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

ublic Document No. 12

€:tje Commontoealtf) ot ifHafigactugetW

REPORT

OF THE

ATTORNEY GENERAL

FOR THE

Year Ending June 30, 1990

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

0-6-91 -815481 estimated COST PER COPY $2 57

To the Honorable Senate unci House of Representatives:

The Annual Report of the Department of the Attorney General, which his-
torically includes Opinions of the Attorney General ("Opinions") rendered dur-
ing the fiscal year, was not published for fiscal year July 1, 1989 to June 30, 1 990.
Recognizing the importance to the legal community and the general public of
publishing the Opinions in a manner that will provide a consistent source for
reference and citation, and in order to ensure that they are available in their
traditional form, I herewith issue the Opinions for Fiscal 1990.

Respectfully submitted:

SCOTT HARSHBARGER

Attornev General

P.D. 12

DEPARTMENT OF THE ATTORNEY GENERAL

ATTORNEY CENEIIAL
JAMES M. SHANNON

Jcinalhan Ahbott'"
Richard Allen
Thomas Alport
Domthy Anderson
Linda Andros
Frederick Augenstern
Tht)mas Barnico
Judith Beals
Max Beck""
Susan Beck ^
Patricia Bernstein
Despena Billings
Edward Bohlcn
Phinonce Boldin^"
Mark Bourbcau
Ruth Bourquin
Robert Bowens^''
Lee Breckenridge"
Matthew Brock
Maureen BrodotT'
Richard Brunnell
Douglas Carrey-Beaver''"'
Eric Carriker
James Caruso
Michael Cassidy
Apolo Catala
Rosanna Cavallaro'"''
Karen Cheeks-Lomax
Mary Connaughton
Harvey Cotton''^
Mark Coven'''^
Kevan Cunningham
Stacey Cushner -
Richard Dalton
Alice Daniel
Leslie Davies
Joyce Davis*^^
Kimherly Davis''''
(jcorge Dean
Paula DeGiacomo
Marv DeNevi'^"
Ian IDeWaal
Barbara Dickey'"
Carol Dietz
Daniel Dilorati
Michael Dmgle'^'
Lawrence Donnelly
Ravmonii Dougan
Mary Beth Downing
Su/anne Durreil'"'

Eirst Assisiatil Afionicv (icncral
(icrald r. Fit/gcrald

Assisiani Attorneys Ciciicral

Joseph Early'"
Stanley Eichner
Judith Fabricanl
Allan Fierce
Lawrence Fletcher-Hill
Walter Foster''-'
Patrick Gable"
Carl Giesy
William Gottlieb
William Green^
Leslie Greer
Sydney Hanlon
Natalie Hardy"
Nancy Harper
Deirdre Harris
Jon Hartmere
Tobin Harvey
Sandra Hautanen
Marjorie Heins
Lisa Heinzerling'^
James Higham'
Virginia Hoefling
David Hofstettcr''
Tung Huynh
David Jackson '■"
Stephen Jonas
Edmund Joyal
Michelle Kaczynski
John Karagounis
Stephen Karnas"''
Linda Katz''''
Gerald Kcllcy
Robert Kilmartin^**
Marek Laas
Raymond Lamb
Pablo Landrau
Loren Lang"^"
Jon Laraim>re
Marc Laredo '
Virginia Lee'"''
Maria Lesser^"
Lisa Levy
David Li-
Timothy Linnehan
Melanie Marcaronis' '
Michael Marks
Milton Marquis^'
Michael Mascis
William Mallack"'
Suzanne Matthews

Elizabeth Maunsell^*'-
Janet McCabe^^
Lawrence McCarthy
Susan McHugh
William McVey
Cjary Mena
Janet Menna"'
Paul Merry'^
James Milkey
William Mitchell
Eric Mogilnicki
Kathleen Moore
Sarah Morison'"
Madelyn Morris
Patrick Moynihan
Mark Muldoon
Timothy Mullen'-
John O'Connor""*
Jerrold Oppenheim
Donna Palermino
Howard Palmer
A. John Pappalardo''"
William Pardee
Nadine Pellegrini
Kathleen Pendergast
Anthony Penski
Andrea Petersen''"
Mary Phillips' '
Carmen Picknally
Catherine Pinkala""
Maria Pizarro-Figueroa^^
Jill Plancher^
Stephen Poitrast
Anne Powers'"
Nancy Prcis''-
Jane Rabe'^
T David Raftery
Robert Ritchie
Susan Roberts
Carmen Rodriguez
Abbe Ross
Hilary Rowen
Malcolm Russell-Einhorn
Peter Sacks
Judith Saltzman
Ernest Sarason
Richard Savignano
Mark Schmidt
Douglas Schwartz"'
Pasqua Scibelli'

P.D. 12

Arlie Scott
Michael Sentance
Kathleen Sheehan'"'
Brison Shipley^"
Natalca Skvir
Mark Smith
Donna Sorgi
Johanna Soris
Paul Stein
MarkSutliff
Evelynne Swagerty
James Sweeney

Pamela Talbot
Edward Toro
John Traficonte
Frances Tucker
Gwendolyn Tyre
Carl Valvo-'" '
Susan Wall
George Weber
Madelyn Wessel'"'
James White
William White''"
Douglas Wilkins

Countess Williams
H. Reed Witherby^'
Jennifer Wriggins"
Steven Wright
Sarah Wunsch**'
Andrew Zaikis
Margaret Zaleski
Reed Zars'**
Judith Zeprun
Peter Zuk
Samuel Zurier

Assistant Attorneys General Assigned To Division of Employment Security

Maria Galvagna
William Luzier

Budget Director
Patrick J. Movnihan

Maria Moynihan""-
Neal Steingold

Chief Clerk
Edward J. White

Fiscal Affairs Manager
Elizabeth M. Connolly

APPOINTMENT DATE

1. 8/1/89

2. 9/11/89

3. 9/18/89

4. 9/25/89

5. 10/ 16/89

6. 12/4/89

7. 1/16/90

8. 1/22/90

9. 2/26/90

10. 3/19/90

11. 4/2/90

12. 4/17/90

13. 5/21/90

14. 5/29/90

15. 6/4/90

16. 6/11/90

17. 6/19/90

TERMINATION DATE

50. 7/6/89

51. 7/17/89

52. 7/21/89

53. 8/4/89

54. 8/11/89

55. 8/18/89

56. 8/21/89

57. 8/24/89

58. 8/25/89

59. 9/15/89

60. 9/22/89

61. 9/28/89

62. 10/6/89

63. 10/13/89

64. 10/16/89

65. 10/20/89

66. 10/27/89

67. 11/8/89

68. 11/10/89

69. 11/17/89

70. 12/4/89

71. 12/12/89

72. 1/12/90

73. 1/17/90

74. 1/22/90

75. 1/26/90

76. 2/2/90

77. 3/2/90

78. 3/21/90

79. 4/6/90

80. 4/20/90

81. 5/13/90

82. 6/1/90

83. 6/8/90

84. 6/15/90

85. 6/22/90

86. 6/29/90

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P.D. 12 9

November 27. 1989
Number 1

Mary Ann Walsh, Secretary

Executive Office of Consumer Affairs and Business Regulation

One Ashburton Place

Boston. Massachusetts 02108

Ralph A. lannaco

Executive Secretary

Board of Appeal on Motor Vehicle

Liability Policies and Bonds

280 Friend Street

Boston, Massachusetts 02114

Dear Secretary Walsh and Secretary lannaco:

You have asked, on behalf of the Board of Appeal on Motor Vehicle Liability
Polices and Bonds, for an opinion concerning what constitutes a "conviction" for
the purposes of G.L. c. 90, § 22F, the so-called Habitual Traffic Offender Law.' In
general, the Habitual Traffic Offender Law provides for the four year revocation
of the driver's license of any person who has accumulated prescribed numbers of
"convictions" for various motor vehicle offenses. G.L. c. 90, § 22F ( 1988 ed.). The
question you ask seeks clarification of certain language in chapter 90C of the
General Laws which provides a method for the non-criminal disposition of some
motor vehicle offenses. Specifically, you ask whether payments made pursuant to
the non-criminal procedures of chapter 90C § 3. as it appeared prior to July 1,
1986, operate as "convictions" for purposes of the Habitual Traffic Offender Law.
See St. 1985, c. 794.- For the reasons set forth below, I conclude that such
payments do operate as convictions.

The answer to your question requires a brief review of the pertinent statutory
language. Prior to 1983, a procedure for the non-criminal disposition of minor
motor vehicle offenses was contained in G.L. c. 90, § 20F. No statutory language
at that time expressly provided that non-criminal dispositions through the pay-
ment of fines pursuant to § 20F were "convictions" for purposes of the motor
vehicle laws. Accordingly, a 1982 opinion of my predecessor concluded that, since
the word "conviction" generally refers only to judgments of guilt in a criminal
proceeding, fines paid in the non-criminal context of § 20F were not "convictions"
for the purposes of G.L. c. 90, § 20, which, like the Habitual Traffic Offender Law.
permits the revocation of a driver's license upon the accumulation of certain
"convictions." See 1982/83 Op. Att'y Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at
81-83(1982).

Subsequent to this opinion, however, the Legislature, by St. 1982, c. 586,
repealed G.L. c. 90, § 20F, and placed the procedures for the non-criminal
disposition of motor vehicle offenses in chapter 90C of the General Laws. As of
April 14, 1983, the effective date of the 1982 legislation, § 4 of chapter 90C
provided, in pertinent part, as follows: "Any provision of this chapter to the
contrary notwithstanding, any payment of a fine made pursuant to the provisions
of this chapter shall operate as a conviction for purposes of registry of motor vehicles

10 P.D. 12

action pursuant to chapter ninety.'" See G.L. c. 90C, § 4, as appearing in St. 1982,
c. 586 (emphasis added). This language, which existed in the form set forth above
until July 1, 1986, effectively superseded the prior opinion of the Attorney Gen-
eral by making express the legislative intent that, as of April 14, 1983, non-
criminal fines were to be considered convictions for the purposes of chapter 90.^
Since the Habitual Traffic Offender Law is a part of chapter 90, it is clear that
"fines" under chapter 90C paid prior to July 1, 1986, are "convictions" for the
purposes of the Habitual Traffic Offender Law.

It is equally clear that all payments under G.L. c. 90C, § 3, made prior to July
1, 1986, are "fines" as that word was used in § 4, and therefore operate as
convictions. Section 3 of chapter 90C is the provision which prior to July 1, 1986,
as now, provided for the non-criminal disposition of some motor vehicle offenses
either through a contested non-criminal trial or through uncontested payments
made to the court in person or by mail. All payments prescribed by § 3, as it
appeared prior to July 1, 1986, were clearly designated as "fines." For example
paragraph (a)(1) of § 3, as appearing in St. 1982, c. 586, required the district
courts to promulgate a schedule of penalties for the purposes of non-criminal
dispositions pursuant to that section. This schedule was then described as the
"schedule of fines" and payments made pursuant to it as "the scheduled fine." As
to uncontested payments in person or by mail, § 3 stated that the "payment of such
fine shall operate as a final disposition of the case," and, as to payments required
after a contested non-criminal trial, it stated that the clerk-magistrate or the
justice "may impose at a minimum the scheduled fine. . . or may increase the
penalty to an amount not exceeding the maximum fine permitted by law for the
particular violation." (Emphasis added.)"*

In sum, I conclude that all payments made pursuant to G.L. c. 90C, § 3, prior to
July 1, 1986, are "fines" and that non-criminal dispositions through the payment
of such fines are "convictions" for the purpose of G.L. c. 90, § 22F, the Habitual
Traffic Offender Law.

Very truly yours.

