railroad rights
of way for both passenger service and recreational uses. The reversionary rights
and the effects upon Commonwealth title are important issues.

The Commonwealth has become involved in problems caused by filling and
dredging along the shoreline and other areas developed by beach associations,
especially on the Cape and Islands. When dredging involved placing material on
the shore, private access rights to and from the beaches are altered.

All rental agreements, pro tanto releases, general releases, deeds of grants and
conveyance, and documents relating to land under the control of any of the state's
departments or agencies must be reviewed and approved as to form by the Emi-
nent Domain Division.

The Division continues to assist the Department of Food and Agriculture in
expediting and implementing the mandates of Chapter 780 of the Acts of 1977,
known as the Agricultural Preservation Restriction Act. This act helps to preserve

16 P.D. 12

the limited farm land remaining in Massachusetts by providing a method where
the farmers receive compensation for the so-called "developmental rights" in
their land without destroying the productive capacity and value of the farm land.
Once development rights are sold, a deed is then filed in the appropriate county
registry which restricts the land use in perpetuity to farming and agricultural uses.
Since the program began in 1977, more than 20,000 acres of farmland have been
permanently protected in Massachusetts.

TORTS

The Torts Division handles primarily tort and civil rights suits brought against
the Commonwealth and its employees, the investigation and preparation of reports
for the district courts on Petitions for Compensation to Victims of Violent Crimes,
Contributory Retirement Appeals Board (CRAB) cases and collection cases.

Collections cases are handled by both Torts Division attorneys and by attorneys
assigned to the Civil Bureau. CRAB cases are distributed among all Civil Bureau
attorneys.

At the end of the fiscal year, the division had 970 open cases and was supervis-
ing 208 claims against the Commonwealth where the Attorney General acts as
executive officer. There were 355 new cases, and 207 cases were closed.

During FY 1987, 78 cases were settled without trial. Dismissals or summary
judgments on behalf of the Commonwealth were obtained in 110 cases. Of the
24 cases tried, 15 resulted in plaintiffs verdicts. Additionally, 806 petitions for
compensation of victims of violent crime were opened and 539 were closed.

As in previous years, the unavailability of funds to settle claims prior to trial
is still a major problem. When liability cases can be settled prior to trial there
is generally a substantial saving for the Commonwealth.

CRIMINAL BUREAU

The Criminal Bureau was restructured into six Divisions: Public Integrity, Nar-
cotics, Special Prosecutions, Division of Employment Security, Victim Compen-
sation, and the Criminal Appellate Division.

During the 1987 fiscal year, the Bureau prosecuted a wide variety of cases
developed by its own investigations division, as well as those referred by other
goverimient agencies or the district attorneys.

PUBLIC INTEGRITY

Fiscal Year 1987 saw the establishment of the Public Integrity Division under
the new administration of Attorney General Shannon. Enforcement against crimes
of public corruption became a priority in the new administration and prosecutors
and investigators with experience in public corruption cases were recruited to
lead the division.

The lawyers and investigators devote their time exclusively to public corrup-
tion cases. Division cases included: bribery and other violations of the

P.D. 12 17

Massachusetts conflict of interest statute (M.G.L. c. 268A); fraud against govern-
ment agencies in procurement and other matters; election law and campaign finance
violations; and related larcenies, tax crimes, and other violations of the public
trust by government officials and by those dealing with public agencies.

During FY 1987, several investigations were launched, and prosecutions were
prepared although none of them became a matter of public record during the fiscal
year.

NARCOTICS DIVISION

The Narcotics Division was formed in April 1987, with much of the first two
months devoted to recruiting prospective staff.

The Attorney General and members of the Criminal Bureau hosted a series
of morning breakfasts for police chiefs and police command staffs of virtually
every law enforcement agency in the state. The meetings were designed to
explain the goals and priorities of the Criminal Bureau, to offer assistance where
possible, and to begin a dialogue which would contribute to joint investigations
and future cooperation.

In addition, members of the Narcotics Division worked with representatives
of the District Attorneys' Association on a variety of legislative matters, including
redrafting the proposed RICO bill, a pen register bill, an immunity bill, and a
narcotics proceeds forfeiture bill.

SPECIAL PROSECUTIONS

As part of the reorganization of the Bureau under Attorney General Shannon,
the trial and investigative functions of the Criminal Bureau, which had been
grouped within the Criminal Investigative Division (CID), were expanded through
the establishment of the Narcotics and Public Integrity Divisions. The Criminal
Investigations Division was renamed Special Prosecutions.

The priorities of the Special Prosecutions Division include: criminal enforce-
ment under the Commonwealth's environmental laws; investigation and prosecu-
tion of tax violations; and major fraud cases including consumer and insurance
frauds and larcenies by public employees and by attorneys and other fiduciaries.

In addition. Special Prosecutions continued the work of CID as the headquarters
for general criminal investigation and prosecution within the Attorney General's
office, most typically in violent crimes or general criminal cases referred to the
Attorney General by District Attorneys because of possible conflicts of interest.

During FY 87, the Attorney General and the Commissioner of Revenue signed
an agreement forming a Tax Prosecution Unit within the Criminal Bureau. Both
agencies agreed to commit resources and staff to increase the number of pros-
ecutions and investigations of tax cases. The agreement was signed on the eve
of the tax filing deadline in April, 1987. During the fiscal year, criminal charges
were brought by the Attorney General in 19 tax cases involving both individuals
and corporate defendants who had willfully evaded or failed to comply with
income, sales, and meals tax obligations.

18 P.D. 12

Fiscal Year 1987 was the culmination of a joint state-federal undercover
investigation of fraudulent claims involving stolen cars. It was known as Opera-
tion "Go Fast. "In March, the Attorney General brought 1 1 1 indictments against
54 individuals in four counties (and the U.S. Attorney charged a like number)
for concealing a motor vehicle to defraud an insurer, filing false police reports,
and other charges relating to automobiles which were falsely reported as stolen
by their owners. Working in coordination with the Governor's Auto Theft Strike
Force, the Criminal Bureau oversaw a 13-month undercover investigation in which
more than one hundred cars were "given up" by their owners, usually through
middlemen, and then falsely reported as stolen to collect the insurance proceeds.

Other cases prosecuted by the division during FY 87 involved welfare fraud,
state employee theft and embezzlement, narcotics (prior to the establishment of
the Narcotics Division), commercial bribery, consumer fraud, and environmen-
tal crime.

EMPLOYMENT SECURITY

The Employment Security Division in the Criminal Bureau, provides the Divi-
sion of Employment Security (DES) with the legal assistance and representation
necessary to enforce the Massachusetts employment security laws. The division
also handles appellate matters arising from decisions granting or denying
unemployment compensation benefits to individual claimants.

The division prosecutes employers who fail to comply with the Employment
Security Law by not filing the necessary reports required by law or paying the
taxes owed by law to the Division of Employment Security.

The division makes every effort to fully inform employers of their rights and
obligations under the law. As a result, some intransigent taxpayers, when faced
with the prospect of criminal prosecution, decide to pay their taxes.

During the fiscal year, 7555 employer tax cases were handled by the division.
When the year began, 1296 cases were pending, and 59 additional cases were
received. At the close of the fiscal year, 268 cases were closed, leaving a balance
of 1087 employer tax cases pending.

Applications for criminal complaints were brought in the Boston Municipal
Court, charging 138 individuals with 1641 counts of nonpayment of taxes, total-
ing $2,689,471.35 owed to the Commonwealth by delinquent employers. The
Boston Municipal Court issued complaints against 125 individuals for 1543 counts
of nonpayment of taxes totaling $2,374,613.01. In addition, the division
obtained 23 convictions on employer tax cases and the court found facts suffi-
cient to warrant a finding of guilty in another 45 cases.

Overdue taxes totaling $2,136,190.27 were collected during the fiscal year,
and deposited in the Massachusetts Unemployment Compensation Fund.

The Division also prosecutes individuals who collect unemployment benefits
while gainfully employed and earning wages. Criminal complaints are brought
only when the facts surrounding the offense have been investigated and criminal
intent substantiated. Complaints are filed in the jurisdiction where the claimant
filed for benefits.

During the fiscal year, 866 fraudulent claims for unemployment benefits were
handled by the division when the year began and 853 cases were pending and

P.D. 12 19

13 more cases were filed. At the end of the year, 221 cases were closed, leaving
a balance of 645 employer tax cases pending.

Applications for criminal complaints were brought in the various courts of the
Commonwealth, charging 29 individuals with 514 counts of larceny totaling
$69,183.00 in unemployment insurance benefits fraudulently collected from the
Commonwealth. The courts issued complaints against 29 individuals for 582 counts
of larceny totaling $69,388. In addition, the division obtained 70 convictions on
larceny cases and the court found facts sufficient to warrant a finding of guilty
in an additional 13 cases.

Restitution totaling $154,962. 96 was collected from fraudulent claimants dur-
ing the fiscal year and much has been restored to the Massachusetts Unemploy-
ment Compensation Fund.

IJie division also represents the Director of DES— in both cases brought against
him and also on his behalf. During the Fiscal Year, the division represented the
DES Director in 28 cases.

The division also handled 16 appellate cases arising from decisions granted
or denied unemployment compensation benefits to individual claimants — in the
Supreme Judicial Court or the Appeals Court of the Commonwealth. Seven cases
were pending when the year began and nine more were filed. Ten of the cases
were argued and closed. Of those, the court upheld the position of the Director's
attorney in two cases, denied the position of the Director's attorney in three cases,
remanded four cases for further review by the State Agency, and dismissed one
case ordering it to be docketed in the District Court.

CRIMINAL APPELLATE

Cases handled by the Criminal Appellate Division primarily involve the defense
of state correctional authorities. The division handled more than 250 new cases,
and more than 100 prisoner suits were referred to the Department of Correction
for representation. The inmate suits challenged conditions of incarceration, pro-
cedures surrounding disciplinary hearings, and various prison regulations.

The division also defended more than 30 federal habeas corpus petitions
challenging the constitutionality of state criminal court convictions. The division
continued to represent the Commonwealth in all cases involving annual review
of inmates confined as sexually dangerous persons at the Treatment Center at
Bridgewater. This year, 30 petitions were disposed of in Superior Court hearings.

The Division successfully opposed three petitions for a writ of certiorari in the
United States Supreme Court. Five cases were argued in the First Circuit Court
of Appeals. Two cases were argued in the Supreme Court, and five cases in the
Appeals Court of Massachusetts.

The division also processed the rendition of fugitives from justice. Demands
from both law enforcement officials of the Commonwealth and Governors of other
states were examined, and 231 opinions were rendered on the legality of each
demand in FY 1987.

20 P.D. 12

MEDICAID FRAUD CONTROL UNIT

During Fiscal Year 1987, the Medicaid Fraud Control Unit (MFCU) was in
the forefront of the growing national focus on health care provider fraud and the
need to protect elderly nursing home residents from physical and financial abuse.

As a certified Medicaid Fraud Control Unit, the unit prosecutes both institu-
tional health care providers and ambulatory providers such as doctors, dentists,
psychiatrists, laboratories, pharmacies and transportation companies. The unit
has also successfully prosecuted instances of physical abuse to patients in long-
term care facilities.

The unit opened 102 cases in fiscal year 1987. During the year, the unit
initiated 12 prosecutions and obtained six convictions. As a result of these con-
victions, defendants paid $92,250 in fines, $87,338 in restitution, and $179,850
in costs and damages. An additional $357,001 in overpayments by the Medicaid
Fraud Control Unit was recovered by the unit as were $10,857 in patient funds.
The majority of MFCU prosecutions were initiated through the investigations of
a special grand jury, specifically impaneled to investigate allegations of Medicaid
fraud.

Several initiatives and cases completed during the Fiscal Year are worthy of note.

The MFCU has developed an innovative technique for investigating dental ser-
vice providers. It involves an examination of Medicaid recipients by two dental
consultants and the unit's staff dental hygenist. A photographic record is made
of each recipient's mouth, and all recipients are interviewed. The unit concluded
seven investigations of dentists during the fiscal year. One review revealed that
the dentist had billed for fillings on teeth where there were no fillings. In some
instances, recipients stated they had never even been to a particular dentist's
office, even though that dentist submitted a bill.

This dentist was indicted for larceny and violation of the state's Medicaid False
Claims Act. He pled guilty and received a one-year suspended sentence in the
House of Correction, was fined $10,000, and was ordered to pay $15,000 in
restitution, costs, and damages.

Another dentist received a one-year suspended sentence to the House of Cor-
rection, was fined $10,000 and ordered to pay restitution of $30,000.

In addition to these criminal convictions, the unit obtained $52,779 in civil
recoveries during the reporting period from dental investigations.

In FY '87, the unit also entered civil settlements with three clinical laboratories
resulting in payments of $205,487. These settlements were part of a continuing
investigation into the clinical laboratory industry. This phase focused on economic
arrangements designed to induce physicians to refer laboratory tests, including
Medicaid, to a particular clinical laboratory. It included reviewing Medicaid billing
by laboratories at a rate higher than the lowest price charged to any other
purchaser.

By the end of FY '87, this series of investigations led to the recovery of nearly
$1.5 million. In addition, a study by the Medicaid program projected annual sav-
ings of between $450,000 and $700,000 resulting from the unit's initiatives and
related enforcement activities by the Welfare Department.

The unit concluded a case against a nursing home administrator who wrote
checks payable to legitimate vendors and then deposited the checks in his own
bank account, always using the same teller. Once this pattern was established,

P.D. 12 21

the fraudulent items could be culled from legitimate vendor checks simply by
searching for that teller's stamp. Both the individual and the corporation pled
guilty. The individual received a sentence of five years in prison on charges of
larceny and four counts of filing Medicaid False Claims. The corporation pled
guilty to the same charges and was fined $56,000. The corporation and the
individual defendant were held jointly liable for the payment of $39,337 in
restitution.

In July 1986, the unit began an undercover operation designed to discover if
nursing homes were soliciting cash payments from relatives of Medicaid patients
as a precondition for the admission of Medicaid patients. Although none of the
homes investigated requested such payments, it became clear that nursing homes'
admission policies were discriminating against Medicaid recipients.

The unit shifted the focus of its investigation to determine the extent of
discriminatory admissions. Based upon the evidence uncovered, the unit and the
department's Consumer Protection Division filed consumer complaints against
10 nursing homes, one of which was part of a major national chain. In each case,
the nursing home agreed to a consent judgment barring further discrimination.
The homes also agreed to maintain a waiting list so that any future discrimina-
tion could be documented. The nursing home also paid $66,000 in fines, costs,
and damages.

Nationally, the unit's investigations marks one of the few enforcement efforts
aimed at addressing the pressing problem of provider discrimination against
Medicaid recipients.

PUBLIC PROTECTION BUREAU

The Public Protection Bureau (PPB) consists of 1 1 divisions: complaints, local
consumer programs, consumer protection, anti-trust, civil rights, environmental
protection, insurance, public charities, utilities, nuclear safety, and special
litigation.

The bureau brings affirmative litigation on behalf of the public and represents
the public in insurance and utility rate hearings. The bureau also represents state
agencies and boards that are involved in the public interest.

CONSUMER COMPLAINTS

During Fiscal Year 1987, the Complaint Section opened 5,088 consumer com-
plaint cases, closed 4,038 cases, and assigned 3,781 cases to Complaint Section
Personnel.

The section recovered $558,108.63 in refunds, savings and the value of goods
or services for consumers— a reimbursement that would not have been possible
without the intervention of the department.

In addition, 6,107 complaints were processed by the section: 1,716 were
returned to consumers for lack of jurisdiction; 833 were referred to other state
or local agencies; 1 ,049 were referred to other agencies in other states; and 2,509
were referred to local consumer programs.

22 P.D. 12

The Information Line staff received 108,053 phone calls during fiscal year 1987.
As a resuh of these calls, 12,152 citizens were sent Complaint/Inquiry Forms;
16,199 were given general information; and 79,714 were referred to local con-
sumer programs or other state or federal agencies.

The staff also received 305 calls concerning civil rights issues. As a result of
these calls, 143 citizens were sent Complaint/Inquiry forms, and 162 were given
information relating to civil rights inquiries.

LOCAL CONSUMER PROGRAMS

The Local Consumer Service Unit is responsible for the administration of the
Local Consumer Aid Fund and awards grants to a network of local consumer
and face-to-face mediation programs. These community agencies assist citizens
throughout the Commonwealth in the resolution of consumer problems. The local
programs work in cooperation with the Department of the Attorney General and
help identify repeat offenders of consumer laws.

Funding for the operation of these programs is allocated by the General Court
to the Local Consumer Aid Fund (LCAF) (M.G.L. c. 12, s. IIG).

In FY 1987, a total of $691 , 137 was used for grants to 27 local consumer pro-
grams and eight face-to-face mediation programs. During fiscal 1987, $730,551
was appropriated by the Legislature to the Local Consumer Aid Fund. Ten per-
cent, or $73,000, was retained for administrative purposes. An additional $44,000,
earmarked for the LCAF in the settlement of consumer related cases, was used
to supplement the Legislature's allocation.

In FY '87 there were 27 Local Consumer Programs working in cooperation
with the Attorney General's office. These local programs, usually found in
community action programs or city halls, handled more that 16,000 consumer
complaints. Through an informal process of telephone mediation, the communi-
ty agencies were able to save consumers approximately $3.2 million.

Complaints typically involved automobile repairs and sales, home improve-
ment transactions, landlord/tenant disputes and time-share issues. In addition to
their mediation service, the programs also serve as a valuable source for general
consumer information and advice.

In FY '87 there were seven full-time and one part-time Face-to-Face Media-
tion Programs, each operating with one paid staff person and 20 to 25 trained
community volunteer mediators. Mediations involved landlord/ tenant or consumer
disputes. Referrals came from local consumer programs, small claims courts,
landlord or tenant advocacy programs, and other community agencies.

The Face-to-Face Mediation Programs provided mediation services by assign-
ing 250 trained citizen volunteers to 1,138 clients. A total of 455 face-to-face
mediation sessions were held— 82 percent resulted in written agreements, with
97 percent of those agreements upheld. In addition, 167 cases were resolved over
the telephone by face-to-face staff.

P.D. 12 23

CONSUMER PROTECTION

The Consumer Protection Division brings enforcement actions against
businesses which use unfair and deceptive practices resulting in injury to con-
sumers. Concentrating on cases where consumers cannot reasonably obtain relief
through their own efforts, the division's caseload consists primarily of large-scale
class actions brought on behalf of consumers affected in similar ways by the il-
legal activities of business.

The division's caseload generally addresses housing, health care, financial ser-
vices, and automobiles.

In Commonwealth v. Ronald Porter, et al., a final judgment was entered
enjoining further unfair and deceptive practices by this landlord in his residential
buildings throughout the state, including illegal evictions, violations of security
deposit laws, use of illegal penalty clauses in leases, imposing unlawful waiver
requirements on tenants, and unlawful entry into tenants' apartments. In addition
to a permanent injunction against many of these practices, the judgment includes
payments by the landlord to tenants whose leases had unlawful provisions or who
overpaid for key and lock deposits. Porter also paid $2,000 to the Local Con-
sumer Aid Fund, $8,750 in civil penalties, and $2,500 in attorneys' fees.

In Commonwealth v. William W. Lilly, et al. , the Commonwealth filed suit
against Lilly and six other defendants for failure to comply with the provisions
of Regulation 1 1 promulgated pursuant to the Boston Condominium Conversion
Ordinance. The regulation requires a landlord converting units to condominiums
to provide tenants with a binding purchase and sale agreement and includes a
description of the "housing accomodation being sold as set forth in the Master
Condominium Deed." The defendants also allegedly violated 940 C.M.R. 3. 16(2)
by failing to provide tenants, upon request, with information relating to con-
dominium conversion which was material to their decision whether to purchase
their units. The complaint asks the court to order injunctive relief and civil
penalties, costs and attorneys' fees.

Suits were filed against 10 nursing homes alleging discrimination against elderly
recipients of Medicaid in admission policies. The suits followed investigations
by the Medicaid Fraud Control Unit. Consent Judgments were entered in all cases,
enjoining the nursing homes from further discrimination against Medicaid reci-
pients in their admission practices, requiring the homes to keep a chronological
waiting list of applicants to ensure a non-discriminatory admission policy, and
obtaining payment of costs, attorneys' fees and, in three cases, civil penalties.
A total of $60,000 was paid to the Commonwealth.

During this period, another patient protector receivership was established and
the operational aspects of another were successfully terminated. In Bellotti etal.
V. Avanti Health Care Incorporated d/b/a Regent Park Long Term Care Center,
a Stipulation in Lieu of Injunction required the defendant nursing licensee to
immediately upgrade its substandard healthcare. When the defendant failed to
do so, the division obtained the appointment of a receiver to operate Regent Park
Nursing Home and protect its 120 elderly patients.

In Shannon et al. v. Doctors Chronic Hospital of New Bedford d/b/a Francis
P. Memorial Hospital et al. , the division obtained a patient protector receiver
to operate a 60-bed chronic hospital in New Bedford. The action followed the
hospital's decertification as a Medicare provider by the U.S. Health Care Finance

24 P.D. 12

Administration and the Commonwealth's Welfare Department. The decertifica-
tion created a public health emergency because the facility lost all government
funds to finance patient care. Money which the provider used to purchase food,
medication and nursing care was expected to run out literally within hours.

In Commonwealth v. Cambridge Diagnostics, Inc. et al. , a consent judgment
was entered against the company and its director, Laxman S. Desai. It required
the defendant to make clear disclosures to consumers regarding the effectiveness
of food allergy tests conducted by the laboratory, and to maintain adequate records.

In Commonwealth v. Woman's World Health Spas of American, Inc. et al.,
the Commonwealth filed a final judgment by agreement, against Andre Yzaguirre,
the president of Woman's World, and its franchisor, Raquel, Inc. The judgment
prohibits Yzaguirre from engaging in unfair and deceptive acts in the sale and
servicing of health spa memberships, and requires him to notify the Attorney
General and post a bond if he resumes any type of business in Massachusetts
which requires consumers to pay in advance for future services. Yzaguirre also
paid $20,000 in restitution to consumers who filed complaints with this office.

