Public Document
No. 12
(Et|t (Eonuniiniuealtli of illlaBJBaci|U£ettB
REPORT
OF THE
ATTORNEY GENERAL
FOR THE
Year Ending June 30. 1991
Ref
MR
340M3
R467
1991
C.I
^cc^cU^^^^■
n
To the Honorable Senate and House of Representatives:
Ihave thehonorto transmit herewith the Report of the Department
of the Attorney General for the fiscal year ending June 30, 1991
Respectfully Submitted
SCOTT HARSHBARGER
Attorney General
pf^ - -S"0 ^ 3
Publication No. 17294 - 107 - 1500 - 2/93 - 2.31 C.R.
Approved by: Philmore Anderson III, State Purchasing Agent
P.D. 12
OFFICE OF THE ATTORNEY GENERAL
ATTORNEY GENERAL
SCOTT HARSHBARGER
First Assistant Attorney General
John T. Montgomery
CHIEF OF STAFF
Donald L. Davenport
Assistant Attorneys General:
Richard Allen
Thomas Alpert
Cynthia Amara 4
Dorothy Anderson
Linda Andros 52
Barbara Anthony 12
Frederick Augenstem
Thomas Barnico
Judith Beals
Steven Berenson 5
William Berman 24
Patricia Bernstein
Ann Berwick 21
Despena Billings 50
Edward Bohlen
Mark Bourbeau
Ruth Bourquin
Howard Brick 26
Matthew Brock
Maureen Brodoff 79
Richard Brunell 76
James Bryant 28
David Burns 12
Andrea Cabral 31
Susan Carnduff 12
Eric Carriker
James Caruso. Jr.
R. Michael Cassidy
Apollo Catala 71
Ellen Caulo 13
Karen Cheeks-Lomax 77
John Ciardi 12
Eleanor Coe 31
Richard Cole 15
Stephen Colman 71
Mary Connaghton
Kevin Connelly 9
Peter Coppinger 3 1
Pierce Cray 15
Kevan Cunningham 70
Maurice Cunningham 19
William Daggett 25
Richard Dalton 51
Alice Daniel 70
Leslie Davies
Edward DeAngelo 14
George Dean
Paula DeGiacomo
IanDeWaal51
Carol Dietz
Daniel Dilorati 71
Lawrence Donnelly
Raymond Dougan 68
Juliane Dow 6
Mary Beth Downing
Edgar Dworksy 24
Deborah Ecker 9
Stanley Eichner
Judith Fabricant
Joy Fallon 19
Jennifer Ferreira 9
Allan Fierce 81
George Fisher 16
Freda Fishman 29
Gerald Fitzgerald 71
Lawrence Fletcher-Hill 57
Stacy Fortes 32
Patrick Gable 72
Rosemary Gale 25
Carl Giesy
Dwight Golann 12
William Gottlieb
William Green 71
Leslie Greer
Daniel Halston 30
Sydney Hanlon 61
Natalie Hardy
Nancy Harper
Jon Hartmere 71
Tobin Harvey 70
Ladonna Hatton 12
Sandra Hautanen 76
Martin Healy
Lisa Heinserling
James Highham 75
Virginia Hoefling
David Hofstetter
Philip Holmes 31
Pamela Hunt 12
Tung Huynh 59
David Jackson
Marcia Jackson 14
Cheryl Jacques 12
Stephen Jonas 70
Edmund Joyal. Jr. 56
Diane Juliar 12
Michele Kaczynski
John Karagounis 71
Gerald Kelly
Michael Kogut 29
Marek Laas
Raymond Lamb 53
Pablo Landrau
Jon Laramore
Luis Lavin 3
William Lee 12
Judy Levenson
Beth Levi 6
Martin Levin 20
Lisa Levy 76
David Li 57
Stephen Limon 12
Timothy Linnehan 62
Diane Lund 14
Melanie Macaronis 71
Margaret Malek 10
Michael Marks 79
Michael Mascis 62
William Matlak
Suzanne Matthews 58
Lawrence McCarthy 71
Karen McGuire 8
Susan McHugh
Paul McLaughlin 17
Mary McLaughlin 28
William McVey
Elizabeth Medvedo'v 22
Gary Mena 71
James MilKey
Daniel Mitchell 9
William Mitchell 9
William Mitchell
Eric Mogilnicki 7!
John Montgomery 12
Kathleen Moore 71
Sarah Morison
Susan Motika 23
Patrick Moynihan 72
Mark Muldoon
Timothy Mullen
Alexander Nappan 13
Jerrold Oppenheim
Donna Palermino
Howard Palmer
William Pardee
Margaret Parks 12
Nadine Pelligrini 74
Anthony Penski
Mary Phillips
Carmen Picknallv. Jr.
Jill Plancher 80
Stephen Poitrast
William Porter 2
Ann Powers
Jane Rabe 82
T. David Raftery
Edward Rapacki 12
Robert Ritchie
Deirdre Robbins
Susan Roberts 67
Carmen Rodriguez 71
Abbe Ross
Hilary Rowen
Malcolm Russell-Einhorn 55
Linda Sable 24
Peter Sacks
Judith Saltzman
Thomas Samoluk 24
Ernest Sarason. Jr.
Richard Savignano
Mark Schmidt 71
Pasqua Scibelli
Arlie Scott
Michael Sentance 69
Robert Sikellis 6
Natalea Skvir 71
Myles Slosberg 23
Eric Smith 17
Joanne Smith 6
Mark Smith
Donna Sorgi 75
Joanna Soris
Amy Spector 27
Marie St. Fleur 14
Paul Stein 80
Edmund Sullivan 1
P.D.12
Walter Sullivan 12
Michael Sullivan 18
Mark Sutliff
Evelynne Swagerty
James Sweeney
Pamela Talbot
Jane Tewksburv 12
Robert Thoutte 18
Edward Toro
John Traficonte 60
Frances Tucker 71
Gwendolyn Tyre
Margaret Van Deusen 10
John Van Lonkhuvzen 24
Susan Wall 76
George Weber
James Whitcomb 29
James White. Jr. 65
Douglas Wilkins
Countess Williams 54
Steven Wright 78
Andrew Zaikis
Margaret Zaleski 63
Judith Zeprun 67
Peter Zuk 71
Samuel Zurier 54
Assistant Attorneys General Assigned To
Division of Employment Security:
Brian Burke 12
Maria Galvagna
Mic
haelCullen 11
Kathleen Pendergasi
t53
Johi
ri Drewry 57
Neal Steingold 66
William Luzier 71
APPOINTMENT DATE TERMINATION DATE
1.
07/23/90
50.
07/13/90
2.
08/13/90
51.
07/27/90
3.
08/20/90
52
08/08/90
4.
08/27/90
53.
08/10/90
5.
09/04/90
54.
08/17/90
6.
09/10/90
55.
08/23/90
7.
09/11/90
56.
08/24/90
8.
10/01/90
57.
08/28/90
9.
11/05/90
58.
09/11/90
10.
11/19/90
59.
09/20/90
11.
12/03/90
60.
09/21/90
12.
01/17/91
61.
09/28/90
13.
01/22/91
62.
10/26/90
14.
02/04/91
63.
11/13/90
15.
02/11/91
64.
11/14/90
16.
02/13/91
65.
11/30/90
17.
02/19/91
66.
12/21/90
18.
02/25/91
67.
01/01/91
19.
03/11/91
68.
01/02/91
20.
03/18/91
69.
01/03/91
21.
03/19/91
70.
01/15/91
22.
03/20/91
71.
01/16/91
23.
03/25/91
72.
01/29/91
24.
04/01/91
73.
02/11/91
25.
04/08/91
74.
02/19/91
26.
04/10/91
75.
02/21/91
27.
04/24/91
76.
03/01/91
28.
05/01/91
77.
03/15/91
29.
05/06/91
78.
03/29/91
30.
05/09/91
79.
05/01/91
31.
06/03/91
80.
05/22/91
32.
06/10/91
81.
06/25/91
82.
06/28/91
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P.D. 12 15
CIVIL BUREAU
Under Attorney General Harshbarger's administration the Civil Bureau
was combined with the Government Bureau on July 1, 1991. The Bureaus
were combined to provide consistent, professional and effective defense of
the Governor. Legislature, state agencies, and state employees within the
limited resources provided the Attorney General's Office. This annual
report represents the activities for the Civil Bureau prior to this
reorganization.
CONTRACTS DIVISION
The Contracts Division assists the Attorney General in carrying out his
statutory and traditional duties in the broad area of the Commonwealth's
contractual relationships of all descriptions. In that role, the Contracts
Division has primary responsibility in three areas: litigation in which the
Commonwealth is a party involving contract issues; advice and counsel to
state agencies concerning contract matters; and review of certain other con-
tracts for approval as to form.
A. LITIGATION
The Contracts Division represents the Commonwealth, its agencies and
officers in all civil actions involving contract and contract-related disputes.
This includes claims made against the Commonwealth as well as affirma-
tive claims inifiated by the Commonwealth. In contract actions against the
Commonwealth. M.G.L. c. 258. section 12 is the controlling statute and the
Attorney General represents the Commonwealth in the Superior Court in
all such disputes. A majority of the cases being handled by the Division
concern public building, state highway and public works construction dis-
putes. Other representative matters involve claims arising from the inter-
pretation of employment contracts, leases, statutes, rules, regulations and
surety bonds.
Construction contract disputes generally fall into two separate categories.
The first category is bid protests, in which bidders for a subcontract or
general contract dispute the results of the competitive bid prior to the award
of the contract. The second category involves claims for extra work or
additional compensation under a construction contract due to delays in the
construction process, differing site conditions and the like.
In bid disputes, protesting parties often seek temporary restraining orders
or preliminary injunctions in the Superior Court to delay the commence-
ment of construction until the bid dispute is resolved. The Attorney General
vigorously opposes such delays which have the potential for tremendous
excess costs to the public. During the fiscal year. Division attorneys suc-
cessfully resisted all such efforts.
Government contract disputes are complex liUgation involving multiple
parties, including architects, consulting engineers, subcontractors, sup-
pliers and sureties. Actual trials of these matters typically involve lengthy
hearings
16 P.D. 12
before the Court or Court appointed Masters. As a result, the Contracts
Division has initiated alternative dispute resolution processes which pro-
vide a simplified, expedited substitute for formal litigation. Such alternative
dispute resolution processes have better protected state agencies, saved tax-
payer dollars and provide prompt and fair resolution of disputes for those
doing business with the Commonwealth.
The Contract Division advises the Attorney General in matters referred
for litigation from the Department of Labor and Industries to enforce
orders made by that agency under its authorizing legislation in architect
selection and bid protest matters. Likewise, the Contracts Division advises
the Attorney General in matters referred for litigation from the Inspector
General, as the Attorney General is the sole agency authorized by law to
accept referrals from the office of Inspector General for civil action to red-
ress instances of waste, fraud and abuse in government contracts. In both
cases, the Contracts Division generally appears as counsel in any
litigation commenced.
Under the supervision of the Attorney General, the Contracts Division
continues to plan for resolution of disputes arising out of the Five Billion
Dollar Central Artery and Third Harbor Tunnel Project. This has included
consultation with the Executive Office of Transportation and Construction,
the Department of Public Works and other interested agencies.
Forty-one (41) new actions were commenced during the fiscal year and
forty-eight (48) files were closed. Of the forty-eight (48) cases that were
closed, the Commonwealth recovered one million one-hundred thirty-six
thousand dollars ($1,136,000) in affirmative litigation and realized a savings
of one million eight-hundred sixty-five thousand dollars ($1,865,000) in
defensive litigation.
As of June 30, 1991, there were approximately two-hundred two (202)
cases pending in the Division, representing a total dollar exposure to the
Commonwealth of approximately one-hundred million dollars ($100,000,-
000.) The Division is also postured to handle substantial affirmative con-
tract litigation, where appropriate.
B. ADVICE AND COUNSEL TO STATE AGENCIES
The Division advises state agencies and officials with regard to contract
matters on a daily basis. Such problems involve formation of contracts, per-
formance, bidding procedures, bid protests, contract contents, contract
interpretation and other miscellaneous matters. The most frequent requests
received during the fiscal year concerned indemnification clauses in con-
tracts, procedural matters in employment contracts and advice in advance
of anticipated construction contract litigation.