JAMES M. SHANNON
ATTORNEY GENERAL

' The Board seeks this opinion in order to carry out its duty pursuant to G.L. c. 90, §
28, to hear appeals from decisions of the Registrar of Motor Vehicles, the official
charged with revoking licenses pursuant to the Habitual Traffic Offender Law.

- You need to know this because convictions accumulated over a period of five years
may be counted in determining license revocations under the Habitual Traffic Offender
Law. See G.L. c. 90, § 22F. Currently, this includes convictions going back to late 1984.

^ Effective July 1, 1986, the Legislature amended chapter 90C in part to designate
non-criminal motor vehicle violations by the new appellation, "civil motor vehicle
infractions." See St. 1985, c. 794, §§ 12, 14. Accordingly, G.L. c. 90C, § 4, was changed
to make clear that all payments pursuant to chapter 90C, by whatever appellation.

P.D. 12 11

were convictions for the purposes of chapter 90. See St. 1985, c. 794, § 3. The pertinent
language of § 4 currently reads as follows: "Any provision of this chapter to the
contrary notwithstanding, any payment of a penalty, fine or assessment made pursuant
to the provisions of this chapter, including the payment of an assessment for a civil
motor vehicle infraction shall operate as a conviction for the purposes of registry of
motor vehicles action pursuant to chapter ninety. . . ."' G.L. c. 90C, § 4, as appearing in
St. 1 985, c. 794, § 1 2. There is no question, and you have raised none, that all payments
pursuant to the current chapter 90C are "convictions" for the purposes of the Habit-
ual Traffic Offender Law.

■^ Since 1 conclude that § 3 payments made before July 1, 1986, are "fines" and
therefore "convictions" according to G.L. c. 90C, § 4, as it then existed, I need not
determine whether the broader language of the current § 4 (see note 3. anie) could
retroactively turn pre -July 1, 1986, payments into convictions.

12 P.D. 12

December 7, 1989

Number 2

Michael J. Connolly

Secretary of State

State House

Boston, Massachusetts 02133

Dear Secretary Connolly:

You have asked my opinion whether chapter 516 of the Acts of 1989, "An Act
making it unlawful to discriminate on the basis of sexual orientation," may be the
subject of a referendum petition under Article 48 of the Amendments to the
Massachusetts Constitution. Your opinion request arose because a referendum
petition calling for the repeal of this law, signed by ten qualified voters, was filed
with your office in a timely fashion. For the reasons discussed below, it is my
opinion that the Massachusetts Constitution excludes chapter 516 from the ref-
erendum process.

Article 48 of the Amendments to the Massachusetts Constitution sets forth
standards for the submission of laws enacted by the Legislature to the referen-
dum process. Among these standards is the exclusion from the process of certain
subjects:

No law that relates 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 the courts; or the operation of which is restricted to a particular
town, city, or other political division . . . ; or that appropriates
money for the current or ordinary expenses of the commonwealth
. . . shall be the subject of a referendum petition. Amendments,
Art. 48, The Referendum, Pt. Ill, § 2.

"The excluded matters provision has consistently been read to mean that if any
portion of a law relates to a matter excluded from the referendum process, the law
in its entirety may not be the subject of a referendum petition." 1982/83 0p. Att y
Gen. No. 4, Rep. A.G., P.D. No. 12 at 88, 89 (1982).i See also 1965/66 Op. Att'y
Gen., Rep. A.G., P.D. No. 12 at 312 (1966)-^ This reading is consistent with the
views of the framers of Article 48. See 2 Debates in the Constitutional Conven-
tion, 1917-1918 (1918) ("Debates").-^

Accordingly, I have reviewed chapter 516 to determine whether any of its
sections relate to a subject matter excluded from the referendum process. Based
on this review, I have concluded that §§ 1 and 14 ofchapter 5 16 relate to "religion,
religious practices or religious institutions" and that, therefore, chapter 516
cannot be the subject of a referendum."^

Chapter 516, when it becomes effective, will generally amend the anti-
discrimination laws found in chapter 15 IB of the General Laws to include the
prohibition against discrimination on the basis of sexual orientation. Included in
chapter 15 IB as it currently appears is an exemption which generally permits
religious institutions to discriminate in their employment and admission prac-
tices. Section 1 and, in similar terms, S 14 ofchapter 516 would amend chapter
15 IB to broaden that exemption by adding the proviso that "notwithstanding the

p.D. i: 13

provisions of any general or special law nothing herein shall be construed to bar
any religious . . . institution . . . from taking any action with respect to matters of
employment, discipline, faith, internal organization, or ecclesiastical rule, cus-
tom, or law which are calculated by such organization to promote the religious
principles for which it is established or maintained." St. 1989, c. 516, § 1."*

This broadened religious exemption applies not only to discrimination on the
basis of sexual orientation but also to all of the anti-discrimination provisions of
chapter 151 B. Thus §§ 1 and 14 alter the legal status of religious institutions with
respect to discrimination on the basis of such characteristics as race, sex, national
origin, age, and handicap. The full text of §^ 1 and 14 are set forth in the margin.''

I begin my analysis with the proposition that the words of Article 48 ''are to be
given their natural and obvious sense according to common and approved usage."
See 1949/50 Op. Atfy Gen., Rep. A.G., P.D. No. 12 at 72, 73 (1950), and cases
cited. Under any ordinary sense of the word "relate," §§ 1 and 14 relate to
religion, religious practices and institutions. Both sections by their express terms
directly provide for special treatment of "any religious or denominational insti-
tution or organization." Cf. Commonwealth v. Morash, 402 Mass. 287. 293-294
(1988). reversed on other grounds sub nom. Massachusetts v. Morash. 109 S.Ct.
1668 (1989) ("a law "relates to' an [area], in the normal sense of the phrase, if it
has a connection with or reference to such a[n area]."). In allowing a referendum
on a law permitting the dissemination of certain kinds of birth control informa-
tion, the Supreme Judicial Court in 1941 noted that "[t]he proposed law makes no
discrimination by reason of the religious views of the persons within its scope"
and that "[r]eligion is not a factor in [the law's] application . . ." Opinion of the
Justices, 309 Mass. 555, 558-559 (1941 ). Here, in sharp contrast, §§ 1 and 14 make
an institution's connection with religion the sole factor in the application of the
exemption, and make "religious principles" the sole basis upon which such dis-
crimination is permitted.

The relationship of §§ 1 and 14 to religious institutions is also clear when these
provisions are considered in the context of chapter 516 as a whole. Chapter 516
generally prohibits discrimination on the basis of sexual orientation. Sections 1
and 14, however, exempt religious institutions from this general prohibition. A
law that establishes a general rule, but exempts religious institutions from its
application, manifestly "relates" to religious institutions. In this regard, chapter
516 is like St. 1950, c. 400, which Attorney General Francis E. Kelly found to be
excluded from the referendum process because it generally provided school
committees with the authority to disapprove of private schools but disallowed any
disapproval "on account of religious teaching." 1949/50 Op. Att'y Gen., Rep.
A.G., P.D. No. 12 at 72-73 (1950). The religious exemption there, like the religious
exemption here, "related" to religion. Id.

That §§ 1 and 14 relate to religion is even more apparent when these sections
are viewed within the broader context of chapter 151B, the statute they amend.
Chapter 516 does not merely create a prohibition against discrimination on the
basis of sexual orientation and then subject that prohibition to a religious exemp-
tion. The expanded religious exemption created by chapter 516 applies to a
variety of anti-discrimination prohibitions already existing in Chapter 15 IB.
Were chapter 5 1 6 to be repealed, religious organizations would lose the benefit of
this expanded exemption with respect to all of the anti-discrimination prohibi-
tions that would continue to exist. Such a diminution of the freedom of religious
inscitutions is not properly placed before the voters. Cf. Opinion of the Justices,

14 f.U. 1/

309 Mass. 555, 559 ( 1941 ) (finding measure unrelated to religion because it "will
not interfere with the freedom of any person within its scope to act in strict
accordance with his religious views").

The exclusion of laws relating to religious institutions from the referendum and
initiative process reflects the profound concern of those present at the Constitu-
tional Convention of 1917-1918 "that to promote civic harmony the irritating
question of religion should be removed as far from politics as possible." Bloom v.
School Committee of Springfield, 376 Mass. 35, 39 (1978). Mr. Swig of Taunton, the
author of the exclusion, noted that:

We have some men in politics who make religion a profession.
They try to get political preferment because of their religious
belief ... I am endeavoring, by means of my amendment, to pro-
tect the initiative and referendum from the efforts that will be
made ... to drag constantly before the people these religious
fights. 2 Debates at 767.

Mr. Curtis of Boston concurred:

It seems to me that all religious subjects would be handled better
by considering them before the Legislature than in . . . making
them the subject of a general discussion by the people at large. 2
Debates at 768.

The framers clearly had in mind religious measures of the type found in
chapter 516. Chapter 516 includes a broad "preferment" of religious institutions
that permits such institutions to discriminate on the basis of race, color, religious
creed, national origin, sex, age, ancestry, handicap, and the new category of sexual
orientation in ways not permitted of any other persons or organizations. This
preferment has been considered and enacted by the Legislature. If it were made
the subject of a referendum, the public would be permitted to vote directly on how
religious institutions may conduct themselves. Under the plain terms of Article
48, this is simply not permitted.

In conclusion, I note that chapter 516 has engendered considerable contro-
versy, and that this controversy has not centered on the sections of the law on
which this opinion focuses. However, Article 48 of the Massachusetts Constitu-
tion requires that no law may be repealed through the referendum process if any
of its provisions relate to religion. The law that would be repealed here expands
the freedom of religious organizations from laws prohibiting discrimination not
just on the basis of sexual orientation but also on the basis of such characteristics
as race and national origin. Because chapter 516 thus relates to religion, it may
not be subject to the referendum process. You should not, therefore, provide
blank forms for the use of subsequent signers of the petition.

Very truly yours.

JAMES M. SHANNON
ATTORNEY GENERAL

P.D. 12 15

' In this opinion. Attorney General Francis X. Bellotti found that St. 1982, c. 455
could not be submitted to the referendum process because three of its twelve sections
related to the excluded matter of "compensation of judges." The remaining sections
related to compensation of the members of the General Court, the Governor, other
constitutional officers and court clerks. Id. at 88-89.

- In this opinion. Attorney General Edward W. Brooke found that the referendum
process may be applied only to whole legislative enactments, each part of which must
not relate to an excluded matter. Accordingly, his analysis focused on the three (of
eighty-one) potentially problematic sections of St. 1966, c. 14, and he acknowledged
that if the legislation violated Part III of Article 48 "m any way. . . it may not lawfully
be the subject of a referendum petition." Id. at 314 (emphasis supplied).

^ At the Constitutional Convention which adopted Article 48, the delegates specifi-
cally rejected a provision that would have permitted a referendum to be held on a part
of a law. See 2 Debates at 3-6, 674-678, and 694-702. In so doing, the framers noted that
even "small parts" of a law may be essential to the law's constitutionality, functioning,
or purpose, or may reflect a legislative compromise essential to the passage of the
entire law. Id. at 694-696, 699.

" In light of this conclusion it is unnecessary for me to determine whether chapter 5 1 6
may fall within any of the other exclusions of Article 48, Part III. Nor do I consider the
application of additional exclusions from the referendum contained in Part II of
Article 48. This provision excludes from both the referendum and the initiative
process any "proposition inconsistent with any one of [several] rights of the individ-
ual," notably including "the right of access to and protection in courts of justice."
Amendments, Art. 48, The Initiative, Pt. II, § 2, H 3.