In a major mortgage fraud case. Commonwealth v. Home Mortgage Corpora-
tion, Inc., the division sued the corporation and its president, Mark J. Shaw,
for representing to consumers that mortgage funds were available when neither
sufficient funds nor firm commitments from investors were available. They also
allegedly failed to discharge consumers' prior outstanding mortgage obligations
when refinancing loans for consumers — leaving consumers with two outstanding
mortgages. A preliminary injunction was obtained preventing the defendants from
processing any new loans or commitments until they had fulfilled all existing loan
obligations. More than 400 consumer complaints were filed in this case, 1 10
involving loans provided by the defendants that had to be sold to discharge prior
encumbrances and loans. A consent judgment provided $235,000 in consumer
restitution, penalties, fees and a permanent injunction.

In the Matter of Chase Home Mortgage Corporation, an Assurance of Discon-
tinuance was filed against a New Jersey mortgage company doing business in
Massachusetts. The settlement returned $1,000 to the Commonwealth for
investigation costs. The company also agreed to discontinue the illegal practices
and to rewrite mortgage loans with the original lock-in rate for consumers, who
had their mortgages closed after May 1, 1986, at a higher interest rate than the
original lock-in rate. In all cases, the closings were delayed through no fault of
the consumer. The company also agreed to reimburse these consumers for over-
paid interest.

In Re: Home National Mortgage Corp. , Lomas & Nettleton Co. , Plymouth Sav-
ings Bank, and Westmark Mortgage Co. , Assurances of Discontinuance were
signed and filed in Suffolk Superior Court. We had received complaints against
these companies for failing to honor lock-in rate commitments and for closing
loans at rates and, in some cases, points which exceeded the consumer's original
lock-in arrangement. The companies agreed to provide reimbursement of points,
where appropriate, and to rewrite or refinance more than 200 loans. Each lender
was required to rewrite or refinance every loan where the processing delays were
not caused by the borrower, and to make explicit representations about the lock-
in period. In addition, each lender paid between $1,000 and $1,500 in costs.

P.D. 12 25

The First National Bank of Boston, which did not close any loans at the higher
rate, signed a letter agreement which contained similar obligations to honor locked-
in rate commitments and provide disclosures to consumers concerning locked-in
mortgage rates.

In Commonwealth v. Manhattan Financial Senices, Inc. , a consent judgment
was entered which enjoined Manhattan Financial Services from brokering mort-
gages or advertising its services as a mortgage broker unless it is licensed as a
real estate broker by the Board of Registration of Real Estate Brokers.
Massachusetts law requires that any person or entity negotiating a loan secured
by a mortgage or other encumbrance upon real estate be licensed as a real estate
broker. Manhattan Financial Services had acted as a broker in many transactions
when it did not hold a valid real estate broker's license. The company paid $5,000
in civil penalties.

In Commonwealth v. Charles Mortgage Company, Inc. , suit was filed against
this New Bedford mortgage company/mortgage broker alleging that it had
accepted application fees for refinancing and failed to produce refinancing
agreements or to refund fees to some 15 complainants. The suit seeks an injunc-
tion against further mortgage lending activities by Joseph Boldiga, the company's
primary operating agent, and restitution for the consumers.

The Division's renewed activity in the area of post-secondary education con-
tinued during the latter half of 1986 with the filing of a complaint against the
Business Education Institute, Inc. , a post-secondary business school in Springfield.
The allegations included admission of unqualified students, misrepresentations
about services, and inadequate delivery of those services. After filing the com-
plaint, the Commonwealth secured a preliminary injunction barring future miscon-
duct. After learning of a possible transfer of assets by the proprietor of the school,
the division quickly obtained an attachment of funds in excess of $100,000 for
refunds to students who either did not receive services or otherwise were injured
by the school's unfair practices.

In Commonwealth v. AAMCO Transmissions, Inc. , the department and 13 other
states, filed a judgment barring the use of an "inspection service" marketing
device under which AAMCO franchisees were forbidden to quote repair prices
until a car's transmission was actually disassembled. The judgment, negotiated
by a five-state team headed by Massachusetts, also provides for extensive inter-
nal monitoring by the AAMCO chain of its own franchises to prevent unnecessary
and unauthorized repairs, delays and other consumer abuses. AAMCO paid the
states $500,000 as part of the judgment, with Massachusetts receiving $75,000.

In Commonwealth v. Seacrest-Cadillac-Pontiac-Mazda, Inc. dihia Seacrest
Mazda, a consent judgment was entered enjoining the defendant from failing to
disclose leasing specifications if the defendant advertised that vehicles were
available for lease; from failing to make five financing disclosures if certain "trig-
gering terms" were used; and from making representations about financing. The
defendant paid $5,000 in civil penalties.

Several final judgments were filed against dealers for alterating odometers. In
Commonwealth v. Felix Tranghese, d/b/a Mall Auto Sales and John Kowal, one
defendant agreed to a final judgment enjoining further odometer alterations, the
monitoring of his business and the payment of $36,500 for restitution to consumers

26 P.D. 12

and penalties. The defendant, a Western Massachusetts dealer, had spun the
odometers of the vehicles he leased. Also, in Commonwealth v. Robertson and
Gray, Inc. , a permanent injunction against odometer spins was entered and $12,000
was paid to the Commonwealth to be distributed as restitution to consumers.

ANTITRUST

During Fiscal Year 1987, the Antitrust Division continued its vigorous enforce-
ment of state and federal antitrust laws. Highlights of the division's work during
fiscal year 1987 follow.

In Commonwealth of Massachusetts et al. v. Minolta, Massachusetts joined 36
other states in simultaneously filing a complaint and settlement agreement against
Minolta Corporation alleging a resale price maintenance scheme between Minolta
and retailers selling the products. Under the terms of the settlement, the Com-
monwealth recovered more than $100,000 in restitution to consumers who pur-
chased two popular brands of Minolta cameras.

The Antitrust Division obtained a settlement with Waldbaum, Inc. calling for the
issuance of $2.5 million in coupons to consumers. In Commonwealth of
Massachusetts v. First National Supermarkets, et al. the division brought price-
fixing action against Waldbaum, Stop & Shop Companies, Inc. and First
National Supermarkets, Inc. in 1985. The $2.5 million settlement was the largest
ever secured by the Commonwealth in an antitrust action. Under the terms of
the settlement, consumers were able to redeem $2 and $3 coupons on purchases
of $20 or more at all Waldbaum Foodmart and any grocery store choosing to
participate in the redemption program.

In Commonwealth of Massachusetts v. Ashland-Warren, Inc., the Com-
monwealth and four bituminous concrete manufacturers reached a settlement of
$385,000 in a 1982 bid rigging case filed by the Antitrust Division against 1 1
bituminous concrete manufacturers. The seven other defendants had previously
settled with the Commonwealth. The defendants were charged with bidrigging
and territorial allocations in selling bituminous concrete and road paving con-
tracts to the Commonwealth and several cities and towns. Half of the settlement
will go directly to the affected cities and towns, and the remainder to the state
Antitrust Revolving Fund.

The Attorney General received a letter of assurance from Hamilton Test System,
Inc. , a subsidiary of United Technologies, stating that it would no longer engage
in a tying arrangement which required auto emissions test stations using Hamilton
Auto Emission Analysis machinery to purchase calibration gas, paper and filters
from Hamilton. The written Assurance of Discontinuance contained provisions
requiring Hamilton to conduct educational programs for all service personnel to
insure compliance and to provide notice of its non-restrictive policy to all
customers.

The Commonwealth also reached a settlement with four major manufacturers
of art supplies charged with engaging in a nationwide conspiracy to fix prices
and rig bids. The proceeds of the settlement— approximately $85,000— were
distributed to 303 school districts throughout the Commonwealth.

Final approval was given to a settlement among the Commonwealth. 49 other
states, the federal government and all sections of the oil industry allowing the

P.D. 12 27

states to recoup $4 billion in crude oil overcharges by major oil companies. Dur-
ing the 1970s, the major oil companies had violated crude oil price controls by
charging customers prices above those allowed by federally mandated price con-
trols. It is estimated that the Commonwealth could receive up to $100 million
over the next three years as a result of this settlement, which will be used to fund
energy related programs designed to benefit those who were injured by the crude
oil overcharges. The Antitrust Division took a lead role on behalf of the states
in this Stripper Well litigation.

The Attorney General filed objections with the Department of Transportation
to the Texas Air-Eastern Airlines merger. The Attorney General asserted that the
merger would substantially lessen airline competition at Logan Airport. In response
to the competitive concerns raised by the Commonwealth, Texas Air sold Pan
Am part of its shuttle operations between Boston and New York. The sale
prevented the Texas Air-Eastern combination from monopolizing shuttle opera-
tions between Boston and New York.

CIVIL RIGHTS

The Civil Rights and Liberties Division enforces the Massachusetts Civil Rights
Act which authorizes the Attorney General to seek injunctive relief when the
exercise of legal rights is interfered with by threats, intimidation, or coercion.
The division also represents state agencies in affirmative litigation, and brings
cases in the public interest on a broad range of civil rights issues.

Major efforts include enforcing the Civil Rights Act in housing, education,
public records, fair information practices, open meetings, and citizen com-
plaints/community outreach.

In Commonwealth v. Silva and Watson, the division obtained an injunction
against two white juveniles accused of verbally assaulting and macing an Hispanic
male in South Boston. In Commonwealth v. Prairrie, et al. an injunction was
obtained against four white adults charged with attacking black citizens in the
Wainwright Park section of Dorchester. In Commonwealth v. McCusker and Sevier
an injunction was obtained against two white adults for beating a white shop owner
in Revere because of his close relationship with the Cambodian community. In
Commonwealth v. Curran, et al, injunctions were issued against one white
juvenile and three white adults for a racially motivated attack on a Vietnamese
Dorchester resident.

In Commonwealth v. Guilfoyle, et al. , injunctions were issued against three
white juveniles for racially harassing and assaulting a white schoolteacher and
black students in the Savin Hill area of Dorchester. In Commonwealth v. Wahlberg,
the division obtained an injunction against a white adult who was part of a group
of white males who assaulted two black restaurant workers in Dorchester. In Com-
monwealth V. Horak an injunction was issued against a white adult male accused
of racial harassment and sexual assault of his Puerto Rican neighbors in a room-
ing house in Lawrence. In Commonwealth v. Griffin, et al., an injunction was
issued against three white adult defendants, including a father and his sons. The
co-defendants were accused of breaking the windows of a Cambodian family in
Chelsea with a baseball bat, making racial threats, and threatening and assaulting
the white landlord of the Cambodian family who testified against one of the

28 P.D. 12

co-defendants at his criminal trial.

The division filed an amicus brief in a criminal civil rights case involving an
attack on a gay male. The Judge rendered a decision holding that an attack on
a person because of sexual orientation constitutes an interference with personal
privacy rights and rights of expression.

As the designee of the Attorney General, a member of the division continued
to attend meetings of the Commonwealth's Records Conservation Board.

Several Open Meeting Law complaints filed with the division during fiscal year
1987 were resolved without litigation, and several others were referred to the
District Attorneys.

In addition, a number of Public Records Law cases referred to the Attorney
General from the Supervisor of Public Records were resolved informally . One
case, involving the Carlisle Conservation Commission, was resolved formally
when the Commission agreed to a written Assurance of Compliance in which
it promised to treat as public records the handwritten notes made by its recording
secretary at Commission meetings.

ENVIRONMENTAL

The Environmental Protection Division serves as litigation counsel on
environmental issues for all state agencies, particularly those within the Executive
Office of Environmental Affairs. The division handles all of the Commonwealth's
civil litigation to enforce environmental protection programs established by state
laws and regulations. The division brings suits to enforce the Commonwealth's
regulatory programs governing air pollution, water pollution, wetlands, hazard-
ous waste, hazardous materials, solid waste, water supply, "right-to-know."
pesticides, waterways and billboards, and it defends decisions made by state agen-
cies that administer environmental programs. In addition, based on the Attorney
General's broad authority to protect the environment of the Commonwealth, the
division initiates and intervenes in state and federal litigation, and participates in
administrative hearings before federal agencies on significant environmental issues.

As a result of its enforcement efforts, the division receives substantial federal
grant money from the Environmental Protection Agency.

This fiscal year the division recovered $91 1 ,900 in penalties and other payments.
In addition, many cases have resulted in court judgments requiring private par-
ties to undertake costly cleanups — a significant saving for the Commonwealth.

The division brought a lawsuit against Clean Harbors of Kingston, Inc., for
treating volumes of waste oil and water mixtures at its waste oil reclamation facility
in excess of the limit set in the company's hazardous waste treatment license.
A consent judgment required Clean Harbors to pay a civil penalty of $1 12,500
and to provide, without compensation, $100,000 worth of services to remove
and properly dispose of hazardous waste from public high schools in the Com-
monwealth. The judgment also suspended the facility's license for six months,
thereby upholding an administrative order previously issued by the Department
of Environmental Quality Engineering (DEQE).

A consent judgment was entered in Suffolk Superior Court requiring Three R
Transportation, Inc. to pay $90,000 in settlement of the Commonwealth's claims
for civil penalties under the Massachusetts Hazardous Waste Management Act.

P.D. 12 29

The case involved the company's transportation of hazardous waste without a
license between 1980 and 1982. The payment was the largest ever recovered in
Massachusetts for a hazardous waste transportation case.

The division filed suit against ENSCO, Inc. , an Arkansas-based hazardous waste
transporter and disposal company, for transporting hazardous waste in the Com-
monwealth without a license. The complaint charged ENSCO with transporting
a decommissioned electrical transformer containing polychlorinated biphenyls
(PCB's) from the General Dynamics shipyard in Quincy, without a hazardous
waste transporter's license. A consent judgment resolving the lawsuit required
ENSCO to pay a civil penalty of $28,000 and to refrain from transporting any
hazardous waste in Massachusetts without a license from DEQE. General
Dynamics, also named as a defendant, was required to pay a civil penalty of
$2,000.

A consent judgment was entered settling a suit against Ledkote Galvanizing
Co. for mismanagement of hazardous wastes from its hot-dip zinc galvanizing
operations. The judgment required Ledkote to pay a $35,000 civil penalty, to
implement a hazardous waste management plan, to conduct tests for hazardous
waste contamination of its property, and to undertake remedial action as necessary.

After a two-week trial, a jury in Bristol County returned verdicts against The
Ledge, Inc. and Cecil Smith, its chief stockholder, holding both jointly and several-
ly liable for the Commonwealth's costs of cleaning up hazardous waste at a
Dartmouth site. The jury awarded $70,000 to the Commonwealth for the cost
of cleaning up more than 1 ,000 barrels of hazardous waste stored illegally in a
warehouse, and barrels and waste dumped into a pit behind the warehouse. The
warehouse and dumpsite were located less than one-quarter mile from a town
well which serves as a primary source of drinking water for residents. A separate
judgment was entered earlier against another defendant, Harold Mathews, who
had rented the warehouse from The Ledge, Inc.

The Attorney General and the Environmental Protection Agency negotiated a
joint consent decree with five defendants, settling federal court litigation to
obtain cleanup of hazardous creosote wastes at Hocomonco Pond in Westborough.
The wastes had been generated by wood-treating operations conducted on the
banks of the pond. Under the consent judgment, the defendant Koppers Co. agreed
to accept responsibility for the hazardous material at the site and to conduct cleanup
measures estimated to cost of $5 million. The four other defendants contributed
cash payments toward the cleanup costs. The required measures included
excavation of contaminated soils, dredging of contaminated sediments from
Hocomonco Pond, and groundwater treatment. The contaminated soil and
sediments were to be placed in a hazardous waste landfill constructed at the site.
Koppers also agreed to operate, maintain, and monitor the site for 30 years.

In settlement of claims for reimbursement of hazardous waste cleanup costs,
the division obtained $53,500 from the owners of the Eastern Chemical Specialties
hazardous waste recycling and disposal facility in Worcester. The company had
filed for bankruptcy in 1981. The division also initiated negotiations with 150
generators and transporters of chemical waste, seeking further reimbursement
of government cleanup costs, implementation of a site assessment, and remedial
work.

The division filed suit against the City ofFitchburg, seeking injunctive relief

30 P.D. 12

to halt excessive discharges of pollutants from the city's wastewater treatment
plant. The complaint alleged that the city's West Plant consistently exceeded the
limitations of its water pollution permit for discharges into the Nashua River.
The lawsuit was settled by a consent judgment filed in June 1987. The judgment
required the city to repair the facility under a court-imposed schedule, at an
estimated cost of $2 million.

The division filed suit against the City of Marlborough for violating the Clean
Waters Act at its sewage treatment plant. Under a consent judgment, the town
was required to build an advanced wastewater treatment facility, to develop a
pre-treatment program, to meet interim effluent limitations, and to come into full
compliance with the terms and conditions of its permit.

A suit against the Town of Plymouth charged the town with violating the Clean
Waters Act at its sewage treatment plant. The court entered an interim consent
order, requiring the town to take immediate preliminary measures to reduce the
violations, including a strict moratorium on new sewer construction, a comprehen-
sive "infiltration and inflow" program to remove illegal connections to the system,
the rehabilitation of certain portions, and the implementation of a pre-treatment
program to control industrial discharges.

The division asserted claims against the Town of Provincetown for violations
of the Clean Waters Act and a previous consent judgment at its septage facility.
An amended consent judgment was entered requiring improvement in handling
the large volumes of septage generated during tourist season. It also required the
town to make interim arrangements for disposing septage in excess of capacity,
and to plan and construct a long-term wastewater treatment facility to replace
the existing facility.

A final judgment was entered resolving a lawsuit against Idle Wild Farm, Inc.
(L. B. Darling Division) for operating a wastewater treatment facility in viola-
tion of permit requirements and an administrative order. The judgment required
the defendant to pay a $33,000 penalty and to cease all operations at the facility
until the proper permits and approvals were obtained.

The division filed suit against Lamson c6 Goodnow Manufacturing Co. , a
manufacturer of cutlery in Shelburne Falls for illegally discharging wastewater
onto the ground and into the Deerfield River. Under a consent judgment, the com-
pany was required to pay a $25,000 civil penalty for its past discharges, and to
comply with the law by installing a recycling system to prevent further discharges.

A lawsuit was filed against Colby-OK Yam, Inc. , a textile manufacturer, and
S.S. Kay Realty Trust, the owner of industrial property in Worcester, for illegal-
ly discharging dyeing products into the Blackstone River. A consent judgment
filed required the defendants to pay a $21,000 civil penalty and, under DEQE
supervision, remove materials remaining on the property.

The division filed a consent judgment settling a lawsuit against Buckley & Mann,
Inc. , a textile manufacturer in Norfolk. The complaint alleged that the company
had violated the Clean Waters Act by discharging wastewater without a DEQE
permit. The judgment required the company to cease its discharge, perform a
comprehensive site assessment, and pay a $10,000 civil penalty.

The Attorney General obtained a consent judgment against Premoid Corpora-
tion, a West Springfield paper manufacturer, and James River Corporation, the
new plant's owner, for violating the Clean Waters Act. The complaint charged

P.D. 12 31

Premoid with unlawfully discharging wastewater into a river by diverting flow
from its manufacturing process during a backup in the facility's wastewater system.
The consent judgment requires changes to prevent future malfunctions, and the
payment of a $8,000 civil penalty for the one-time discharge.

The SJC upheld a decision by the DEQE to issue an air pollution permit for
the diesel-powered cogeneration plant built by Harvard University to provide elec-
tricity, steam, and chilled water to hospitals in Boston's medical school area (Town
ofBrookline). DEQE had issued a permit for the plant after finding that the plant
would not pose any significant threat to the public health. The SJC affirmed
DEQE's decision, upholding DEQE's approach to assessing the reasonableness
of risks posed by activities that cause air pollution.

The division filed a consent judgment settling a lawsuit against J. T. Leigh &
Co., a manufacturer of coated paper products in Springfield. The lawsuit
charged the company with emitting volatile organic compounds into the air without
approval and in excessive amounts, in violation of the Massachusetts Clean Air
Act. The consent judgment required the company to come into full compliance
with air pollution regulations, and to pay a civil penalty of $22,500.

A final judgment was entered in a lawsuit brought against Coastal Energy, Inc.
for illegal removal and storage of asbestos at sites in Millbury and Shrewsbury.
The judgment required the defendant to pay $21,950 in civil penalties.

The division filed suit against the City ofQuincy for operating its landfill without
required state plan approvals and in violation of an administrative consent order.
After four days of testimony by representatives of the DEQE and the city, the
Superior Court issued a preliminary injunction. Concluding that the landfill had
become an "ecological disaster," the court enjoined continued use of the land-
fill, and required the city to take various steps to remedy the conditions there.

A consent judgment was filed settling a lawsuit against the Town of Methuen,
requiring the town to bring its municipal solid waste landfill into compliance with
all environmental requirements. The judgment required Methuen to upgrade the
day-to-day operation and maintenance work at the landfill, to conduct a com-
plete investigation of potential groundwater contamination, and to take any
action required by DEQE to remedy any groundwater contamination. The judg-
ment further required Methuen to place $100,000 in an account, and to pay
penalties from that account into the General Fund of the Commonwealth should
the town fail to comply with the judgment.

In Parkinson v. Board of Assessors of Medfield, the SJC reversed an earlier
decision and issued a new opinion in this case involving the validity of conserva-
tion restrictions. The Attorney General, appearing as amicus curiae, had peti-
tioned the Court for revision of its initial decision. In this case, a taxpayer sought
to achieve favorable tax treatment from a conservation restriction she had put
on her land. The SJC initially denied her the favorable tax treatment, holding
that the underlying restriction was invalid. Because the opinion had the effect
of invalidating all similar conservation restrictions across the Commonwealth,
therby undermining the statutory conservation restriction program, the Attorney
General filed a Petition for Rehearing as amicus curiae. The petition argued that
the conservation restriction should not have been ruled invalid, regardless of
whether or not she was entitled to favorable tax treatment, because the restric-
tion served the statutory purpose of retaining the land predominantly in its natural

32 P.D. 12

and open condition, and it had been properly approved by the town and the
Secretary of Environmental Affairs. The courts revised opinion adopted the
arguments presented by the Attorney General.

INSURANCE

The Insurance Division represents the interests of Massachusetts citizens who
purchase insurance. A significant portion of the division's work involves advocacy
on behalf of consumers in insurance rate proceedings. The division intervenes
in complex hearings including automobile and health insurance rate setting.

The division also litigates against insurance companies, stock brokers and
insurance agents on behalf of consumers. Cases are brought to obtain injunctive
and restitutionary relief for insurance consumers.

The division also routinely participates in legislative and administrative hearings
concerning proposed laws, regulations and other policy issues.

The actions of the division saved Massachusetts consumers $565 million this
year.

The Insurance Division intervened in a major administrative hearing with over
one-half billion dollars at issue in the 37.2% proposed auto insurance rate
increase. The projected cost to Massachusetts policyholders would have been $550
million, or an increase of $186 for the typical driver.