The Contracts Division also receives requests for advice and assistance
from the Department of Public Works, Metropolitan District Commission,
Secretary, of Transportation, Board of Regents of Higher Education,
Mental Health, Mental Retardation, Environmental Managment, Water
Resources, State Lottery Commission, Public Welfare and Division of
Capital Planning and Operations.
P.D. 12 17
C. CONTRACT REVIEW
The Division reviews many state contracts, leases and bonds submitted
by state agencies. All contracts are logged in and out and a detailed status
record is maintained. The average contract is approved within one week of
its submission to the Division. During the t"iscal year, the Division received
for approval as to form a total of 389 contracts. 80 contracts were rejected
and later approved after consultation with the agency involved to attend to
matters of contract form.
The Division and the Comptrollers Office met to coordinate and
establish a uniform contract form for all 03 service contracts with
the Commonwealth. Agency use of these new forms has resulted in
substantially fewer rejections.
INDUSTRIAL ACCIDENT DIVISION
There were 15.695 First Reports of Injury filed during fiscal year 1991 for
state employees with the Division of Industrial Accidents. Of the lost fime
disability cases, the Division reviewed and approved 3.015 new claims for
compensation and numerous claims foj resumption of compensation. In
addition, the Division disposed of 142 claims by way of lump sum
agreements and 209 by payment without prejudice.
The Division appeared for the Commonwealth on 1.782 formal
assignments before the Department of Industrial Accidents. The Division
also appeared before the Superior Court concerning enforcement of orders
pursuant to M.G.L. c. 152 § 12(1). and before the Appeals Court on appeals
from decisions of Industrial Accident Review Board pursuant to M.G.L. c.
152 § 12(2). The Division also is responsible for defending the Common-
wealth in "line of duty" and "assault pay" cases pursuant to G.L.C. 92 § 63B
and G.L.C. 30 §58. In addition to evaluafing new cases, the Divsion con-
tinually reviews the accepted cases to bring the medical reports up to date
and to determine present eligibility for compensation.
Total disbursements by the Commonwealth for state employee's
Industrial Accidents claims, including accepted cases. Board and Court
decisions and lump sum settlements, between July 1. 1990 to June 30. 1991
are as follows:
General Appropriation to Division of
Industrial Accidents
Incapacity Compensation $48,306,687.13
Medical Payments 1 1 .48^,07 1 .42
Attorney Fees 1.277.173.13
Penalties 57.603.32
Total Disbursement $61,150,536.00
The Division is also responsible for pursuing the Commonwealth's sub-
rogation claims. Pursuant to M.G.L. c. 152 § 15. the Division is endtled to
seek recovery from third party tort-feasors. The recovery under § 15
18 P.D. 12
includes compensation and medical bills paid to a claimant, as a result of a
third party's negligence.
Under chapter 152 §65, the Division has the responsibility of defending
the Workers Compensation Trust Fund against claims for reimbursement
made under chapter 1 52 § § 37 and 37A. The Workers Compensation Trust
Fund and related sections encourage employment of handicapped and
disabled workers. The Fund relieves the insurer from the burden of paying
compensation for an employee's disability due to the combined effect of a
previous injury and one received later.
Pursuant to G.L. c. 33, §§13-11A, the Chief of Industrial Accident
Division represents the Attorney General on the Civil Defense Claims
Board. The Claims Board reviews and processes claims for compensation
of unpaid civil volunteers who were injured in the course of their
volunteer duties.
During the last fiscal year, the Division, in conjunction with the Criminal
Bureau, has begun to aggressively identify and investigate suspected cases
of fraud by state workers in connection with their workers' compensation
claims. This is a coordinated effort to eliminate abuse within the workers
compensation system.
REAL ESTATE DIVISION
The Real Estate Division represents the Commonwealth and its agencies
on a variety of matters involving real property interests of the
Commonwealth. The vast majority of these involve defense of petitions for
the assessment of damages resulting from land acquisition by the
Commonwealth, by eminent domain, pursuant to G.L. c. 79. The Common-
wealth's agencies acquire land for a variety of purposes, including rights of
way for highway roads, land for state colleges, land for recreation and park
purposes, landfills, agricultural and conservation restrictions and
easements. The Division deals primarily with the Department of Public
Works, the Metropolitan District Commission, the Department of Environ-
mental Management, Department of Environmental Protection, the
Department of Food and Agriculture, the Department of Fisheries &
Wildlife and Environmental Law Enforcement and the Division of Capital
Planning and Operations.
Additionally, the Division is sometimes asked to testify before the
Governor's Council prior to its approving payment of land damage cases
settled by the Department of the Attorney General.
Informal advisory services on eminent domain and other property
related questions are rendered to practically every state agency, city and
town and county.
Chapter 79 of the General Laws prescribes the procedure in eminent
domain cases. Under Chapter 79, when property is taken, the taking agency
makes an offer to the owner based on its determination of the fair and
reasonable damages for the taking. The owner has the right to accept this
award as a "pro tanto", only, reserving the right to a jury trial in the Superior
Court on the proper amount. If the verdict is higher than the "pro tanto",
then the pro tanto amount is subtracted from the verdict, and the taking
P.D. 12 19
agency pays the balance, with 10% interest from the date of the taking to the
date of the judgment.
If occupied buildings are situated on parcels acquired by eminent
domain, the occupants become tenants of the Commonwealth and are
obligated to pay rent. Rent collection of D.P.W. cases is handled by
a Special Assistant Attorney General who is assigned fulltime to the
Department of Public Works (DPW).
Sixty-one (61) land damages cases were disposed of. twenty (20) by trial
before juries in Superior Courts throughout the Commonwealth and forty
(40) by settlements and two (2) dismissals. The disposition of these cases
resulted in a savings to the Commonwealth of approximately $13,500,000.00.
The Real Estate Division also has the responsibility of protecting the
Commonwealth's interest in all petitions for registration of land filed in the
Land Court. During the past fiscal year, more than 277 registration cases
implicating Commonwealth rights were disposed of in the Land Court.
The Commonwealth has become involved in problems caused by filling
and dredging along the shoreline and other areas developed by beach
associadons. especially on the Cape and Islands. When dredging involves
placing material on the shore, private access rights to and from the beaches
are altered.
Many rental agreements, pro tanto releases, general releases, deeds,
taking orders, and their conveyance documents relating to transfers from or
to any of the state's departments or agencies must be reviewed and approved
as to form by the Real Estate Division.
During the past fiscal year, several new cases involving takings for the
Central Artery/Third Harbor Tunnel Project have been brought. In May.
the Division settled the first of these cases, involving the former Rapid
Service Press Building (owned by the Pine Street Inn), at the intersection of
the Central Artery and West Broadway Street Bridge in South Boston.
Additional cases are expected as the project progresses.
At the end of the fiscal year, the Division had pending over 250 land
damage cases, involving exposure to the Commonwealth in potential
liability of over $194,000,000.00.
TORTS DIVISION
The Torts Division defends tort and civil rights cases brought against the
Commonwealth and its employees. Most of these cases arise under the
Massachusetts Torts Claims Act M.G.L., C. 258, and federal and state civil
rights statutes.
As the result of an increasing number of cases which are being brought
against the Commonwealth as well as staff reductions and turnover over the
past two years, in January 1991 the Torts Division consisted of five trial
attorneys with responsibility for over 1800 cases, the Attorney General
immediately commenced a program to hire additional attorneys and to
evaluate the open case files. In May 1991 the Attorney General requested
and obtained from the Chief Jusdce of the Superior Court a 60-day stay of
judicial proceedings in all of the Division's cases in order to complete the
case review and to prepare active cases for trial. By the end of fiscal year
20 P.D. 12
1991. the Division had approximately 1000 open cases and a staff of 11
attorneys.
CRrMINAL BUREAU
The Criminal Bureau is comprised of eight divisions: Public Integrity.
Narcotics. Division of Employment Security. Criminal Investigations.
Medicaid Fraud Control Unit. Environmental Strike Force. Special
Prosecutions AVhite Collar Crime, and the Special Investigations Unit.
During the 1991 fiscal year, the bureau prosecuted a wide variety of cases
developed by its own investigations division, as well as those referred by
other government agencies or the district attorney's.
NARCOTICS DIVISION
In the fiscal year ending July, 1991. the Narcotics Division successfully
prosecuted and convicted large-scale drug traffickers in Middlesex. Suffolk.
Norfolk. Worcester and Barnstable counfies. most of whom are currently
serving minimum/mandatory sentences in state prison. Although the
majority of these cases involved charges of cocaine trafficking or marijuana
smuggling, the division recently has witnessed a dramatic rise in cases
involving the importation and distribufion of other dangerous drugs such
as heroin and PCP.
In addition to violations of the Controlled Substances Act. the Narcotics
Division of the Criminal Bureau recently has expanded its focus to encom-
pass investigations of other forms of organized criminal activity, including
arson, gaming, loan sharking, receiving stolen property ("fencing") and
prostitution.
The eight Massachusetts State Police officers assigned to this division
concentrate their investigations on organized and disciplined criminal
enterprises whose activites span county lines, and therefore may exceed the
reach of local law enforcement authorities. State Police officers assigned to
the Attorney General's Narcotics Division frequently work in cooperafion
with local police departments and with law enforcement officers assigned to
the offices of the eleven District Attorneys.
Most of the Criminal Bureau's 42 Assistant Attorneys General handle a
caseload which includes prosecufions in the Narcofics and Organized
Crime area. These cases are supervised by an Assistant Attorney General,
and Chief of the Division who oversees both investigations and
pending prosecutions.
Members of this division frequently handle criminal cases which are
referred to the Attorney General by local District Attorneys due to potential
confiicts. For example, last year the Narcofics Division prosecuted two
Boston Police Dmg Control Unit officers. Carlos Luna and Hugo Amate.
on perjury charges stemming from their false tesfimony in a homicide case
involving the death of their partner.
With the passage in January. 1990 of a new Narcofics Forfeiture law. G.L.
c. 94C. §47. the Department of the Attorney General has expanded its
P.D. 12 21
efforts to eliminate the profit motive for narcotics trafficking by seizing the
traceable assets of drug dealers. In January. 1991 the Attorney General
added two full time Assistant Attorneys General to his Narcotics Division
to handle exclusively civil forfeiture proceedings, with the assistance of a
full fime financial investigator. Since January. 1991 this new Asset Forfei-
ture Unit has successfully forfeited over four motor vehicles, one aircraft,
and over $150,000 in cash. Forfeiture proceedings are underway for another
$200,000 in cash and six pieces of real property. Members of the Asset For-
feiture Unit provide assistance and training to law enforcement officers and
prosecutors throughout the state on legal issues relating to the seizure and
forfeiture of assets derived from criminal acfivity.
SPECIAL PROSECUTIONS/WHITE COLLAR
The Division investigates and prosecutes all categories of white collar
offenses and economic crimes. Included among these are frauds affecting
financial insfitufions. embezzlements and larcenies from individuals,
businesses or other enfities. securifies violations, tax offenses, and schemes
to defraud public agencies, charifies and consumers. Beginning in 1991 an
Assistant Attorney General was assigned full time to work with inves-
tigators at the Insurance Fraud Bureau developing criminal prosecutions of
fraudulent insurance claims, especially those relafing to automobile
accidents. An overall initiafive by the Attorney General calls for greater
interacfion between bureaus within the office and has resulted in the divi-
sion working closely with the Public Protection Bureau on civil fraud
referrals for which the scheme crosses the line into criminal violations.
While all manner of economic crimes are priorities within the division,
important attention is paid to the cases in which particularly vimerable
vicdms are targeted by white collar criminals.
The typical case handled within the Division is a complex economic
crime that requires extensive investigative work and often long-term use of
the grand jury. Financial investigators assigned to the office work closely
with the division's attorneys to fomulate invesdgative strategies, identify
and interview witnesses, accumulate documentary evidence and analyze
the large volume of information and data that characterize cases prosecuted
by the division. In this vein, great emphasis is placed on working with
department and agencies of the Commonwealth in joint investigations. A
top priority is prosecudng offenses in which the Commonwealth itself is vic-
timized. Other joint efforts include offenses such as securities violations,
which fall within the investigative purview of the Secretary of State's
Securities Division, and tax offenses investigated by the Department of
Revenue. Cooperative invesdgafions are also handled with the State
Auditor, the Federal Deposit Insurance Cooperation, the Banking commis-
sion, as well as other state, local and federal agencies.