"^ I need not, for the purposes of this opinion, determine the precise contours of the
legal effect of the language added to these sections, set forth in n. 6, infra. I merely note
that language has been added, and that basic principles of statutory construction
require that they not be considered superfluous. International Organization of Masters
V. Woods Hole, Martha 's Vineyard & Nantucket Steamship Authority , 392 Mass. 811,813
(1984), citing Casa Loma, Inc. v. Alcoholic Beverages Control Commission, 111 Mass.
231,234(1979).

*" Both§§ 1 and 14ofchapter516would repeal present law, and then reinsert language
identical to that repealed together with new language. I have highlighted the language
of §§ 1 and 14 that have not heretofore appeared in chapter 15 IB:

SECTION 1. Subsection 5 of section 1 of chapter 15 IB of the
General Laws, as appearing in the 1988 edition, is hereby
amended by striking out the last sentence and inserting in place
thereof the following sentence: Notwithstanding the provisions of
any general or special law nothing herein shall be construed to bar
any religious or denominational institution or organization, or any
organization operated for charitable or religious purposes, which
is operated, supervised, or controlled by or in connection with a
religious organization, and which limits membership, enrollment,
admission, or participation to members of that religion, from giv-
ing preference in hiring or employment to members of the same

religion or from taking any action with respect to matters of em-
ployment, discipline, faith, internal organization, or ecclesiastical
rule, custom, or law which are calculated by such organization to
promote the religious principles for which it is established or main-
tained.

SECTION 14. Said section 4 of said chapter 151B, as so appear-
ing, is hereby further amended by striking out the third paragraph
and inserting in place thereof the following paragraph: Notwith-
standing the provisions of any general or special law nothing herein
shall be construed to bar any religious or denominational institu-
tion or organization, or any organization operated for charitable
or educational purposes, which is operated, supervised, or con-
trolled by or in connection with a religious organization, from
limiting admission to or giving preference to persons of the same
religion or denomination or from taking any action with respect to
matters of employment, discipline, faith, internal organization, or
ecclesiastical rule, custom, or law which are calculated by such
organization to promote the religious principles for which it is
established or maintained.

The words beginning with "taking any action . . ." replace the words "making
such a selection as is" which is the only language that § 14 of the new law repeals
and does not reinsert.

P.D. 12 17

January 12, 1990
Number 3

Frederick P. SaJvucci, Secretary

Executive Office of Transportation and Construction

10 Park Plaza, Room 3510

Boston, Massachusetts 02 1 1 6-3969

Dear Secretary Salvucci:

You have asked, on behalf of the Massachusetts Department of Public Works
(""Department"), whether the procurement of design services for what is known
as the "'Parcel 7" portion of the Central Artery/Third Harbor Tunnel Project
(Artery/Tunnel Project) is subject to the jurisdiction of the Designer Selection
Board (DSB). For the reasons set forth below. 1 conclude that the various ele-
ments of the Parcel 7 facility all fall within the statutory exemption from DSB
jurisdiction created by G.L. c. 7, § 39A(gl/2).

The Artery/Tunnel Project is a largely federally-funded Interstate Highway
project of the Department. A primary feature of the Artery/Tunnel Project is the
depression and widening of the Central Artery (1-93) between South Station and
North Station along approximately the same alignment as the existing elevated
Central Artery. In connection with the Artery/Tunnel Project, the Department
proposes to develop a site commonly known as Parcel 7. The 58,000 square foot
site is currently used for surface parking and is structureless except for an en-
trance to the Massachusetts Bay Transportation Authority's Haymarket Station
located along the site's western edge. Parcel 7 is located in the Haymarket area of
downtown Boston just west of the Central Artery, and it is bounded by Congress
Street on the west. New Sudbury Street on the north. Blackstone Street on the
east, and Hanover Street on the south. The site is located across the Central Artery
from the North End community and directly adjacent to the Blackstone Block, an
historic district which is listed on the National Register of Historic Places.

The Department proposes a three-phased design and construction project on
the site. According to your description. Phase A will include a building to be
located above -grade along the western portion of the site. This building will
generally consist of a public marketplace on the ground floor topped by a three-
story public parking garage.'

Phase B, which will occupy the eastern portion of the site adjacent to the
Central Artery, will consist of a ventilation facility which will serve the tunnel
through which the depressed Central Artery will pass. The facility will include a
major below-grade structure to accommodate mechanical and electrical space for
exhaust and fresh air intake fans and associated ducts and equipment. The
substructure will support above-ground ventilation exhaust stacks and fresh air
intake ducts and louvers.

Finally, in order to address aesthetic and urban design concerns relating to the
above-ground ventilation stacks, a final phase of the construction. Phase C, will
consist of a five to six-story '"skin" to wrap around the above-ground features of
the ventilation facility. The skin along the southeast quadrant of the site closest to
the Blackstone Block will enclose the exhaust stacks and will include approxi-
mately 45,000 square feet of usable floor area, the ground floor of which will be

18 r.u. \i

devoted to an extension of the public marketplace of Phase A, and the upper
stories of which will be used for office space. The skin along the northeast
quadrant of the site will consist of a wall encasing air intake louvers serving the
fresh air supply system of the ventilation facility.

The Department proposes to use its own procedures for the selection of
designers for the Parcel 7 project. The Inspector General, however, whose views
I have solicited,- has taken the position that the entire Parcel 7 facility is subject
to the jurisdiction of the Designer Selection Board, and that it is the DSB which
must select designers for the Parcel 7 facility.

The designer selection laws are contained in G.L. c. 7, §§ 38A1/2 through 380.
These provisions create the Designer Selection Board.^ With certain limitations
not pertinent here, the DSB has jurisdiction over the selection of all designers
and others performing design services in connection with any "building project"
for a public agency. See G.L. c. 7, § 38C. There is no question that the Department
is a public agency whose building projects would be subject to DSB jurisdiction.
If the Parcel 7 facility, therefore, or any part of it, is a "building project," then
designer selection for the Parcel 7 facility is subject to the jurisdiction of the DSB.

A "building project" for purposes of chapter 7 is defined as,

a capital facility project undertaken for the planning, acquisition,
design, construction, demolition, installation, repair or mainte-
nance of any building and appurtenant structures, facilities and
utilities, including initial equipment and furnishings thereof; pro-
vided, however, that appurtenant buildings or structures which are
required to be constructed as integral parts of the development of
sewer, water and highway systems shall not be subject to section
thirty-eight C. G.L. c. 7, § 39A(gl/2) (emphasis added).

Under this definition, a building project includes any "capital facility project"
undertaken for the design and construction of a "building" with the exception of
those buildings within the proviso highlighted above. That proviso, which I shall
call the designer selection proviso, expressly exempts from the definition of the
term "building project" for the purposes of DSB jurisdiction under section 38C,
any "appurtenant buildings or structures which are required to be constructed as
integral parts of the development of . . . highway systems."

For the reasons I now discuss, I conclude that all of the elements of the Parcel
7 facility fall within the terms of this proviso and are thus exempt from the
jurisdiction of the DSB. In light of this conclusion, it is unnecessary for me to
determine whether the elements of the Parcel 7 project, taken separately or
together, constitute a "capital facility project" for the design and construction of
a "building."*

I begin my analysis with an overview of the statutory history and purpose of the
designer selection law. The designer selection law (G.L. c. 7, §§ 38A1/2-380) was
enacted by the Legislature as part of St. 1 980, c. 579. Chapter 579 was a sweeping
reform measure resulting from recommendations of the Special Commission
Concerning State and County Buildings, commonly known as the Ward Commis-
sion. One of the central findings of the Ward Commission was a pattern of waste,
fraud and abuse in the award of contracts for the design of public buildings. See
Final Report to the General Court of the Special Commission Concerning State
and County Buildings (December 31, 1980) (Ward Commission Report), Vol. 7.
at 187. The purposes of the designer selection reforms, as conceived by the Ward

P.D. 12

Commission and stated in G.L. c. 7, § 38A1/2, are generally to prevent corruption
and waste in the awarding of design contracts for public building projects.^

As a counter-weight to this legislative purpose, it must be recognized, however,
that certain public building projects constructed in connection with public works
projects, including highway systems, were meant to be exempted by the designer
selection proviso from the designer selection requirements of the chapter 579
legislation. Although the Ward Commission Report does not expressly advocate
such an exception, the corruption which prompted the Ward Commission inves-
tigation was not found in what is often referred to as "horizontal'" construction,
that is, water, sewer, highway and other public works construction, but rather in
buildings ("vertical" construction) not related to such projects.*" Moreover, a task
force of the Inspector General's office which reviewed the chapter 579 legislation
approximately two years after its enactment, advocated preserving and indeed
strengthening the exemption from DSB jurisdiction of buildings related to sewer,
water, and highway systems. See Final Report of the Chapter 579 Task Force
(February 1, 1983) (Task Force Report). In the Task Force Report it was noted
that entities such as the Department of Public Works which performed public
works construction already had their own administrative procedures which gov-
erned the design and construction of horizontal projects. Id. at 159. The Task
Force rejected proposals to subject horizontal projects to chapter 579-type safe-
guards, noting the view of some that such safeguards were unnecessary because
"public horizontal design and construction projects are currently governed by
agency and federal regulations which are often more stringent than those man-
dated by Chapter 579 for vertical projects." Id. at 160. The Task Force decided not
to recommend changes without further study. Instead, the Task Force concluded
that "the apparent diversity and complexity of existing controls over horizontal
construction suggested that careful research on public horizontal design and
construction processes is necessary in order to provide a basis for informed
decisions regarding application of Chapter 579-type safeguards to horizontal
projects." Id. at 160. The Legislature adopted these recommendations by pre-
serving, in subsequent amendments to the designer selection law, the exemption
for buildings related to sewer, water and highway systems, and indeed by extend-
ing that exemption in the manner recommended by the Task Force. ^

It is apparent, therefore, that while the Legislature was deeply concerned with
the pattern of corruption in the design and construction of public buildings, it
svished to tread with caution in the area of buildings related to horizontal con-
struction projects such as sewer, water and highway systems. The designer selec-
tion proviso reflects an attempt by the Legislature to balance its concern with
preventing corruption against this desire to leave intact, at least for the present,
existing controls over the designer selection for horizontal construction and
related buildings.^ In order to determine how that balance is struck, I must rely on
the words of the statute, which, according to basic principles of statutory con-
>truction, must serve as the primary indicator of its meaning. See Nantucket Conser-
'ation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212, 214 (1980).

I turn then to the words of the designer selection proviso which exempt from
[he jurisdiction of the DSB "appurtenant buildings or structures which are re-
quired to be constructed as integral parts of the development of . . . highway
iystems."*^ I note first that the exemption applies to "appurtenant buildings or
structures." The term "appurtenant" in its ordinary sense is defined and used
generally to describe something which stands in the relationship of an incident to

20 PD. 12

a principal. See generally 6 C.J.S. Appurtenant 139-140 (1975). See also Assessors
of Lawrence v. Arlington Mills, 320 Mass. 272 ( 1 946) (for purposes of determining
whether land and water rights constitute a taxable unit, "appurtenant" construed
to mean "joined ... by necessity or use"). The subordinate element need not
actually be a part of the principal element but it usually serves an essential need
or relationship rather than a mere convenience. 6 C.i.S. Appurtenance 134, 135
(1975). Words such as "accessory," "incident," "adjunct," "appended," or "an-
nexed" are frequently used synonymously with "appurtenant." Black's Law Dic-
tionary 94 (5th ed. 1979); Webster's Third New International Dictionary 107
(1981). These definitions suggest that the Legislature, by exempting not just
"buildings" but "appurtenant buildings or structures" meant that, where a build-
ing project consists of a principal element together with an incidental but neces-
sary adjunct, both the principal element and its adjunct are exempt from DSB
jurisdiction so long as the principal element is "required to be constructed as an
integral part of the development of highway systems."