Following an 86-day hearing, the Commissioner of Insurance ordered an 8.4%
increase in 1987 automobile insurance premiums. The decision established rates
$525 million lower than the industry's request for a savings to consumers of more
than $140 per insured car.

Medex is insurance bought by approximately 450,000 individual elderly and
disabled people in Massachusetts to supplement Medicare. In October, 1986 the
Attorney General's Insurance Division recommended that the Insurance Com-
missioner reject a Blue Cross/Blue Shield rate increase request of 9.4% or nearly
$20 million. After a 25-day hearing the Insurance Commissioner rejected the Blue
Cross/Blue Shield rate hike proposal and allowed no increase in Medex rates.

The Insurance Division intervened for the first time in the medical malpractice
rate hearing during this fiscal year. The Legislature, during the summer of 1986,
provided for a direct pass-through of medical malpractice rate increases to Blue
Shield consumers. The Insurance Division's intervention in the hearing focused
on issues involving the establishment of the subsidy mechanism and the deter-
mination of costs passed through to consumers.

The division filed several briefs stating the Attorney General's views on the
statute which created the subsidy of doctors' malpractice rates by Blue Shield
insurers. As a result of the Insurance Division's efforts, the cost to Blue Shield
subscribers was reduced from $34 to $13.9 million, a savings of $20.1 million.

The division has reactivated litigation against two brokerage firms, Paine
Webber Jackson & Curtis and Shearson/American Express, on behalf of the
approximately 770 Massachusetts residents who invested roughly $23 million in
Baldwin United annuities.

Paine-Webber and Shearson-Lehman unsuccessfully sought to block our suit
pending the outcome of private actions that are being litigated in the U.S. District

P.D. 12 33

Court for the Southern District of New York. In rejecting the defendants'
motions to stay, the Superior Court adopted our argument that the Attorney
General's authority to bring actions in the public interest is not preempted by
private litigation.

The court granted the Commonwealth's discovery motions ordering document
searches of the defendant's Massachusetts offices and requiring Shearson to pro-
duce certain specified documents or submit affidavits or other evidence explain-
ing why such documents are not available.

The Insurance Division secured judgments against two insurers who had
marketed life insurance to the elderly as an estate planning tool in a deceptive
marketing scheme which falsely claimed that inheritance taxes could only be avoid-
ed by buying life insurance. Restitution of $276,000 was secured for about 500
senior citizens, and the defendants paid civil penalties and costs of $46,000 to
the Commonwealth.

The Insurance Division reached an agreement with Quincy City Hospital con-
cerning adequate disclosure of the hospital's tax deferred annuity plan offered
through Connecticut Mutual Insurance Company. Certain employees were not
informed that withdrawing from the plan could bring contingent deferred sales
charge. The Attorney General received and distributed $5,956.53 to 25 hospital
employees for restitution of the charges.

The Insurance Division obtained restitution totalling $88,232.95 for 73 elder-
ly consumers who purchased insurance from agents of seven insurance companies.
These agents had conspired to make fraudulent claims which led these consumers
to purchase duplicative or unnecessary insurance. In addition to restitution,
$4,214.85 in costs to the Commonweahh was paid.

The division brought actions against a number of employers and insurers for
failure to pay health insurance benefits to employees. These actions involved viola-
tions of Massachusetts mandated benefits laws and the failure of employers to
remit health insurance premiums to insurers after withdrawing them from
employees' paychecks. Restitution in these cases exceeded $18,000.

In July of 1986, Attorney General Shannon presented testimony on the
liability insurance "crisis" before the Tennessee Governor's Task Force to Study
Tort Liability Insurance. In his testimony, the Attorney General urged the task
force to avoid making drastic and permanent changes that would adversely
impact the rights of victims because it is unclear whether or not such changes
would resolve the insurance crisis.

The Division of Insurance has continued its efforts to eliminate sex discrimina-
tion in the premiums and benefits under insurance policies.

The Secretary of Consumer Affairs requested a formal opinion as to whether the
Commissioner of Insurance has the authority to promulgate regulations prohibiting
insurance companies from charging men and women different premiums for
insurance policies and paying them different benefits. On January 6, the Attorney
General issued an opinion which stated that the Commissioner does have such
authority.

The Commissioner has issued a regulation effective September, 1988, which
prohibits the use of gender in determining the level of premiums and benefits
for newly issued and renewed policies.

34 P.D. 12

This year the division participated in hearings on such issues as long term care
for the elderly, the Commonwealth Automobile Reinsurance deficit assessment
rules, proposed regulation on procedures for the conduct of hearings of motor
vehicle insurance rates, and a hearing on proposed regulations on cost and
expense containment standards for motor vehicle insurers. In addition, the
Insurance Division participated in the effort to develop patient care assessment
regulations in concert with the Board of Registration in Medicine.

Additionally, resolution of individual consumer complaints resulted in the return
of $16,452.89 to those consumers.

PUBLIC CHARITIES

The Attorney General represents the public interest in the proper solicitation
and use of all charitable funds. The Attorney General's enforcement role extends
to a wide range of charitable activity to protect donors from diversion and waste
of funds, and to ensure that the beneficiaries of charitable funds receive the
intended benefits.

The division's work falls into three main areas:

(a) registering and receiving financial information from charities and
fundraisers to assure accountability for charitable funds;

(b) participation as an interested party in numerous estates and
trusts in which there is a charitable interest; and

(c) litigation to protect the public from misapplication of charitable
funds and from fraudulent or deceptive solicitation.

Under M.G.L. Ch. 12 s. 8E, all public charities, with the exception of religious
organizations and certain federally chartered organizations, must register with
the division.

In cooperation with the Secretary of State, the division receives the Articles
of Organization of newly filed G.L. c.180 non-profit corporations. The division
reviews the Articles to determine if the non-profit is a public charity. If it is a
public charity, information about the charity is entered on the computer, and the
organization is sent annual reporting material.

This year 1,239 new charitable organizations' Articles were reviewed, deter-
mined to be charitable, and entered into the computer. More than 23,000 charities
are registered with the division.

All registered charities must submit annual financial reports to the division.
The registrations and financial reports are public record and public viewing files
are kept. Annual filing fees of $25 per report totalled $235,755.

Under G.L. c.68, §19, every charitable organization which intends to solicit
funds from the public, except religious organizations, must apply to the division
for a solicitation certificate before engaging in fundraising. During the fiscal year,
2774 certificates were issued and $27,740 in certificate fees were received and
processed.

Under §§22 and 24 of the new G.L. c.68, which took effect on AprU 9, 1986, all
persons acting as professional solicitors or professional fundraising counsel for
soliciting charitable organizations must register annually with the division.
Solicitors must file a $10,000 surety bond and a copy of each fundraising con-
tract signed with any charitable organization.

P.D. 12 35

During the fiscal year ending June 30, 1987, a total of 1 16 registrations were
received and approved. Fees received totaled $1,160. Of the registrations, 96
were renewals, and 20 were new registrations obtained as a result of increased
enforcement of the registration requirement.

The division protects the public from misuse by non-profit organizations of
their statutory license to fund raise through charitable gaming activities, including
the conduct of fundraising Las Vegas Nights (Bazaars) and Raffles.

The division reviews the probate of estates where there is a charitable interest.

This Fiscal year, 1629 new wills were received and reviewed, of which 1381
involved charitable bequests. Six hundred and forty-one executor accounts and
1901 trustees accounts were reviewed and approved. The division also reviewed
and approved 107 petitions for sale of real estate and 31 petitions for appoint-
ment of trustees.

Sixty-eight new probate cases were opened, and division attorneys were
involved in 450 other probate cases. These included petitions for cy pres or
instructions to modernize or clarify outmoded trust terms. The division reviewed
and/or was involved in 3680 other probate legal matters. The division's Probate
Review Project resulted in closing 1256 cases where no further action is required.

As a result of our two year review of trust funds held by Massachusetts
municipalities , we determined that more than $180 million was held by the Com-
monwealth's 351 towns and cities. Our review found 20 funds which, laying dor-
mant for many years, had not fulfilled their nonprofit purposes.

The division also represents the State Treasurer in the Public Administration
of intestate estates where the decedent has no heirs. Such estates escheat to the
Commonwealth. The division ensures that the estates are promptly administered
and that the state receives its money. During the fiscal year, $70,027.92 in escheats
were received.

During FY 1987, the division's litigation included:

In Attorney General v. Coalition For Reliable Energy, our office filed a com-
plaint in March 1987, alleging that the Coalition for Reliable Energy (the "Coali-
tion") violated G.L. C.93A and G.L. c. 12, §8 by deceiving the public to believe
that it is a charity promoting all forms of reliable energy, but was actually an
alter ego for the owners of Seabrook trying to obtain public support to promote
their for-profit interests. The complaint also alleges that the Coalition's adver-
tisements deceive the public into believing that all of Seabrook's costs will be
paid for by consumers even if Seabrook becomes a canceled plant. At the close
of the fiscal year, the case was in discovery, although the Coalition had filed
a motion for partial summary judgment.

Several cases that were filed in Suffolk Superior Court in 1980 to compel
agricultural societies to register and file reports with the division as public charities
were handled by the division in FY 87.

Following oral arguments. Judge Tuttle issued summary judgment in September
1986, in Bellotti v. Brockton Agricultural Society, ruling that the Brockton
Agricultural Society is not a charity because (1) it did not continously solicit or
rely on gifts, depriving the Attorney General of jurisdiction because G.L. c.l2,
§8 regulates only solicitation; (2) Society by-laws did not specifically preclude
inurement to stockholders; and (3) requirements for the Society's tax exemption
under IRC §501(c)(5) and G.L. c.59, §5(4A) do not include all the attributes

36 P.D. 12

necessary to be a charity.

On December 8, 1986, the division filed its appellate brief before the Supreme
Judicial Court, and the SJC agreed to hear this appeal, along with that in the
companion case of Bellotti v. Weymouth Agricultural and Industrial Society, which
raises similar issues.

On April 7, 1987, the division presented oral arguments before the SJC in these
companion cases. The core issue is whether these non-profit agricultural societies,
which annually conduct agricultural fairs, constitute public charities subject to
Attorney General regulation and are therefore unavailable as vehicles for private
profit upon dissolution. The division argued that the societies satisfy the three
basic elements of charitable status, in that (1) the fairs encourage agriculture,
which is a charitable purpose; (2) they benefit the indefinite public, rather than
the Society's stockholders; and (3) they are non-profit. The division also argued
that those elements of charitable status are unaffected by the Societies' reliance
on fees rather than gifts, their issuance of stock, their incorporation and exemp-
tion under statutes not denominated for "charities", and their own characteriza-
tion of their activities.

In Burbank Hospital v. Bellotti, the Attorney General obtained agreement to
a cy pres order protecting over $2 million in charitable funds. Burbank Hospital
sought court approval of a corporate reorganization wherby two "parent" or "con-
trolling" corporations were created, namely Cent Mass Systems Corporation and
Acute Care Holding Corporation.

In reviewing the proposed restructuring, the division took particular care to
insure that all umbrella corporations were organized and operated exclusively
for the benefit of Burbank Hospital, and that all charitable assets were protected.
Burbank Hospital is a charitable corporation established in 1890 to administer
funds bequeathed to the City of Fitchburg under the will of Gardner S. Burbank
for the purposes of erecting a hospital and paying for medical services rendered
at the hospital to persons otherwise unable to pay for them.

The division handled several cases involving fraudulent and deceptive charitable
fund-raising practices by solicitors. In Bellotti vs. American Postal Workers Union
of Massachusetts and Bellotti vs. Capricorn Publishing Co. Inc. , Capricorn
Publishing Co., Inc. was charged with impersonating postal workers who were
raising money to grant the dying wishes of terminally ill children. In October
1986, Judge Harry Elam granted a preliminary injuncdon ordering the defen-
dants to disclose their identity as paid professional fund-raisers and also the nature
and purpose of the solicitation. The Judge further enjoined the defendants from
impersonating postal workers, and ordered them to comply with the registration
and bonding requirements of M.G.L. c.68.

In Attorney General v. Norman Fishman, et al. the defendants solicited funds
both by using the names of actual charities without their knowledge, and by ask-
ing for contributions for the "Senior Citizens Directory", a non-existent entity
ostensibly organized to benefit senior citizens. In this scheme, the defendants kept
most, if not all, of the money raised in the name of charity.

The Attorney General entered into a consent judgment with one of the defen-
dants in this case, Carl Lamana. Under this judgment, Lamana agreed to refrain
from all solicitation activity in the Commonwealth for four years from the date
of entry of judgment, and to comply with all requirements of the Massachusetts

P.D. 12 37

Solicitation Statute, should he decide to solicit in the Commonwealth at a later
date. He also waived any claim to money seized from the "Senior Citizens Direc-
tory" bank account, and paid $200 to the Commonwealth for investigative costs.
Proceedings against the other defendants in this case are continuing.

The case of Attorney General v. CMC Internet, Inc. , et al. involved the failure
of the defendants to inform donors that they were professional fundraisers and
not volunteers for the National Kidney Foundation, and the percentage of the
money raised which would actually be used to support camperships for children
receiving dialysis treatment. The defendants also failed to provide the address
or telephone number of the National Kidney Foundation.

The Attorney General signed a consent judgment, whereby the defendants agreed
to comply with all disclosure and registration requirements of the Charitable
Solicitation Act in the future. They also paid a civil penalty of $5000 for their
past violations of the statute and a penalty of $10,000 for each violation should
they fail to comply with the judgment.

Attorney General v. Telco Communications et al. and Telco Communications
V. Attorney General involved the 13-member Holbrook police union which
signed a contract with Telco Communications of Pawtucket, RI, a professional
soliciting company raising money by selling ads in an educational handbook. The
union planned to use its share of the profit money for charity.

The Attorney General brought suit over that contract, plus a similar one
involving the Franklin police union, because provisions in the contract violated
M.G.L. C.68. The suits triggered a court battle over the constitutionality of the
state's charitable fund-raising law, which limited professional soliciting companies
to receiving no more than 25 percent of the total raised through the solicitation.
(c.68, §21.)

The Attorney General sued Telco in May 1986 in Suffolk Superior Court. Telco
removed the case to federal court and filed a countersuit against the Attorney
General, claiming that the state's law limiting its income to 25 percent of the
gross revenues was unconstitutional because it impinged on the charity's freedom
of speech guaranteed under the First Amendment. The Attorney General argued
that Section 2 1 was necessary to prevent overreaching conduct and excessive fee-
taking by the solicitors and to protect the integrity of charitable giving.

On December 31, 1986, Judge Caffrey declared that c.68, §21 is unconstitu-
tional. The Attorney General filed an appeal to the First Circuit Court of Appeals.

In Bellotti v. United Funding, the Florida-based professional solicitation com-
pany agreed to refund 50% of the contributions to all donors deceived by the
company's fraudulent solicitation practices as part of a settlement of the civil
contempt action brought by the Attorney General.

Letters notifying 5000 individuals of their entitlement to a refund were sent
by this office. The refunds were sent completed in December with approximate-
ly $20,000 returned to donors.

In Bellotti v. Atlantic Vegas Rental, Waitze, et al. , the complaint was filed against
a supplier of casino equipment to non-profit organizations authorized to run Las
Vegas Nights as fundraisers. The complaint alleged that the defendants ran
numerous events where there was no charitable sponsor or where the advertised
charitable sponsor was paid for the use of its name. The defendants also provid-
ed dealers for the blackjack tables and operated the craps table, both violations

38 P.D. 12

of Massachusetts law.

In the consent judgment obtained, the defendants paid a $15,000 fine, the largest
ever obtained against a casino supplier. The defendants also agreed to comply
with the requirements of c.271 and to submit all contracts to the division for
monitoring for five years.

After extensive investigation and negotiation in City of Boston and George A.
Russell, Collector-Treasurer, as Trustee v. Attorney General, the division agreed
upon a set of 1 1 proposed judgments for cy pres with the City of Boston Trust
Department. Each judgment relates to a separate trust fund held by the city as
trustee. The funds had become underutilized due to outmoded and/or unclear trust
purposes. The judgments will free $800,000 in funds for the homeless, scholar-
ships for Boston students, books for poor children and park land purposes.

The trustees of the Cobb trust sought cy pres relief in David B. Cole, Trustee
u/w/o Enoch T. Cobb v. Town of Barnstable, Airport Commissioners and Attorney
General to allow the sale of valuable land holdings. The Attorney General assented,
provided that the $2 million in proceeds be held as trust principal which may
not be invaded and, that the income will be used exclusively for educational needs
in Barnstable that are not met by the town's school budget.

UTILITIES

By statute, the Attorney General is the designated representative of
Massachusetts ratepayers in utility rate matters. The Utilities Division is the
primary, and in most instances, the only representative of the consumer interest
in gas, electric, and telephone rate cases and related matters within Massachusetts.

The rate cases in which the Attorney General appears are heard and decided
by the Department of Public Utilities (DPU). The division also appears in cases
on behalf of Massachusetts ratepayers before the Federal Energy Regulatory Com-
mission (FERC). This federal intervention is essential since FERC establishes
nearly all of the purchase power rates charged to four of the eight retail electric
companies serving customers in the Commonwealth. FERC also has wholesale
rate jurisdiction over all of the Massachusetts utility investment in Seabrook, with
the exception of MMWEC.

During fiscal year 1987 the Utilities Division continued aggressive litigation
including the following cases:

1 . Seabrook Litigation before the Department of Public Utilities
(DPU) and the Federal Energy Regulatory Commission (FERC)

The Attorney General reached a stipulated settlement with Montaup Electric
Company limiting Montaup's right to charge Eastern Edison Electric Company
for 18% of its investment in the cancelled Seabrook Unit 2. Eastern Edison serves
retail ratepayers in southeastern Massachusetts. Under the terms of the settle-
ment, Montaup's recovery was limited to $13.8 million; Montaup had requested
$21 million. The case was litigated before FERC.

P.D. 12 39

Several Massachusetts utilities which own pwrtions of the Seabrook nuclear proj-
ect petitioned the DPU to authorize startup costs for New Hampshire Yankee Elec-
tric Company. The purpose of the new company would be to manage and operate
the Seabrook plant and to serve as a conduit to pass expenses onto the joint owners.
We opposed this financing petition on the grounds that it did not meet the Depart-
ment's standards: it would not be in the public interest, and is not reasonably
necessary for a legitimate utility purpose. The decision was pending at fiscal year
end.

Proceedings before the DPU involve significant policy issues of state jurisdic-
tion over electric supply practices of local retail electric companies. The
proceedings involve applications by Cambridge Electric Light Company and Com-
monwealth Electric Company to include in their fuel charges to customers, costs
associated with the cancellation of Seabrook Unit No. 2 as charged to these com-
panies by their wholesale affiliate. Canal Electric Company. The Attorney General
intervened and was granted a 90-day hearing. The retail companies contend that
the DPU is preempted from reviewing these applications because of the federal
review of Canal underway in ER86-704-001. The Attorney General argued that
the DPU has the authority to determine the prudence of retail company action,
and should assert that jurisdiction and deny pass through of Seabrook 2 costs.
The DPU decision was pending at fiscal year end.

New England Power Company (NEP), a 10% owner of Seabrook, has asked
the FERC to find it prudent in its Seabrook 1 investment, and to make other
changes in its rates. NEP sells 100% of the power sold to customers of
Massachusetts Electric Company, the Commonwealth's largest retail electric com-
pany. The Attorney General has intervened in the proceeding on behalf of those
ratepayers. This case is expected to take at least another year to resolve.

Massachusetts Municipal Wholesale Electric Company (MMWEC) is a coali-
tion of cities and towns which invested heavily in the Seabrook nuclear plant during
the last decade. The Attorney General opposed MMWEC 's petition to the DPU
for authorization to issue more bonds to finance MMWEC 's share of Seabrook.
We have opposed MMWEC 's Seabrook participation consistently over the years,
arguing that MMWEC failed to show either that Seabrook would be economic
or that its ratepayers could be insulated from the risks of additional debt. Despite
the Attorney General's opposition, the DPU allowed MMWEC to issue bonds
to finance the additional burdens of its substantial share of Seabrook.

The Attorney General is a party in the proceeding before the FERC involving
Canal Electric Company's proposal to include the costs associated with its
investment in the cancelled Seabrook Unit No. 2 in rates charged to its retail
company customers. Commonwealth Electric Company and Cambridge Electric
Light Company. Canal proposes to charge its customers approximately $22 million
over a three-year period.

The Attorney General has engaged in extensive discovery since December 1986
on the prudence of Canal's investment in Seabrook Unit No. 2. The trial is sched-
uled for the late fall of 1987.

40 P.D. 12

2. Retail Rate Cases and Other

Regulatory Matters Before the DPI)

As a result of the Attorney General's 1983 petition, the department is continu-
ing its investigation of New England Telephone Company 's (Phase One) costs
with a view to setting new telephone rates for all of NET's customers. A central
issue is whether basic local monthly rates should be decreased while long distance
and other rates are increased.

Our concern is that captive (monopoly) residential local customers not be
forced to subsidize New England Telephone's competitive ventures— including
long distance and sophisticated business services. We are also concerned that all
pay phones continue to charge 10 cents for local calls, a rate at which NET can
cover its costs and make a profit.

In our briefs in the first phase of the case, we recommended rate classes and
allocation methods which would help to ensure that users of residential exchange
services have fairly priced rates. We also recommended regulation of non-NET
pay phones. Before the Commission, we urged the DPU to require NET to file
evidence as soon as possible on which a rate decrease could be based. The Com-
mission ordered such a filing be made by January 5, 1987. The investigation of
the company's rates in Phase 1 was ongoing at fiscal year end.

In a related proceeding, the DPU ordered all utilities including NET to reduce
rates as of July 1 to reflect tax reform reductions. In a particularly noteworthy
effort, the financial analyst for the Utilities Division, convinced the DPU that
New England Telephone's reduction should be $42 million, instead of the $29
million proposed by the Company.

New England Telephone (Phase Two) initially proposed a rate increase of $77
million per year or about 5%, and then revised it to $121 million. The Attorney
General's five witnesses proposed rate decreases totalling more than $150 million
or 10%. Our witnesses testified that NET costs should be cut for rate of return,
depreciation, unnecessary investments in plant, income taxes to reflect the federal
tax cut, profit-sharing transactions with unregulated affiliates, and a large number
of smaller cost items. In cross-examination we identified a number of other costs
that should also be reduced.