SPECIAL INVESTIGATIONS UNIT
The Special Invesdgadons Unit (SIU) is a newly formed unit within the
22 P.D. 12
Criminal Bureau. SIU consists of prosecutors, police officers, financial
investigators and other professionals assigned to develop, investigate and
prosecute complex criminal enterprises. By grouping lawyers, investigators
and other specialists in a team approach to designated cases, the unit is able
to focus and coordinate the collective skills of those professionals on com-
plex or protracted criminal investigations.
In addition to staffing the unit, the focus over the past several months has
involved the investigation and prosecution of a major organized crime
syndicate.
PUBLIC INTEGRITY UNIT
Fiscal year 1991 reflected continued progress in the Attorney General's
efforts to investigate and prosecute crimes involving public corruption.
The Public Integrity Division has indicted several individuals for a broad
array of offenses, including conflict of interest, bribery, larceny, tax evasion,
forgery, perjury, violation of civil service laws, filing false claims with the
Commonwealth and conspiracy.
The division works closely with representatives of other state investiga-
tive agencies including the Inspector General's office, the State Ethics Com-
mission, the Department of Revenue, the Office of Campaign and Political
Finance and the office of State Auditor. Over the course of the year, the
Division has expanded its efforts to coordinate investigative resources. In
particular, an employee of the Executive Office of Communities and
Development was indicted for embezzling funds intended for a non-profit
community service program. The indictment was the product of a joint
effort by the Public Integrity Division of the State Auditor's office. In addi-
tion, the division maintains working relationships with federal, county and
local law enforcement.
Since January. 1991 . the Division has been restructured in order to utilize
assistant attorneys general from throughout the entire Criminal Bureau. It
also has the resources of the Massachusetts State Police and financial inves-
tigators available to assist in its investigations.
The focus of the cases prosecuted in the past year has been in two areas:
on officials and employees of. state, county and municipal government who
have benefitted unlawfully from their positions or who have acted in con-
flict of interest, and on those vendors conducting business with government
agencies and who have acted fraudulently in connection with those
transactions.
The variety of charges brought in fiscal year 1991 further underscores the
efforts being made to successfully prosecute public corruption offenses.
ENVIRONMENTAL CRIMES STRIKE FORCE
The Massachusetts Environmental Strike Force is a relatively unique
enforcement tool used in the investigation and prosecution of the Com-
monwealth's environmental enfocement efforts. Through the cooperation
of the Attornev General, the Secretarv of Environmental Affairs, the
P.D. 12 23
Department of Environmental Protection, the Department of Fisheries,
Wildlife, and Environmental Law Enforcement, and the Metropolitan Dis-
trict Commission, the ESF brings attorney, technical, and police resources
under a single umbrella. The ESF thus provides the legal, scientific, and
investigative expertise necessaiy to identify environmental violations,
evaluate their impact on the public health, safety, and the environment, and
develop the evidence necessary to assess responsibility.
In 1991. the Attorney General devoted legal resources to this effort
unprecedented in the history of the Commonwealth. Three prosecutors
from the Criminal Bureau have been dedicated full-time to Strike Force
efforts. In addition, nine Environmental and Metropolitan police officers
have been stationed in the Criminal Bureau, forming a unitary ESF police
force. Finally, an increased emphasis on civil enforcement has resulted in
increased resources from the Attorney General's Environmental Protection
Division being devoted to ESF cases.
This increase in both resources and inter-departmental coordination
reflects the new ESF philosophy to aggressively enforce the environmental
law across the board. Not only will effort be spent on pursuit of large cor-
porate offenders, but also on those smaller offenders who, taken together,
pose a significant threat to both the public health and environment. The
Attorney General is also committed to expanding the "strike force concept"
through closer coordination with all federal, state, and local agencies with
responsibility for some aspect of environmental protection.
Criminal convictions were obtained in two significant prosecutions in
the first half of 1991. One, brought jointly with the U.S. Attorneys office,
resulted in a four month federal sentence, and $125,000 corporate fine, for
illegal discharge of asbestos laden water into the Charies River. The other,
involving illegal alteration of a wetland, resulted in a thirty day suspended
sentence and $42,000 fine.
CRIMINAL INVESTIGATION DIVISION
The Criminal Investigafion Division as a subdivision of the Criminal
Bureau was formed when Scott Harshbarger was sworn as Attorney
General. The basic management concept giving rise to it's rebirth after four
years is the principle of Unity of Command. It's existence provides for direct
lines of communicafion, and facilitates control on investigations by
experienced supervisors and accordingly fosters awareness of the principle
of responsibility. This enables management to ascertain accountability for
each assigned investigation. Also, the fact that the Criminal Investigation
Division is now an easily recognizable enrity more easily establishes it as
the central repository for reports of investigafions.
At present the Criminal Investigation Division is subdivided into the
Investigative Unit and the Narcotics and organized Crime Unit. These units
are staffed by officers of the State Police, civilian investigators. Environ-
mental police. Metropolitan Police and Boston Police. The Division's
duties vary from simply receiving and filing complaints regarding criminal
activity which are now computerized and cross referenced to electronic sur-
veillance of organized crime figures. Attorney General Harshbarger has
24
P.D. 12
mandated that the Division's actions would have an affect on urban
violence through the investigations of organized narcotic trafficking and
the coordination of state and local police in multi-jurisdictional matters.
Lastly, the Division acts in a supervisory/advisory capacity over the
investigative umts of the Medicaid Fraud Control Unit and the Division of
Employment and Training Unit.
DIVISION OF EMPLOYMENT AND TRAINING
The Employment and Training Division in the Criminal Bureau pro-
vides the Department of Employment and Training (D.E.T.) with legal
assistance and representation necessary to enforce the Massachusetts
employment law. The Division manages appellate matters arising from
decisions granting or denying employment compensation benefits to
individual claimants.
The Division prosecutes employers who fail to comply with the law that
requires then to pay a quarterly contribution to the Unemployment
Compensation Fund as well as prosecute the individuals who collect
unemployment benefits while gainfully employed and earning wages or
who otherwise collected benefits when it was apparent that they were
ineligible. t-t- •
The Division also represents the Commissioner of D.E.T. in cases
brought against him and also on his behalf
On July 1 , 1 990, the Division's active case load was 1 J76. During the fiscal
year 3 16 new cases were referred to the Division for prosecution. In the same
time frame 138 convictions were obtained and 252 additional cases were
closed because the courts were satisfied that all debt owed the Common-
wealth was paid because of the Division's effort.
Several individuals who were convicted received incarceration. One
individual who collected over $10,000 in unemployment benefits on two
false claims was sentenced to two years in the house of correction.
The Division collected a total of $726,158.18 owed the Commonwealth
from employers and employees.
The present active caseload of the Division is broken down as
follows:
There are 750 employee fraud cases. 1.014 employer contnbution cases. 7
cases in which D.E.T. is suing or being sued and 9 active appeals. In the last
year seven additional appeals were argued and closed.
This high volume of cases is handled by the division chief three A.A.G's,
and three support staff
MEDICAID FRAUD CONTROL UNIT
1. INTRODUCTION
The Massachusetts Medicaid Fraud Control Unit (MFCU) was
established in 1978 as a result of federal legislation authorizing individual
states to investigate and prosecute waste, fraud and abuse within the
Medicaid Program. The Massachusetts Unit has been certified annually
P.D. 12 25
since that time and receives 75% of its operating budget from the federal
government. The total MFCU budget for fiscal 1991 was approximately $1.3
million.
Congress continues to fund the Massachusetts Unit because of its com-
mitment to prosecute providers who abuse the system and take advantage of
those most vulnerable - the poor and elderly who depend on Medicaid for
health care. During the previous 12 months the Massachusetts Medicaid
Program administered nearly $3 billion for over 500.000 recipients.
The focus of this Unit continues to be the investigation and criminal
prosecution of health care providers who defraud the Commonwealth's
Medicaid Program or who abuse and neglect patients. Investigating and
prosecuting Medicaid provider fraud is a major responsibility in
Massachusetts, as the state Medicaid program is the largest line item in the
state budget. The Massachusetts medicaid budget ranked sixth largest in
the nation in federal fiscal year 1991.
MFCU has undergone substantial restructuring in fiscal 1991. A new-
director was appointed by the Attorney General in May. A newly appointed
Director of Investigations and Deputy Director have likewise assumed their
duties. The Unit continues to be evaluated with a vision towards health care
fraud in the 1990's. Two new prosecutors will be added and a Western
Regional office is being formed.
The providers who comprise the Commonwealth's Medicaid Program
are a diverse group. Those who receive reimbursement for medical goods
and services range from institutions such as nursing homes and hospitals to
individual health pratitioners such as physicians, psychiatrists, dentists,
pharmacists, and psychologists. Also participating are outpatient clinics
and home health agencies, ambulance and other transportation com-
panies, laboratories and suppliers of durable medical equipment.
Ownership of health care providers range from large multistate
corporations to small family proprietorships and individual professional
corporations.
II. FISCAL 1991 PROSECUTIONS AND RECOVERIES
During the period of July 1. 1990 to June 30. 1991. 89 cases were opened for
investigation and possible criminal prosecution. Of those. MFCU suc-
cessfully achieved three (3) corporate convictions and ten (10) individual
convictions. Criminally, a total of $163,557 was recovered in restitution,
fines and damages. MFCU civil recoveries amounted to $1,649,608.
Recovery of overpayments accounted for $1,068,888. Recovery of improper
placement of personal needs accounts (PNA) at long term care facilities
accounted for more than $220,000. while the remainder consisted of civil
damages and penaldes.
III. PATIENT ABUSE REFERRALS AND PROSECUTION
MFCU is also charged with the responsibility of investigafing and pro-
secuting patient abuse in Massachusetts long term care facilities. Abuse
consists of physical, emotional and financial as well as neglect of our
elderly population. During fiscal 1991 over 275 matters were referred to
26 P.D. 12
MFCU. Of those, thirty-seven (37) resulted in criminal investigations. Three
(3) have resulted in convictions and nine (9) are awaiting trial.
The Attorney General's office continues to evaluate the Medicaid Unit to
be more responsive to abuse in this area. A consistent interdisciplinary
approach with the Consumer Protection Division is a major initiative
begun in fiscal 1991 to address institutional abuse of the elderly.
IV. SUMMARY CHART (Fiscal 1991)
CRIMINAL ACTIVITY
A. INDICTMENTS - 12
B. CONVICTIONS — 7
C. RECOVERIES - $163,557
CIVIL ACTIVITY
A. INDIVIDUAL RECOVERIES — 35
B. OVERPAYMENTS RECOVERED - $1,068,888
C. PNA RECOVERIES — $ 223.843
D. CIVIL DAMAGES ASSESSED - $ 149.068
E. OTHER PENALTIES ASSESSED - $ 207,809
TOTAL CIVIL RECOVERY - $ 207.809
Criminal Appellate Division
There were 250 (two hundred and fifty) cases pending in the division at
the conclusion of fiscal year 1991. These cases predominantly involved the
defense of federal habeas corpus petitions attacking state criminal convic-
tions and appeals therefrom, appeal from narcotics unit prosecutions and
the defense of state correctional authorities and other state officials and
judges sued in the course of their official duties. The number of new cases
handled by the Criminal Appellate Division was 161 (one hundred and
sixty-one).
The division prevailed in the two oppositions to certiorari filed in the
United States Supreme Court. In Carlos Luna v. Commonwealth the
Commonwealth successfully argued against the claim by a police officer
under indictment for perjury who claimed he had been coerced into waiv-
ing his Fifth Amendment right against self-incrimination when he testified
at a pre-trial hearing.
In the United States Court of Appeals for the First Circuit. 17 briefs were
submitted and 12 cases were argued. Among the cases in which the division
prevailed was Pearson v. Fair, in which the First Circuit held the implemen-
tation of the sequestration policies at the Treatment Center did not violate
the 1974 Kins v. Greenblatt consent decrees. It reversed the $69,000 attor-
P.D. 12 27
neys fees award to plaintiffs' counsel and remanded the matter to the district
court. The division also prevailed in Mahoney v. Vondergritt in which the
First Circuit ruled that as a matter of federal constitutional law. postverdict
inquiries of the jurors after a criminal trial, need only be evaluated under
Fourteenth Amendment due process principles rather than under the more
stringent Sixth Amendment right to counsel standard. The division also
prevailed in Robinson v. Ponte in which the Court held that a state court's
decision not to make a new rule retroactive (Commonwealth v. Henson) is a
matter of state, not federal constitutional law therefore preventing a federal
habeas court from compelling retroactive application.