As I now discuss, construction of this phrase leads me to conclude that Phase
C, the office space and wall area that will surround the ventilation facility (Phase
B), is "appurtenant" to that ventilation facility, and that the two phases, there-
fore, together constitute "appurtenant buildings or structures" which fall within
the designer selection proviso by virtue of the undisputed functional necessity of
the ventilation facility to the operation of the Artery/Tunnel Project.

The Inspector General does not dispute, nor could he, that the ventilation
facility (Phase B) is required to be constructed as integral to the development of
the Artery/Tunnel Project. The facility is necessary to ventilate the tunnel seg-
ment between North and South Stations and is therefore functionally necessary
to the operation of the tunnel. The ventilation facility will include, in addition to
a major below-ground structure to house exhaust and intake fans and equipment,
an approximately 125 foot high above-ground exhaust duct and a fresh air intake
structure. As this facility will be located in the heart of downtown Boston, adja-
cent to the North End community and the historic Blackstone Block, it must be
enclosed in some way that will render it consistent with its context.'" The pro-
posed Phase C building is, as you have described it, necessary to accomplish this
purpose. It will minimize the visual impact of the ventilation exhaust ducts on the
North End community and make them architecturally compatible with the adja-
cent historic buildings of the Blackstone Block." The area of the structure that
will include office space is, as you have proposed it, reasonably related in size and
scale to the purpose of enclosing the exhaust stacks passing through it. It is also to
be located at the corner of the site closest to the Blackstone Block where inte-
gration of the Parcel 7 facility through some human-oriented, aesthetically com-
patible use is most necessary.

In my view, this office space is no more than a necessary part of the skin for the
ventilation facility. As such, the office space is properly viewed as appurtenant to
the ventilation facility.'*^ The ventilation facility, appurtenant office space and
wall surrounding it, in my view, collectively constitute "appurtenant buildings or
structures which are required to be constructed as integral parts of the develop-
ment of . . . highway systems."

The more difficult question is whether Phase A, which involves a three-story
garage with a marketplace on the ground floor, fits within the designer selection
proviso. This phase will be constructed first on the Parcel 7 site and operate as an
independent facility for approximately six years. Although this garage/market

P.D. 12 21

building will eventually share a common wall with the ventilation/office building,
I do not regard the building as so functionally or operationally connected to the
ventilation/office building that it can be said to be "appurtenant"" to that building.
If the Rhase A garage/market building fits within the designer selection proviso,
then it must do so on its own. independently of any relationship to the ventilation/
' office building. 1 conclude for the following reasons that it does.
j My analysis requires me to explore in greater detail the meaning of the phrase
I in the designer selection proviso which exempts buildings "required to be con-
structed as integral parts of the development of . . . highway systems." In this
regard, I note that the words "required" and "integral"" convey the concept of
necessity. To "require" is "to demand as necessary or essential,"" or "to have a
compelling need for."" See Webster"s Third New International Dictionary 1929
( 1 98 1 ). "Integral" is defined as "essential to completeness."' Id. at 1 1 73. Buildings
in order to be exempt, therefore, must be necessary to the development of the
highway system. This, however, does not mean, as the Inspector General argues,
that only buildings which are functionally necessary to the operation of a com-
pleted highway are exempt. The exemption includes not only buildings which are
necessary in an engineering sense to a highway, but also buildings which are
necessary to "the development'" of highway systems. The word "development"
connotes a process over time. See Webster's Third New International Dictionary
618 (1981) ("development" is the "act, process, or result of developing,"" "a
gradual unfolding by which something is developed""). The class of buildings
kvhich are necessary to the development of a highway system is, in my view,
broader than the class of buildings necessary to a finished highway, and may include
buildings necessary to enable the process of building a highway to go forward.

My reading of the designer selection proviso is supported by a review of the
statutory context in which the proviso is found. As I have already noted, a
'building project" which is subject to DSB jurisdiction includes (with the excep-
;ion of building projects falling within the proviso) any "capital facility project"" for
:he construction and design of a building. G.L. c. 7, § 39A(gl/2). The term "capital
facility project"" includes a broad range of public construction and improvement
projects, but specifically excludes from that definition "a highway improvement
>uch as a highway, bridge, or tunnel." See G.L. c. 7, §§ 39A(f ) (defining "capital
facility") and 39A(g) (defining "capital facility project"). The specific examples of
i "highway, bridge or tunnel" which serve to illustrate the general term "highway
mprovement" suggest that the exclusion for a "highway improvement" is con-
ined to projects bearing a direct relation to the operation of a completed high-
^'ay. See Haas v. Breton, 388 Mass. 591, 595-596 (1979) (general term in a statute
:akes meaning from the context in which it is employed), and cases cited. If the
designer selection proviso were also limited to buildings directly related to the
3peration of a completed highway, it would be mere surplusage because such
Duildings are already exempted from DSB jurisdiction by virtue of their not being
'capital facility projects."' In order to be faithful to the principle that, where
possible, every word of a legislative enactment is to be given force and effect {see
United States Jaycees v. Massachusetts Commission Against Discrimination, 391
Vlass. 602 [1984]), the designer selection proviso must be construed to include a
broader class of buildings than the class comprised in the exemption for "highway
mprovements."

22 *^-^ 1^

Turning to the application of the designer selection proviso to Phase A of the
Parcel 7 facility, I note first that a parking garage and certainly retail space, at
least where not built to directly service motorists along the highway, are not
related directly in their function to the operation of a completed highway. I
conclude, however, that the Phase A marketplace and garage is, in the circum-
stances that you have described to me, necessary to enable the process of building
the Artery/Tunnel Project to go forward and is for this reason necessary to the
"development" of the highway system of which the ArteryA'unnel Project is a part.

The development of a modern highway is a complex process, involving build-
ings and structures not thought generally to have been a part of the construction
of a simple roadway. See Opinion of the Justices, 330 Mass 713, 721-723 (1953).
Particularly where, as here, construction is to take place in a densely populated
urban area, the disruption and displacement of ordinary activities of urban life is
inevitable. Appropriate measures to mitigate that disruption are a necessary part
of the development of the modern highway. Indeed, in this case, they are required
as a condition of federal funding.'-'

The garage and retail space you seek to build in Phase A of Parcel 7 is
specifically conceived as a mitigation measure designed to alleviate disruption
caused by the development of the Artery/Tunnel Project. Phase A is planned to
be built in advance of the construction of the Artery/Tunnel Project construction
so that it will be available for the replacement of lost parking and retail space at
the point when those losses occur. As to the parking, the 350 spaces planned for
Phase A will replace the same number of public parking spaces which it is
estimated will be lost under the existing elevated Central Artery during construc-
tion of the Artery/Tunnel Project. The location of those spaces at Parcel 7 is
necessary because that site is the only feasible and available site adjacent to the
area where the spaces will be lost. Similarly, the retail space is envisioned as a
place for the relocation of the adjacent North End merchants and pushcart
vendors who wil be displaced by the construction of the Artery/Tunnel Project. In
short, these are mitigation measures which are narrowly conceived to address
specific disruption caused by the development of the Artery/Tunnel Project. As
such, I conclude that they are required to be constructed as an integral part of the
development of the Artery/Tunnel Project and that the Phase A garage/market
building is therefore exempt from DSB jurisdiction.

In conclusion, I note that, even though Parcel 7 is exempt from the jurisdiction
of the DSB, the designer selection procedures which the Department proposes
for Parcel 7 provide the same types of safeguards as the procedures used by the
DSB.'^ Moreover, federal regulators who will be providing federal funds for the
construction of Parcel 7 will provide oversight, and you have informed me that the
Division of Capital Planning and Operations (DCPO), the state agency created by
the Ward Commission legislation to oversee public building projects, is involved
in the project.''' It is to these safeguards that the Legislature has generally chosen
to subject building projects such as Parcel 7 which are required to be constructed
as integral to the development of highway systems.

In sum, therefore, it is my opinion that all of the elements of the proposed
Parcel 7 facility fall within the designer selection proviso of G.L. c. 7, § 38A(gl/2),
and that designer selection for the facility is not within the jurisdiction of the
Designer Selection Board. ,

P.D. 12 23

Very truly yours, ■

JAMES M. SHANNON
ATTORNEY GENERAL

' Construction of this phase will also require reconstruction and improvements of the
Haymarket Station entrance currently on the site both to integrate it within the new
Parcel 7 building complex and to make it accessible to the handicapped.

I - The Inspector General is charged with the prevention and detection of fraud, waste
and abuse in the expenditure of public funds in public construction. G.L. c. 12A, § 7.

^ The DSB is an eleven-member, independent, unpaid board, a majority of whose
members are architects and engineers. G.L. c. 7, § 38B. For projects within its juris-
diction, the DSB is required to advertise for designers, setting forth specific informa-
tion pertaining to the project and the qualifications required of applicants. G.L. c. 7,
§ 38D. The DSB reviews all applications in accordance with the written criteria and
selects at least three finalists for every contract award. The DSB is required to rank the
finalists and prepare a written record of the reasons for its ranking. G.L. c. 7, § 38F(c).
The selection of a designer other than the first ranked designer must be justified in
writing. G.L. c. 7, § 38G{a).

^ The term "capital facility project" is defined in G.L. c. 7, §§ 39A(f ) and (g). The term
"building" is not defined in chapter 7 but is generally construed in its ordinary sense.
See Modem Continental Construction Co. v. Lowell, 291 Mass. 829, 839 (1984), and
cases cited.

"" G.L. c. 7, § 38A1/2 states that the purpose of the designer selection law is to: ensure
that the Commonwealth receives the highest quality design services for all its public
building projects; provide for increased confidence in the procedures followed in the
procurement of design and design related services; promote consistency in the meth-
ods of procurement of design and design related services for all public building
projects in the Commonwealth; foster effective broad-based participation in public
work within the design professions; provide safeguards for the maintenance of the integ-
rity of the system for procurement of designers' services within the Commonwealth.

^ See generally Ward Commission Report, Vol. 6 (Construction Defects/State and
County Buildings). It was corruption and mismanagement in the design and construc-
tion of buildings, such as schools and housing projects, which were unrelated to
horizontal public works projects which led to the establishment of the Ward Commis-
sion and which served as the Commission's principal focus.

^ The original chapter 579 legislation had limited the exemption to buildings "re-
quired to be constructed as integral parts of the development of sewer, water and
highway systems by a state agency.'' St. 1980, c. 579, § 7 (emphasis added). The
exemption, as amended, is no longer limited to state agencies, and therefore includes
municipal, county, and other public agency projects. St. 1984, c. 484, §7.

24 P-D. 12

"^ In this regard, I note that the designer selection law is quite different from the public
bidding laws from which the Inspector General seeks to draw an analogy. The Inspec-
tor General relies on Modem Continental Construction Co., Inc. v. Lowell, 391 Mass.
829 (1984), a case which involved a determination whether a sewer construction
project which included a related building was exempt from the bidding requirements
for public buildings contained in G.L. c. 149, §§ 44A-44H. Public works projects not
involving "buildings" were subject to the less stringent bidding requirements of G.L.
c. 30, § 39M, governing contracts for public works. It was argued that, since the
building involved in the project (a pumping station) was merely incidental to the sewer
project as a whole, the project should be exempt from the bidding requirements of
chapter 149 regarding buildings. The Court rejected this argument. Rather, the Court
concluded that, since the Legislature had not clearly exempted such projects from the
requirements of chapter 149, no exemption could be inferred based on the predom-
inant public works character of the project. Id. at 838-840. The clear basis for the
decision in Modem Continental was the Legislature's failure to expressly exempt
public works projects involving buildings from the requirements of chapter 149. Here,
in sharp contrast, I need not infer any exemption to conclude that the elements of
Parcel 7 are exempt from DSB jurisdiction. The designer selection law, unlike chapter
149, expressly provides in the designer selection proviso an exemption for buildings
which are related to highway and other public works projects.