Because such a potentially large decrease is at stake, we asked the DPU to make
NET'S current rates subject to a refund consistent with the decrease rate the Com-
mission ultimately orders.

A later phase of this case will determine how rates should be allocated among
the many customer classes and services. We have argued, and will argue in the
next phase, that long distance and other charges should be raised to fully reflect
their shared use of the local telephone network. This would lower local residen-
tial rates.

On January 28, 1987, the DPU ordered the utility companies under its jurisdic-
tion to file plans to reflect the effect of the Tax Reform Act of 1986 in customers '
rates. The companies were asked to provide this information to the department
by February 27, 1987. Depending on the utility, the changes in the tax law could
lower customers' rates one to five percent.

P.D. 12 41

The Attorney General filed comments regarding the submission of the com-
panies' plans on March 10, 1987. We asked the utilities to comply with the Depart-
ment's request by providing specific calculations of the companies' revenue
requirement based on the federal tax rate at 34% using the companies' last rate
case. In addition, we requested that the companies also provide the methodology
to return the excess accumulated deferred income taxes associated with accelerated
depreciation. The DPU eventually ordered all companies to institute an across-
the-board rate decrease reflecting reduced tax liability.

The Essex County Gas Company filed a rate case with the DPU seeking to
increase its annual operating revenues by approximately $1.8 million or about
5.6%. The company also asked to redistribute revenue recovery among its
customer classes which would bring significantly larger than average increases
from residential consumers. The Utilities Division represented consumers in this
case.

The Attorney General's initial brief was filed August 7, recommending that
all but about $200,000 of the proposed increase be disallowed. We also asked
the DPU to strictly limit any shift of revenue responsibility to non-heating residen-
tial customers, for whom the Company is seeking substantial increases in rates.

Every three years the Federal Communications Commission (FCC) examines
and sets New England Telephone 's interstate depreciation rates which are then
be charged to Massachusetts customers. NET seeks to increase the depreciation
expense borne by Massachusetts customers by over $100 million.

The interstate rate setting process generally has been limited to the FCC, NET,
and the Department of Public Utilities. This year, the Attorney General met with
the FCC staff to discuss the company's depreciation proposal. Upon request, the
Attorney General then submitted an outline of his position on various accounts
to the FCC staff, which was subsequently distributed to the DPU as well as the
parties to 86-33.

Bay State Gas Company requested approval from the DPU to guarantee cer-
tain obligations of its subsidiary. Granite State Gas Company, an interstate natural
gas pipeline office. The Attorney General opposed two of Bay State's requests
involving its guarantee of Granite State's issuance of credit and incurrence of
debt, worth about $2 million. The Attorney General opposed the guarantees
because they placed Bay State ratepayers at a risk not commensurate with poten-
tial project benefits. The DPU approved the guarantee of the letters of credit.
Bay State withdrew its request for the debt guarantees.

The department adopted the position advocated by the Attorney General, and
rejected Bay State's application to assign certain gas supply contracts to Granite
State. The DPU indicated that Bay State must receive its approval prior to the
assignment.

In this rulemaking, the DPU proposes to set rules regarding the ratemaking
treatment of future major construction projects. The Attorney General has urged
the Department to set rules now to encourage least-cost planning including
conservation.

42 P.D. 12

Utilities had proposed rules that would give them recovery of all prudent
expenditures on power plant construction regardless of the economics. The Depart-
ment rejected this position. The Attorney General had urged the Department to
only allow a full return on plant investments that are prudently made and that
are economic for and needed by ratepayers. We urged the Department to regularly
monitor the construction of new plants to review for prudence and economics.
Most important, we urged that rates be set to encourage conservation, since that
is the least-cost supply of electricity.

We pointed out that Massachusetts utilities spent about $3 billion on four large
nuclear plants. Two of the plants were not completed and the other two are neither
economic nor necessary. These four plants now cost customers of the investor-
owned utilities about $200 per year. We urged the Department to set rules to
prevent this from occurring again. The rulemaking was still pending at fiscal year
end.

The Attorney General is investigating the causes for the outage at Pilgrim which
began in April 1986 and is still ongoing. We will represent ratepayers in pro-
ceedings before the DPU and defend against customer payment for any manage-
ment imprudence which caused or prolonged the outage. This case was still in
the investigating and discovery phase at fiscal year end.

After several months of investigation and negotiation with Massachusetts Elec-
tric, the Company and the Attorney General reached agreement for a $17 million
rate reduction and to allocate a large portion of the decrease to residential
customers. This stipulation between the two was submitted to and approved by
the DPU in June 1987, resulting in July 1 rate decreases for customers of Mass.
Electric.

The Attorney General intervened in the annual review of Boston Edison Com-
pany's operation of its fossil generating units. In our brief filed in March, we
argued that the Company had acted imprudently and had inefficiently operated
Mystic 4, Mystic 7, and New Boston Unit 2, which led to several million dollars
in excessive fuel costs. The DPU found the Company imprudent in certain aspects
of its operations and ordered customer refunds.

Berkshire Gas Company sought a rate increase of $3,347,000— about 9%— in
April 1988. The Company and the Attorney General negotiated a setdement, reduc-
ing the increase by about 33%. The stipulation was approved by the DPU on
August 29, 1987.

The DPU's decision on rate design on October 31, 1986 significandy rearranged
rates for different customer classes. The decision produced mixed results. On
principle, the DPU accepted many of the Attorney General's arguments on rate
design, and based on our positions, rejected several special rates for large
customers. However, over the Attorney General's objection, the DPU accepted
Company designed rates which result in significantly lower rates for industrials,
and higher rates for residentials.

Colonial Gas Company requested DPU approval of an unregulated subsidiary
that would invest in cogeneration plants. The Attorney General asked the DPU
to dismiss the petition for failure to make a specific proposal and failure to file
evidence of benefit to ratepayers. Alternatively, we urged denial of the petition
because the risk of harm to ratepayers from cross-subsidizing the proposed
deregulated cogeneration subsidiary is not outweighed by ratepayer benefits. We

P.D. 12 43

also discussed broader policy issues, such as the dangers from over-reliance on
gas cogeneration and costs to ratepayers of allowing utilities to diversify into
deregulated businesses.

The Colonial Gas proceeding is an extension of the proceeding in which the
DPU rejected two promotional gas rates, as the Attorney General urged.

After 15 days of hearings, the Attorney General filed Initial and Reply Briefs
advocating principles of marginal cost rate design and partial movement to level-
ized class rates of return. This case was still pending at fiscal year end.

Western Massachusetts Electric Company (WMECO) filed an application for
a rate increase of $23.5 million in December, 1986. Of the total, $20.5 million
is for the second stage of the Millstone 3 nuclear power plant recovery as ordered
by the DPU in 1985, with the balance for cost of service items.

By cross-examination and in direct testimony by two witnesses, the Attorney
General showed that (1) the Company's cost of service should be reduced by $16
million; (2) residential rates should not be increased at all since the only justification
for an increase is to cushion a cost-justified above-average increase to the building
rate classes; (3) there is no theoretical or practical reason for the Commission
to change its new rate design method which encourages conservation while reward-
ing low-usage largely low-income customers; (4) our study and analysis proves
the Commission's fears unwarranted that its new rate design will injure the utili-
ty or the economy of Western Massachusetts; and (5) the Commission's rate design
will stimulate employment by encouraging the use of labor as a substitute for
uneconomic consumption of electricity.

On June 30, 1986, the DPU issued its order in the general rate case. In the
revenue requirements portion, the Department ordered many of the adjustments
recommended by the Attorney General and awarded the Company a $12.5 million
increase. A significant issue which has been noted by national industry press was
the Department's acceptance of the Attorney General's recommended denial of
the Company's request to charge ratepayers for the insurance premium associated
with directors and officers liability. A major disappointment was the Department's
decision to change the rate structure. The Attorney General has filed a motion
seeking reconsideration on this point, asserting that the Department's rate struc-
ture will discourage cost effective energy conservation and result in the demand
for new and costly power plants.

The Attorney General and the DPU have received an unusually high number
of complaints relating to the new group bridging telephone service initiated in
January. The service permits callers to join a conversation group, but costs 10
cents per minute and is, in part, marketed to teenagers. Outraged parents have
complained about several hundred dollars in monthly costs, lewd language, and
undesirable social contacts. The Attorney General urged the DPU to order the
service be restricted to subscribers using a personal code number and that the
billing be done by the vendors, not NET. We have opposed termination of local
service as a result of non-payment of charges for use of this service.

We also recommended that to avoid billing complaints, the teen lines should
only be available on a subscription basis. In its decision, the DPU rejected that
course, but adopted our recommendations for tariff revisions which should help
to reduce billing complaints.

44 P.D. 12

NUCLEAR SAFETY
1 . Seabrook Nuclear Power Station

The litigation over the Seabrook Nuclear Power Plant entered its twelfth year.
The Attorney General challenged the issuance of both a fuel-loading and pre-
critically testing ("zero-power" operation) license and a low-power license for
Seabrook. The issuance of the fuel-loading licensing was appealed both to the
Nuclear Regulatory Commission (NRC) Appeals Board and the NRC Commission.

Although a fuel-loading license was issued, the Attorney General ultimately
won the issue before the Commission, and obtained a stay of the low-power license
until the utility submitted radiological emergency response plans to the NRC for
that portion of the Seabrook Station 10-mile emergency planning zone (EPZ) within
Massachusetts. The Attorney General later won a further stay of the low-power
license when the Commission ruled that the emergency plans ultimately submit-
ted by the utility (the very same plans that Massachusetts had rejected as
unworkable) were not bona fide emergency response plans.

The Attorney General also participated in hearings on remaining plant safety
contentions in the on-site licensing proceedings. The Licensing Board agreed with
the Attorney General that the utility's Safety Parameter Display System (SPDS),
a post-Three Mile Island requirement designed to ensure early warning of acci-
dent conditions, was inadequate and ordered the deficiencies corrected prior to
full-power operation.

In addition, the Attorney General was actively involved in challenging the state
of New Hampshire's emergency evacuation plans as inadequate in evacuating
Massachusetts residents from New Hampshire beaches near the plant. The
Attorney General further successfully opposed the utility's efforts to have the
NRC reduce the emergency planning zone (EPZ) from 10 miles to eliminate
Massachusetts from the EPZ.

Finally, the Attorney General filed comments objecting to proposed NRC rule-
making that loosened safety standards in NRC licensing proceedings for the
Seabrook and Shoreham, New York utilities.

2. Vermont Yankee

The Attorney General sought, and was granted, the right to a hearing on Ver-
mont Yankee Nuclear Power Plant" ^ request for an amendment to its operating
license, which, if granted, would have allowed the plant to expand its spent fuel
pool. The Attorney General has alleged that in the event of an accident at the
plant, an expanded spent fuel pool could result in greater radiological risk to the
public, and that there are safer ways to expand the spent fuel pool. The Attorney
General has been engaged in hearings on this issue before the NRC.

P.D. 12 45

SPECIAL LITIGATION

In a Chapter 1 1 bankruptcy proceeding, the Commonwealth filed a $122 miUion
claim in 1983 against Johns-Manville for the cost of removing, repairing and other-
wise managing asbestos-containing products manufactured by the company which
are present in many of the more than 5,000 state buildings.

The Attorney General not only represented the Commonwealth's claim, but
continues to serve as Chair and Chief Negotiator for the State Government
Creditors Committee, a group of 35 Attorneys General whose states filed claims
in excess of $5 billion. The department played a key role in negotiations with
Manville, other property damage creditors, other creditors, and the representative
of future health claimants. This office also helped negotiate the establishment of
a property damage settlement trust and prepared a draft of the standards to be
used by the Trust for payment of property damage claims. After a trial before
a panel of three jurists, the panelists issued statements very much like those
originally proposed by the property damage claimants. The standards govern the
payment of all property damage claims filed against Manville in the Chapter 1 1
proceeding.

After a full hearing, the Commonwealth and the other members of the State
Government Creditors Committee were awarded all of their out of pocket
expenses and 75% of their legal fees by the Judge. The Committee's fee and
expense request was allowed and accompanied by statements by the court and
debtor about the Committee's "very substantial contribution" to the case, and
the "absolutely indispensible" services it rendered. The $185,971.10 award
covered the Committee's expenses from its first involvement in the case in 1984
through December, 1987. Massachusetts' share of actual expense awarded was
$12,826.72. The Court also awarded $396,170.99 to the Committee in legal
expenses, about 75% of the request. Massachusetts' share of the legal expenses
award was $118,294.12. The Court will consider requests for future expenses
and legal fees, as well as requests for the balance of fees through December 1987,
after consummation of the Plan of Reorganization.

These awards were highly unusual and precedential, in that they were made
on an interim basis and were made to public sector attorneys working in behalf
of an unofficial creditors committee.

The Department also filed a claim on behalf of the Commonwealth and 39
municipalities in the Johns-Manville Chapter 1 1 bankruptcy proceeding for Man-
ville's manufacture and sale of drinking water pipe that leaches tetrachlorethylene,
a known animal carcinogen and a suspected human carcinogen into the drinking
water supply. After extensive discovery and three days of trial before Judge Lifland
in the U.S. Bankruptcy Court in the Southern District of New York, the claim
was settled for $4.25 million.

Payment of the claim, pursuant to the Plan of Reorganization, was to be in
the form of certain instruments, including debentures and stocks. Given the fact
that payments would be extended into the next century and payment would be
contingent on the successful resolution of the bankruptcy proceeding and Man-
ville's continued ability to pay, the Commonwealth and the 39 affected
municipalities agreed to sell the Pipe Claim to the investment firm of Heine,
Geduld, Inc. for $3.95 million. The sale was completed in July of 1987, and

46 P.D. 12

distribution made shortly thereafter, bringing this complex litigation to a close.

On December 30, 1986, the Commonwealth filed a claim in the UNR Inc.
Chapter 11 bankruptcy proceeding in the U.S. Bankruptcy Court for the
Northern District of Illinois, Eastern Division. UNR was a former manufacturer
of asbestos products which were used in building construction.

The Commonwealth's claim was for expenses incurred and those anticipated
in the abatement— including removal, repair and replacement— of all asbestos pro-
duction in the Commonwealth's public building. The claim sought the portion
of $396,000, the Commonwealth's total asbestos related claim, which is deter-
mined to be UNR's actual liability. Discovery is proceeding on a coordinated
basis with other states which filed similar claims.

The department participated for months as a panel member in EPA 's Negotiated
Rulemaking process for the drafting of proposed rules required under the Asbestos
Hazard Emergency Response Act (A HERA). The proposed rules mandate action
by management of school buildings which contain asbestos. Although the
negotiated rulemaking process was intended to result in proposed rules on a con-
sensual basis, the industry's serious commitment of resources to ensure rules
favorable to their litigation position produced rules that made consensus impossi-
ble. Six representatives, including Massachusetts, withheld approval of the pro-
posed rules. The proposed rules were published in late April 1987. The Com-
monwealth, and a number of other states, filed comments.

GOVERNMENT BUREAU

The Government Bureau has three functions: (1) defense of lawsuits against
state officials and agencies concerning the legality of governmental operations;
(2) initiation of affirmative litigation on behalf of state agencies and the Com-
monwealth and (3) legal review of all newly-enacted municipal by-laws, pursuant
to G.L. c. 40, 32.

A report of significant activity during fiscal year 1987 follows.

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

During Fiscal Year 1987 the bureau opened 443 new cases and closed 695 ac-
tive cases. In addition, the bureau supervised and monitored the trial court defense,
by Department of Public Welfare attorneys, of 50 new welfare benefits cases.

The Government Bureau represented the Commonwealth successfully in three
cases in which the Supreme Court declined to overturn lower court decisions
favorable to the Commonwealth. The Government Bureau also prepared and
filed an amicus curiae brief on behalf of 28 states, successfully challenging a
method of determining attorneys' fees which resulted in excessive awards against
the states. The high court's denial of review in Commonwealth Electric v. Depart-
ment of Public Utilities vindicated a DPU order prohibiting the utility from pass-
ing on to consumers "imprudent" expenses incurred during a Pilgrim I outage
in 1981-1982. Review was also denied in Chongris v. Board of Appeals ofAndover,

P.D. 12 47

in which the First Circuit had upheld state zoning laws against a due process
challenge.

The U.S. Court of Appeals for the First Circuit decided 15 cases in which the
Commonwealth or one of its agencies was a party. Noteworthy decisions includ-
ed Commonwealth v. Bowen, in which the Court ruled that the U.S. acted
improperly when it disallowed $1 1 million in Medicaid reimbursement claimed
by the state. In Rogers v. Okin the First Circuit reduced an attorneys' fees award
against the state by more than $500,000. The court accepted our claim that the
Eleventh Amendment precluded charging the state for pre-judgment interest. The
Court upheld the statutory ban on "balance billing" against a constitutional
challenge in Mass. Medical Society v. Dukakis. In Devereaux v. Geary the First
Circuit upheld an affirmative action consent decree against a reverse discrimina-
tion challenge. The U.S. Supreme Court denied the plaintiffs' petition for review.

In FY 1987, the Supreme Judicial Court decided 43 cases in which Govern-
ment Bureau attorneys represented the Commonwealth. There were several
important decisions upholding disciplinary sanctions imposed because of profes-
sional misconduct, including Keigan v. Board of Registration in Medicine (viola-
tions of controlled substance act); Gill v. Board of Registration of Psychologists
(impropriety); Fitzgerald v. Board of Registration in Veterinary Medicine
(malpractice and gross misconduct); Intingaro v. Board of Registration of
Architects (perjury in bribery investigation, Single Justice session); Rosen v. Board
of Registration in Medicine (violation of controlled substance act. Single Justice
session); Mitchell v. Board of Registration of Chiropractors (excessive treatment
and "unconscionably high" fees. Single Justice Session), Haran v. Board of
Registration in Medicine (malpractice).

In Amherst Nursing Home v. Commonwealth the SJC held that the state could
show cross-ownership of two nursing homes in order to recoup public assistance
overpayments. In Kraft v. Department of Public Welfare the SJC approved the
DPW's method of calculating the amount of reimbursement owed to the depart-
ment for interim assistance provided to SSI applicants awaiting federal benefits.

The U.S. District Court decided 36 cases in which the Government Bureau
participated. Significant decisions in the U.S. District Court included Buchanan
V. Demong, in which the court held that state law governing unemployment com-
pensation did not unconstitutionally discriminate against pregnant women.

On behalf of the Commonwealth and 11 other states, the Government Bureau
filed an amicus brief in Perpich v. U.S. Department of Defense, concerning the
right of the state to withhold consent from National Guard training exercises in
Honduras.

By-Laws. Town by-laws, home rule charters, and amendments thereto are
reviewed and must receive approval of the Attorney General prior to becoming
effective. The review function is performed by attorneys in the Government
Bureau. During the fiscal year ending June 30, 1987 the By-Laws Division
reviewed 1,610 by-laws and 10 home rule charter actions from more than 300
towns. There were 84 disapprovals or disapprovals in part, making an error rate
of 5 percent for the submittals involved.

The by-laws received this year consisted of 574 general by-laws and 1 ,036 zon-
ing by-laws. General by-laws pertain to town government and the exercise of
municipal power. The zoning by-laws are a continuing exercise of the police power

48 P.D. 12

over the use of land. Zoning by-laws generate the most local controversy since
they affect what the land owner considers as his constitutional right, i.e. , to own,
use and enjoy property.

This year saw continued attempts to control or regulate growth, including
imposition of development moratoriums, overlay districts to protect groundwater
sources and sewage or septic tank restrictions.

EXECUTIVE BUREAU

LEGISLATION

During fiscal year 1987, the Attorney General filed eleven pieces of legisla-
tion, three of which were enacted. They are: 1) an amendment to the Consumer
Protection Act (C. 93 A) to add securities and commodities to the definition of
trade and commerce to which the statute applies; 2) an amendment regulating
the review of sexually dangerous persons' petitions for discharge; and 3) an amend-
ment regulating the penalties for violation of certain environmental laws.

The other bills included legislation to 1) authorize the use of civil investigative
demands in enforcement of civil rights laws; 2) increase the assessment of the
Utilities Division for representation of consumers in utility rate cases; 3) strengthen
antitrust enforcement by proposing a number of revisions to the Consumer Pro-
tection Act; 4) clarify the requirements relating to the condominium conversion
law; 5) permit deregulation of telecommunications services; and 6) to give the
Attorney General authority to represent utility ratepayers outside the
Commonwealth.

The division actively monitored the progress of approximately 200 bills, and
became actively involved in 23 bills through meetings, letters, and testimony.
The division also watched the activities of the committees as well as the floor
action of the House and Senate.

ELECTIONS DIVISION

The major responsibility of the Elections Division is to provide legal represen-
tation to the Secretary of State and the State Ballot Law Commission regarding
election related issues. During the fiscal year, the Elections Division also assisted
the Local Election Review Commission in fulfilling its responsibility to insure
that all cities and towns properly redrew local ward and precinct lines.

The Elections Division is responsible for enforcing compliance with the state 's
campaign finance law by candidates and political committees. (M.G.L. c. 55)

During fiscal year 1987, the Office of Campaign and Political Finance
referred to the Attorney General 153 individual candidates or treasurers of political
committees who failed to file the required financial disclosure reports. As a result
of administrative action by the division, 83 reports were subsequently filed.

The Elections Division brought civil actions against the remaining 70 candidates
or treasurers, with the court issuing orders requiring the filing of financial reports.

The Elections Division is also responsible for enforcing state statutes that
require legislative agents (lobbyists) and their employers to file financial disclosure

P.D. 12 49

statements with the Office of the Secretary of State. (M.G.L. c.3 s. 43,44,47)
In fiscal year 1987, 17 violations of these sections were reported by the Secretary
of State to the Attorney General. As a result of the action taken by the Elections
Division, all reports have been filed with the State Secretary.

The division also assists the State Jury Commissioner in his efforts to have
cities and towns submit census lists in a timely manner so that the jury selection
process can be carried out effectively. With the assistance of the Elections Divi-
sion, all cities and towns filed their respective reports without the need to seek
court action.

WESTERN MASSACHUSETTS

The Western Massachusetts Division of the Department of the Attorney General
is responsible for legal /natters in the four western counties of Berkshire, Franklin,
Hampden and Hampshire. The Western Division, located in Springfield, is
staffed by investigators and attorneys.

The division litigates a wide range of cases, including tort, contract, eminent
domain, worker's compensation, environmental, consumer protection, civil rights,
administrative appeals, and victims of violent crimes. The division also prosecutes
fraud cases for the Division of Employment Security.