Three cases were briefed and argued in the Supreme Judicial Court
including Commonwealth v. Duddie Ford in which the division suc-
cessfully argued the validity of convictions against a Westborough car
dealership which charged the dealership with eleven counts under the lar-
ceny statute and eleven counts of fraudulently obtaining credit from a bank
for loans.
Nineteen briefs were filed by the division in the Massachusetts Appeals
Court; fourteen were argued. Of the briefs submitted, eleven were direct
appeals from convictions by the Attorney General's Narcotics Unit. Among
those cases in which the division prevailed was In Re Grand Jury Subpoena
in which the Court held that a party seeking to quash a grand jury subpoena
served upon it. must do so by refusing to produce the documents and being
held in contempt, not by way of an interlocutory appeal from the denial of a
motion to quash. This case is now. after further appellate review, under
advisement in the Supreme Judicial Court.
In the United States District Court, the division defended more than 82
federal habeas petitions challenging the constitutionality of state court
criminal convictions.
The Criminal Bureau also reviews, for legal sufficiency, requests for
rendition of fugitives from justice. Demands from both law enforcement
officials of the Commonwealth and from Governors of other states were
examined and 187 opinions were rendered on the legality of these
demands.
FAMILY AND COMMUNITY CRIMES BUREAU
I. INTRODUCTION TO THE BUREAU
In January. 1991, Attorney General Harshbarger established a Family
and Community Crimes Bureau within the Attorney General's office for the
first fime. The Family and Community Crimes Bureau is responsible for
oversight as well as policy and program development including legislative
inititiafives and community' outreach in four areas: issues affecting children
and juveniles; the elderly: domestic violence; and victims of crime. In addi-
tion, the Victim Compensation and Assistance Division, previously under
the Criminal Bureau, now comes under the superivision of the Chief of the
Family and Community Crimes Bureau.
The Family and Community Crimes bureau works closely with the
Government Bureau and the Consumer Protecfion Division of the Public
28 P.D. 12
Protection Bureau in connection with investigations and litigation involv-
ing elders, children, and the disabled. In addition, the Bureau works closely
with state agencies such as the Executive Office of Elder Affairs and the
Department of Education on issues of common concern.
II. SPECIFIC AREAS OF ACTIVITY
A. THE ELDERLY
An issue of critical importance to the Attorney General is the plight of the
elderly. It is for this reason that the issues of elder abuse and neglect,
economic crimes and consumer frauds perpetrated against the elderly, as
well as street and violent crimes committed against elder victims, constitute
one of the major foci of the Family and Community Crimes Bureau.
In order to increase our understanding of the victimization of the elderly
in all its forms, and to develop effective responses to the problem, we have
convened a statewide working group chaired by the Attorney General to
address issues confronting our elderly citizens. This multidisciplinary
group brings together representatives from other Bureaus within the Attor-
ney General's Office, other governmental agencies, and organizations in
the private sector which provide services to or advocate on behalf of elders.
The initial task for the elder working group was to identify and prioritize
issues affecting the elderly. Multidisciplinary subcommittees will begin
meeting in September to devise strategies and develop ways of addressing
the issues in each priority area.
Internally, the Family and Community Crimes Bureau works co-
operatively with the Consumer Protection Division of the Public Protection
Bureau on issues of nursing home abuse and consumer frauds directed
against the elderly as well as with the Medicaid Fraud Division of the
Criminal Bureau regarding financial exploitation and abuse of elders.
B. LAW ENFORCEMENT AND EDUCATION PARTNERSHIP
The Attorney General's Office, through the Family and Community
Crimes Bureau, is working to establish collaborative relationships with
other state agencies and systems to reach out to the schools, law enforce-
ment, and communities across the state. Through these relationships, we
will offer technical assistance and training in areas of mutual concern to
law enforcement and the schools such as drug and alcohol education and
violence prevention.
In addition, the Attorney General has established a School Superinten-
dents' Working Group to provide a forum for the exchange of ideas and the
discussion of salient issues of concern to educators in the public schools
throughout Massachusetts. Plans for FY '92 include the presentation of
symposia in collaboration with school superintendents, other law enforce-
ment agencies and the Department of Education on various topics ranging
from the issue of confidendality of student records, discipline policies, and
compliance with federal mandates in an era of shrinking budgets.
Finally, through the Attorney General's SCORE (Student Conflict
Resolution Experts) program, peer mediation programs have been
P.D. 12 29
established in Worcester and Somerville with plans to expand the program
to five cities and the Department of Youth Services in FY '92.
C. DOMESTIC VIOLENCE
As a part of the office's focus on issues of domestic violence, the Attorney
General's office is co-sponsoring a luncheon series with the Harvard
School of Public Health. The Attorney General chairs the series to which
representatives from a variety of disciplines from the media to the legal pro-
fession to the provider community are invited. It is hoped that through the
series, significant progress can be made in dispeling falsely held myths
about domestic violence and in encouraging positive public policy
changes.
In cooperation with the Massachusetts Committee on Criminal Justice
and the Executive Office of Public Safety, the Family and Community
Crimes Bureau participated in the development of domestic violence
guidelines for the police pursuant to amendments to the Abuse Prevention
Law (G.L.c. 209 A) passed by the legislature in 1990.
In FY '92. the Attorney General's office will sponsor its first annual
Domesfic Violence Training Conference for Police.
D. VICTIMS
Pursuant to statute (G.L.c. 258B). the Attorney General serves as the
Chair of the Victim and Witness Assistance Board. The Family and
Community Crimes Bureau assists the Attorney General in carrying out his
duties as chair of the Board. In FY '91. the Attorney General through the
Board, initiated two pilot projects; first, to assess the implementation of the
Standards for Vicdm Witness Services programs across the state and.
second, to reestablish a working group of state agency representatives to
enhance the collection of victim witness assessments. Unfortunately, both
of these projects had to be abandoned when the Board's budget was cut by
two-thirds by the Legislature in June. 1991. The major task facing the Board
in FY '92 will be to downsize its staff, the Massachusetts Office of Victim
Assistance (MOVA). and redefine its mission to reflect the loss of funding
and elimination of its responsibility for overseeing the victim witness
service programs in the District Attorney's office.
E. CHILDREN'S ISSUES
In a cross-bureau effort with the Government Bureau, a Children's Issues
Advisory Group was formed. This group meets periodically to review issues
of concern to children's advocates in hopes of resolving some issues short of
litigation and to foster a better understanding between the advocates and
the Department of each side's respective positions. Some of the issues which
have been the focus of the group's meetings are the compliance by local
school districts with educational mandates in the face of declining budgets;
the investigatory policies of the Department of Social Services; and the
treatment policies of the Department of Youth Services. In FY '92. we plan
to form a provider advisory group to begin to identify and address
30 P.D. 12
some of the service issues that have arisen as a result of state
budget cuts.
In addition, the Family and Community Crimes Bureau has worked with
the Government Bureau and the Department of Social Services in regards
to issues concerning compliance by other states with the Interstate Compact
on Juveniles. A protocol has been established defining the respective roles
of DSS and the Attorney General's office in the enforcement of the
provisions of the Compact.
Finally, the Family and Community Crimes Bureau has been involved in
the coordination of an investigafion of some adolescent schools and pro-
grams in conjunction with the Government Bureau and the Civil Rights
and Consumer Protection Divisions of the Public Protection Bureau.
As an adjunct to the Bureau's focus on children's issues, members of the
Family and Community Crimes Bureau participated in a multidisciplinary
working group's efforts to draft legislation to address the problems encoun-
tered by prosecutors in child abuse prosecutions. As a result of the Bureau's
work with this group, an Aggravated Assault and a Criminal Neglect bill
have been drafted to protect elders, children, and disabled persons who suf-
fer serious bodily injury as a result of abuse or neglect. It is expected that
these bills will be filed in the FY '92 legislative session.
F. URBAN VIOLENCE
The Attorney General has made it a priority of his administration to
focus on the issue of urban violence. A number of preliminary steps have
been taken by the Family and Community Crimes Bureau to develop
strategies for interagency collaborative intervention in an effort to reduce
the violence that plagues our urban centers.
The Bureau is in the process of working with the Massachusetts Housing
Finance Agency's (MHFA) Inner City Task Force (a group of over 100
individuals representing many different constituencies) to implement a
plan for the allocation of resources within the court system to focus on drug
trafficking cases from inner city neighborhoods in Boston.
The Attorney General's Office in collaborafion with the Massachusetts
Committee on Criminal Justice, the Boston Police Department, the Suffolk
County District Attorney's Office, and the State Police have submitted a
proposal (REP) to the Bureau of Justice Assistance for a federal dis-
cretionary grant to develop city-wide multijurisdictional enforcement
strategies to investigate and prosecute drug distribution by organized,
urban street gangs.
In furtherance of the Attorney General's committment to bringing
together the energy and resources of the public and private sectors to reduce
violence in our communities, plans are underway for the development of a
strategy for economic restoration of decaying urban areas through
violence reduction.
G. MISCELLANEOUS
Throughout the year, the Family and Community Crimes Bureau has
been involved in other related projects. Many of these projects relate to the
P.D. 12 31
review and analysis of pending legislation. In addition to the neglect and
abuse legislation noted above, the Bureau has reviewed and redrafted
legislation providing for civil injunctions to be brought against unlicensed
therapists who sexually abuse their patients and legislation amending the
victims of violent crime compensation process from a court-based process
to an administrative process.
In addition, the Chief of the Bureau has been involved in several out-
reach efforts including presentation to various educational and pro-
fessional groups on such topics as pregnant addicts; the juvenile justice
system; and prosecution of an elder financial abuse case.
VICTIM COMPENSATION
In 1968. Massachusetts became one of the first states to compensate vic-
fims of violent crime. This program, administered by the victim Compensa-
fion and Assistance Division, remains at the forefront of vicfim advocacy
and assistance. The Massachusetts Victims of Violent Crime Compensa-
tion Act. G.L. c. 258A. provides financial compensation to victims of violent
crime for out-of-pocket losses they sustain as the direct result of personal
physical injury or death. Claims for compensation are filed in the district
court. An eligible claimant is entided to receive up to $25,000 for out-of-
pocket expenses such as unpaid medical and counseling bills, lost wages,
loss of support, homemaker services, and burial services. Compensation is
not available for property loss or for pain and suffering. The division is
required to invesdgate all claims, submit a written recommendation to the
court on whether the claimant is legally entided to receive compensation,
and represent the Commonwealth in all court proceedings involving victim
compensation claims.
Support and referral services are also an integral part of the division's
mission and purpose. Advocacy work on behalf of victims includes: provid-
ing crisis intervention and referrals to counseling centers, public agencies,
and private charitable organizations; negodafing with creditors to avoid or
delay court acdons on unpaid bills; negodating with medical, funeral, and
other providers to obtain services for victims at low or no cost.
The division has developed a clinical program using students from area
law schools and colleges for assessment and disposition of the division's
substandal backlog of cases which were filed before 1990. In addition, the
division has filed legisladon to reform the victim compensation program,
changing it from a litigation based, adversarial process to an administrative
agency process which will be victim sensidve. cost effective, and result in
efficient disposidon of cases.
The vicdm compensadon program is funded through the general revenue
and through a grant from the U.S. Department of Jusdce. In addidon. the
division received a grant for victim advocacy services from the
Massachusetts Victim and Witness Assistance Board. Payments to victims
from the Vicdm Compensadon Fund in fiscal year 1991 totaled
$2,785,292.15 represendng 715 claims.
32 P.D. 12
PUBLIC PROTECTION BUREAU
Upon taking office in January of 1991. Attorney General Harsbarger res-
tructured the former Public Advocacy Bureau and the Public Protection
Bureau into one bureau — the Public Protection Bureau. This bureau
brings affirmative litigation on behalf of the public in areas such as civil
rights, consumer protection, environmental protection and public charities,
additionally the bureau also represents consumers and business in utility
and insurance rate hearings.