'' I note parenthetically that the words of the proviso did not originate with chapter
579. Similar language first appeared in 1953 as an exemption from the jurisdiction of
the director of building construction, an officer who, at that time, had control and
supervision of certain state "building construction projects." See G.L. c. 7, § 30A, as
appearing in St. 1953, c. 612, § 5. See also G.L. c. 7, § 30B, as appearing in St. 1953, c.
612, § 5 (governing designer selection for building projects under the supervision and
control of the director of building construction). Although, the language of that
exemption remained substantially intact through several amendments of the statutes
governingthedirectorof building construction, 5ef St. 1969, c. 704, §3, St. 1975, c. 311,
§ 2, there appears never to have been any judicial construction of the exemption.

'" This requirement has a legal as well as a practical component. Significant historic
sites are afforded special protections under state and federal law which compel
project proponents to identify, analyze, avoid and/or mitigate the effects of highway
construction on historic sites. See 16 U.S.C. § 470f (National Historic Preservation
Act); 49 U.S.C. § 303 (Department of Transportation Act); 23 U.S.C. § 138 (Federal
Aid Highway Act); G.L. c. 9, §§ 26-27C (Massachusetts Historical Commission).

" The Blackstone Block consists of small seventeenth to nineteenth century brick
buildings (including the historic Union Oyster House) which are organized around
meandering alleyways. Because of the proximity of the southern edge of the Parcel 7
site to the Blackstone Block as well as to the nearby Faneuil Hall and Haymarket
marketplaces, it draws considerable pedestrian traffic.

'- I do not mean to suggest that an office building should always, or even usually, be
viewed as an appurtenance to structures with a direct highway use. In my view, it is the
unique location of the ventilation facility in an historic downtown district that makes the
use of so elaborate a skin as an office building an appurtenance to the ventilation facility.

P.D. 12 25-

'^ Federal regulations on highway projects require the development of mitigation
measures appropriate to the undertaking and specific commitments in writing to fulfill
them. See 23 C.F.R. § 771. \25id){\); see also 23 C.FR. §§ 771.1()6(d) and 771.109(b).
The Department's commitments to the mitigation measures at Parcel 7 are reflected
in (1) the approved Final Environmental Impact Statement (FEIS) for the Artery/
Tunnel Project at 249-252, (2) the Record of Decision of the Federal Highway Ad-
ministration on the FEIS dated January 27, 1986, and (3) the federal-aid project
agreement for the Parcel 7 facility (No. IR-93-l[159]) dated April 26, 1989.

'** They include public advertisement in the Central Register and newspapers of
general circulation, the filing of pre-application information and qualihcations, pre-
established written criteria for selection, the appointment of an experienced selection
panel of public employees composed primarily of individuals trained profession-
ally as architects and engineers, guidelines for ranking prospective consultants,
and a written record.

'"^ With certain exceptions, the DCPO exercises "control and supervision of all build-
ing projects undertaken by any state agency . . . ." G.L. c. 7, § 40A. You do not
question the jurisdiction of DCPO over the Parcel 7 project, and this Opinion, there-
fore, has not addressed any issue regarding that jurisdiction.

26 PD. 12

January 19, 1990

Number 4

William A. Delahunt

District Attorney, Norfolk County

P.O. Box 309

360 Washington Street

Dedham, Massachusetts 02026

Dear District Attorney Delahunt:

You have requested my opinion whether the so-called "Testimonial Dinner
Law" prohibits the solicitation of money for a campaign fund-raising event on
behalf of a candidate for public office who is employed as an assistant district
attorney.' The Testimonial Dinner Law, G.L. c. 268, § 9A (1988 ed.), provides a
criminal penalty for persons who solicit money for a "testimonial" of any kind on
behalf of someone who is employed in any state or local "law enforcement,
regulatory or investigatory" agency.- Your concern appears to be that many
campaign fund-raising events, while not promoted as "testimonials" or in similar
terms, nevertheless involve expressions of tribute to the candidate or to his or her
past achievements. You have asked whether solicitations for all such campaign
events would run afoul of section 9A.

For the reasons set forth below, I conclude that a campaign fund-raising event
is not a "testimonial" within the meaning of the Testimonial Dinner Law merely
because it involves expressions of tribute to the candidate. I further conclude that
whether a particular campaign event is a "testimonial" will depend on its purpose
and how it is promoted, and I offer some general guidelines for compliance with
section 9A.

Since the term "testimonial" is not defined in chapter 268, the ordinary mean-
ing of that term must serve as the primary indicator of its meaning. See Bronstein
V. Prudential Insurance Company of America, 390 Mass. 701, 704 (1984). The
American Heritage Dictionary (2d College ed. 1985) defines a testimonial as
"[sjomething given as a tribute for a person's service or achievement." Similarly,
Webster's New World Dictionary (2d College ed. 1978) defines a testimonial as
"something given or done as an expression of gratitude or appreciation."

It is true that a campaign fund-raising event may involve expressions of grati-
tude or tribute to the candidate. A speech, for example, which is given in support
of a candidate's bid for office will generally extol the candidate's virtues and
praise his or her achievements. Nevertheless, the essential purpose of most
campaign fund-raising events is not to honor a person for his or her past achieve-
ments but to further the political future of the candidate. A campaign fund-
raising event, therefore, the primary focus of which is to promote a political
candidacy rather than to honor the candidate, does not fall squarely within the
definition of "testimonial." See 1965/66 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at
369-370 (1966) (looking to primary purpose of an event to determine whether it was
a "testimonial" and determining that the sale of tickets to an event at which presen-
tation of an award to a public law enforcement employee was "merely an incidental
part of the evening" would generally not violate the Testimonial Dinner Law).

I recognize that campaign fund-raising by public employees could be subject to
abuse of the kind sought to be prevented by the Testimonial Dinner Law. A 1963

P.D. 12 27

Opinion of the Attorney General has identified two main objectives of section 9A.
"One is to remove persons in the public service in any of the described categories
in the statute from any suspicion of being influenced in any way because of the
sponsorship, purchase of tickets, attendance or non-attendance at such affairs.
The other is to relieve the public from the actual and implied pressures to
purchase dinner tickets imposed knowingly or unknowingly by the honored guest
or persons sponsoring such affairs." 1962/63 Op. Att'v Gen., Rep. A.G., P.D. No.
12 at 110, 111 (1963).

Although these objectives might be further served were section 9A to cover all
campaign fund-raising events which involved words of tribute to the candidate,
the ordinary meaning of the word "testimonial" simply does not, as 1 have already
discussed, encompass all such events. Moreover, even were there some uncer-
tainty as to the scope of the word "testimonial," 1 would be required, given the
penal nature of section 9A, to adhere to the rule that "penal statutes must be
construed strictly and not extended by equity, or by the probable or supposed
intention of the legislature as derived from doubtful words." Collates v. Boston
Retirement Board, 396 Mass. 684, 686-687 (1986) (quotations and brackets omit-
ted). See 1964/65 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 275-276 (1965). Strictly
construed, the word "testimonial" clearly does not apply to the typical campaign
fund-raising event merely because words of tribute are spoken.

In any case, the dangers inherent in political fund-raising on behalf of public
employees have not gone unaddressed by the Legislature. Campaign fund-raising
is subject to regulation under the terms of another statute, chapter 55 of the
General Laws. Section 9A, therefore, cannot be read in isolation, but must be
read, if possible, in conjunction with chapter 55 so as to constitute an harmonious
whole consistent with its legislative purpose. See Registrar of Motor Vehicles v.
Board of Appeal on Motor Vehicle Liability Policies and Bonds, 382 Mass. 580, 585
( 1981). A review of chapter 55 further supports the conclusion that sections 9A
was not intended to prohibit all campaign fund-raising events which in any way
involve expressions of tribute to a candidate.

Chapter 55 is a generally comprehensive statute regulating the financing of
political campaigns. In that chapter, the Legislature has evinced a desire to
permit public employees to run for public office without having to resign their
employment and to permit political committees organized on their behalf to raise
funds for that purpose. See G.L. c. 55, § 13 (prescribing how funds may be raised
on behalf of public employees). See also Director of the Oflftce Campaign and
Political Finance Advisory Opinion No. 88- 1 6 ("A public employee is not required
to relinquish his or her employment with the Commonwealth in order to seek
elected office").^

If campaign fund-raising events which in any way paid tribute to a political
candidate were "testimonials" and thus prohibited by section 9A. it is fair to say
that campaign fund-raising on behalf of the public employees described in section
9A would be severely hampered. Given the legislative intent expressed in chapter
55 that public employees be permitted to run for public oflRce and raise campaign
funds through their political committees, I do not believe that the Legislature in
enacting section 9A could have intended to achieve such a result. Indeed, had the
Legislature wished to so severely restrict the campaign fund-raising activities on
behalf of the huge subset of public employees covered by section 9A, it would
have done so in plainer terms.^

28 H.L). 12

Instead, I conclude that the Legislature in enacting section 9A intended to
prohibit fund-raising for "testimonials" in the ordinary sense of that term, that is,
events held in honor of a person's past achievements, including such events as
retirement dinners or tributes for years of public service. See, e.g., 1964/65 Op.
Att y Gen.. Rep. A.G., P.D. No. 12 at 275 (1965). It did not intend to prohibit all
campaign fund-raising events which incidentally involved tributes to the candi-
date through campaign speeches and the like.

As to the dangers either that campaign contributors could bring undue influ-
ence to bear on public employees running for office, or that persons raising money
on behalf of public employees could exert undue pressure in soliciting campaign
funds, the Legislature has, through chapter 55, provided numerous safeguards.'' It
is to these restrictions that campaign fund-raising events are generally subject,
and solicitations for such events do not violate the Testimonial Dinner Law
provided the campaign purpose of the event is clearly and prominently disclosed
and the trappings of a "testimonial" are avoided.

Whether a given solicitation of funds for a campaign event would violate the
Testimonial Dinner Law depends, of course, on the facts of the individual case. In
order to avoid a violation of section 9A, it is imperative that solicited funds
actually be used exclusively for campaign rather than personal purposes.'^ More-
over, the manner in which the event is promoted by persons orally soliciting funds
or on printed advertisements or tickets must make clear that the purpose of the
event is to promote the political candidacy of the person on whose behalf the
event is organized.

Thus, in order to steer clear of a section 9A violation, promotions for the event
as well as actual solicitations of funds should clearly and prominently advertise
the event as a campaign event, the purpose of which is to promote a political
candidacy and the proceeds of which are to be exclusively used for campaign
purposes. Conversely, all advertisements and solicitations should avoid use of
words like "testimonial," "retirement dinner," or other language which might
suggest that the event is primarily tributary in character or which might tend to
obscure the campaign purpose of the event. See, e.g. , 1965/66 Op. Att'y Gen.. Rep.
A.G., P.D. No. 12 at 369-370 (1966) (manner in which event is promoted on tickets
and advertisements is a prime factor in determining whether event is a "testimo-
nial"). Provided these guidelines are followed in letter and in spirit, the mere fact
that an event will include speeches which urge support for the candidate by
praising the candidate and his or her achievements will not render that event a
"testimonial."

In sum, therefore, I conclude that a campaign fund-raising event is not a
"testimonial" for the purposes of G.L. c. 268, § 9A, merely because it involves
expressions of tribute to the candidate on whose behalf it is organized, and that
solicitations for a campaign fund-raising event which conform to the guidelines
set forth in this opinion would not violate the Testimonial Dinner Law.