Similarly, the investigators are responsible for a number of cases. In addition to
investigating consumer fraud, investigators work closely with attorneys in develop-
ing their cases by interviewing witnesses, reviewing documents and accumulating
and compiling potential evidence.

The division also handles consumer complaints and attempts to resolve them
short of court action.

OPINIONS

The Attorney General is authorized by (M.G.L. c.l2, s.3, 6, and 9) to render
legal advice and opinions to constitutional officers, agencies and departments,
district attorneys, and branches of the legislature. Opinions are given primarily
to the heads of state agencies and departments.

The questions considered in legal opinions must have an immediate, concrete
relation to the official duties of the state agency or officers requesting the
opinion. In other words, hypothetical or abstract questions, or questions which
ask generally about the meaning of a particular statute, lacking a factual under-
pinning, are not answered.

Opinions are not offered on questions raising legal issues which are the subject
of litigation or that concern collective bargaining. Questions relating to the wisdom
of legislation or administrative or executive policies are not addressed. General-
ly, federal statutes are not considered and the constitutionality of state or federal
legislation is not determined.

Opinion requests from state agencies which report to a cabinet or executive
office must first be sent to the appropriate executive secretary for his/her con-
sideration. If the secretary believes the question raised is one which requires resolu-
tion by the Attorney General, the secretary then requests the opinion.

There are two reasons for this rule. The first concerns efficiency. Opinions of the
Attorney General, because of their precedential effect, are thoroughly

50 P.D. 12

researched and prepared. If a question can be satisfactorily resolved more quick-
ly within the agency or executive office— by agency legal counsel or otherwise —
everyone is better served. The second reason relates to the internal workings of
the requesting agency and its executive office. It would be inappropriate for this
department to be placed in the midst of an administrative or legal dispute be-
tween these two entities. These rules help to ensure that the agency and its
executive office speak with one voice insofar as Opinions of the Attorney General
are concerned.

If the agency or executive office requesting an opinion has a legal counsel,
counsel should prepare a written memorandum explaining the agency's position
on the legal question presented and the basis for it. The memorandum should
accompany the request. When an agency request raises questions of direct con-
cern to other agencies, governmental entities, or private individuals or organiza-
tions, the Opinion Division solicits the views of such interested parties before
rendering an opinion.

The issuance of informal opinions is strongly discouraged. Informal Opinions
of the Attorney General are often relied upon as if they were formal Opinions.
In a number of instances, this reliance has been seriously misplaced. As a result,
the issuance of informal opinions is strictly limited to situations of absolute necessi-
ty. It is made explicit that the informal opinions cannot be relied upon as if they
were formal Opinions.

Between July 1, 1986 and June 30, 1987, 10 formal Opinions of the Attorney
General were issued with an additional 89 requests considered, evaluated, and
declined.

The formal Opinions follow:

P.D. 12 51

July 14, 1986

The Honorable George Keverian

Speaker

House of Representatives

State House

Boston, MA 02108

Dear Speaker Keverian:

You have asked for my opinion, pursuant toG.L. c. 12, §9, concerning the
constitutionality of House 4476, a bill presently pending before the House of
Representatives. House 4476 would amend chapter 39 of the General Laws to
require that any circular or poster that advocates or opposes any article on a town
meeting warrant conspicuously disclose the person or organization responsible
for the writing.' Specifically, you have inquired whether the proposed law would
violate any provision of the United States Constitution, particularly the First
Amendment or its state counterpart. Article 16 as amended by Article 77 of the
Amendments to the Massachusetts Constitution. ^

Before I address your specific inquiry, though, I note that existing law may
already accomplish the intended purpose of House 4476. House 4476 is identical
in all essential respects to G.L. c. 56, § 41 , which prohibits anonymous election-
oriented posters or circulars. ^ The only substantive difference between section
41 and House 4476 is that section 41 prohibits anonymous circulars or posters

• The bill reads, in pertinent part, as follows:

No person shall write, print, post or distribute, or cause to be
written, printed, posted or distributed, a circular or poster designed
to aid or defeat any article on a Town Meeting Warrant unless there
appears upon such circular or poster in a conspicuous place either
the names of the chairman and secretary, or of two officers, of
the political or other organization issuing the same or of some per-
son eighteen years of age or older who is responsible therefor,
with his name and residence, and the street and number, thereof,
if any.

Violation of this section shall be punished by imprisonment for
not more than six months.

^ The First Amendment, which by its terms applies only to laws enacted by Con-
gress, is made applicable to the states by the Fourteenth Amendment. Lovell v.
Griffin, 303 U.S. 444, 450 (1938).

^ General Laws c. 56, § 41, reads as follows:

No candidate for nomination or election to public office or any
other person shall write, print, post or distribute, or cause to be
written, printed, posted or distributed, a circular or poster designed
to aid or defeat any candidate for nomination or election to any
public office, or designed to aid or defeat any question submitted
to the voters, unless there appears upon such circular or poster

52 P.D. 12

"designed to aid or defeat any candidate ...or., .any question submitted to the
voters. . . " (emphasis added), whereas House 4476 prohibits only such circulars
or posters which are "designed to aid or defeat any article on a Town Meeting
Warrant. . . " (emphasis added). Since articles on town meeting warrants con-
cern "questions submitted to the voters," they appear to fall within the scope
of G.L. c. 56, § 41. Therefore, House 4476 may not even be necessary.

For purposes of this opinion, however, I will assume that House 4476 would
fill a gap in the coverage of G.L. c. 56, § 41. For the reasons discussed below,
it is my opinion that in its current form the proposed law, while certainly defen-
sible, would be vulnerable to a constitutional challenge on the ground that it
abridges freedom of speech. Accordingly, the balance of this opinion sets forth
the appropriate standards against which the bill will be measured and then pro-
vides some guidance concerning potential revisions of the bill.

It is relatively simple to articulate the framework within which state-imposed
restrictions on speech are analyzed. First, the state must demonstrate a compell-
ing interest in restraining those forms of speech which are constitutionally
protected. NAACP v. Alabama, 357 U.S. 449, 463 (1958). Even assuming a com-
pelling state interest, speech restrictions are unconstitutional unless they are no
greater than is necessary to further that compelling intrerest. Id. at 463;
Procunier v. Martinez, 416 U.S. 396, 413-14 (1974). Both the federal and state
constitutions allow the government to regulate the time, place, and manner of
speech to accommodate the state's compelling interests. Nevertheless, such time,
place, and manner restrictions must be content neutral, leave open ample alter-
native channels of communication, and, must be narrowly tailored to serve the
governmental interest advanced. City Council v. Taxpayers for Vincent, 466 U.S.
789, 808 (1984); Opinion of the Justices, 373 Mass.' 888, 891 (1977).

House 4476 is content neutral. It applies to all issues raised by town meeting
articles and therefore does not vest discretion in government officials to favor
some ideas over others. Because House 4476 bans all anonymous literature relating
to town meeting articles, however, the only alternative it offers is for the speaker
to disclose his identity, which may not be a constitutionally acceptable option.
Talley v. California, 362 U.S. 60, 64 (1960) (invalidating ordinance which pro-
hibited all anonymous handbills). Even were this not a significant flaw, the
expansive language of House 4476 would not only prohibit libel and false
statements by anonymous authors, but true and useful information from anonymous
sources as well. It may, therefore, not be as narrowly tailored as the Constitution
requires.

Indeed, the Supreme Judicial Court has already cautioned that there is "signifi-
cant authority that a disclosure requirement relating to election pamphlets cannot
survive a First Amendment challenge." Commonwealth v. Dennis, 368 Mass.
92, 97-98 (1975). In Dennis, the court recognized the "significant First Amend-
ment problems with any statute (like House 4476) which requires the author of

in a conspicuous place either the names of the chairman and
secretary, or of two officers, of the political or other organization
issuing the same, or of some person eighteen years of age or older
who is responsible therefor, with his name and residence, and the
street and number thereof, if any.

Violation of this section shall be punished by imprisonment for
not more than six months.

P.D. 12 53

a publication to reveal his identity." Id. at 96. This statement is of particular
significance to your request because it was made in the context of construing the
former version of G.L. c. 56, § 41, the statute upon which House 4476 is
apparently modeled.

In Dennis, the Supreme Judicial Court held the former version of section 41
unconstitutional on the narrow ground that its voter signature requirement
imposed an unconstitutional prior restraint on non-voters' First Amendment rights.
Section 41 formerly required disclosure of the identity of the political organiza-
tion or individual voter responsible for election-oriented circulars or posters. After
the Dennis decision, the Legislature amended section 41 by replacing the voter
signature requirement with one designating instead "some person eighteen years
of age or older" who is responsible therefor. St. 1976, c.l37, § 2. The
Massachusetts appellate courts have not had an opportunity to assess the con-
stitutionality of the amended version of this statute, but their analysis would
undoubtedly proceed from the premise that "constraints on the power of a State
to limit freedom of expression must be carefully considered." Dennis, 368 Mass.
at 99. The remainder of this opinion will elaborate on the specifics of these con-
straints to provide you with some guidance as to how House 4476 may be rewrit-
ten to avoid possible free speech problems.

As I have explained, the state must demonstrate a compelling interest in the
subject of regulation to justify restrictions on speech. One simple method of
improving House 4476 would be to identify such a compelling interest and perhaps
couple that identification with legislative findings demonstrating the need for
legislative action. In the absence of such findings I can only speculate as to the
rationale for the measure, and I assume that the state interest supporting the bill's
signature requirement would be to give voters all information necessary by which
to evaluate election related literature. Dennis, 368 Mass. at 97. Although this
interest may well be legitimate, the Supreme Judicial Court has ruled that it is
not compelling enough to outweigh the competing interest in free speech. "It
seems clear that any public interest in revealing the source of a communication
so that the recipient may assess its content in light of that source does not furnish
a constitutionally sufficient justification for a prohibition of all anonymous cam-
paign literature." Id. at 97.

This conclusion follows from the seminal Supreme Court decision of Talley
V. California, 362 U.S. 60 (1960), and is in accord with numerous subsequent
state court decisions invalidating laws prohibiting anonymous campaign literature."*

"* See, e.g. , Schuster v. Imperial County Municipal Court, 109 Cal. App. 3d 887,
167 Cal. Rptr. 447 (1980), cert, denied 450 U.S. 1042 (1981) (law prohibiting
all anonymous political writings unconstitutionally overbroad because it stifled
legitimate political dissent); People v. Duryea, 76 Misc. 2d 948, 351 N.Y.S. 2d
978, 992 (1974) (signature law invalid because it was "an absolute identification
requirement designed to regulate pure speech involving political affairs"). See
also State v. Fulton, 337 So. 2d 866 (La. 1979); State v. N.D. Educ. Assoc,
262 N.W. 2d 731 (N.D. 1978); People v. Bongiomi, 205 Cal. App. 2d 856,
23 Cal. Rptr. 565 (1962) (all ruling blanket signature requirements overbroad).

54 P.D. 12

In Talley the Supreme Court held that a California ordinance that prohibited the
distribution of any handbill that did not identify its author and distributor was
unconstitutionally overbroad because its identification requirement tended to
"restrict freedom to distribute information and thereby freedom of expression. "^
Id. at 64. The principal justification for the Talley ordinance and similar measures
like House 4476 is to promote honesty and fairness in the electoral process by
deterring fraud, libel, and other harmful means of expression which may injure
the integrity of that process.

Deterring fraud and protecting the integrity of the electoral process may well
be compelling enough to satisfy the first prong of the test articulated above. Cf.
Buckley v. Valeo, 424 U.S. 1, 26-29 (1975) (federal law limiting campaign con-
tributions constitutionally served compelling state interest in preventing electoral
corruption). Even so. House 4476 might still be vulnerable because it creates
a blanket prohibition of all anonymous statements concerning local political issues,
regardless of whether those statements are laudatory, truthful, responsible, or
informative. The state's interest in helping the electorate to distinguish between
truth and falsity and in deterring the dissemination of harmful or untruthful
information "can be furthered through more narrowly constructed statutes without
criminalizing the anonymous uttering of the truth." Schuster, 167 Cal. Rptr. at
452. Therefore, any revision of House 4476 should eliminate the blanket pro-
hibition on anonymous material and distinguish between protected and unprotected
speech.^

In conclusion, I emphasize that restrictions on speech are lawful only if they
are precisely drawn. First National Bank of Boston v. Attorney General, 362 Mass.
570, 587 (1972). Narrowly tailored legislation which requires the author's name
only on writings that are fraudulent, libelous, offensive or otherwise beyond the
pale may avoid constitutional problems because it would advance the state
interests discussed above in the least restrictive manner. Talley, 362 U.S. at 64-65.
To bolster House 4476 against constitutional challenges, I recommend that it be
drafted narrowly enough to prohibit false, fraudulent, or otherwise unprotected
speech but otherwise allow the anonymous communication of ideas. See Dennis,
368 Mass at 97-99 and cases cited.

Very truly yours,
Francis X. Bellotti
Attorney General

^ The California ordinance reads as follows:

No person shall distribute any hand-bill in any place under any
circumstances, which does not have printed on the cover, or the
face thereof, the name and address of the following:

(a) The person who printed, wrote, compiled or manufactured the
same.

(b) The person who caused the same to be distributed; provided,
however, that in the case of a fictitious person or club, in addition
to such fictitious name, the true names and addresses of the owners,
managers or agents of the person sponsoring said hand-bill shall
also appear thereon.

^ I note that G.L. c. 56, § 42, prohibits making or publishing any false statement
concerning a candidate or an issue submitted to the voters. This is the kind of
narrow prohibition of unprotected speech that the First Amendment allows.

P.D. 12 55

September 10, 1986

Honorable Michael Joseph Connolly
Secretary of State
State House - Room 337
Boston, Massachusetts 02109

Dear Secretary Connolly:

By letter dated August 7, 1986, you transmitted a series of proposed ballot
questions to me and requested my opinion whether they are "public policy" ques-
tions within the meaning of G.L. c. 53, §19. You further requested an opinion
of what simple, unequivocal and adequate form is best suited for presentation
of these questions on the ballot.

As I have noted in the past, the term "public policy" as used in G.L. c. 53,
§19, should not be given a restrictive meaning. 1982/83 Op. Atty. Gen. No. 3,
A.G., Pub. Doc. No. 12 at 84. Each question must concern an important public
matter in which every citizen of the Commonwealth would have an interest.

1984/85 Op. Atty. Gen. No. 2, A.G., Pub. Doc. No. 12 at ; 1982/83 Op.

Atty. Gen. No. 3, A.G. Pub. Doc. 12 at 84. Moreover, the instruction contained
in each question must be consistent with the powers of the legislature, and the
subject matter must be fit for legislative action. Thompson v. Secretary of the
Commonweahh, 265 Mass. 16, 19 (1928); 1984/85 Op. Atty. Gen. No. 12, A.G.

Pub. Doc. No. 12 at ; 1982/83 Op. Atty. Gen. No. 3, A.G. Pub. Doc. No.

12 at 84. Unless the petition concerns a matter appropriately subject to some type
of legislative action, it is not an appropriate public policy question. See, 1978/79
Op. Atty. Gen. No. 8, A.G. Pub. Doc. No. 12 at 114 (disapproving a petition
asking the legislature to reject changes proposed by a local charter commission).
See also, 1984/85 Op. Atty. Gen. No. 2, A.G. Pub. Doc. 12 at (disapprov-
ing a petition asking the legislature to rescind licenses issued to particular com-
panies for the storage and transportation of hazardous wastes).

Even when questions concern a small geographic area, if the problem is one
of concern to the Commonwealth in general, then the question may be considered
one of public policy. 1984/85 Op. Atty. Gen. No. 2, A.G. Pub. Doc. No. 12

at ; 1980/81 Op. Atty. Gen. No. 6, A.G. Pub. Doc. No. 12 at 109; 1978/79

Op. Atty. Gen. Nos. 16, 17 and 18, A.G. Pub. Doc. No. 12 at 121-123.

As my prior opinions indicate, in ascertaining whether a question is one of
"public policy", my review does not and cannot extend to a consideration of
the constitutionality of any legislation that might eventually be enacted as a result
of the voters' instruction. As a result, I express no opinion as to the validity of
the measures that are contemplated by the questions that have been submitted.
Cf, 1964/65 Op. Atty. Gen., Pub. Doc. No. 12 at 83.

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

56 P.D. 12

Consequently, I have made no independent inquiry to determine whether these
questions are statutorily defective for any reason other than a failure to qualify
as a public policy question in proper form for presentation on the ballot. 1982/83
Op. Atty. Gen. No. 3, A.G. Pub. Doc. No. 12 at 84; See, 1958/59 Op. Atty.
Gen. No. XII, A.G. Pub. Doc. No. 12 at 44.

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

Representative Districts: 3rd Suffolk and Nine other Representative Districts •
Shall the Representative from this district be instructed to vote in favor of legisla-
tion forming the following wards and precincts of the City of Boston into a new
city of the Commonwealth: ward 4, precincts 8 and 9; ward 8; ward 9; ward
10, precincts 5, 6, and 7; ward 11; ward 12; ward 13, precincts 1, 2, 3, and
5; ward 14; ward 15, precincts 1, 2, 3, 5 and 7; ward 17, precincts 1, 2, 3, 4,
5, 6, 7, and 10; ward 18, precincts 1, 2, 3, 4, 5, 6, and 21; ward 19, precinct 7?

Representative Districts: 9th, 10th and 11th Essex

Shall the Representative from this District be instructed to vote in favor of
legislation requiring New England Telephone Company to keep Peabody, Salem,
Dan vers, Beverly, Marblehead and Lynn in the 617 area code?

Representative District: 8th Essex

Shall the Representative from this District be instructed to vote in favor of
legislation requiring New England Telephone Company to keep Marblehead and
Swampscott in the 617 area code?

Representative District: 4th Essex

Shall the Representative from this District be instructed to vote in favor of
legislation requiring New England Telephone Company to keep Hamilton,
Ipswich, Middleton, Topsfield, Wareham, Boxford and Essex in the 617 area
code?

Senatorial District: 2nd Essex

Shall the Senator from this District be instructed to vote in favor of legislation
requiring New England Telephone Company to keep Dan vers, Beverly, Peabody
and Salem in the 617 area code?

Representative District: 5th Essex

Shall the Representative from this District be instructed to vote in favor of
legislation establishing a minimum annual increase in local aid for each city and
town of at least 2V2% of the city's or town's tax levy for the previous year?

Representative District: 5th Essex

Shall the Representative from this District be instructed to vote in favor of
legislation requiring the Commonwealth to assume all costs of county courthouses
and correctional institutions?

'5th, 6th, 7th, 9th, 12th, 13th, 14th, 15th, and 17th Suffolk.

P.D. 12 57

Representative District: 5th Essex

Shall the Representative from this District be instructed to vote in favor of
legislation requiring the state to assume at least 80% of all costs of special needs
students that exceed the average state wide per-pupil cost?

Representative Districts: 3rd, 4th and 12th Worcester and 2nd Barnstable
Senatorial District: Franklin, Hampshire

Shall the Representative/Senator from this District be instructed to vote in favor
of a resolution calling upon the government of the United States to adopt a policy:
(1) that would require the halt of nuclear bomb testing and the reduction of weapons
by 1 %, (2) that would challenge the Soviet Union to do likewise, with verifica-
tion within one year; and (3) that would initiate mutual, verifiable, gradual reduc-
tions of nuclear weapons on a world-wide basis, with the goal of eliminating 99%
of those weapons by the year 2000?

Representative Districts: 1st Plymouth and 2nd Franklin

Shall the Representative from this District be instructed to vote in favor of
legislation prohibiting the dumping, disposal, storage or generation of radio-
active waste in Massachusetts from commercial nuclear plants after July 4, 1989?

Very truly yours,
Francis X. Bellotfi
Attorney General

58 P.D. 12

September 18, 1986

Barbara Neuman, Executive Director

Board of Registration in Medicine

Department of Civil Service and Registration

Executive Office of Consumer Affairs and Business Regulation

Ten West Street

Boston, MA 02111

Dear Ms. Neuman:

You have requested my opinion whether the Fair Information Practices Act
("FIPA"), G.L. c. 66A, §§ 1 et seq. (1984 ed.) requires the Board of Registra-
tion in Medicine (the "Board") to keep confidential the dates of birth of the Board's
licensees and license-applicants.

I am informed that your opinion request arose because the Board wishes to
participate more effectively in various local and national data reporting systems
which provide information on physicians. Apparently these systems are the Board's
primary source of information about previous disciplinary action taken against
physicians who have moved from state to state. You indicate that the efficient
use of these systems required the Board to submit both the physician's name and
date of birth to each system. The question is significant because in 1977 I opined
that among the items of personal information obtained by the boards of registra-
tion in connection with their licensing processes, the age of an individual was
not a public record and was restricted from disclosure by Section 2(c) of FIPA.
1976/77 Op. Att'y Gen. No. 32, Rep. A.G., Pub. Doc. No. 12 at 157 (1977).
You question whether intervening statutory changes and judicial decisions now
permit the disclosure of ages and dates of birth by the boards of registration.

The brief answer to your question is that there have been significant changes
in the law that lead me to conclude that after October 1, 1986, FIPA will not
prohibit the Board from releasing the dates of birth of its licensees and license-
applicants to national data reporting systems which provide information on
individual physicians so long as birth dates are helpful in utilizing these systems
effectively.

The first of the changes occurred shortly after the issuance of my 1977 opin-
ion. In October of that year, the Governor signed Chapter 691 , emergency legisla-
tion amending both FIPA' and the Public Records Law.^ The stated purpose of
Chapter 691 was "to prevent potential conflicts between the demands of individual
rights of privacy and the need to make certain information available to the public."
These amendments to FIPA and the Public Records Law act together to broaden
the range of information that is available as public records and to reduce the scope
of data that are "personal data" covered by FIPA. Torres v. Attorney General,
391, Mass. 1, 7 (1984).

' FIPA was amended by §§ 6 - 13 of Chapter 691, which, inter alia, changed
the definition of "personal data" to exclude all information contained in a public
record. See St. 1977, c. 691, § 6.