ANTITRUST DIVISION
The Antitrust Division investigates and prosecutes cases under federal
and state antitrust laws. The division's primary goal is to protect and pro-
mote competition so that consumers are offered goods and services of
higher quality at lower prices. Enforcement of the laws also protects
businesses, particularly small business, by reducing andcompedtive
restraints in the marketplace. The Division prosecutes violadons that
principally affect Massachusetts consumers. The Division also joins forces
with other states to prosecute violations that have ill effects on consumers
and businesses in all states including Massachusetts. Through NAAG. the
Division coordinates it activities with other states and with federal
antitrust enforcers.
II. MAJOR AREAS OF ACTIVITY
The Division has focused its activides in areas marked by high consumer
prices such as health care, petroleum products and insurance.
A. Health Care
The Division has been very acdve in scrudnizing all aspects of the health
care industry, including drug companies, hospitals and medical pro-
fessionals. In a major action involving the drug industry, the Division and
several other states led an investigation which was joined by 22 Attorneys
General that resulted in a suit filed in December. 1990 against Sandoz Phar-
maceudcals. In the case, the states allege that Sandoz engaged in antitrust
violations that have made the price of a new drug for schizophrenia pro-
hibitively expensive. As a result, thousands of patients have been denied
access to the drug. The Division serves on the Case Management Commit-
tee directing the lidgadon on behalf of all states.
In Nov. 1990. the Division setded a suit alleging that the Directory of
Quincy Hospital had urged two hundred Quincy area physicians to boycott
a new health insurance product. The new product was a preferred provider
health plan designed to reduce consumer insurance premiums. In the setde-
ment. the Commonwealth obtained an injunction and $10,000 in lieu of
civil penaldes and costs.
The Division also continues to litigate its case (Commonwealth v. Cahill)
alleging that 24 Springfield area physicians had threatened to boycott Blue
P.D. 12 33
Shield in order to pressure it into raising its fees to doctors. Thirteen of the
physicians have settled their cases to date resulting in a total recovery of
$162,500 and the issuance of injunctive relief that has ended the
threatened boycott.
The Division also has moved to increase consumer access to particular
types of professional service. For example, the Division has required Boston
area hospitals to end any discriminatory practices that limited consumer
access to podiatrists. The Commonwealth has alleged that eleven Boston
area hospitals had deprived podiatrists of various hospital privileges, solely
because they wer podiatrists and regardless of individual skill and training.
As a result, consumers were unable to have their podiatrist treat them in a
hospital setting. The Division filed in Suffolk Superior Court agreements
requiring the hospitals to end any discriminatory practices and to each pay
$5,000 in costs to the Commonwealth. The last such aereement was filed on
August 16. 1990.
Insurance
On June 18. 1991. the Ninth Circuit Court of Appeals reversed a lower
court and awarded Massachusetts and eighteen other states a stunning
victory in In Re Insurance Antitrust Litigation.
This case has been described as perhaps the most significant antitrust
litigation pending in the U.S. The defendents include thirty insurance
companies, reinsurers, intermediatry brokers and trade associations.
In the case, the Commonwealth and the other plaintiff states allege that
defendents illegally manipulated the market for commercial general
liability (CGL) insurance. This is the insurance purchased by most
businesses, public agencies and non-profit organizations. CGL policies
cover liability to third parties for personal injuries and property damage
arising from the actions or inactions of the policyholder.
The Commonwealth's case is a class action with the towns of Milford and
Hanover names as class representadves. The lower court had dismissed the
states' cases on a number of grounds including the McCarran-Ferguson
insurance exemption from the antitrust laws. The Commonwealth played a
leading role in preparation of the brief that argued successfully for a
reversal of the lower court.
The Ninth Circuit's reversal clears the way for the states to continue their
prosecufion of the case unless a petition for rehearing is granted or the case
is taken by the U.S. Supreme Court.
As part of its plan to monitor insurance related activities, the Division in
the past year also continued its litigafion to enforce the provisions of the
Auto Insurance Reform Act of 1988. Commonwealth v. Berkshire Auto
Body Association, et al. was filed in August of 1989 as a class acfion suit in
Superior Court against the members of the Berkshire County Auto Body
Associafion and other individual defendants. In the suit, the Common-
wealth alleged that defendants engaged in a boycott of the direct payment
plan that was enacted in the 1988 Auto Insurance Reform Law. The direct
payment plan is designed to expedite insured auto repairs and reduce their
costs. This in turn is intended to help reduce insurance premiums paid
bv consumers.
34 P.D. 12
On May 14. 1991. Attorney General Harshbarger obtained a consent dec-
ree in the case enjoining the defendants from boycotting the direct payment
plan and requiring a payment of $8,000. As a result, consumers in Berkshire
County will now be able to share in the intended benefits of the direct
payment plan adopted by the legislature.
Oil and Gas
Consistent with his efforts to protect consumers especially in relation to
essential goods and services. Attorney General Harshbarger filed
Commonwealth v. PackcrOil on May 7. 1991 alleging that Packer Oil had at
times in the past fixed the price of home heating oil on Martha's Vineyard.
The case was filed in Superior Court in Dukes County. The Commonwealth
seeks the imposition of civil penalties and injunctive relief
In response to the enormous price increases at the time of the invasion of
Kuwait, the Division drafted emergency price gouging regulations.
Following public hearings a final regulation was adopted effective
December 21. 1990. These regulations prohibit price gouging in the sale of
petroleum products.
Consumer Electronics
Attorney General Harshbarger has joined with the Attorneys General of
a number of other states to obtain substantial recoveries for consumers in
cases filed to challenge anticompetitive practices in the consumer electronic
industry.
For example, on March 27. 1991 Attorney General Harshbarger joined in
a case against Mitsubishi that will make refunds ranging between $20 to $54
available to approximately 11.000 Massachusetts consumers.
Attorney General Harshbarger also joined in a multistate action against
Nintendeo that will make $5.00 coupons for Nintendo game cartridges
available to some 121.()(K) consumers in Massachusetts. These cases follow
an earlier multistate.action against Panasonic in which payments totalling
$268,102 were recovered for the Commonwealth and its consumers.
OTHER SIGNIFICANT ACTIVITIES
On October 1. 1990 the Division argued before the Supreme Judicial
Court that twenty sofi drink and malt beverage distributors had violated the
Mandatory Beverage Container Deposit Act. The Division specifically
argued that defendants failed to segregate more than $100 million in bottle
deposits in a separate fund held in trust for consumers, and instead com-
mingled deposit funds with their own revenues in violation of the Act. On
February 19. 1991 the SJC ruled that the funds in question were not held in
trust for consumers.
Wilmington Ford
The Division joined with the Consumer Protection Division in prosecut-
ing a case alleging that Wilmington Ford had violated a prior court order.
The prior order required Wilmington to refrain from various unscrupulous
P.D. 12 35
practices in the sale of automobiles. Attorney General Harshbarger
obtained a consent judgment from Wilmington Ford in which it admitted
violations of prior court orders and agreed to make civil penalty and other
payments totalling $415,000. This is one of the largest amounts ever
recovered by an Attorney General in enforcing consumer protection
laws.
Community Outreach
The Division engages in a number of activities designed to increase
awareness about antitrust enforcement. Division members regularly par-
ticipate in educational programs having this purpose. For example, during
the past year Division personnel have served as faculty members at the New
England Antitrust Conference and made presentations to the Boston Bar
Association Antitrust Committee. In addition, in November of 1990. the
Division hosted a NAAG Antitrust Seminar attended by Assistant
Attorneys General from approximately thirty states.
CONSUMER PROTECTION DIVISION
Judgments. Settlements and Restitution in consumer Protection Division
Cases
Civil Penalties (including contempt) $421,216
Medicaid Reimbursement from
Nursing Homes $386,915
Consumer Restitution $201,621
Local Consumer Program Aid Fund $157,524
(including Watson & Hughey)
Settlements in cash and value
received from Nursing Homes $196,675
Foundations and Training Programs $147,976
(including Watson & Hughey)
Costs/ Attorneys' fees
Total $1,611,927
Complaint Section
Direct Refunds $78,708
Settlements $146,655
Goods/Services $127,956
Total $353,319
36 P.D. 12
The Consumer Protection Division (CPD) brings enforcement actions
against businesses which use unfair and deceptive practices resulting in
injury to consumers. Concentrating on cases which are in the pubHc interest
and specifically where consumers cannot reasonably obtain relief through
their own efforts, CPD's caseload consists primarily of large-scale class
actions brought on behalf of consumers affected in similar ways by the
illegal activities of business. These activities include sudden business
closings, retail advertising and sales, financial services, landlord-tenant and
mobile home issues, automobile advertising and repairs, and nursing home
services. CPD also drafted regulations and filed comments on legislative
and administration matters. Through our Complaint Section we also
mediated disputes between consumers and businesses.
Sudden
Unfortunately, in this difficult economic period, businesses may sud-
denly close their doors stranding consumers who have given them deposits.
One of the most widespread closings occured at the end of March. 1991, the
well-known Joy of Movement health clubs abruptly closed their doors in
the Boston area, leaving over 7.000 Massachusetts consumers with
unfulfilled membership contracts. The Attorney General's Office received
many calls from consumers who had received no prior notice of the
closings, including those consumers whose membership fees had been
solicited and accepted up to the day the clubs closed.
Within 3 days of the closings the Attorney General filed suit against the
Joy of Movement corporations and their owner president. Kenneth
Estridge, for violadng the state's Consumer Protection Act and the Health
Club Services Contracts Act. In order to protect assets for restitution to
members, the Department obtained attachments on various corporate and
personal properties of the defendants in the amount of $1.4 million. As a
result, the defendants were prevented from further dissipating any of the Joy
of Movement assets. During the following 3 months, the defendants tried to
unfreeze the corporate and personal assets. Each time, CPD convinced the
court to deny the defendants' requests to preserve the assets for restitution.
Before a trial could be held, the Joy of Movement corporations and
Kenneth Estridge filed for bankruptcy in federal bankruptcy court. Under
the rules of bankruptcy, the Attorney General's suit against the defendants
is stayed, pending the outcome of the bankruptcy proceedings. In order to
assist consumers who have claims against the Joy of Movement clubs, CPD
sent instructions to over a thousand Joy of Movement members who had
filed complaints with the Attorney General's office, providing guidance to
facilitate their creditor claims. CPD also has intervened in the bankruptcy,
and as a major creditor on behalf of consumers, is claiming resdtution for
former club members in the amount of $1.4 million.
In another case, a retail meat seller, Mr. Meat, closed its door before
consumers were able to use the discount coupons they had purchased. CPD
was able to obtain approximately $22,300 from the company which was
distributed to over 380 consumers.
P.D. 12 37
Retail Sales
One area which continues to receive a large number of complaints is
retail advertising. The Department therefore revised its Retail Advertising
Regulations which became effective on May 1. 1990 (after promulgation on
December 14. 1989) and conducted many speaking tours throughout the
state to explain the new regulations. In addition. CPD obtained numerous
letter agreements from retailers in various industries including home fur-
nishings, travel, food, department stores, jewelry, and clothing, among
others, who were in violation of the regulations.
One of CPD's most significant deceptive advertising case arose against
Commonwealth v. Boston Scandals et al. a furniture retailer who misrep-
resented to consumers that it was providing a fifty-percent saving off of fur-
niture prices that it never offered. In a novel form of relief geared to alert
prospective purchasers of the unfair and deceptive advertising, the division
obtained a temporary restraining order requiring the retailer to post a notice
on every piece of furniture for sale which read "'Courf Ordered Consumer
Warning None of our goods are 50% off our regular prices as we advertised
on TV. Some goods are half the "value price" which is a price we never
charged, but other stores may or may not be charging." Following the tem-
porary restraining order, a preliminarv' injunction was entered specifying
the types of disclosures the retailer must make in its television ads.
In another matter concerning deceptives sales prices. CPD obtained an
Assurance of Discontinuance against The Limited, a national clothing
retailer for advertising a price savings off of prices which never were offered
or otherwise made available in Massachusetts.
CPD also filed suit against Basement Waterproormg Nationwide. Inc. et
al. for misrepresenting the effectiveness of their residential waterproofing
services and failing to honor their guarantees. The Commonwealth was
granted a temporary restraining order to prevent the defendants from dis-
sipating further any corporate assets and the defendants were preliminarily
enjoined from transferring or encumbering corporate assets until they had
satisfied consumer claims, from failing to honor certain warranties and
guarantees, and from failing to make certain disclosures concerning the
effectiveness of their services/products.