Very truly yours,

JAMES M. SHANNON
ATTORNEY GENERAL

P.D. 12 29

' I offer my opinion pursuant to G.L. c. 12, § 6, which authorizes me to provide legal
advice and opinions to the district attorneys on matters pertaining to their official
duties. The Testimonial Dinner Law is a criminal statute, violations of which are
within your official duties to prosecute. I have been informed, moreover, that there is
widespread uncertainty as to the applicability of this law to campaign fund-raising
events. It is, therefore, particularly appropriate for me, as the Commonwealth's chief
law officer, to give an opinion on this matter.

- General Laws c. 268, §9A, provides as follows:

No person shall sell, offer for sale, or accept payment for, tickets or
admissions to, nor solicit or accept contributions for, a testimonial
dinner or function, or any affair, by whatever name it may be
called, having a purpose similar to that of a testimonial dinner or
function, for any person, other than a person holding elective
public office, whose office or employment is in any law enforce-
ment, regulatory or investigative body or agency of the common-
wealth or any political subdivision thereof.

Whoever violates any provision of this section shall be punished
by a fine of not more than five hundred dollars.

^ It is, of course, the intent of the Legislature that enacted section 9A which I seek to
determine. In 1962, when section 9A was enacted {see St. 1962, c. 633), the provision
of chapter 55 concerning fund-raising by public employees was then codified as G.L.
c. 55, § 11 {see St. 1954, c. 644). Section 1 1, as does its present day counterpart section
13, prohibited public employees from themselves soliciting funds, directly or indi-
rectly. Although section 11 did not then (as section 13 does now) expressly permit
political committees to solicit contributions on the candidate's behalf, that permission
was implicit. See 1964/65 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 112-116 (1964)
(interpreting related section of chapter 55 prohibiting public employees from "di-
rectly or indirectly" giving campaign contributions to public officeholders to implicitly
permit the giving of contributions to political committees formed on behalf of those
officeholders). In 1962, therefore, as now, chapter 55 both permitted public employees
to seek elected office and provided a means for them to raise campaign funds.

"• Section 9A applies to solicitations on behalf of all non-elective personnel in any state
or local "law enforcement, regulatory or investigatory body or agency." G.L. c. 268, §
9A. This includes employees of the judicial branch, as well as "most departments,
offices, boards and commissions of the State and its political subdivisions." 1962/63
Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 110, 111-112 (1963). Moreover, employees
are covered whether or not they actually perform duties directly concerned with the
functions of the agency which place it in one of the categories described in the statute.
W. at 111.

' For example, section 13 prohibits non-elective public employees from themselves
soliciting campaign contributions. A political committee organized on behalf of the
candidacy of a public employee may not solicit or receive money from any person who
the candidate "knows or has reason to know . . . has an interest in any particular
matter in which [he or she] participates or has participated ... or which is the subject
of his [or her] official responsibility." G.L. c. 55, § 13. Sections 16, 16A, and 17 protect
public employees and persons doing business with the Commonwealth from pressures

30 p.D. 12

to contribute to political campaigns. General provisions of chapter 55 also set limits
upon how contributions may be made, how much may be given, and by whom. See. e.g.
G.L. c. 55. §§6-11, 13, 15, 16. In addition, extensive reporting requirements concern-
ing political contributions ensure that contributions will be open to public scrutiny. See
G.L. c. 55. §§ 18,25.

'^ I stress, however, that the fact that solicited funds are to be used only for campaign
purposes cannot alone be determinative of whether a violation of section 9A has
occurred. It is the act of solicitation that section 9A addresses, and a solicitation which
did not clearly and prominently identify the campaign purpose of the event would, in
my view, violate section 9A even though the funds raised were actually used for
campaign purposes and reported to the Office of Campaign and Political Finance as
required by chapter 55. See G.L. c. 55, § 1, "Contribution," and § 18 (requiring the
reporting of campaign funds raised through any means, "including testimonials").

P.D. 12 31

May 24, 1990
Number 5

Mary Ann Walsh

Secretary of Consumer Affairs and Business Regulation

One Ashburton Place

Boston, Massachusetts 02108

Barbara Neuman

Executive Director

Board of Registration in Medicine

Ten West Street

Boston, Massachusetts 021 1 1 . .

Dear Secretary Walsh and Ms. Neuman:

My opinion has been requested on behalf of the Board of Registration in
Medicine (the Board) concerning the extent to which a physician leave of absence
is a ^'restriction" of staff privileges which a hospital must report to the Board
pursuant to G.L. c. 1 1 1, § 53B. Since March 2, 1987, the Board has had in effect
regulations which require hospitals to report all leaves of absence, voluntary and
involuntary, which are related to physician competence. The Board believes that
even prior to these regulations such reporting was required by the terms of
section 53B, relevant parts of which have been in effect since 1980. It is con-
cerned, however, that hospitals may have misunderstood the reporting require-
ments of section 53B and, prior to the promulgation of the Board's 1987 reporting
regulations, may not have consistently been reporting leaves of absence to the
Board. It is in connection with the Board's intention to request hospitals to now
report those leaves of absence they may have previously failed to report that the
Board seeks my interpretation of the requirements of section 53B. For the rea-
sons set forth below, it is my opinion that a leave of absence taken for any reason
related to the physician's competence to practice medicine is a reportable restriction
pursuant to section 53B whether the leave is labelled as voluntary or involuntary.

Since its enactment in 1980, see St. 1980, c. 374, § 1, section 53B has required
a hospital to report to the Board when it "restricts" the staff privileges of a
physician "for any reason related to the [physician's] competence to practice
medicine." Section 53B reads in relevant part:

Any person licensed [to operate a hospital or other institution
licensed by the Department of Public Health under G.L. c. Ill, §
5 1 ] shall report to the hoard of registration in medicine when the
licensee denies, restricts, revokes, or fails to renew staff privileges, or
accepts the resignation of any physician registered wi'h the board as
qualified to practice medicine in the commonweahh for any reason
related to the registrant's competence to practice medicine or for any
reason related to a complaint or allegation regarding any violation
of law or regulation, or hospital, health care facility or professional
medical association by-laws, whether or not the complaint or al-
legation specifically cites violation of a specific law, regulation or
by-law. . . . [emphasis added].'

32 PD. 12

Initially, 1 note that the Board itself appears, through its 1987 regulations, to
have interpreted section 53B to require the reporting of leaves of absence related
to physician competence. Sec American Family Life Assurance Co. v. Commis-
sioner of Insurance, 388 Mass. 468. 474-475 (1983) (regulations are good indica-
tors of an agency's interpretation of a statute it is charged with administering).
These regulations, which were promulgated in part pursuant to the specific
legislative authorization to eflectuate the intent of section 53B (see. n. 1. ante).
expressly require hospitals to report any "disciplinary action"' to the Board. 243
Code Mass. Regs, ij 2.07 (17)(c). "Disciplinary action." in turn, is defined to
include a "voluntary or involuntary . . . leave of absence" provided it "relate[s]
directly, or indirectly to . . . the licensee's competence to practice medicine." 243
Code Mass. Regs. § 3.02, "Disciplinary Action." (3)(1) and (4)(a). The Board's
interpretation of section 53B as expressed in these regulations requires the re-
porting of leaves of absence whether voluntary or involuntary and is entitled
to weight. See Kvitka v. Board of Registration in Medicine. 407 Mass. 140, 144
(1990); School Committee of Springfield v. Board of Education, 362 Mass. 417.
441 n. 22 (1972).-

The Board's interpretation, moreover, in my opinion, reflects a correct appli-
cation of the principles of statutory construction which require that a law be
interpreted so as to effectuate the intent of the Legislature as evidenced by the
usual and natural meaning of the language used and considering the purposes
and remedies intended to be advanced. Deas v. Dempsey, 403 Mass. 468, 470(1988);
Conroy v. Boston, 392 Mass. 216, 219 (1984).

By its plain terms, section 53B requires a hospital to make a report to the Board
when it "restricts" a physician's privileges for reasons relating to physician com-
petence. During the period of any leave of absence, a physician's staff privileges
are in suspension, albeit temporarily. The suspension of staff privileges is mani-
festly a "restriction" on those privileges as that term is ordinarily understood. See
Webster's Third New International Dictionary 1937 ( 198 1 ) (defining "restrict" as
"to set bounds or limits to . . ." and giving "limit" as its synonym). Thus, where a
hospital directly imposes a leave of absence on a physician for a reason related to
the physician's competence to practice medicine, there is no question that the
hospital "restricts" the physician's privileges and must report the leave of ab-
sence under section 53B.

In my view, moreover, a hospital also "restricts" the privileges of a physician
when it permits a physician whose competence to practice medicine has come into
question to "voluntarily" take a leave of absence in order to avoid potential disci-
plinary action by the hospital. Although the restriction of privileges may in this
circumstance have been brought about through more indirect means, the hospital
may still be said in practical terms to have restricted the physician's privileges.

Placing the "restricts" language within the context of section 53B, moreover,
further supports the conclusion that a leave of absence whether labelled as
voluntary' or involuntary' is reportable. See International Brotherhood of Electrical
Workers v. Western Mass. Electric Co., 15 Mass. App. Ct. 25, 27 ( 1982), and cases
cited (wordsof a statute must be read in context). Section 53B requires reporting
not only when a hospital "restricts" staff privileges but also when it "denies . . . ,
revokes, or fails to renew staff privileges, or accepts the resignation of. any
physician" for reasons relating to competence. By expressly requiring a report
when a hospital "accepts the resignation" of a physician, the statute itself clearly
rejects any distinction based on claimed voluntariness.

P.D. 12 33

Finally, when the language of section 53B is read in light of its purpose, it is
plain that its reporting requirement must extend to any leave of absence related
to physician competence whether imposed directly by the hospital or taken by the
physician in order to avoid potential affirmative disciplinary action by the hospi-
tal. The role of the Board in the over-all statutory scheme is to take primary
responsibility for the regulation of the practice of medicine in the Commonwealth
in order to promote the public health, welfare and safety. See Levy v. Board of
Registration & Discipline in Medicine, 378 Mass. 519, 524 (1979). In that capacity,
the Board has been given the duty and authority to investigate physician compe-
tence and to protect the public against physician incompetence through the
revocation of physician licenses and other means. See G.L. c. 112, §§ 5, 5A. The
reporting requirements of section 53B are plainly aimed at furthering the ability
of the Board to fulfill its function by providing a means to alert the Board to
potential instances of physician incompetence.

If a physician could be shielded from having his or her possible incompetence
come to the attention of the Board by the simple expedient of taking a voluntary
leave of absence rather than risking affirmative disciplinary action by a hospital,
incompetent physicians could easily evade the notice of the Board, and the
purpose behind section 53B would be frustrated. I cannot impute to the Legis-
lature an intention so easily to permit circumvention of so important a legislative
purpose as the assurance of competent physicians. See Lexy v. Board of Registra-
tion & Discipline in Medicine, 378 Mass. at 524-525 (interpreting statutory powers
of the Board broadly "given the strong public interest in promptly disciplining
errant physicians").

In sum, I conclude that a leave of absence, whether voluntary or involuntary, is
a restriction on staff privileges within the meaning of G.L. c. 11 1, § 53B. Since
section 53B went into effect in 1980, therefore, hospitals have been required to
report any leave of absence which occurred for any reason related to the physi-
cian's competence to practice medicine.^

Very truly yours.