2 The Public Records Law was amended by § 1 of Chapter 691, which added
the word "unwarranted" to subclause (c) of G.L. c. 4, § 7 (twenty-sixth), thereby
excluding from the definition of "public records" those "materials or data relating

P.D. 12 59

Coming so quickly after issuance of my 1977 opinion, these amendments can
be viewed as a legislative response to my articulation of the prior law, permitting
a reassessment of that opinion. More recent developments may also serve to war-
rant an extensive reconsideration.^

Engaging in that reassessment is unnecessary in the present context, however,
because a very recent statute has resolved the specific problem which prompted
your inquiry. On July 23, 1986, after you transmitted your opinion request, the
Governor signed St. 1986, c. 351, an omnibus medical malpractice reform bill,
which contains the following pertinent section:

The Board shall participate in any national data reporting system
which provides information on individual physicians. St. 1986, c.
351, § 12.

This provision will become part of G.L. c. 1 12, § 2, and takes effect on October
1. 1986. St. 1986, c. 351, § 41. In my opinion, this provision authorizes the
Board to disclose the dates of birth of its licensees and license-applicants to any
national data system which provides information on individual physicians if the
use of birth dates is an element of that data collection system.

The provision of FIPA which restricts an agency from releasing "personal data"
is Section 2(c). It states, in pertinent part, that a state agency shall

not allow any other agency or individual not employed by the holder
to have access to personal data unless such access is authorized
by statute or regulations which are consistent with the purposes
of this chapter [G.L. c. 66 A] or is approved by the data subject
. . . (emphasis added).

It is my view that St. 1986, c. 351, § 12, is a statute that authorizes the Board
to allow national systems which report information on physicians to have access
to the dates of birth of the Board's licensees and license-applicants if dates of
birth enable the data reporting system to identify physicians. Such disclosures
are, therefore, not prohibited by FIPA.

to a specifically named individual, the disclosure of which may constitute an
unwarranted invasion of privacy." See G.L. c. 4, § 7 (twenty-sixth) (c) 1984 ed.).

^ In a recent decision in which the Supreme Judicial Court held that the home
addresses of Braintree's public school employees were public records, the court
noted that the school system employees' home addresses were "available from
other public sources" including "street lists" of all persons residing in the Com-
monwealth prepared by local officials each year pursuant to G.L. c. 51, §§4,
6, 7 (1984 ed.). Pottle v. School Committee ofBraintree, 395 Mass. 861, 866
(1985). I am not unmindful of the fact that these "street lists" are required to
indicate each person's date of birth as well. G.L. c. 51, §§ 6, 7.

60 P.D. 12

It is noteworthy that this statute requires the Board to participate in "national"
data reporting systems. I understand that the "local" organizations from which
you seek information about physicians are law enforcement agencies which have
access to various national criminal justice data systems. Disclosures of physi-
cians' dates of birth to these local law enforcement agencies is authorized by St.
1986, c. 351, § 12, so long as dates of birth are helpful in identifying individual
physicians listed in these national data reporting systems.

If there are purely "local" data reporting systems which provide information
on physicians, § 2(c) of FIPA may prohibit the Board from providing them with
physicians' dates of birth. St. 1986, c. 351, § 12 does not appear to authorize
such disclosures. But you have not indicated that such local data reporting systems
exist or, if they do, whether you need physicians' birth dates to utilize them effi-
ciently. Thus, I consider it to be a hypothetical question whether disclosure of
physicians' birth dates to local data reporting systems violates § 2(c) of FIPA.
Accordingly, because it has been long-established policy of the Attorney General
to refuse to give opinions on hypothetical questions {see, e.g. , 1911/lS Op. Att'y
Gen. No. 18, Rep. A.G., Pub. Doc. No. 12 at 116 (1978)), I decline to address
this question.

I also decline to address the more general question raised in your letter, i.e.,
whether certain changes in the public records law, noted above, and the decision
in Pottle V. School Committee ofBraintree, supra, now lead me to the view, con-
trary to that in my 1977 opinion, that dates of birth of the Board's licensees and
license-applicants constitute public records. I view this question to be one best
answered, in the first instance, by the Supervisor of Public Records. It is the
policy of the Attorney General to decline to render an opinion when the question
raised by the request is committed by statute to another officer of the Com-
monwealth. The determination whether information being held by public agen-
cies constitute public records subject to mandatory disclosure under G.L. c. 66,
§ 10 (1984 ed.) is committed by statute to the Supervisor of Public Records. See
G.L. c. 66, § 10(b) (1984) ed.). See also G.L. c. 66, §§1,4 (1984 ed.).

In sum, it is my opinion that after October 1, 1986, FIPA will not prohibit
the Board from releasing the dates of birth of its licensees and license-applicants
to national data reporting systems which provide information on individual physi-
cians so long as it is helpful to use birth dates, along with physicians' names,
as an identifier to maximize the accuracy or quantity of the information obtained
or the speed with which it can be retrieved.

Very truly yours,
FRANCIS X. BELLOTTI
ATTORNEY GENERAL

P.D. 12 61

October 31, 1986

Charles V. Barry, Secretary
Executive Office of Public Safety
One Ashburton Place - 21st Floor
Boston, Massachusetts 02108

Dear Secretary Barry:

You have asked my opinion on whether the implementation of the Firearms
Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 455, will preempt'
enforcement of G.L. c. 269, § 10, (1984 ed.), the Commonwealth's Bartley/Fox
gun law. Specifically, your concern is with Section 107 of the Act, which amended
Title 18 of the United States Code by adding a new section 926 A. ^ Before I could
address your inquiry though. Congress superseded even this new statute with the
enactment of the Interstate Transportation of Firearms Act, Pub. L. No. 99-360,
100 Stat. 766 (1986). This latter Act was adopted to technically refine the Firearms
Owners' Protection Act. Among its refinements was a provision modifying new
section 926A so that it expressly sanctions interstate transportation of firearms.

As modified, 18 U.S.C. S 926 A provides:

Notwithstanding any other provision of any law or any rule or
regulation of a State or any political subdivision thereof, any per-
son who is not otherwise prohibited by this chapter from transpor-
ting, shipping, or receiving a firearm shall be entitled to transport
a firearm for any lawful purpose from any place where he may
lawfully possess and carry such firearm to any other place where
he may lawfully, possess and carry such firearms, if during such
transportation the firearm is unloaded, and neither the firearm nor
any ammunition being transported is readily accessible or is directly
accessible from the passenger compartment of such transporting
vehicle: Provided, That in the case of a vehicle without a com-
partment separate from the driver's compartment the firearm or
ammunition shall be contained in a locked container other than the
glove compartment or console.

' I do not ordinarily issue opinions dealing with the question of federal preemp-
tion of state law. Under the state constitution no member of the executive branch
of state government can suspend the operation of a law; that is exclusively the
prerogative of the General Court, Mass. Const, pt.l, art. 20. Here I opine not
that the state law is preempted by the federal law, but that the federal law pro-
vides a defense to state prosecution.

2 As inserted by the Firearms Owners' Protection Act, Pub. L. 99-308, 1(X) Stat.
455 (1986), 18 U.S.C. § 926A provided:

Any person not prohibited by this chapter from the transporting,
shipping, or receiving a firearm shall be entitled to transport an
unloaded, not readily accessible firearm in interstate commerce
notwithstanding any provision of any legislation enacted, or any
rule or regulation prescribed by any State or political subdivision
thereof.

62 P.D. 12

For the reasons set forth below, I conclude that as a result of these new federal
laws, a non-resident in lawful possession of a handgun is exempt from the licens-
ing requirements imposed by the Commonwealth while he is transporting that
weapon and that he has a defense to prosecution for failure to possess a
Massachusetts license, provided, that the handgun is unloaded and inaccessible
throughout his travels in Massachusetts. In all other situations, however, I con-
clude that the laws of this Commonwealth are unaffected by these federal enact-
ments. I begin my analysis with an overview of the state statutory scheme.

In Massachusetts, to lawfully carry a firearm a person must obtain a license
to do so issued pursuant to G.L. c. 140, § 131 (1984 ed.), or be exempt from
the requirement. The non-resident who may wish for some reason to carry a
firearm while traveling through the Commonwealth must either obtain a temporary
license to do so, pursuant to G.L. c. 140, § 131F (1984 ed.), or be allowed by
the provisions of G.L. c. 140, § 131(G) (1984 ed.), to carry a pistol or revolver
without a license for the purpose of taking part in competition, or attending a
meeting or exhibition of collectors or for the purpose of hunting. These excep-
tions are subject to the further qualification that the non-resident be licensed in
another state and, in the case of the hunter, he also must have a valid hunting
license issued by the Commonwealth or the state of his destination. Except in
these limited instances, an individual found with a firearm in his possession or
in his control in a vehicle, may be prosecuted under the provisions of G.L. c.
269, § 10(a).

While the provisions noted above regulate the "carrying" of a firearm, a
qualified individual may lawfully own or possess a firearm in Massachusetts, if
he holds a firearm identification card under G.L. c. 140, § 129B (1984 ed.), or
is otherwise exempt from the requirement. Commonwealth v. Morse, 12 Mass.
App. Ct. 426, 428 (1981). Possession is also required by the immediately following
sections of chapter 140.

Currently, G.L. c. 140, § 129C (1984 ed.) provides: "No person, other than
. . . one who has been issued a license to carry a pistol or revolver or an exempt
person as herein described, shall own or possess any firearm, rifle, shotgun or
ammunition unless he has been issued a firearm identification card . . ."An
individual in possession of a firearm without such a card may be prosecuted under
the provisions of G.L. c. 269, § 10(h). The exemptions noted make S 129C
inapplicable to "[pjossession of rifles and shotguns and ammunition therefor by
non-residents traveling in or through the Commonwealth, provided that any rifles
or shotguns are unloaded and enclosed in a case." G.L. c. 269, § 129C(h). Similar
exemptions for rifles and shotguns are provided for non-resident hunters, §
129C(f), and non-residents engaged on a firing or shooting range, § 129C(g).

While Massachusetts has provided for non-residents transporting rifles and
shotguns, corresponding provisions for non-residents transporting handguns have
not been adopted by the General Court. Under Massachusetts law those individuals
must either be licensed to carry a handgun as noted earlier in this opinion or fall
within one of the following narrowly drawn exemptions: a federally licensed
manufacturer, § 129C(b); a common carrier transporting firearms in the course
of regular and ordinary business, § 129C(d); a person voluntarily surrendering
a firearm with prior written notice given, § 129C(c); a new resident of the Com-
monwealth who has been here less than sixty days, § 129C(j); a participant in
a trial where a handgun is an exhibit, § 129C(m); an heir or legatee who gained
possession of a handgun within the previous one hundred and eighty days, §
129C(n); or a person in the military or other service. § 129C(o).

To understand the effect the new federal law will have on the Commonwealth's
statutory scheme, it is important to look first at the articulated purpose of the

P.D. 12 63

federal legislation which amends the Gun Control Act of 1968, codified in Chapter
44 of Title 18 of the United States Code. The articulated purpose is dual: first,
to strengthen the provisions regulating the unlawful sale, possession or taking
receipt of firearms and ammunition, and second, to protect the interests of
legitimate sportsmen. In furtherance of the latter purpose. Congress sought to
ensure that legitimate sportsmen could travel freely from state to state without
running afoul of any state or local licensing laws or regulations.^

The allowance for interstate transportation of firearms created by Congress is
not without limits. By its plain words the federal legislation is limited to firearms
that are unloaded and inaccessible. Therefore, those provisions of state law which
regulate the carrying of a firearm either on the person, or within his control in
a vehicle, are unaffected.

Moreover, the federal legislation does not affect the ability of the Commonwealth
to regulate its own residents. Any individual utilizing the federal provision must,
by the terms of section 926 A, comply with the laws of his state of origin as well
as the laws of the state at his trip's end. Thus, the Massachusetts resident leaving
the state, returning, or traveling within its borders, must comply with all state
regulations."

Where the federal legislation will affect the enforcement of Massachusetts gun
control efforts is in the limited area of the transportation of handguns by non-
residents. As I interpret the new federal provision, it creates one further exemp-
tion to the licensing requirement imposed by G.L. c. 140, § 129(c), similar to
the exemption already provided to those transporting rifles, for the non-resident
in "lawful possession" of a handgun, unloaded and inaccessible who travels in
or through the Commonwealth. As noted earlier, lawful possession means the
traveler must comply with the laws of his state of origin as well as the laws of
the jurisdiction at his trip's end. See, e.g. , 132 Cong. Rec. H4103 (daily ed. June
24, 1986) (statement of Rep. Marlenee).

Any traveler who complies with these requirements of section 926A has a
defense to any prosecution under the provision of G.L. c. 269, § 10(h).

I stress the phrase "defense" in the preceding sentence because I stated at the
outset that the federal law does not preempt the state law in this case, rather it
creates a defense to state prosecution. This approach also finds direct support
in the legislative history. One of the two sponsors of the original § 926A said
of his bill:

The purpose of this amendment is to make it clear that it is the
intention of Congress that state and local statutes and regulations
shall remain in effect, except in certain narrow circumstances
involving travel through one or more states other than the state
of residence, a defense is available to prosecutions under State and

' Massachusetts was often cited during consideration of these bills as one of the
states with local laws that are oppressive to the legitimate sportsmen. See e.g.,
132 Cong. Rec. S9116 (daily ed. July 9, 1985) (statement of Senator Hatch).

" Senator Kennedy, in his remarks on the Firearms Owners' Protection Act, Pub
L. No. 99-308, 100 Stat. 455 (1986), is most explicit on this point:

In addition, Mr. President, the Senate language makes it clear that
a state or locality's right to regulate the carrying of firearms by
its residents is not affected in any way of the provisions of this
Bill. 132 Cong. Rec. S5367 (daily ed. May 6, 1986) (statement
of Senator Kennedy).

64 P.D. 12

local gun control laws. The circumstances under which a defense
would be created under this amendment are limited ... 131 Cong.
Rec. S9117 (daily ed. July 9, 1985) (statement of Sen.
Metzenbaum).

In conclusion, I emphasize that the new federal provision does not affect the
Commonwealth's right to regulate its own residents and to prosecute those who
do not comply with our statutory requirements. Nor does it prevent the Com-
monwealth from prosecuting those non-residents found carrying a firearm either
on their person or within their control in a vehicle without proper state authority.
It does, however, entitle the non-resident who can own and legally transport
firearms under the laws of his jurisdiction to transport an unloaded and inaccessible
firearm through the Commonwealth, and provides him a defense against prosecu-
tion by the Commonwealth for certain violations of our gun control law.

Very truly yours,
FRANCIS X. BELLOTTI
ATTORNEY GENERAL

P.D. 12 65

November 7, 1986

The Honorable L. Scott Harshbarger
District Attorney for Middlesex County
Thorndike Street
Cambridge, MA 02141

Dear District Attorney Harshbarger:

You have requested my opinion on two issues presented by G.L. 94C, § 47
(1984 ed.), the drug forfeiture statute. You ask first, whether it permits a municipal
police chief, rather than the city or town treasurer, to establish and manage a
"law enforcement trust fund" created by that statute and second, whether the
police department can use the trust funds without first obtaining an appropriation
from the municipal appropriating body. As background for inquiry, you have
informed me that you and the local police chiefs are uncertain about the procedure
under the statute for distributing and handling the drug forfeiture funds recovered
pursuant to the statute.'

For the reasons set forth below, it is my opinion that the drug forfeiture statute
does not authorize police chiefs to establish and manage the law enforcement trust
fund. Rather, it is the duty of the city or town treasurer to perform this task.
I also conclude that the drug forfeiture statute authorizes police departments to
use the trust funds without first obtaining an appropriation from the municipal
appropriating body.

Your request turns on the terms of two arguably conflicting laws. The first
of those statutory provisions is § 47(d) of G.L. c. 94C, the drug forfeiture statute,
which provides in pertinent part:

. . . Said proceeds once acquired shall be distributed equally
between the prosecuting district attorney or attorney general and
the city, town, state or metropolitan district police department .
... All such funds shall be deposited in a special law enforcement
trust fund and shall be expended to defray the costs of protracted
investigations, to provide additional technical equipment or exper-
tise, to provide matching funds to obtain federal grants or for such
other law enforcement purposes as the chief of police of such city
or town, the commissioner of public safety or the superintendent
of the metropolitan district police deems appropriate, but such funds
shall not be considered a source of revenue to meet the operating
needs of such department.

G.L. c. 94C § 47(d); St. 1984, c. 486, § 2.

' I recognize that I do not have the authority to issue opinions to local police
chiefs and, therefore, the views expressed in this opinion are not binding on them
or the municipal treasurers. I offer this advice under G.L. c. 12, §6 to assist
you in carrying out your duties under G.L. c. 94C, § 47 which include bringing
the forfeiture petition on behalf of the municipality and obtaining the final court
order disposing of the moneys in accordance with the law.

66 P.D. 12

Section 47(d) on its face requires that the drug forfeiture funds be distributed
to the city or town police department and deposited in a special law enforcement
trust fund.2 While nothing in this language would seem to preclude seized money
from going directly to the police department or the chief from setting up the fund,
the provision of the drug forfeiture statute must be read together with the municipal
finance statutes, G.L. c. 44, §§ 1 et seq (1984 ed.). Section 53 of chapter 44
requires that, "All moneys received by any city, town or district officer or depart-
ment, except as provided by special acts and except fees provided for by statute,
shall be paid by such officer or department upon their receipt into the city, town,
or district treasury." Therefore, unless the money received by a municipal of-
ficer or deparment is within the two exceptions listed, it must be paid into the
municipal treasury. These exceptions do not apply to drug forfeiture proceeds.
Although § 47(d) grants the police department the power to determine the pur-
pose for which proceeds from the law enforcement trust fund may be spent, it
does not specifically assign to the police department the responsibility of setting
up the trust fiind or acting as custodian of the trust fund.^ This omission in §
47(d) leads me to conclude that the Legislature intended that the provisions of
municipal finance laws generally apply and, therefore, that the municipal
treasurers, not the police chiefs, be the custodians of the trust funds. See G.L.
c. 41, § 35. The treasurer must, of course, treat the funds as restricted receipts
and disburse them in accordance with the terms of the statute. Such a construc-
tion gives reasonable effect to both the drug forfeiture law and and the municipal
finance law and allows the two laws to be read harmoniously. See Boston v. Board
of Education, 392 Mass. 788, 792 (1984) (where two statutes are alleged to be
inconsistent, they are construed in a manner which gives reasonable effect to both
statutes and creates a consistent body of law); see also Casey v. Massachusetts
Electric Co., 392 Mass 876, 881 (1984).

Your second inquiry also turns on the terms of arguably conflicting provisions
of the drug forfeiture and municipal finance laws. Section 53 of G.L. c. 44 pro-
vides in pertinent part: "Any sums so paid into the city, town or district treasury
shall not later be used by such officer or department without specific appropria-
tion thereof. . . .'"* At apparent odds with this statutory position is the drug
forfeiture statute, which provides that the funds "shall be expended for specific

2 Prior to the enactment of the 1984 amendment creating the law enforcement
trust funds, § 47(d) required that money recovered by the police under the drug
forfeiture statute be deposited directly into the state treasury rather than distributed
to the municipality. St. 1971, c. 1071, § 1.

^ I note that even when municipalities establish a board of commissioners of trust
funds to oversee more typical trust funds, the treasurer acts as custodian of the
funds. G.L. c. 41, § 46. The duties of a trust fund custodian include investing
and reinvesting "all funds and securities of such trust funds" and expending such
funds as directed. Id.

"* The finance statutes provide for two exceptions to this requirement, but neither
exception is applicable in this case.

P.D. 12 67

law enforcement purposes^ ... or for other such law enforcement as the chief
of police of such city or town . . . deems appropriate . . . but such funds shall
not be considered a source of revenue to meet the operating needs of such depart-
ment." G.L. c. 94C, § 47(d). This language strongly suggests that the General
Court intended that the police department is not required to seek the approval
of any appropriating body when requesting proceeds from the trust fund pursuant
to G.L. c. 94C, § 47(d).

The intent of the Legislature in enacting a statute is discerned from the ordinary
meaning of the words in the statute considered in context of the objective which
the law seeks to fulfill. International Organization of Masters, Mates and Pilots,
Atlantic Gulf Maritime Region, AFL-CIO v. Woods Hole, Martha 's Vineyard and
Nantucket S.S. Authority, 392 Mass. 811, 813, (1984). From the plain language
of the drug forfeiture statute, it is evident that the Legislature intended that the
police chiefs decide how the law enforcement trust funds should be spent. Not
only can the police chief expend funds as he "deems appropriate," but the money
cannot be used to meet the normal operating needs of the department. Interpreting
§ 47(d) to require an appropriation before police departments could use those
funds would be inconsistent with the language and the objective of § 47(d). ^ I
recognize that this interpretation puts G.L. c. 94C, § 47(d) squarely at odds with
G.L. c. 44, § 53. In my opinion, the specific expenditure requirements of § 47(d)
control. Under well-established rules of statutory construction, if a general statute
and a specific statute cannot be reconciled, the general statute must yield to the
specific statute. Pereira v. New England LNG Co., Inc., 364 Mass. 109, 118
(1973).

The Legislature's intent not to require an appropriation is further evidenced
by a statutory enactment during the same session as the amendment to the drug
forfeiture law. In § 85 of St. 1984, c. 234, the Legislature acknowledged that
funds received by a state agency pursuant to the drug forfeiture statute^ may be
expended without further appropriation.^ I conclude, therefore, that the police
chiefs are not required to obtain an appropriation before using the trust funds.

' The funds be used to "defray the costs of the protracted investigations, to pro-
vide additional technical equipment or expertise, to provide matching funds to
obtain federal grants. . .".

^ Appropriating is more than an act setting aside money. It also involves devoting
that money to a specific purpose and no other. Slama v. Attorney General, 384
Mass. 620, 625 (1981).

^ Under G.L. c. 94C, s 47(d) drug forfeiture funds may be distributed to the
State Police and the Metropolitan District Police.

** Section 85 provides: "Notwithstanding any general or special law to the con-
trary, any state agency or office which is authorized in any section of this act
or in section forty-seven of chapter ninety-four C of the General Laws, to ex-
pend certain revenues without further appropriation shall file within thirty days
after the end of each quarter with the house and senate committees on way and
means and the commissioner of administration a report detailing the source and
amount of all such revenues and the purpose and amount of all expenditures
therefrom."