A classc example of an unfair or decepfive sales practice occured in
Commonwealth v. DeCand/a ef a/., where the owner of an oil delivery truck
used a "wash out tank" which is a device to pump home heating oil back
into a truck's main storage tank after the gallonage has been registered
through the flow meter and assessed to the consumer's charge slip. After we
sued the dealer, he went out of business and we seized, and ultimately des-
troved. the device. We obtained a Consent Judgment and civil penalties
of $4,000.
In an innovafive action against a cigarette manufacturer. CPD filed an
amicus curia brief in Kyte v. Philip Morris, and the Supreme Judicial Court
rendered its decision on July 25. 1990 (405 Mass. 1 62). Plaintiffs brought suit
against Philip Morris for injuries sustained from smoking cigarettes
manufactured by the defendant. They asserted several claims against
defendants including conspiracy (with the seller-Store 24). breach of
implied warranty, and violation of G.L. c. 93A. CPD argued that plaintitTs
38 P.D. 12
had alleged sufficient facts to show that the defendant's marketing and
promotional activities were unfair and deceptive, in violation of c. 91 A. In
addition, we argued such causes of acfion were not preempted by the
Federal Cigarette Labeling and Advertising Act. The majority upheld the
G.L. c. 93A claim insofar as it was based upon theory of implied warranty,
that the Court said was not preempted. Judge Liacos. concurring in part and
dissenting in part, adopted CPD's position that preemption was limited to
the adequacy of the federal warning and would not provide "a licensing
to lie."
We continued our involvement with nine other states to fight deceptive
health claims when CPD obtained an agreement with CPC International
Inc.. the makers of Mazola Corn Oil products. The Assurance of Discon-
tinuance prohibits CPC International from advertising that Mazola Corn
Oil products can lead to a reduction in individuals' cholesterol level without
other diet modifications. CPC Internafional also agreed to stop using
individual endorsements when the endorser is fictitious and to pay $10,000
to the Local Consumer Program Fund. In addition to obtaining substantive
relief, this arrangement was unique because the states of California.
Florida. Illinois. Iowa. Minnesota. Missouri, New York. Texas and
Wisconsin coordinated their efforts with the Federal Trade Commission to
obtain relief
The Attorney General also joined 30 other Attorneys General in a Pefi-
tion to the U.S. Supreme Court for a writ of certiorari to review decisions by
the federal district court (W.D. Tex.) and the Fifth Circuit Court of Appeals
that state laws pertaining to deceptive advertising, including chapter 93A.
are expressly preempted by federal law when applied to fare advertising by
airlines in Morales v. Trans World Airlines, Inc.: Attorney General of
California v. Trans World Airlines Inc.
CPD also successfully defended a challenge to the Attorney General's
investigatory power by two out-of-state concert ticket sellers who were
believed to be in violation of the Attorney General's Retail Advertising
Regulations in Ticketworld and Tickets USA v. The Commonwealth of
Massachusetts. The retailers argued that because they were out of state com-
panies, the Attorney General had no authority to require them to produce
documents requested in a civil invesfigative demand. The Attorney
General's investigative authority was upheld on appeal.
Financial Services
Due to their complex nature, financial services transacfions can cause
economic injury without the consumer being aware of the extent of the
injury. CPD, therefore, has become involved in and has initiated numerous
cases in this area. For example, in Greenwood Trust Co. v. Commonwealth.
the owner of Discover Card (Sears Financial Services) brought an action in
federal court seeking a declatory judgment that a Massachusetts statute
regulafing late charges on credit card accounts was preempted by federal
banking law. CPD counterclaimed seeking a judgment that Greenwood is
liable for violafing Massachusetts banking laws in imposing its late fees.
Both sides filed motions for summary judgment and filed three briefs on
federal preemption and choice of law issues; there were also six amici briefs
P.D. 12 39
from eight states. VISA/Mastercard. and other interested entities. Judge
Young heard oral argument on the cross motions on October 24, 1990 and a
decision is pending.
In cooperation with the Securities Division of the Secretary of State, CPD
also filed an investment fraud action in Commonwealth v. Loan Depot.
against a national loan brokerage company and its president William
Camuti. The Complaint alleged that the defendants obtained more than
$1.7 million in investments in violation of C.93A and the Massachusetts
Securities Act by using unregistered brokers to sell unregistered securities
which were falsely represented to be fully secured and guaranteed pools of
first and second mortgages. The Superior Court judge issued a temporary
restraining order prohibiting further sales or transfers of defendants' assets.
After defendants had made full restitution in the amount of $1.77 million.
CPD and the defendants entered into a Consent Judgment under which
defendants were enjoined from selling securities in the Commonwealth for
three years. Defendants also agreed to pay $156,000 in civil penalties and
$50,000 for costs and attorney's fees.
On December 12, 1990, CPD joined by five other states, filed a parens
Patriae lawsuit in the Southern District of New York in New York v. GMAC
Mortgage and its subsidiaries for requiring consumers to pay excessive
amounts into their mortgage escrow accounts, in violation of the Real
Estate Settlement Procedures Act (RESPA), GMAC's mortgage contracts,
and state consumer protection statutes. It was estimated that defendants
were illegally holding more than $60 million in escrow deposits. Since that
time, several other states have joined the litigation.
CPD also obtained consent judgments against a mortgage broker.
Coastal Surety Ltd., and its owner and Home Equity Mortgage Co. after
having obtained a preliminary injuncfion prohibiting defendants from
foreclosing upon a consumer's home. Defendants induced homeowners
facing foreclosure to transfer their homes to realty trusts created and con-
trolled by the defendants: extended mortgage loans through those trust; and
subsequently foreclosed those loans. Defendants failed to disclose that they
controlled the trusts, making consumers tenants in their own homes, and
that defendants were entitled to 50% of the equity in the homes upon sale or
foreclosure. The defendant mortgage company provided a new mortgage
upon much more favorable terms: defendants also agreed not to engage in
similar practices and to pay civil penalties and costs. CPD also obtained let-
ter agreements with attorneys who had represented the defendants and the
trusts and the refund of $2,500 in attorney's fees to consumers and civil
penalties and costs.
We also pursued defendants who advertised "easy" loans which defen-
dants had no intention of securing for the applicants in Commonwealth v.
Paul Scavitto aka Paul Scott. The defendants charged consumers a loan
processing fee, purportedly returnable if the loan was rejected. No loan was
ever approved and the processing fees were never returned. CPD obtained a
judgment enjoining such practices and compelling the defendants to
provide restitution to affected consumers.
In another case in which the defendants took consumers money and pro-
vided no services, CPD was also able to obtain a preliminary injunction
40 P.D. 12
enjoining Bazar-Brazil and other companies from accepting money for
transmission to Brazil and then not sending the money. The injunction,
obtained in April, 1991 also froze the company's corporate bond for future
distribution to complainants.
CPD also sought to help out funeral homes who had deposited con-
sumers' preneed funds with Mechem Financial of Massachusetts. Inc. who
had ceased doing business. The money had been inappropriately invested.
The defendant had invested the funds in rare coins and CPD obtained an
order to sell the coins to reimburse the funeral homes for the loss of con-
sumers funds. To date, over $85,000 has been obtained. Over six coins will
still be sold.
CPD also assisted the Texas Attorney General's Office by bringing a trus-
tee process action in a case against Boston attorney Fred M. Dellorfano and
his business. FMD Investment Associates. Inc. in Commonwealth v.
Boston Trade Bank, et al. An injunction had issued in Texas preventing
Dellorfano from removing insurance premiums obtained pursuant to an
insurance fraud. Notwithstanding that injunction, some of those funds were
transferred to Massachusetts by Dellorfano and deposited with several
financial institutions. CPD obtained an injunction preventing the financial
insfitutions from transferring the funds back to Dellorfano. The Texas
Attorney General subsequently obtained a large judgement with penalties
and the money was returned to the Texas Attorney General for
distribution.
Automobiles
Automobile problems continue to be the most frequent subject areas for
complaints. One area of repeated problems arises when car dealers use
unfair and deceptive sales practices to get consumers to purchase their
vehicles. On June 20. 1991. the bureau obtained a Consent Judgment
against Wilmington Ford, and its principals, Bernard Ristuccia Sr and
Bernard Ristuccia Jr. the judgment resolved an acfion for contempt brought
against Wilmington for violating a previous order of the court issued
December 30 1986. In resolving the contempt complaint. Wilmington Ford
admitted that it had violated the previous order by engaging in prohibited
sales practices, and the corporate and individual defendants agreed to pay
$41 5.000. -Of this sum. $200,000 was paid for civil penalties, $50,000 for attor-
neys fees and costs. $82,500 to the local consumer programs and $82,500 to a
program to aid urban youth in an automobile repair training program.
In another deceptive sales practices case. CPD obtained a judgment
against Walter F. &Keefe. et al. a motor vehicle transmission repair and
service franchise which enjoined him from luring consumers with the pro-
mise of a free transmission inspecdon and then telling them a fee would be
charged to take down the transmission.
Recently. CPD also enforced the new Used Car Warranty Law by obtain-
ing a consent judgment against P.F.T. Enterprises dA^/a Thrifty Auto
Rentals, who ignored an arbitrator's award to repurchase the vehicle from
the consumer. The dealer was required to pay the arbitrator's award and
civil penalties and costs of $500.
In addition to the above, CPD has continued to enforce the Attorney
P.D. 12 41
General's Motor Vehicle Advertising Regulations in several actions. On
Januar\' 31. 1991. the Supreme Judicial Court affirmed the finding of
contempt against a Lynn auto dealer in Commonwealth V. Fall River
Motors for violadons of a previous consent judgment concerning advertis-
ments of "invoice prices" in violation of the regulations. The court also
affirmed the $20,000 contempt penalty for running one ad three times in the
Globe (C.93A allows a $10,000 penalty per violation) and the award of attor-
ney's fees to the Commonwealth for a successful contempt action.
CPD also sued Charles River Ford (formerly d/h/a Elhery Ford) for
violations of the Advertising Regulations. When the matter drew close to
trial, the defendant filed for Chapter 1 1 bankruptcy. CPD sought an exemp-
tion or relief from the automatic stay and obtained a proof of claim in the
amount of $100,000 in lieu of litigating the claim in court which was
approved by the Bankruptcy Court. CPD also obtained a Final Judgment
with permanent injunctive relief against the dealership and obtained
an extensive consent judgment against the owner/president. Gordon
Winchester in June of 1991. Both Judgments were filed in Suffolk
Superior Court.
We also won a summarv' judgment against Spensley Chevrolet and
obtained a Consent Judgment against Ira Oldsmobile for violations of
the reguladons.
Environmental Advertising
CPD also participated in the establishment of a task force representing
the joint efforts of ten Attorneys General to confornt issues raised by the
proliferadon of advertising with decepfive environmental claims. The
group held public hearings on the subject of "green marketing" claims and
subsequently published and distributed The Green Report: Findings and
Prehminary Recommends 1 Advertising. Then, responding to responsive
comments submitted by environmentalists, consumers and industry, the
multi-state task force issued The Green Report II a revision of its first report
that represented the group's reconsidered recommendations for respons-
ible environmental advertising. The Green Report II has been distributed,
to the public and to the Federal Trade Commission for consideration as that
agency moves to address the problems of deceptive green markefing claims.
In addition, the Green Marketing Force initiated a number of investigations
of suspect environmental advertising claims. The investigation into claims
made by Mobil Chemical Company regarding the degradability of its plas-
tic Hefty Bags resulted in Massachusetts and six other states filing separate
lawsuits against Mobil for decepfive advertising. These suits were settled by
a Stipulated Settlement Order separately executed by each state and Mobil,
pursuant to which the company agreed to indefinitely discontinue making
any biodegradability claims not permitted by FTC for its plastic bags and
paid each state $25,000. The task force also settled a similar settlement with
Chelsea Industries. Inc. of Brighton. Massachusetts, makers of Good Sense
and HandiBag plastic bags. Massachusetts received $7,500 for the Local
Consumer Aid Fund.
42 P.D. 12
Landlord-Tenant and Mobile Home Park Issues
As the economy has decHned. the supply of affordable housing in the
Commonwealth has both deteriorated in quality and diminished in supply.