JAMES M. SHANNON
ATTORNEY GENERAL

' The Medical Malpractice Reform Act of 1986 (St. 1986. c. 351) added the word
"denies" to the list of reportable limitations on staff privileges and added the last-
quoted phrase requiring reports on limitations of staff privileges "for any reason
related to a complaint or allegation regarding any violation of law . . . ." The Act also
amended section 53B to expressly authorize the Board to promulgate "such regula-
tions as are necessary to carry out the intent of this section."

~ I note, however, that the Board has the authority to require by regulation reporting
beyond that mandated by section 53B. See Beth Israel Hospital v. Board of Registration
in Medicine, 401 Mass. 172, 178 (1987) (section 53B does not state exclusive circum-
stances in which Board reports may be required); id. at 176 (specific statutory require-
ment does not bar consistent agency action under general regulatory authority). The

34 P.D. 12

1987 regulations therefore may not strictly speaking represent an agency interpreta-
tion of the precise mandate of section 53B. I need not pause over this question.
however, since, irrespective of any agency interpretation, my reading of section 53B is
fully supported by the plain language of the statute.

^ I note that in this opinion you have asked me for my interpretation of the meaning
of the section 53B reporting requirement concerning restrictions on staff privileges
relating to physician competence, and I have confined myself, as is my general prac-
tice, to answering only the specific question you have asked. See 1985/86 Op. Att y

Gen. No. 3, Rep. A.G.. P.D. No. 12 at (1985). You have not sought, nor do

I provide, any guidance as to what means may be available to you to either determine
or enforce hospital compliance with G.L. c. 11 1, § 538.

P.D. 12 35

June 11, 1990
Number 6

Robert Q. Crane
Treasurer & Receiver-General
Chairman, State Board of Retirement
One Ashburton Place, Room 1219
Boston, Massachusetts 02108

Dear Chairman Crane:

You have asked on behalf of the State Board of Retirement (Board) for an
opinion concerning the apphcation of G.L. c. 32, § 15(3) to former Metropohtan
District Commission (MDC) police officer Gerald Clemente. Your specific ques-
tion is whether Gerald Clemente has been convicted of an offense involving the
fundsor property of a governmental unit within the meaning of subsection 15(3).
In addition, you ask for guidance in determining what constitutes "restitution"
under subsection 15(3).

As I discuss in the course of this opinion, your request presents difficulties
because the guidance it seeks requires factual determinations which are within
the jurisdiction of the Board rather than the Attorney General to make. Never-
theless, I proceed to review the law concerning subsection 15(3), and, within the
limits of the facts you have stated in your request, to provide you with legal advice
designed to assist the Board in proceeding in this matter.

I begin with the factual background you have provided in your letter and its
accompanying materials. In 1987, a judgment of conviction was entered in the
Federal District Court of Massachusetts against Gerald Clemente based on his
plea of guilty to count 1 1 of a multi-count federal indictment. Count 1 1 charged
Clemente with participating in an enterprise through a pattern of racketeering
activity in violation of the Racketeer Influenced and Corrupt Organizations Act.
18 U.S.C. § 1962c. As described in count 11, the criminal enterprise generally
consisted of a scheme to defraud whereby Clemente and others stole advance
copies of police promotional examinations of the Massachusetts Department of
Personnel Administration (MDPA) and distributed them to relatives, friends,
associates, and purchasers so that others would be promoted within various
police departments of the Commonwealth, including the MDC police.' The
objectives of the scheme as stated in count 1 1 were to illegally assist those
provided the exams in obtaining promotions within police departments so that they
could enjoy the increased salary and other benefits related to the promotions.

With this background, I turn to the statute in question. Subsection 15(3) of
chapter 32 of the General Laws provides for the forfeiture of the pension rights
of a member of a retirement system and his or her beneficiarie.. after a final
conviction of the member of "an off'ense involving the funds of a governmental
unit or system referred to in subdivision (1) of this section." The forfeiture of
pension rights applies "unless and until full restitution for any such misappropri-
ation has been made."^

You point out that "the governmental unit . . . referred to in subdivision (1) of
this section" is in Clemente's case the MDC.^ You ask, therefore, whether the
crime for which Clemente was convicted is an offense "involving the funds or

36 PD- 12

property" of the MDC and whether, based on this involvement of funds or
property, the Board may discontinue Clemente's pension."*

In posing this question, you note that the crime to which Clemente pleaded
guiltv involved the theft of police promotional exams from the MDPA and their
sale or provision by Clemente and others to MDC police officers, among others,
for use in obtaining police promotions. You recognize that the police promotional
exams of the MDPA cannot properly be characterized as property of the MDC.
You propose, however, that "funds or property" of the MDC were nevertheless
involved in the form of any increased salary and benefits paid out of MDC funds to
police officers who received promotions as a result of their use of the stolen exams.

I limit the discussion which follows to an analysis of the potential theory of the
involvement of the funds of the MDC which you have proposed and express no
views concerning other possible theories of involvement which you have not
proposed or which might be based on facts which are unknown to me or which
might emerge during proceedings before the Board. See 1986/87 Op. Att y Gen.,
Rep. A.G., Pub. Doc. No. 12 at 58, 60 (1986) (Attorney General does not answer
hypothetical or abstract questions)."" I conclude, for the reasons that I now set
forth, that a crime such as Clemente's, if it achieved the improper promotion of
MDC police officers who, as a result, obtained increased salary or other benefits,
would be "an offense involving the funds or property" of the MDC within the
meaning of G.L. c. 32, § 15(3).^

To begin, I note two apparent features of Clemente's crime which raise ques-
tions whether it could "involv[e] the funds or property" of the MDC within the
meaning of subsection 15(3). First, any benefits paid to MDC police officers as a
result of their improper promotions using the stolen exams would not have gone
to Clemente but to the promoted officers. Second, any funds or property given to
officers who obtained promotions would presumably not have been funds or
property that had in any way been entrusted to Clemente's care.

While it may be that the crime resulting in forfeiture of pension rights pursuant
to subsection 15(3) is often one in which an employee steals, for his or her own
benefit, funds with which the employee has been entrusted in the course of his or
her work, nothing in the language of subsection 15(3) limits its effects to such a
crime. Indeed, it is difficult to imagine a broader formulation than the phrase
"involving the funds or property." In the sense in which it is employed within
subsection 15(3), the word "involve" has been defined to mean "to have an effect
on [or to] concern directly." Webster's Third New International Dictionary 1191
(1964). Its synonym is "to affect." Id. A criminal enterprise, the purpose of which
was to improperly obtain police promotions with all of their attendant benefits,
would clearly affect the funds of the MDC if the scheme succeeded, and that is all
the phrase "involving the funds or property" would in its ordinary sense require.
Nothing in this broad formulation suggests any additional requirement that the
involved funds or property have been placed within the employee's care or that
the employee himself or herself have been the direct recipient of those benefits.

My conclusion is reinforced by the fact that the "offense involving the funds or
property" terminology is used interchangeably in subsection 15(3) with the term
"misappropriation."^ That term, as it is used G.L. c. 32, § 15, has recently received
the attention of the Appeals Court in Amida v. Contributory Retirement Appeal
Board, 28 Mass. App. Ct. 366, further appellate review denied, 407 Mass. 1102
(1990).*^ The Court mArruda, looking to the ordinary dictionary definitions of the
term "misappropriation," rejected any narrow construction of the term and

P.D. 12 37

concluded that it required nothing more than that funds be "wrongly appropri-
ated and misapplied."' /lrn<^fl, 28 Mass. App. Ct. at 369.*^

Based on this broad definition, the Court concluded that the term "misappro-
priate" in subsection 15(1) "clearly cover[ed]" the actions of an employee in
approving excess payments from his employer (i.e., a "governmental unit" within
chapter 32) to a contractor in order to provide kickbacks from the contractor to
himself and others. The Court rejected the argument that an employee's "par-
ticipation in a scheme of bribery and kickbacks from a contractor is not covered by
the term 'misappropriate,' because [the employee] did not take money from [the
employer] and apply that money to an illegal purpose or appropriate it to his own
use." Arrnda, 28 Mass. App. Ct. at 368 (emphasis in original). The causing of
excess payments to be made by the employer to the contractor in furtherance of
the bribery and kickback scheme was a "misappropriation" of those funds and it
was irrelevant that those funds went to the contractor and not to the employee.

The plain meaning of "misappropriation" as set forth in the Amida case leads
me with little difficulty to the conclusion that the obtaining of benefits attending
promotion within the MDC by an unlawful scheme to steal and distribute ad-
vance copies of police promotional exams constitutes a "misappropriation." /Ir-
ruda, 28 Mass. App. Ct. 366. Such benefits are "wrongly appropriated and mis-
applied", id. at 369, and, asArrnda establishes, it is simply irrelevant that those
benefits were not themselves appropriated for Clemente's own use. Similarly,
although the question does not appear to have been directly raised in Anvda
whether the funds misappropriated by the employee had been entrusted to his
care, the broad view taken of the term misappropriate in that case clearly encom-
passes wrongly appropriated and misapplied funds without regard to whether
they were funds entrusted to the employee's care. See ante at n. 9 (noting that
misappropriation need not involve peculation).'"

In sum, a criminal enterprise which used stolen police exams to gain the
increased pay or other benefits attending police promotions is in my view an
otTense "involving . . . funds or property" or a "misappropriation" according to
the plain meaning of those terms. My literal reading of those terms, moreover, is
fully consistent with the plain purpose of subsection 15(3). See Board of Educa-
tion V. Assessors of Worcester, 368 Mass. 511,513(1 975 ) (statute to be interpreted
according to the intent of the Legislature ascertained from words of the statute
considered in connection with purposes for which statute was enacted). The
forfeiture of pension rights under subsection 15(3) occurs only "unless and until
full restitution is made." G.L. c. 32, § 15(3). The purpose of subsection 15(3) is
therefore according to its express terms restitutionary. Reading the language of
subsection 15(3) in accordance with its plain meaning to include any crime which
affects the funds of the employee's governmental unit is in keeping with this
purpose since this reading permits restitution for all of a governmental unit's
losses attributable to crimes of its employees.

Accordingly, if Clemente's criminal scheme as alleged in count 1 1 succeeded in
gaining increased pay or other benefits from the MDC for wrongfully promoted
police officers, his conviction on count 1 1 would subject Clemente to the forfei-
ture of his pension benefits pursuant to subsection 15(3). 1 am unable, however,
to determine, based on the facts which you have given me, to what extent the
criminal scheme in fact succeeded in gaining increased pay or benefits from the ,
MDC. Based on a reading of the allegations in count 11 to which Clemente
pleaded guilty, it is plain that Clemente was convicted of participation in a

criminal enterprise which involved the theft of police promotional exams, and the
sale of those exams to persons who were police officers in the MDC. It is equally
plain that the purpose of this enterprise was to bring about the promotion of those
police officers so that they could reap the benefits attending such promotion,
including increased pay and benefits. Count 11, however, contains no allegation
— and hence Clemente's plea imports no admission — that the criminal enter-
prise actually achieved its stated purpose. In other words, there is no allegation in
the indictment that any MDC police officer who obtained an advance copy of the
MDPA promotional exam actually received a promotion and increased pay or
benefits. You have, moreover, provided me with no facts concerning this question.

I therefore cannot answer in any definitive way whether Clemente's pension
may be forfeited. It is, moreover, within the jurisdiction of the Board rather than
the Attorney General to make any factual determinations relating to whether a
particular crime falls within subsection 15(3), and it is, therefore, for the Board to
conduct any further investigation and proceedings which may be necessary to
determine whether and to what extent Clemente's crime in fact involved the
funds of the MDC or otherwise comes within subsection 15(3) {see ante al n.4.)."