68 P.D. 12

My conclusion is further supported by a recent opinion in which the Supreme
Judicial Court authorized a similar exception to the appropriation requirement
in an advisory opinion involving the state treasury. Opinion of the Justices, 393
Mass. 1209 (1984). See also Opinion of the Justices, 375 Mass. 851, 854 (1978).
At issue before the Court was whether revenues received according to the provi-
sions set out in the bill establishing the Massachusetts Development Bank, House
No. 6140, would be subject to the requirements of Article 63, § 1, the amend-
ment to the state constitution establishing the process by which state revenues
are received and disbursed.' The Court decided that under certain conditions,
a trust fund may be exempt from the regular appropriations process described
in Article 63. According to the Court, "Funds received by the Commonwealth
and held in trust, to be disbursed only in compliance with legislatively prescrib-
ed conditions are not subject to Art. 63 even though they are received 'on ac-
count of the Commonwealth' and the State Treasurer is named as custodian of
the fund." Opinion of the Justices, 393 Mass. at 1222. Trust funds meeting the
above-quoted conditions are exempt from the provisions of Article 63 because
the purpose behind Article 63, to centralize state funds and to insure careful con-
sideration of their expenditure, id. , is not applicable to funds which already have
a designated purpose.

This exception to the state appropriations process authorized by the Supreme
Judicial Court parallels the implicit exception to the municipal appropriations pro-
cess created by the drug forfeiture statute. The characteristics of the law enforce-
ment trust fund described by the drug forfeiture statute directly correspond to
the conditions imposed on trust funds for exemption from the state appropria-
tions process. Similar to the condition that income from a trust fund must ultimately
benefit the Commonwealth to be exempt from Article 63, the law enforcement
trust fund, though intended to benefit the police department directly, is intended
to benefit the municipality served by the police department through its provision
that trust fund income must be expended for investigative work. G.L. 94c, § 47(d).
The second condition imposed by the Court, that the money be held in trust, is
met by the plain language of the statute: "All such funds shall be deposited in
a special law enforcement trust fund . . . .''Id. The third condition imposed
for exemption from the state appropriations process requires that the income from
the trust fund in question "be disbursed only in compliance with legislatively
prescribed conditions . . . ." W. at 1222. Although the Legislature allows the
police chief to determine the purpose for which income from the law enforce-
ment trust fund may be spent, it has delineated very specific boundaries for such
decisions. For example, the Legislature requires that the income be spent for a
purpose related to law enforcement but not for use in meeting the department's
operating needs. Illustrations of appropriate law enforcement expenditures are
also provided in the statute. Id. The authorization by the Massachusetts Supreme
Judicial Court of an exemption for certain trust funds from the state appropria-
tions process, which is directly analogous to the exemption from the municipal
appropriations process implied by the drug forfeiture statute with regard to law
enforcement trust funds, confirms the validity of the procedure intended by the
Legislature. See Baxter v. Minter, 378 F. Supp. 1213 (D. Mass. 1974) (reference
to the interpretation given analogous statutory provisions is an accepted method
of statutory construction).

' Massachusetts Const, amend, at. 63, § 1 provides: "[A]ll money received on
account of the Commonwealth from any source whatsoever shall be paid into
the treasury of the Commonwealth."

P.D. 12 g.

In summary, I am of the opinion that, in promulgating the drug forfeiture statute
G.L. c. 94C, § 47(d), the Legislature did not authorize the police department
to act as the custodian of the law enforcement trust fund. The Legislature did
however, authorize the police department to receive proceeds from the law en-
forcement trust fund directly from the municipal treasurer without the require-
ment of a specific appropriation from the municipal appropriating body.

Very truly yours,
FRANCIS X. BELLOTTI
ATTORNEY GENERAL

70 P.D. 12

January 6, 1987

Paula Gold

Secretary

Executive Office of Consumer Affairs

and Business Regulation
One Ashburton Place
Boston, MA 02108

Dear Secretary Gold:

You have requested that I advise you, pursuant to G.L. c. 12, § 9 (1984 ed.),
whether the Commissioner of Insurance (Commissioner) has the authority to prom-
ulgate a regulation that would prohibit insurers from classifying individuals on
the basis of sex with respect to the terms, conditions, rates, benefits or requirements
in any insurance contract. Based on the analysis set forth below I conclude that
the Commissioner has such authority.

My analysis begins with the statutory language that sets forth the Commissioner's
general power under G.L. c. 175 (1984 ed.). Chapter 175 governs the licensing,
rates, coverage and financial stability of companies which sell most types of
insurance in the Commonwealth. Section 3 A of chapter 175 states: "[t]he Com-
missioner shall administer and enforce the provisions of this chapter . . . ."
Although this general statement of the Commissioner's authority does not include
a specific grant of rulemaking authority, it is my opinion that the power of the
Commissioner to "administer and enforce" the provisions of the general laws
relating to insurance necessarily includes the power to issue regulations.

An express grant of broad authority like the one contained in section 3A, "carries
with it by implication all incidental authority required for the full and efficient
exercise of the power conferred. " A^^vv England Medical Center v. Rate Setting
Commission, 384 Mass. 46, 53 (1981) quoting Scanell v. State Ballot Law Com-
mission, 324 Mass. 494, 501 (1949). It is well established that the Legislature
need not "specify, definitely and precisely, each and every ancillary act that may
be involved in the discharge of an official duty." For example, in Clerk of Superior
Court for Court of Middlesex v. Treasurer & Receiver General, 386 Mass. 517,
522 (1982), the (Z'ourt upheld not only that authority specifically granted to the
Chief Administrative Justice by statute, "but also the authority to employ all
ordinary means reasonably necessary for the full exercise of the powers granted
to him and the duties imposed on him." Id. Moreover, in determining the full
extent of the Commissioner's authority under chapter 175, it is appropriate to
look to that statute in its entirety. His authority "need not necessarily be traced
to specific words" in the statute. Levy v. Board of Registration and Discipline
in Medicine, 378 Mass. 519, 524 (1979), quoting Commonwealth v. Cerveny,
373 Mass. 345, 354 (1977).

An examination of chapter 175 reveals that the Legislature had given the Com-
missioner the authority to perform the complex task of regulating numerous aspects
of the insurance industry. His powers and duties include, among other things,
establishing certain rates, approving the form and content of various policies,
and reviewing the financial condition of companies. The Commissioner has, in
my view, the type of broad authority to act in the public interest on complex mat-
ters of insurance that warrants construing the enabling statute to grant general
rulemaking authority.

My conclusion is supported by decisions which hold that broad, substantive
rulemaking authority may be granted by the Legislature through language con-

P.D. 12 71

taining a general delegation of administrative authority. See, e.g. , Bureau of Old
Age Assistance of Natick v. Commissioner of Public Welfare, 326 Mass. 121
(1950). In Bureau of Old Age Assistance of Natick, the Supreme Judicial Court
found that substantive rulemaking authority had been conferred upon the Com-
missioner of Public Welfare in "the broad and general power conferred upon
the department to supervise and administer (the) sy.stem of relief." 326 Mass.
at 24 (emphasis added). A similar broad grant of rulemaking authority can be
found in the legislative mandate in G.L. c. 175, § 3A, that the Commissioner
of Insurance "administer and enforce" the insurance laws.

It is also my opinion that the narrow and explicit grants of rulemaking authori-
ty contained in Chapter 175' do not modify the implicit, general grant of rulemak-
ing authority in G.L. c. 175, § 3A. See, e.g. , Grocery Manufacturers of America
V. Department of Public Health, 379 Mass. 70, 76 (1979) (a grant of specific
rulemaking power in the Department of Public Health's enabling statute should
not limit its general rulemaking authority to deal with other matters). See also
Tlie Equine Practitioners Association, Inc. v. Tlie New York State Racing and
Wagering Board, 105 A. D. 2d 215, 483 N.Y.S.2d 239 (App. Div. 1984) (regula-
tions regarding the administration of drugs to race horses upheld under the Rac-
ing Board's general jurisdictional authority over horse racing activities, not-
withstanding the Racing Board's specific grant of authority to promulgate regula-
tions in other areas of horse racing).

In your letter requesting this opinion you have specifically referred to possible
statutory impediments to the Commissioner's authority to promulgate a regula-
tion prohibiting sex discriminatory insurance policies. The possible statutory limita-
tions you identified are the provisions of G.L. c. 175, §§ 9, 144 and 146 (1984
ed.), which deal with the mortality tables used by insurers, and G.L. c. I76D,
§ 3(7) (1984 ed.) which defines "unfair discrimination".

I find that there is no inherent conflict between the type of regulation the Com-
missioner seeks to promulgate and G.L. c. 175, §§ 9, 144 and 146. These sec-
tions require insurance companies to use specified mortality tables in determin-
ing cash surrender values and nonforfeiture benefits for life insurance annuity
policies. These mortality tables provide separate and different mortality rates for
men and women. Nothing in the language of G.L. c. 175, § 9, § 144 or § 146
requires that men and women be treated differently. Insurers currently are free
to use mortality factors for one sex in calculating rates and benefits for both men
and women. Indeed, acting pursuant to c. 175, § 144(6A) (h) (6) the Commis-
sioner has already approved "blended" mortality tables for use in implementing
the United States Supreme Court's decision in Arizona Governing Committee v.
Norris, 463 U.S. 1073 (1983). These tables present a nonsex-specific set of mor-
tality factors which are intended to be used in calculating rates and benefits for
insurance policies held by both men and women. This sex neutral mortality table
regulation, as promulgated at 211 C.M.R. § 32. (X), states that the blended tables

See e.g., G.L. c. 175, § 2A (1984 ed.) (Commissioner to designate test of
readability analysis"); c. 175, § 108 (1984 ed.) (Commissioner may issue regula-
i)ns concerning submission of individual health insurance policies for approval.
This provision shall not abridge any other authority granted the Commissioner
y law"); c. 175, § 1 lOE (1984 ed.) (Commissioner may issue regulations con-
cerning fair disclosure and form and content of health insurance policies); c. 175,
§ 144 (1984 ed.) (Commissioner by regulation may approve mortality tables
Jopted after 1980 by the National Association of Insurance Commissioners.)

72 P.D. 12

may, at the option of the company, be substituted for the sex segregated tables
specified in G.L. c. 175, §§ 9 and 144.2 211 C.M.R. § 32.05. The regulation
also clearly permits the use of these blended tables in pricing policies which are
not covered by N orris. I conclude that these sections do not limit the Commis-
sioner's authority to promulgate a regulation which would prohibit insurers from
discriminating on the basis of sex in the terms, conditions, rates, benefits or re-
quirements under any insurance policy.

Your inquiry also refers to G.L. c. 176D, § 3(7). Section 3(7) prohibits unfair
discrimination which is defined as "making or permitting any unfair discrimina-
tion between individuals of the same class and equal expectation of life." Nothing
in chapter 1 76D can be read as a statutory mandate for gender based premiums
and benefits or as limiting the Commissioner's authority to promulgate a regula-
tion prohibiting such sex-based terms in insurance policies under c. 175, S 3 A.'

In summary, the Commissioner of Insurance has the legal authority to pro-
mulgate a regulation that would prohibit insurers from classifying individuals on
the basis of sex with respect to the terms, conditions, rates, benefits or requirements
in any insurance policy.

Very truly yours,
FRANCIS X. BELLOTTI
ATTORNEY GENERAL

2 This regulation permits insurers to comply with N orris by applying the mortali-
ty factors for one sex in calculating the rates and benefits for policies held by
both men and women.

^ You suggest Chapter 176D as a possible source of the Commissioner's rule-
making authority. It is not necessary to determine whether the Commissioner has
the authority under this section to promulgate a regulation eliminating discrimina-
tion in the rate, terms, and benefits in any insurance contract, since I have already
concluded that the Commissioner has such authority under G.L. c. 175, § 3 A.

P.D. 12 73

January 14, 1987

William D. Delahunt

District Attorney

Norfolk District

P.O. Box 309

360 Washington Street

Dedham, Massachusetts 02026

Dear District Attorney Delahunt:

You have requested my opinion, pursuant to G.L. c. 12, § 6, regarding the
authority of a police chief to issue a license to carry or possess a firearm to a
member of his police department who resides in another community. You cite
G.L. c. 140, § 131, which authorizes a chief of police to issue a firearm license
to certain persons "residing or having a place of business" within his jurisdic-
tion. Your specific question is whether a person who is employed in a communi-
ty as a police officer has a "place of business" there within the meaning of the
statute.'

I do not believe it is necessary to determine whether a police officer has a place
of business in the community by which he is employed in order to respond to
your general question. General Laws c. 41, § 98 provides that police officers
of all cities and towns "may carry within the commonwealth such weapons as
the chief of police or the board or officer having control of the police in a city
or town shall determine." In effect, G.L. c. 41, § 98 exempts police officers
from compliance with the licensing requirement of G.L. c. 140, § 131. Police
officers are not required to comply with the licensing requirement of G.L. c.
140, § 131, because G.L. c. 41, § 98 entitles them to carry "within the com-
monwealth" any weapons deemed appropriate by their chiefs of police. See City
of Boston V. Boston Police Patrolmen 's Association, Inc. , 8 Mass. App. Ct. 220,
226 (1979) (G.L. c. 41, § 98 gives police commissioner broad discretion in pro-
mulgating orders on the subject of firearms); see also 1959 Op. Att'y Gen., Rep.
A.G., Pub. Doc. No. 12 at 77 (1959) (G.L. c. 41, § 98 means that police of-
ficers need not be licensed under G.L. c. 140, § 131 to carry a weapon, even
when off duty).

In my opinion, however, G.L. c. 41, § 98 does not authorize a chief of police
to permit a police officer not under his command to carry weapons. The authori-
ty given by S 98 is conferred upon "the" chief of police and not upon "a" or
"any" police chief. In addition, § 98 draws a parallel between "the chief of
police" and "the board or officer having control of the police in a city or town"
for purposes of approving the carrying of weapons by police officers. Such parallel
statutory construction indicates that only the police chief who has control of the
police in a given city or town may authorize officers in that city or town to carry
weapons pursuant to G.L. c. 41, § 98. See Commonwealth v. Baker, 369 Mass.
58, 68 (1975); Hodgemey v. Baker, 324 Mass. 703, 706 (1949). See also G.L.
c. 41, §§ 97, 97A (providing that the chief of police of a town shall be in "im-
mediate control" of the police officers of that town, who shall obey his orders.)
Finally the report of the Department of Public Safety which apparently led to

•Section 131 of G.L. c. 140 was recently amended by St. 1986, c. 481 § 2 in
respects not material to this opinion.

74 P.D. 12

the amendment of § 98 in its present form recommended "that weapons carried
by police officers should be approved by the heads of the police departments."
Mass. H. Doc. No. 3705 at 11 (1957). See Commonwealth v. Seay, 376 Mass.
735, 741 (1978) (discussing significance of the Department of Public Safety Report).
As the statute previously charged "the mayor or selectmen, the city or town
manager" with the responsibility to authorize weapons to be carried by police of-
ficers, St. 1954, c. 162, § 1, the present wording of § 98 should be interpreted
to limit the chiefs' authority to the specific police departments over which they
preside. See Murphy v. Bohn, 377 Mass. 544, 547-48 (1979); Ferullo 's Case, 33 1
Mass. 635, 637 (1954); 1 A Sands, Sutherland Statutory Construction, § 22.30 at
265 (4th Ed. 1985 rev.) ("amendatory acts to not change existing law further than
is expressly declared or necessarily implied").

In short, the language, structure and apparent purpose of the G.L. c. 14, § 98
indicate that chiefs of police may authorize officers under their commands to carry
weapons within the Commonwealth, without regard to the officers' place of
residence. Because G.L. c. 41 , § 98 appears to resolve the thrust of your question
concerning the authority of a police chief to allow non-resident police officers under
his command to carry weapons, I decline to consider whether G.L. c. 140, S 131
gives a police chief the further authority to issue licenses to such officers to carry
or possess firearms.

Very truly yours,
FRANCIS X. BELLOTTI
ATTORNEY GENERAL

P.D. 12 75

January 20, 1987

L. Edward Lashman

Chairman

Board of Regents of Higher Education

One Ashburton Place

Boston, Massachusetts 02108

Dear Chairman Lashman:

The Board of Regents, acting through its general counsel and pursuant to the
specific statutory authorization of St. 1985, c. 720,' has solicited my opinion con-
cerning the constitutionality of a tuition system which would charge nonresident
aliens holding "F-1" visas the full cost of their education, while charging residents
and other nonresidents a lesser amount.

Several countervailing considerations affect the content of this response. First,
your request conflicts with my usual role as Attorney General, which casts me as
the defender of state laws rather than the arbiter of their constitutionality. Mass.
Const. , pt. I, Declaration of Rights, art. 20 and 30. Ordinarily I respond to a request
such as the Board's simply by providing advice as to whether and how I would
defend a law if it were subject to a particular type of constitutional challenge. Here,
on the other hand, my opinion is a statutory prerequisite to the implementation
of such a tuition system, if that system will result in higher charges for the F-1
visa holders than for other nonresident students. ^

' St. 1985, c. 720, §1 added a new section to the General Laws, G.L. c. 15A,
§5 A, which provides:

The board of regents of higher education is hereby authorized to
fix and establish, as the charges for tuition at all institutions of public
higher education to aliens in this country, under the provisions of
an F-1 , United States nonimmigrant visa, issued by the Department
of Immigration, who are nonresidents of the commonwealth, the
amount of money equal to the average amount necessary to main-
tain a student at such an institution; provided, however, that prior
to the establishment of any system of tuition charges which requires
the payment of tuition by such alien students who are nonresidents
of the commonwealth at a higher level than that required to be paid
by other students who are nonresidents of the commonwealth, the
board shall seek and obtain a written opinion of the attorney general
that such system of charges does not contravene the guarantees of
equal protection under the laws contained in the Constitutions of
the United States and the commonwealth.

St. 1985, c. 720, §2 contains provisions limiting the application of the foregoing.

2 Alien students who possess F-1 visas are considered by the Immigration and
Nationality Act (INA), 8 U.S.C. §1 101(a) (15) (F) (i), to be of "nonimmigrant"
status. This status is based on the language of subsection (f) (i), which states that
such students have a "residence in [another] country which [they have] no inten-
tion of abandoning," and have entered the United States for the sole purpose of
attending an education institution. Toll v. Moreno, 458 U.S. 1, 14 n. 20 (1982)

76 P.D. 12

Even more important, while the Board has solicited my opinion on the question
it deems posed by the statute, that statute requires me to opine on the validity of
a proposed system of charges. Your request was not accompanied by a proposed
system of charges. As a consequence, I am being asked not only to depart from
my normal role as defender of state laws, but to decide a question of constitutional
dimension on an abstract or hypothetical set of facts. Under these circumstances
it is a practical impossibility to render the opinion required by the statute. What
follows, then, should be regarded simply as legal advice to aid you in structuring
a tuition policy consistent with both Chapter 720 of the Acts of 1985 and the equal
protection guarantees of the federal and state constitutions. It is my belief that such
a policy can be formed.

The simplest way to effectuate the authorization contained in Chapter 720 without
running afoul of equal protection guarantees would be to establish only a two-tier
tuition system like the one currently in place. ^ Under such a system, Massachusetts
residents, including aliens who meet an objective test of residency, could benefit
from state tuition subsidies. Conversely nonresidents, including aliens holding F-1
visas, would be charged the full costs of their education. Such a system would vary
from pre-existing Board policy only in the sense that tuition for the latter class is
currendy set at 95 % of the instructional cost of education, not the 100% contemplated
by St. 1985, c. 720.

The basic command of the equal protection clause in the federal Constitution
has long been held to be: treat siniilarly situated persons equally. F. S. Royster Guano
Co. V. Virginia, 253 U.S. 412, 415 (1920). By the same token, however, classify-
ing is the essence of legislating and the Constitution has never been held to require
things which are different to be treated the same. Tigner v. Texas, 310 U.S. 141,
147 (1940). Under traditional equal protection principles, a state retains broad
discretion to classify similarly situated individuals or groups and treat them dif-
ferently as long as its classification bears some rational relationship to a legitimate
governmental interest. McGowan v. Maryland, 366 U.S. 420, 425-26 (1961);
Opinion of the Justices, 373 Mass. 883, 886 (1977).^

(F- 1 students expressly precluded by statutory language from obtaining United States
domicile).

^ G.L. c. 15A, §5 authorizes the Board of Regents to "develop a rational and
equitable statewide tuition plan for all institutions of public higher education in
the commonwealth, which plan shall take into account by type of institution the
per student maintenance costs, total mandated costs per student and the need to
maximize student access to higher education regardless of a student's financial cir-
cumstances . . . ."

I have been provided a copy of the Board's Tuition Policy, as revised in December
1984, and have been informed it constitutes the plan contemplated by G.L. c. 15A,
§5.

'* The standard of review is the same under the fourteenth amendment to the federal
Constitution as under the cognate provisions of the Massachusetts Declaration of
Rights. Commonwealth v. Franklin Fruit Co. , 388 Mass. 228, 235 (1983). Because
the body of case law construing the federal law is much greater, the discussion
in this opinion principally involves federal precedent. My conclusion, however,
is that both federal and state constitutional provisions are implicated by Chapter
720, but that each can be satisfied by an appropriate system of charges.

P.D. 12 77

The pre-existing tuition policy of the Board attempts to apportion the cost of a
student's education according to a calculation of the distribution of benefits between
the student and the Commonwealth. The theory is that the Commonwealth benefits
from the education of its population, even as individual graduates are enriched by
their educational experience. The present policy concedes that no mathematically
precise allocation of benefits is possible but asserts there is a national model which
it expressly adopts. That model is "[t]he Carnegie Commission on Higher Educa-
tion's assignment of a maximum of one third of the benefits and costs of public
undergraduate education to the student, and two thirds to the state."

The policy then proceeds from the basic recognition that in-state and out-of-state
students are not the same. The rationale for charging out-of-state students a higher
rate than their in-state counterparts is obvious; the Commonwealth does not benefit
as directly from the education of the former group as it does from the latter. Precisely
such a rationale has consistently been deemed sufficient to support differences in
tuition charges where alienage is not in issue. See, e.g. , Clarke v. Redeker, 406
F.2d 883, 885 (8th Cir. 1969), cert, denied, 396 U.S. 862; Hooban v. Baling,
503 F.2d 648, 650 (6th Cir. 1974), cert, denied, 421 U.S. 920 (1975); Johnson
V. Redeker, 406 F.2d 878, 883 (8th Cir. 1969), cert, denied, 396 U.S. 853.
Uniformly, courts have examined the higher charges paid by non-state resident
American students under the rational basis test and concluded that the higher tui-
tion charges bear a rational relation to a state's goal of requiring non-state residents
to share in the fiscal burden placed upon state residents. See Lines, Tuition
Discrimination: Valid and Invalid Uses of Tuition Differentials, 9 Journal of Col-
lege and University Law 243 (1982-83).