CPD has taken an active role in efforts to preserve low-income housing for
families and elderiy citizens. For example. CPD filed suit against the owner
and managers of the Westminster-Willard (also known as Mandela) low-
income housing development in Roxbury for their failure to maintain the
development in conformance with the state sanitary code, for their
numerous unfair landlord-tenant practices in violation of both state and
federal law. and for their failure to responsibly pay taxes, mortgages, and
utilities, thus jeopardizing the future viability of this important source of
affordable housing. CPD obtained injunctive relief that required the
landlord to make many repairs, and is now seeking the appointment of
a receiver so that the development can be managed responsibly and
preserved for the benefit of the tenants.
The deadly health hazard to children of lead paint in housing has been a
priority of the CPD this last year, as it has worked with other attorneys in the
Public Protection Bureau to enforce the state's Lead Poisoning Prevention
and Control Act. CPD has worked with the Department of Public Health to
identify violators of the act and to institute legal action against them. In
addition, the office has been involved in various state groups in an attempt
to marshal funds to help homeowners pay for the costs of deleading. as well
as supporting efforts in Congress to create a deleading fund that would
benefit Massachusetts.
Mobil home parks, always a vulnerable source of affordable housing,
have been put in increasing jeopardy by the failure of park owners to com-
ply with their obligafions to their tenants. CPD has dealt with a variety of
issues, including failing septic systems and other improper park conditions,
unfair and illegal imposition and enforcement of park rules, and numerous
bad faith threats of park doings. CPD brought suit against the City of
Peabody Rent Control Board and nine mobile home parks for their failure
to comply with the provisions of the Legislature's rent control enabling act
with regard to the imposition of rent increases in those nine parks, and
obtained a preliminary injuifction blocking recently approved illegal
rent increases.
In an attempt to further assist mobile home park residents subjected to
unreasonable actions by park owners, and to preserve these parks as a
source of affordable housing statewide. CPD is currently working on
strengthening statutory and regulatory protections for park tenants. In addi-
don. CPD has made efforts to educate park tenants about their legal rights
by speaking to park tenant associations throughout the state.
Health Care Issues
In 1986. CPD and the Torts Division obtained a Judgment against the
owner of a medical laboratory that had conducted faulty Pap smear tests. In
February 1991. CPD filed the brief on behalf of the Commonwealth in the
appeal. In Commonwealth v. Elm Medical Laboratories. Inc. et al.. we
argued that the court should uphold a jury verdict which held that the
defendants had violated G.L. c. 93A in their performance of various
P.D. 12 43
medical tests, primarily the diagnosis of pap smears and the examination of
body tissues. We also argued fhat the lower court was correct granting a
directed verdict on the individual defendants claim that DPH had violated
their civil rights. In addition, we argued that the trial judge did not abuse his
discretion in denying a mistrial because of conduct by the Commonwealth,
that the final judgment and civil penalties were warranted, and that the
denial of Elm's nriotion for a new trial based on new evidence allegedly
withheld by DPH was not an abuse of discretion. Oral argument is
pending.
It is a CPD priority to ensure that the health care needs of the elderly and
sick who are institutionalized in the Commonwealth's long term care
facilities are protected. To this end. the Attorney General twice obtained the
appointment by the Superior Court of a "patient protector receiver" to take
over the operation and control of a nursing home in order to protect the
men and women living in it. In Attorney General v. Oxt'ram Inc. d/b/a The
New Pine Grove Villa Nursing Home, such action was necessitated by the
abandonment of a Millbury nursing home by its owner/operator, leaving
patients without food or supplies and staff without any funds. In Attorney
General v. Wayne Manor Inc. d/h/a Wayne Manor Nursing Home, et al..
the facility's owner, who owed the Commonwealth and vendors approx-
imately $9M and had obtained protection under Chapter 1 1 in Bankruptcy
Court, continued to squander the financial resources of a Dorchester nurs-
ing home until questioned about whether there was sufficient money for the
next meal. We therefore intervened in the bankruptcy proceeding, obtained
dismissal of the Chapter 11 case and then sought the establishment of a
state-court receivership to ensure the health and safety of Wayne Manor's
patients. In both cases, as a result of our intervention, the delivery of patient
care was quickly brought up to the standards required by state and federal
law and the process of attempfing to sell transfer the facilities to suitable
health care providers was begun.
CPD was also able to reach settlement in four "'patient protector
receivership" cases commenced in prior years. In Attorney General v.
G rover Manor Hospital et. al.. we received a payment of $355,000 which
finally resolved all claims the state had against the defendants whom had
been sued for rendering seriously deficient pafient care. This payment
followed the closing of the hospital and the transfer, by the receiver and with
court approval, of all its patients to suitable beds elsewhere and initial pay-
ment by the defendants of $50,000 in civil penalties and $550,000 as reim-
bursement for receivership costs and disallowed rates. A final distribufion
of $5,000 was similarly paid in Attorney General v. Steven S. Inc.. a case hav-
ing to do with a nursing home that had delivered substandard care. In a
third receivership case to be terminated, a Consent Judgment was entered in
Attorney General v. Human Services Resource Center et al.. a case
instituted in 1986 to protect the residents of three intermediate care facilides
for the mentally retarded ("ICF/Mrs") located on Cape Cod. The Judgment
permanently enjoins the individual defendant from operating or controll-
ing any type of health care facility, required him to pay $3,500 in civil
penahies. approved the payment of approximately $31,000 of pre-
receivership HSRC funds to the Commonwealth for partial reimbursement
44 P.D. 12
of its expenses and, more important approved the transfer of the ICF/Mrs
to the May Institute, a non-profit heahh care provider who will henceforth
be operating the homes and caring for their residents.
A fourth receivership was finally terminated in Attorney General v.
Warren LaBorde- et al. This case was instituted when it was discovered that
the owner of a small rest home was sexually abusing several mentally ill
female residents. The man was immediately prohibited from entering the
rest home (although it was adjacent to his personal residence) and a receiver
installed to protect the residents. Subsequently, no one was willing to buy
the rest home. It was therefore closed this year and the residents transferred
to other safe locations. (In a separate action, the provider was prosecuted
criminally for his misconduct.)
Several non-receivership cases commenced to protect groups of vulner-
able patients and to ensure that they obtained appropriate care and services
were also finally resolved this year. In Commonwealth v. Beverly Enter-
prises Inc. dA)/a Greycliff on Cape Anne Nursing Home. Beverly Enter-
prises, the nations largest nursing home chain agreed to a Final Judgment
pursuant to which it paid $89,000 in lieu of civil penalties to be used to
purchase a handicap-accessible van and other items for the nursing home
that would otherwise not be available for its patients. The Judgment
followed Beverly's long compliance with a Stipulation in Lieu of Injunction
which it required it to hire and finance an independent management team
to operate and rehabilitate its Greycliff Nursing Home for a period of years.
The $89,000 is deemed collective restitution to the 89 patients living in
Greycliff when CPD commenced suit for Beverly's failure to render
appropriate care and represents the first payment of any kind inuring to the
direct benefit of patients subjected to poor care in a Chapter 93A health care
related case. Reflecting an innovative way to give restitudon to a large group
of injured consumers, it was purposefully designed (1) to avoid putting the
medicaid eligibility of any single pafient at risk by the receipt of money over
the permitted limit. (2) to accommodate likelihood that patients living in
Greycliff when the case was begun no longer live there now. and (3) to deal
with the problem of qualifying intangible damages for a large and
varied class.
Commonwealth v. Kelton Corp.. d/b/a Braintree Hospital, a suit which
arose as a result of several inappropriate patient discharges from the
rehabilitation hospital was also settled out of court this year. In a Final
Judgment approved by the Superior Court, the defendants agreed to pay the
Commonwealth $4,500 and to abide by current Department of Public
Health discharge planning regulations. A Final Judgment was also
approved in Commonwealth v. Otis Hospital et al.. following the voluntary
closure of a chronic hospital in which patient care was so substandard that
the Commonwealth alleged it was life-threatening and the safe transfer of
its patients to another hospital. The Final Judgment reflects a negotiated
settlement whereby the Commonwealth agreed not to litigate further to
obtain costs and civil penalties in exchange for the defendants giving up
their $ 100.000 claim ($40,000 of which was uncontested) against the Depart-
ment of Public Welfare for unreimbursed Medicaid expenses. While this
settlement did not result in cash flowing into Commonwealth coffers, it
P.D. 12 45
permitted DPW to retain scarce Medicaid funds and use them elsewhere —
after the safet>' of the patients involved was insured.
In Attorney General v. an innovative and important milestone was
reached. The case involved three intermediate lacilities for the mentally
retarted ("ICF/Mrs") operated by Associated Group Homes ("AGH").
AGH was not only delivering substandard care but had also virtually run
out of money, leading it to acquiese in the appointment of a receiver to
operate the three homes. We alleged in the complaint that AGH's parent.
HealthNet. Inc. was in part responsible for the problems that developed. In
order to settle the issue of its own liability and obviate the need for trial.
HealthNet. through its Assignee for the Benefit of Creditors, agreed to a
plan pursuant to which it sold the real estate of two of the three ICF/Mrs to
the AGH receiver for a total sum that was approximately $1 56. 675 less than
their market value of the properties. This, in turn, made it possible for the
receiver to resell the rv\'o homes to a successor health care provider for a sum
allowable under Rate Setting Commission reimbursement regulations. The
S156.675 given up by HealthNet represents its costs of settling the case.
The Commonwealth helped formulate, and agreed to. the Plan because it
becomes a beneficiar\' of it in several respects. First, the ICF/MR homes
could not be closed because there were no other beds for their residents who
were all deinstitutionalized clients of the Department of Mental Health. But
the facilities could not stay in receivership indefinitely nor could new
buildings be economically built to house the residents. As a result of the
plan's implementation, the rehabilited old homes can remain open, the
costs of building replacement facilities are avoided, and the Medicaid rates
paid to reimburse the new provider for its property costs in the future will be
figured on a basis that is substantially lower than market value, thus scaling
down future rate payments. The plan, complex as well as innovative, was
subject to court scrutiny and approval: it also received the cooperation of
several Commonwealth agencies as well as HealthNet and the receiver. It
was effectuated as planned this year and two of the three ICF/Mrs are now
out of receivership and being run by a successor health care provider.
Our efforts to protect patients' rights and enforce the Attorney General's
Nursing Home regulations without necessarily resorting to litigation con-
tinue to be successful. Among other satisfactory dispute resolutions was one
concerning a Plymouth. Massachusetts nursing home (Pilgrim Manor)
owned by a Georgia corporation that had filed a bankruptcy proceeding in
Florida. Through informal negotiations with the corporation's counsel, we
were able to obtain refunds for private paying patients who had left the
facility before the end of the period for which fees had been prepaid and
were unable to get back monies paid for services not rendered. As a result of
our intervention one fa mil v received a refund of $S5() and another a refund
of$1327.
Finally, in a matter taken to the Appeals Court, a Judgment Following
Rescript was issued in our favor a f firming a superior Court order requiring
compliance with a Civil Investigative Demand ('ICIIX) sent by the Attor-
ney General to Fvan Porter d er House. The CID. a prclitigalion subpoena,
had been issued to ascertain whether Porter was operating an unliccn.scd
long term care facility in his Newton resident. Porter refused to respond to
46 P.D. 12
the CID and when instructed to do so by the Superior Court, he challenged
the enforcement order. Following his unsuccessful appellate challenge. Por-
ter provided some of the documentation requested in the CID. Limited as it
was, the documentation nevertheless provided the Attorney General with
reason to believe that Porter was in serious violation of Chapter 93A and
various other statutes and regulations promulgated to protect residents of
long term care facilities. He was consequently put on notice that further
court action would soon be taken unless it was made clear that Porter House
was being operated within legal limits.
Regulatory and Legislative Activity
CPD has also been involved in a variety of regulatory activity. In res-
ponse to the dramatic increase in the price of refined fuels following Iraq's
invasion of Kuwait, on August 10. 1990 the Attorney General adopted
emergency regulations under C.93A prohibiting price gouging in the sale of
petroleum products during a market emergency. Pursuant to these new
regulations, CPD served numerous Civil Investigative Demands on pet-
roleum producers, wholesalers and retailers. In addition, the Division
began regular monitoring of retail prices of gasoline and heating oil. A
public hearing was held on November 16, 1990 on the proposal to make the
price gouging regulations permanent. The final regulation, drafted by CPD
and the Anfitrust Division, prohibiting petroleum product price gouging
was adopted effective December 21, 1990.