I note, however, that the absence in count 1 1 of any allegation that funds of the
MDC were actually affected by Clemente's crime does raise a purely legal ques-
tion which is appropriate for me to address, namely, whether a crime which has as
its purpose a misappropriation of funds but does not require as a requisite of a
conviction that the purpose be achieved is an offense "involving . . . funds or
property" within the meaning of subsection 15(3).

In my view, the plain language of subsection 15(3) requires the answer to be
yes. A criminal enterprise the purpose of which is to misappropriate funds and
which in fact results in such a misappropriation plainly "invoive[s]" those funds
regardless of whether it is alleged in the indictment or required as an element of
the oflFense that the criminal enterprise actually succeed. This conclusion is also
fully consistent with the restitutionary purpose of subsection 15(3). The loss of
funds attributable to a crime is no less real where proof of the loss is not required
for a conviction. The statutory purpose of restoring to a governmental unit losses
caused by the crimes of its employees is best served by reading subsection 15(3)
according to its plain language to include any crime which actually caused a loss
whether or not proof of the loss was a requisite of conviction. Accordingly, should
the Board determine that Clemente has been convicted of such a crime, the
Board should suspend all further pension payments to Clemente unless and until
full restitution is made.

You have asked, as a final matter, what would constitute such "full restitution"
in this case. It should be apparent from the foregoing discussion that your ques-
tion as posed could only be answered in the abstract since I do not know precisely
what losses may have been caused by Clemente's crime and that question can only
be determined through proceedings before the Board. It has been long-
established policy of the Attorney General not to answer abstract questions.
1986/87 Op. Att'y Gen., Rep. A.G., Pub. Doc. No. 12 at 58, 60 (1986). You have
specifically proposed as a measure of restitution the increase in salaries and
benefits realized by officers who obtained promotions as a result of Clemente's
crime. This, in my view, would not be an unreasonable measure of restitution.'- 1
do not however, suggest that this is the only appropriate measure of restitution or
that other compensable losses may not have occurred. I believe that this question

P.D. 12 39

is largely within your province to determine after appropriate proceedings pur-
suant to G.L. c. 32, § 15(2). I recognize that your task in this regard may not bean
easy one because of the unusual nature of the crime and the difficulty in calcu-
lating the losses resulting from it. Cf. United States v. Halper, 109 S. Ct. 1892,
1900- 1902 (1989) (noting difficulty often attending calculation of damages caused
by frauds against the government and sanctioning reasonable approximation as a
means of calculating restitution). For this reason, "the process of affixing a
sanction that compensates the Government for all its costs inevitably involves an
element of rough justice." Id. at 1902. It is my view, therefore, that losses of the
MDC or the State Employee Retirement System (see ante at n. 4) which you can
identify and reasonably approximate and which can be reasonably related to
Clemente's crime would be countable in determining the appropriate amount of
restitution.

To sum up, I conclude that a crime such as Clemente's, the purpose of which
was to obtain promotions for MDC police officers together with the increased pay
and benefits attending such promotions, is a crime involving the funds or property
of the MDC within the meaning of G.L. c. 32, § 15(3), to the extent that the crime
actually achieved its purpose. Whether Clemente's crime actually involved the
funds or property of the MDC or is otherwise covered by subsection 15(3) and the
extent of restitution which would entitle Clemente to the restoration of his
pension rights should the Board revoke them remain to be determined by the
Board in general accordance with the guidance provided in this opinion.

Sincerely yours.

JAMES M. SHANNON
ATTORNEY GENERAL

' The scheme was in part implemented through the use of the United States mails
thereby constituting mail fraud, a "racketeering activity" under the Racketeer Influ-
enced and Corrupt Organizations Act. See 18 U.S.C. § 1961. Count 1 1, after generally
describing the criminal enterprise and alleging the required "pattern" of racketeering
activity, also alleges twelve specific instances of racketeering activity, six of which
involve schemes to promote MDC police officers.

- G.L. c. 32, § 15(3), provides in full as follows:

Forfeiture of Rights upon Conviction. In no event shall any member
after final conviction of an offense involving the funds or property
of a governmental unit or system referred to in subdivision (1) of
this section, be entitled to receive a retirement allowance or a
return of his accumulated total deductions under the provisions of
sections one to twenty-eight inclusive, nor shall any beneficiary be
entitled to receive any benefits under such provisions on account
of such member, unless and until full restitution for any such
misappropriation has been made.

40 t'lJ. 12

^ The governmental unit referred to in subdivision (1) is "any governmental unit in
which or by which [a member] is employed or was employed at the time of his
retirementorterminationof service. 'G.L.c. 32, § 15(1). You inform me that, prior to
his indictment, Clemente was granted an accidental disability retirement allowance,
and I infer from your letter that, at the time of his retirement, he was employed as an
MDC police officer. The MDC is defined as a governmental unit for purposes of the
pension laws. See G.L. c. 32, § 1. defining "governmental unit" to include "the
commonwealth or any political subdivision thereof" and defining "political subdivision"
to include "the metropolitan district commission." It appears, therefore, that the
relevant governmental unit for purposes of subsection 15(3) is in this case the MDC.

"* You have not sought to focus my attention on the additional phrase in subsection
15(3) which imposes a forfeiture of pension rights to the extent that the offense for
which a member is convicted involves the funds or property of a "system referred to in
subdivision (1) of this section." The retirement system referred to in subsection 15(1)
is "any system of which [the person convicted] is a member." In the case of an MDC
employee such as Clemente, that system is, as you know, the State Employees Retire-
ment System. See G.L. c. 32, § 2. Although the remainder of this opinion focu.ses on the
involvement of the funds or property of the relevant "governmental unit," that is, the
MDC, I do not mean to suggest that Clemente's crime may not also have involved the
funds or property of the State Employee's Retirement System. Indeed, count 1 1
specifically states that one of the objectives of the criminal enterprise was to assist
others in realizing "whatever pension benefits would accrue by reason of the appoint-
ment to or promotion within the police department." To the extent that any such
benefits have been paid out of the funds of the State Employee's Retirement System,
they could be considered in calculating restitution. See discussion, infra, at 12-13.

■'' I note for example that portions of count 11 broadly allege that Clemente deprived
the Commonwealth of his own services as an MDC police officer. I do not know what
facts might underlie this allegation or whether the funds or property of the MDC are
implicated. Count 1 1 also refers to instances where test scores were altered in order
to advance the positions of certain police officers. The indictment, however, does not
indicate whether this part of the scheme involved MDC police officers.

*' As this conclusion suggest, I take the funds or property of the MDC to include any
funds appropriated by the Legislature for the use of the MDC or property purchased
with those funds. Since the MDC is an agency of the Commonwealth, it conducts its
activities and meets its payroll not with funds of its own but w ith Commonwealth funds
made available to it from the State treasury by periodic appropriations. See Gallagher
V. Metropolitan District Commission. 371 Mass. 691, 698 ( 1977). See, e.g., G.L. c. 29, §§
9A, 12, 13, 14, 26, 27. For the phrase "funds or property" in section 15 to have any
meaning when the "governmental unit" to which the term applies is the MDC. it must,
therefore, include Commonwealth funds appropriated for the use of the MDC.

' Subsection 15(3) provides that pension rights be forfeited "unless and until full
restitution for any such misappropriation has been made." See ante at n. 2. The term
"such misappropriation" plainly refers to the "offense involving the funds or property."

^ The Court in this case was interpreting the word "misappropriation" as it was used,
not in subsection 15(3), but in subsection 15(1), which provides a method for the

P.D. 12 41

forfeiture of pension rights of those who have been "charged," as opposed to con-
victed, of the misappropriation of funds or property of a governmental unit or retire-
ment system. It can be readily inferred, however, that the Legislature, which enacted
the two subsections simultaneously, see St. 1945, c. 658. § 1, intended the word
"misappropriation" to have the same meaning in both subsections. See Randall's Case,
331 Mass. 383, 386 ( 1954).

" As the Court sets forth in its opinion, at 368, the American Heritage Dictionary 838
(1976) defines "misappropriate" as follows: "l.a. To appropriate wrongly, b. To ap-
propriate dishonestly for one's own use; embezzle. 2. To use for illegal purposes." In
Webster's Third New International Dictionary 1442 (1971), the word is defined as:
"la: to apply to illegal purposes ... b: to appropriate dishonestly for one's own use:
embezzle ... 2: to appropriate wrongly or misapply in use . . . ." The Court also notes,
at 368-369 and n. 4, that a restricted construction of "misappropriate" is specifically
rejected in Black's Law Dictionary 901 (5th ed. 1979), which defines misappropriation
as: "The act of misappropriating or turning to a wrong purpose; wrong appropriation;
a term which does not necessarily mean peculation, although it may mean that . . . ."
"Peculation," the Court notes, is defined in Black's Law Dictionary 1017-1018 (5th ed.
1979) as: "The unlawful appropriation, by a depository of public funds, of the property
of the government intrusted to his care, to his own use, or that of others. The fraud-
ulent misappropriation by one to his own use of money or goods intrusted to his care."

'" I add that while the Black's Law Dictionary definition of "misappropriation" sug-
gests that misappropriation may sometimes mean peculation, that is, misappropria-
tion of entrusted funds, see ante at n. 9. 1 see no basis to infer such a restriction in the
way "misappropriation" is used in section 15. The use of the word "misappropriation"
interchangeably with the extremely broad expression "offense involving . . . funds or
property" strongly suggests that the word "misappropriation" was used in its usual,
broad sense. Moreover, as noted ante at n. 4, the term "misappropriation" in subsec-
tion 15(3) refersnot only toacrime involving the funds of the employee's governmen-
tal unit but also to the retirement system of which the employee is a member. A crime
"involving the funds or property" of an employee's retirement system would virtually
never involve peculation except in the singular circumstance where the convicted retire-
ment system member was also an employee of the retirement system. If "misappropria-
tion" is to have any meaning in this context, then, it must include more than peculation.

" G.L. c. 32, § 15(2) sets forth the procedures for proceedings under section 15, and
specifically provides that the Board itself may initiate such proceedings.

'- I do not, for example, believe it would be necessary for the Board to attempt to
discount the amount of restitution by the value of any increased services improperly
promoted officers may have provided to the MDC as a result of their promotions.
While an improperly promoted MDC police officer may have adequately performed
the duties required of his or her enhanced rank, the officer's promotion as a result of
a criminal enterprise such as the one at issue here severely damages the reputation
and integrity of the MDC. While you might plausibly determine that such damage is
in whole or in part too intangible to quantify for purposes of restitution, the existence
of such damage would militate strongly against requiring you to consider any services
of improperly promoted police officers as a benefit bestowed on the MDC.

P.D. 12

INDEX OF OPINIONS

TOPICS

Conviction

Clarification under Habitual Traffic Offender Law

Design Services

Jurisdiction of Designer Selection Board

Habitual Traffic Offender Law
Clarification of "conviction"

Hospitals

Reporting requirements of physician leave of absence

Initiative and Referendum

Sexual orientation as subject of referendum

Motor Vehicles

Clarification of "conviction" under Habitual Traffic
Offender Law

"Parcel T

Jurisdiction of Designer Selection Board

Pension

Forfeiture of rights after conviction

Physicians and Surgeons

Reporting requirements of physician leave of absence

Retirement

Forfeiture of rights after conviction

Sexual orientation

Subject of referendum

Testimonial Dinner

Solicitation of money for campaign event

OPINION PAGE

INDEX OF REQUESTING AGENCIES

AGENCY

Consumer Affairs and Business Regulation, Executive Office of

District Attorney, Norfolk County

Medicine. Board of Registration

Motor Vehicle Liability Policies and Bonds, Board of Appeal

Secretary of State

Transportation and Construction, Executive Office of

Treasurer and Receiver-General

OPINION PAGE

1,5

9,31