A much more difficult question is posed, ^ if the Board attempts to adopt a three-
tier policy, singling out F-1 visa holders and charging only them the full costs of
their education. This is so because such a classification could be viewed as a distinc-
tion based on alienage, making it inherently suspect and subject to a heightened
degree of judicial scrutiny. Bemal v. Fainter, 467 U.S. 2 16, 2 19-222 {\9S4); Nyquist
V. Mauclet, 432 U.S. 1 (1977); Graham v. Richardson, 403 U.S. 365 (1971). Aliens
as a class are a prime example of a "discrete and insular" minority, id. at 372,
for whom such heightened judicial solicitude has historically been applied. Thus,
"the power of a state to apply its laws exclusively to its alien inhabitants as a class
is confined within narrow limits." Takahasi v. Fish and Game Commission, 334
U.S. 410, 420(1948).

It would be possible, of course, to defend such a system by arguing that it does
indeed satisfy a strict scrutiny test. I would be prepared to argue that the unique
status of F-1 students warrants their disparate treatment. I would assert that the
Commonwealth's purpose is permissible and substantial and the classification drawn
is necessary to the accomplishment of this purpose. See In re Griffiths, 413 U.S.
717, 721-22 (1973); McLaughlin v. Florida, 379 U.S. 184, 196 (1964). Because
few statutes survive strict scrutiny, however, I would also argue that our system
does not discriminate on the basis of alienage per se. Under such a system, not
all aliens attending state colleges and universities would be charged the highest

5 The question is presumably the very one not reached in Elkins v. Moreno, 435
U.S. 647, 663 (1977), and Toll v. Moreno, 458 U.S. at 10 (1981); whether a state
policy which excludes from educational subsidies a group of aliens who cannot
become residents because of the operation of federal law is consistent with the equal
protection clause of the fourteenth amendment. The issue was not reached in those
cases in part because the plaintiffs held G-4 visas and were therefore not precluded
from becoming residents.

78 P.D. 12

tuition. Instead only those with F-1 status, i.e. , those who are in this country solely
to attend school and who are precluded under federal law from remaining in
Massachusetts after graduation, would be subject to full tuition. Some aliens, for
example, children of diplomats or resident aliens, would be charged the same tui-
tion as Massachusetts residents while still others would pay rates commensurate
with other American students. Thus, the system would arguably discriminate among
aliens, not between alien and citizen. The United States Supreme Court recognized
the significance of this distinction in Mathews v. Diaz, 426 U.S. 67 (1976), noting
that "the class of aliens is itself a heterogeneous multitude of persons with a wide-
ranging variety of ties to this country." Id. at 78-79. In both Mathews and in the
present situation "[tlhe real question presented ... is not whether discrimination
between citizens and aliens is permissible; rather, it is whether the statutory
discrimination within the class of aliens ... is permissible." Undercutting such
an argument would be the fact the Supreme Court has rejected similar contentions
in the context of education benefits in Nyquist v. Mauclet, 432 U.S. at 8, 9. The
fact that the New York statute in issue in Nyquist was directed at and affected only
aliens made it in the eyes of the Court in that particular instance a classification
based on alienage.

What sets F- 1 visa holders apart from the other aliens considered in Nyquist and
Toll is that they are not and cannot become residents. For equal protection analysis
purposes, this distinction may justify their disparate treatment.^ The fact remains,
however, that a tuition system charging F-1 visa holders more money than residents
is most likely to survive constitutional challenge only if it treats others similarly
situated to them equally. In other words, in devising your system you should not
attempt to single out F-1 's, and instead should impose full tuition costs on any other
students who share with them the critical traits that they are not and cannot become
future Massachusetts residents, or have indicated through some affirmative act a

^ It is possible, of course, that the courts would not apply a strict scrutiny test to
a tuition system focused exclusively on F-1 non-immigrant alien students. Some
observers suggest that alienage now enjoys only quasi-suspect status, generating
an intermediate level of scrutiny. Harris v. McRae, 448 U.S. 297, 342, n. 3 (1980)
(Marshall, J., dissenting). Others suggest that non-immigrant aliens (F-l's) are
not a suspect class. Toll v. Moreno, 458 U.S. 1, at 44 (Rehnquist, J., dissenting).

The Supreme Court has departed from strict scrutiny analysis and applied a
rational basis test in cases where permanent resident aliens or other non-citizens
have sought employment in areas involving a governmental or police function. See,
e.g. , Foley v. Connelie, 435 U.S. 291 , 297-300 (1978) (New York statute limiting
appointment to state police to citizens, excluding permanent resident aliens, did
not violate equal protection); /I w/?ac/z v. Nor^'ick, 441 U.S. 68, 80-81 (1979) (New
York statute forbidding permanent certification as public school teacher of any
person not U.S. citizen unless person has manifested intent to become U.S. citizen
did not violate equal protection); Cabell v. Chavez-Salido, 454 U.S. 432 (1982)
(California statute excluding permanent resident aliens from employment as depu-
ty probation officers was not in violation of equal protection). The Massachusetts
Supreme Judicial Court has invoked the governmental function exception to the
strict scrutiny of alien classifications in holding that the Massachusetts statutory
requirement that a jury be composed wholly of United States citizens does not violate
equal protection. Commonwealth v. Acen, 396 Mass. 472, 481 (1986). In any event,
a rational relationship between means and ends is required even under these
intermediate levels of scrutiny.

P.D. 12 79

future intention not to reside in this state. You best serve the statutory and constitu-
tional provisions in issue here by tailoring your future tuition policy carefully so
that the means you have chosen, /. e. . charging differential tuition rates to different
categories of students, fits precisely the legitimate government ends served by that
policy, i.e. , allocating education costs between the Commonwealth and individual
students in accordance with the benefits each receive. It is at least worth noting
in passing that the increment between the 95 % level currently charged non-resident
students and the 100% level contemplated by Chapter 720 for F-1 students is minimal
and may precisely reflect the differences in their status as potential residents.

It is also worth noting that the Massachusetts General Court does not stand alone
in its determination that subsidizing the education of non-immigrant aliens is unwise
social policy. In the closing days of its most recent session. Congress passed the
Higher Education Amendments of 1986. Pub. L. No. 99-498, one section of which
limits eligibility for federal financial educational assistance to a person who is "a
citizen or national of the United States, a permanent resident of the United States,
in the United States for other than a temporary purpose and able to provide evidence
from the Immigration and Naturalization Service of his or her intent to become
a permanent resident " Pub. L. No. 99-498, §407, 100 Stat. 1480. By defini-
tion, the F-1 students identified in Chapter 720 can produce no such evidence and
hence are ineligible for federal financial assistance. While not dispositive of the
constitutional questions you have posed, this law, particularly when read in con-
junction with the nearly contemporaneous provisions of the federal Immigration
Reform and Control Act of 1986, Pub. L. 99-603, negates the Supremacy Clause
arguments on which Toll v. Moreno. 458 U.S. I, actually turned.

In sum, I advise you that St. 1985, c. 720 can be implemented in a manner con-
sistent with the guarantees of equal protection contained in the federal and state
Constitutions. The development of an actual tuition policy is committed to the discre-
tion of the Board, which should be guided by the principles and arguments set forth
in this opinion. In the absence of an actual proposed set of charges, I must respect-
fully decline to place my imprimatur on any particular set of tuition charges.

Very truly yours,
FRANCIS X. BELLOTTI
ATTORNEY GENERAL

80 P.D. 12

June 5, 1987

Michael J. Connolly

Secretary of State

State House

Boston, Massachusetts 02133

Dear Secretary Connolly:

You have asked my opinion regarding the propriety of two referendum petitions
concerning chapter 71 of the Acts of 1987 ("chapter 71") entitled "An Act Fur-
ther Regulating Legislative and Constitutional Officers' Compensation", and
enacted as an emergency law. ' The first petition requests the repeal of chapter 7 1 .
The second petition seeks to repeal and suspend the operation of this law.

The first question you have asked is whether chapter 71 may be the subject of
a referendum petition under the Massachusetts Constitution. Your second ques-
tion is whether you should proceed to provide blank forms for the use of subse-
quent signers of the second petition. In order to answer this question, I must make
a determination whether the second petition is properly within the scope of the
referendum petition process under the Massachusetts Constitution. Finally, you
have requested, contingent upon my opinion that chapter 71 properly may be the
subject of a referendum petition, that I prepare a fair, concise summary of the law
pursuant to Amendments, Article 48, General Provisions, Ft. III.

For the reasons more fully set forth below, it is my opinion that (1) chapter 71
may be the subject of a referendum petition under Article 48 of the Amendments
to the Massachusetts Constitution and (2) the second petition is not properly within
the scope of the referendum process because the Massachusetts Constitution does
not permit the suspension of an emergency law by means of a referendum petition.

To answer your first question concerning the propriety of chapter 7 1 as the sub-
ject of a referendum petition, it is necessary to determine whether the Act relates
to any matter excluded from the referendum process. If chapter 71 relates to an
excluded matter, it may not be the subject of such petition. See Amendments, Arti-
cle 48, The Referendum, Ft. Ill, §§1, 2. See also 1982/83 Op. Att'y Gen. No.
4, Rep. A.G., Pub. Doc. No. 12 at 88 (1982). Laws that are expressly excluded
from the referendum process are those that relate to:

religion, religious practices or religious institutions; or to the
appointment, qualification, tenure, removal or compensation of
judges; or to the powers, creation or abolition of courts; or the opera-
tion of which is restricted to a particular town, city or other political
division or to particular districts or localities of the commonwealth;
or that appropriate[ ] money for the current or ordinary expenses

' Chapter 71 provides a compensation schedule for the members of the legislature
and certain constitutional officers of the Commonwealth. It was enacted by the
legislature as an emergency law, and became effective immediately upon being
signed by the Governor on May 22, 1987. You have informed me that the two
petitions referred to in your opinion request were filed with your office on June
1, 1987 and signed by ten qualified voters of the Commonwealth.

P.D. 12 81

of the commonwealth or for any of its departments, boards, com-
missions or institutions . . . Amendments, Article 48, The Referen-
dum, Pt. Ill, §2.

It is clear from a review of chapter 7 1 that this law does not relate to any such
excluded matters.^ Consequently, chapter 71 may be the subject of a referendum
petition. Because the first petition is within the scope of Amendments, Article 48,
The Referendum, Pt. Ill, §4, 1 am providing to you a summary of chapter 71 pur-
suant to my obligation under Amendments, Article 48, General Provisions, Pt. III.

With respect to the propriety of the second petition, a further analysis is required
because in addition to calling for the repeal of chapter 71, this petition requests
the immediate suspension of the Act. The law on this issue is well-settled and does
not require extended discussion. The mode of requesting the suspension and referen-
dum of a law is set out in Section 3 of Amended Article 48, The Referendum, Pt.
III. That section does not specifically provide for the suspension by petition of an
emergency law. ' Tt is manifest and apparent that the silence of Section 3 of Amended
Article 48 relative to suspension of emergency laws carries considerable significance
.... Where the intention is clear, there is no room for constitutional construction

2 An appropriation of money is an excluded matter under Amendments, Article
48, The Referendum, Pt. Ill, §2. However, it is well settled that a provision, such
as chapter 7 1 , which fixes salaries for members of the legislature and certain other
public officers, is not an appropriation. See Murray v. Secretary of the Com-
monwealth, 345 Mass. 23 (1962); Opinion of the Justices, 323 Mass. 764, 766-767
(1948); Opinion of the Justices, 309 Mass. 571, 587 (1941).

SUMMARY
CHAPTER 71 OF THE ACTS OF 1987

The law provides a salary increase, effective January 7, 1987, for the members
of the legislature and certain constitutional officers of the Commonwealth.

Beginning at a base salary of $30,000, each member of the legislature will receive
a salary increase under the law equal to the compounded percentage increase in
the salaries of full time state employees who are subject to collective bargaining
agreements between the Commonwealth and the ALLIANCE, AFSCME-SEIU,
AFL-CIO in effect between January 5, 1983 and January 7, 1987. Thereafter the
salaries of each member of the legislature will be increased by the same percen-
tages as the salaries of full time state employees subject to the collective bargain-
ing agreements.

The law further provides that members of the legislature holding leadership posi-
tions and committee chairmanships will receive an annual sum in addition to their
salary. This additional amount will vary from $7,500 to $35,000 depending upon
the particular position the member holds.

The law also increases the salaries of certain constitutional officers. Under the
law the salary of the governor is set at $85,000; the salaries of the lieutenant gover-
nor, state secretary, state treasurer and the state auditor are set at $70,000; and
the salary of the attorney general is set at $75,000.

Any individual may waive his or her salary increase under this law. Any amount
so waived shall not be deemed regular compensation for the purposes of computing
any such person's benefits and shall be exempt from state taxation.

82 P.D. 12

and no excuse for interpolation or addition." 1963/64 Op. Att'y Gen., Rep. A.G.,
Pub. Doc. No. 12 at 57 (1963). The Supreme Judicial Court has clearly held and
subsequently reaffirmed that the Massachusetts Constitution does not permit the
operation of an emergency law to be suspended by means of a referendum peti-
tion. See Molesworth v. Secretary of the Commonwealth, 347 Mass. 47, 48 (1964).
See also Opinion of the Justices, 368 Mass. 889, 892-93 (1975); Opinion of the
Justices, 286 Mass. 611, 623 (1934).

Petitioners are not entitled to blank forms for collecting signatures on petitions
calling for the suspension of an emergency law. See Molesworth at 49. Because
the second petition relates to the suspension of an emergency law, it is not within
the scope of the referendum petition process. Therefore, you should not proceed
to provide blank forms for the use of subsequent signers.

Very truly yours,
JAMES M. SHANNON
ATTORNEY GENERAL

P.D. 12 83

June 29, 1987

Joellen M. D'Esti, Esq.
Executive Office of Economic Affairs
One Ashburton Place, Room 2101
Boston, Massachusetts 02108

Dear Ms. D'Esti:

You have requested my opinion whether the Massachusetts Industrial Advisory
Board (the "MIAB") has the authority to review partial plant closing determina-
tions made by the Director of the Division of Employment Security (the "Direc-
tor"), pursuant to G.L. c. 151 A, §§ 71 A-C. You have further inquired as to the
steps that would be required to enable the MIAB to review such determinations
if the MIAB is currently without authority to take such action. You have made
these requests on behalf of the MIAB and the Executive Director of the
Massachusetts Industrial Services Program.

For the reasons set forth below, it is my opinion that the MIAB does not have
authority under current statutory law to review the 'ecision of the Director on a
partial plant closing. As to your second question, a review of the applicable statutes
makes evident that legislative action would be necessary in order to vest the MIAB
with such authority. It would not be appropriate, however, to address in this opinion
the specific statutory changes that would be required to accomplish this, because
such a legal analysis does not concern the "official duties" of the MIAB or the
Industrial Services Program. See G.L. c. 12, § 3.

The role of the MIAB, set forth in G.L. c. 6, § 190, is essentially advisory in
nature:

"The [MIAB] shall advise the governor ... on issues and policy
matters pertaining to the well-being of industry in the com-
monwealth, including . . . overseeing the development of the
Massachusetts industrial service program, . . . making recommen-
dations to improve the performance of said program, monitoring
the implementation of the social compact governing private and
public actions to cushion the impact of plant closings, and providing
advice on industry-wide assistance programs. .' G.L. c. 6, § 190.'

See also G.L. c. 151 A, §71 A (defining the MIAB as established "for the purpose
of advising certain officials of the commonwealth on the implementation of cer-
tain provisions . . . and on possible future policies"). With respect to plant clos-
ings in particular, this advisory role of the .ML'^B is clear: the MIAB "shall advise
the 1 Director . . . in analysis of plant closings in accordance with (G.L. c. 151A,
§71C|."G.L. c. 6, $190. There is no language in the MIAB's enabling legislation
demonstrative of any authority vested in the MIAB to review determinations of
"covered partial closings" made by the Director.

This conclusion draws further support from the statutory scheme g.
closing determinations. In particular, chapter 15' "^ "'■^> "ies that u
of covered partial plant closings are to be made b' ror, pur.^

tions promulgated by the Director, and subject - !- - ,^,,^1

The MIAB also has a responsibilit) f G.L. c. 6, § 190.

84 P.D. 12

procedure involving the Director and the Board of Review. ^ Pursuant to G.L. c.
151 A, §71C, "the [D]irector shall, in consultation with the [MIAB], identify and
assess various categories of partial [plant] closings. Subsequently, the [D]irector
shall, by regulation, identify those partial closings that are deemed to fall within
the intent of [G.L. c. 151A, §§71A-G]."^Thus, although the Director must con-
sult with the MIAB in identifying and evaluating various categories of partial
closings, it is the Director alone who has the authority to promulgate regulations
that "identify those partial closings" to be covered by G.L. c. 151A, §§ 71A-G.
See G.L. c. 151A § 71C.

Similarly, with respect to partial closings made subject to the provisions of G.L.
c. 151 A, §§71B-G, it is the Director, not the MIAB, who certifies whether a "plant
closing" has occurred or will occur. See G.L.c. 151A, § 71B(a). See also G.L.
c. 151A, § 71A ("date of certification" defined as actual or anticipated date of
"plant closing" or "covered partial closing as determined by the [DJirectof")
(emphasis added).

Moreover, the procedure expressly provided for reviewing the Director's deter-
mination on a plant closing or a "covered partial closing" does not establish any
role for the MIAB. This statutory procedure requires that a hearing be conducted
and a decision rendered by either a hearing officer designated by the Director, or
by the Board of Review, pursuant to G.L. c. 151 A, § 41(d). See G.L. c. 151 A,
§ 71B(b).'^ Specifically, § 71B(b) provides that "[a]ny interested party notified

2 The Board of Review is established within the Division of Employment Security
pursuant to G.L. c. 23, § 9N(b). See G.L. c. 151A, § 1(d).

^ Employees who are terminated in "covered partial closings established by said
regulations" may be eligible for the reemployment assistance benefits and health
insurance benefits to which employees terminated as a result of a plant closing are
entitled. See G.L. c. 151A, § 71C. See also G.L. c. 151A, §§ 71A, F, G.

"• Although facially G.L. c. 151 A, §71Brefersonly to "plant closings", it is clear
from an examination of other relevant sections of this statute that these review pro-
cedures also apply to covered partial closings . For example ,G.L.c. 151A,§71C
provides that the Director must identify by regulation "those partial closings that
are deemed to fall within the intent of [G.L. c. 151 A, §§ 71A-G], inclusive." In
addition, a "covered partial closing" is defined as a "partial closing" which the
Director has determined pursuant to § 71C "to be covered by the provisions of
[§§71B-G], inclusive." SeeG.h. c. 151A, §71A. Thus, covered partial closings
are incorporated by reference inG.L.c. 151A, §71B and therefore the §7 IB pro-
cedures for certifying a plant closing and for reviewing a decision of the Director
on a plant closing are applicable to a covered partial closing.

P.D. 12 85

of a determination ' ' by the Director on a plant closing " may request a hearing . . . . "
The hearing is to be conducted by a hearing officer designated by the Director,
except that matters involving a plant closing resulting from a labor dispute may
be referred by the Director to the Board of Review for hearing and decision, pur-
suanttoG.L.c. 151A, §41(d). 5^eG.L. c. 151A, §71B(b).Mn addition, §71B(b)
further requires that an appeal from any decision on certification of a plant clos-
ing, made after a hearing, shall be in the first instance to the Board of Review,
pursuant to G.L. c. 151 A, §§ 40-41.

Given the express and limited advisory role concerning partial plant closings
delegated to the MIAB in G.L. c. 6, § 190, as well as the specific procedures
established in G.L. c. 151 A, § 71B for the review of partial closing determina-
tions, I conclude that the MIAB does not currently have the authority to review
covered partial plant closing determinations made by the Director.

Because I have concluded that the MIAB does not have the authority to review
plant closing determinations, your request for my opinion on the steps to be taken
to vest the MIAB with such authority does not concern a matter relating to the
"official duties" of the MIAB or the Industrial Services Program. It is apparent,
given the prevailing statutory law, that legislative action would be necessary in
order to vest the MIAB with such authority. Since more detailed legal advice in
this regard would effectively involve drafting a legislative proposal, this is not an
appropriate matter on which to render a formal opinion.

Very truly yours,
JAMES M. SHANNON
ATTORNEY GENERAL

' The Board of Review is authorized to review decisions of the Director concern-
ing unemployment benefits claims made under G.L. c. 151A, §39. See G.L. c.
15 1 A, § 40. On request of the Director, the Board, as opposed to a hearing officer,
is required to hold a hearing in the first instance when the benefits claim involves
a work stoppage resulting from a labor dispute at the place of employment. See
G.L. c. 151A, §§ 25(b), 39(b), (d).

86 P.D. 12

INDEX OF OPINIONS

TOPICS OPINION PAGE

Administrative Authority

Review of Division of Employment Security

determinations of partial plant closings by

Massachusetts Industrial Advisory Board 10 83

Constitutionality

Conspicuous disclosure of proposing interest's

name on circulars or posters regarding town

meeting article 1 51

Tuition charges for non-resident aliens 8 75

Education

Tuition charges for non-resident aliens 8 75

Fair Information Practices Act

Confidentiality of birthdates for licensees and
license applicants of the Board of Registration
in Medicine

Gun Laws

Interstate transport of firearms by non-residents

Authority of police chiefs to issue firearms
to non-resident officers under their command

Insurance

Commissioner's authority to promulgate

regulation prohibiting gender-based

classifications 6 70

Law Enforcement Trust Fund

Municipal treasurer's authority to establish
fund and police department's ability to use
without appropriation from municipal body 5 65

Municipal Officers

Municipal treasurer's authority to establish

fund and police department ability to use

without appropriation from municipal body 5 65

Police Chiefs

Authority of police chiefs to issue fireamis

to non-resident officers under their command 7 73

"Public Policy" Questions

Determination, proper form, & texts 2 55

Referendum Petitions

Propriety of subject matter concerning

pay raises for legislative and constitutional

officers 9 80

P.D. 12 87

INDEX OF REQUESTING AGENCIES OR
STATE OFFICIALS

AGENCY OPINION PAGE

Board of Registration in Medicine by the

Executive Office of Consumer Affairs 3 58

Ciiairman of Board of Regents of Higher
Education

District Attorney for Middlesex County

District Attorney for Norfolk County

Mass. Industrial Advisory Board by the

Executive Office of Economic Affairs 10 83

Secretary of Consumer Affairs and Business
Regulation

Secretary of Public Safety

Secretary of State

Speaker of the House of Representatives

, 9

55, 80

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