The office has also submitted comments and testimony on both state and
federal matters. CPD testified before the State Banking commissioner on its
Rules and Regulations Prohibiting Unfair and Deceptive Acts or Practices
Involving Consumer Transactions at public hearings on September 14,
1990, and October 29, 1990. The rules reflected our testimony and com-
ments, particulariy as to banks' obligation to scrutinize and be held accoun-
table for consumers loans arising from transactions marked by sellers'
unfairness, deception or fraud; mortgage brokers activities; mortgage
escrow accounts; and the banks' own unfair or deceptive lending
practices.
In February, 1991. CPD tesdfied in favor of the three bills in the state
legislature. CPD testified in favor of the Telemarkefing Bill that would pre-
vent fraud by prohibiting a telemarketer from submitting any charge to a
consumer's credit card undl they had received a written contract signed by
the consumer which would idendfy the telemarketer by name and address
and identify the goods or services being sold, the total price and the date of
the transaction. This written contract would help insure that consumers
have sufficient information concerning the seller and the terms of the
contract to either pursue a complaint or to protect themselves when being
charged by a credit issuer for goods or services which they have
not received.
The CPD testified on behalf of a Bill that would criminalize certain con-
duct that is present in most auto brokering transactions. An auto broker is a
person seeking to arrange a sub-lease type of transaction between a person
having trouble making the payments on his/her card and a person who,
because of their own credit problems, cannot purchase a car on credit.
P.D. 12 47
Many of these transactions create problems for the person who provides the
car because the person who is using the car stops payments or stops carrying
insurance on the car. The secured lender is most often unaware that the car
is in the possession of a third party. The bill would make it a criminal
offense for the broker to arrange such a transaction unless he/she had first
obtained written permission from the secured lender.
CPD also testified in support of the Home Improvement Bill for the
fourth year in a row. This bill would require all home improvement contrac-
tors to be properly identified through registration with the state and would
require that they contribute a nominal sum. to a 'Guaranty Fund' to benefit
consumers who are victimized by home improvement contracts that fail to
do any work or that fail to complete the job properly.
In March 1991. CPD testified in favor of legislation which would increase
civil penalties under Chapter 93A against businesses which target elderly
and disabled consumers. If enacted, the bill would allow courts to impose
maximum civil penalties of up to $7,500 against such businesses for each
violation of Chapter 93A.
We testified in opposition to legislation which would amend
Massachusetts banking laws to allow credit card issuers to impose late
charges on their customers. Such legislation, if enacted, would nullify the
impact of the pending litigation in Greenwood Trust v. Commonwealth,
supra.
In March, we also wrote a letter in support of H. 2709 - An Act Regulating
the Use of All-Terrain Vehicles, which would require inter alia that
all operators of ATVs be 16 years of age and pass a knowledge and skills test,
and that would also ban the sale of three-wheeled ATVs and child-
size ATVs.
CPD submitted testimony to the Federal Communications Commission
in April 1991. urging the agency to adopt strict regulations governing 900
number telephone services. Proposals included ones for better price dis-
closure, improved billing and shutoff protections, and special protections
for children's 900 number programming.
In April. 1991. the Bureau also testified before a subcommittee of the
committee on Banks. Finance and Urban Affairs of the U.S. House of
Representatives about the issue of regional redlining, where an out of state
bank had cancelled credit card accounts of New Englanders. We offered
testimony in favor of a bill that would ban credit discrimination based
on geography.
In June 1991. CPD joined with a number of other states in making com-
ments to a different subcommittee of the Committee on Banks. Finance and
Urban Affairs urging them to adopt amendments to the Fair Credit Report-
ing Act. Suggested revisions include improving data accuracy, responding
more quickly to requests for reinvestigation of errors, improved privacy
rights, and restrictions on preapproved solicitations.
CPD - Charities
With the assistance of CPD. a settlement was reached by the Charities
Division in Attorney General v. Watson & Hughey Company.
Massachusetts and nine other states will share a $2.1 million payment —
the largest ever in a national charitable solicitations case — to settle lawsuits
48 P.D. 12
against the Watson & Hughey Company, a Virginia-based fundraiser, as
well as a Washington. D.C. attorney and several national organizations
which used them both in deceptive sweepstakes solicitations campaigns.
Tlie defendants induced consumers to send donations on the false rep-
resentation that they were a sweepstakes "winner".
Massachusetts will receive $125,000 of the settlement, also a record
amount. From this sum. local community foundations across the state will
receive $65,476 for care or services for persons with cancer or related dis-
eases or for cancer research and the Attorney General's Local Consumer
Aid Fund will receive $59,524 to support local consumer groups. The defen-
dants also agreed to a comprehensive 30-page consent judgment containing
detailed requirements for any future fundraising by Watson & Hughey or
these organizations.
LOCAL CONSUMER GROUPS AND
MEDIATION SERVICES
Local Consumer/Mediation Services (LCMS) is responsible for the
administration of the Local Consumer Aid Fund and the state-wide net-
work of Local Consumer Programs (LCPS) and Face-to- Face Mediation
Programs (FTFMPS) supported by that Fund, the LCMS awards grants to
local agencies throughout the Commonwealth for the resolution of con-
sumer problems and provides ongoing training and technical assistance to
grant recipients. Working cooperatively with the Attorney General, these
local programs resolve thousands of complaints through mediation and
also identify repeat offenders so that appropriate legal action can be taken
by the Consumer Protection Division.
Funding for the local programs is allocated by the General Court to the
Local Consumer Aid Fund (LCAF) (M.G.L. c. 12. /I IG). In FT '91. $618,266
was appropriated by the Legislature to the Local Consumer Aid Fund. Ten
percent. $61,827. was retained by the DAG for administrative purposes. An
additional $71,061. earmarked for the LCAF in the settlement of consumer
cases, was used to supplement the legislature's allocation, resulting in a total
grant expenditure of $627,500 in 1991.
Complaint Section
During fiscal 1990. the Consumer Complaint Section opened 2.945 cases
and closed 1,736 cases. As a result of our mediation efforts, we recovered
$78,708 in direct refunds, obtained settlements where consumers saved
$148,655 and negotiated other disputes where consumers received goods or
services valued at approximately $127,956. The total savings for consumers
was $355,319.
In addition, our clerical staff processed 4.468 written complaints: 341
were referred to other state or local agencies. 440 other states. 1.623 local
consumer programs. 963 to divisions within the attorney general's office.
1.070 were returned to consumers, and 31 were Harshbarger correspon-
dence responses.
The Attorney General's Information Line Received 90.144 calls during
the past year. 5.746 Complaint/Inquiry Forms were sent to cifizens as a
P.D. 12 49
result of their call to the office. 18.1 15 citizens were given general informa-
tion, and 66.283 consumers were referred to other federal, state or local
agencies or departments.
ENVIRONMENTAL PROTECTION DIVISION
The Environmental Protection Division serves as litigation counsel on
environmental issues for various state agencies, particularly those within
the Executive Office of Environmental Affairs. The Division handles all of
the Commonwealth's civil litigadon to enforce environmental protection
programs established by state laws and regulations. The Division brings
suits to enforce the Commonwealth's regulatory programs governing air
pollution, water pollution, wetlands, hazardous waste, hazardous materials,
solid waste, water supply, pesticides, waterways and billboards, and it
defends decisions made by state agencies that administer environmental
programs. In addition, based on the Attorney General's broad authority to
protect the environment of the Commonwealth, the Division initiates and
intervenes in state and federal litigation, and participates in administrative
hearings before federal agencies on significant environmental issues. In the
first half of 1991 the Special Litigation Unit and the Nuclear Safety Unit
were merged into the Environmental Protection Division. Accordingly, the
Division is now also responsible for the Commonwealth's asbestos cost
recovery lidagation and matters arising from the operation of nuclear
power plants.
Money Recovered For the Commonwealth Treasury:
Civil Penahies: 2.086.305.70
Hazardous Material Cost Recovery: 1.449.561.77
Asbestos Cost Recoverv/Damages: 1.247.214.00
Total:
4.783.081.47
Money Saved the Commonv^ealth:
Many cases resulted in court judgments requiring private parties to
undertake costly cleanups - a savings of millions of dollars for the
Commonwealth.
II. State Enforcement.
One of the most important functions of the Division is to bring
lifigation to enforce the Commonwealth's environmental statutes.
Major state enforcement cases handled in the fiscal year include the
following, as sorted by subject area.
A. Hazardous Waste:
Commonwealth v. Tewksbury Auto Parts: As a result of a consent
judgment obtained in January 1991. the owners of a Tewksbury scrap
metal operation charged with the illegal disposal of hazardous waste
50 P.D. 12
will pay $830,000 in civil penalties and establish a $1 million escrow fund to
cover cleanup costs. In a suit filed in Suffolk Superior Court, the Division
had charged Tewksbury Auto Parts. Inc.. the operator of an automobile and
appliance shredding business, and Tewksbury Metals Inc.. the operator of a
metal reclaimation business, with illegally disposing more than 400.000
cubic yards of waste, much of it hazardous, in a wetland area.
Commonwealth v. Monsanto Coqi. The Division obtained over a million
dollars in penalties from a consent judgment entered in January 1991. In
that case the Commonwealth charged that Monsanto failed to report a
release of hazardous materials in violation of G.L. c. 21E. The penalty set-
tled the Commonwealth's claims that the industrial chemical manufacturer
illegally released 200.000 gallons of untreated industrial wastewater into
groundwater and the Mystic River from its chemical manufacturing com-
plex on Mystic View Road in Everett. The judgment filed in Suffolk
Superior Court also required Monsanto to pay an additional $192,000 to the
Massachusetts Environmental Trust in equal $48,000 installments over the
next four years. The Massachusetts Environmental Trust operates as an
environmental philanthropy funding projects to restore and improve
Massachusetts' marine and coastal environments and promote educational
efforts around marine and coastal issues.
B. Water Pollution/Water Supply:
Commonwealth v. Microwave Research Corp.. et al: In August 1990. the
Division obtained a consent judgment requiring the payment of total
penalties of $175,000 for alleged violations of the Clean Water Act and the
Hazardous Waste Management Act. The Complaint filed by the Division
alleged that the defendants had discharged industrial wastewater, including
metals in a processed soludon from their North Andover facility into
groundwater without a permit, and that they had also illegally transported
and stored barrels of waste in a warehouse in Lawrence. Massachusetts. The
final judgment included a permanent injunction prohibiting the successor
corporation. Microwave Engineering Corp.. from discharging any substan-
ces into the groundwater.
Commonwealth v. Eastern Manufacturing Corp.: In September 1990. a
consent decree was entered after two years of active litigation. Eastern
Manufacturing Corp.. a manufacturer of printed circuit boards, agreed to
pay a $50,000 penalty and to comply with a schedule of stipulated penaldes
for any future violations over the next three years. The corporation also had
to build a new wastewater treatment system as a condition of its current per-
mit, at an estimated cost of $750,000.
Commonwealth v. Seaman Paper Company of Massachusetts, Inc.: A
consent judgment was also entered against Seaman Paper Company of
Massachusetts. Inc.. a mnaufacturer of recycled paper products, in
September 1990. The consent judgment settled the case brought against the
company for violadng its permit to discharge treated wastewater into the
Otter River. Under the terms of the consent judgment the company is
required to pay a civil penalty of $150,000 and to make certain improve-
ments in its treatment plant to bring the plant into full statutory compliance.
The judgment also requires the Company to take certain acfions to insure
that the Otter River is protected while the required improvements are
P.D. 12 51
being implemented.
Commonwealth of Massachusetts v. North Adams; A consent judgment
was entered in which the City of North Adams agreed to a schedule to
improve the public drinking water supply system to comply with the
requirements of the Safe Drinking Water Act.
C. Pesticide:
Commonwealth v. Orkin Exterminating Co.. et. al. A consent judgment
was obtained in June 1991 requiring the Orkin Exterminating Co.. Inc.. of
Pitts field, to pay a civil penalty of $23,000. The consent judgment settled
claims that the company violated the Massachusetts Pesticide Control Act
following an incident in South Lee in which a two-year old girl ingested
some poisoned rodent bait that an employee of Orkin had allegedly placed
in an unsecured bait box. The consent judgment requires the employee
himself to pay a penalty of $600 and requires Orkin to pay a civil penalty of
$23,000. It also requires Orkin to remove non-tamper-proof bait boxes that
may have been previously installed at its customers.
D. Wetlands:
Commonwealth v. Van Wyck: Also in June 1991. a consent judgment was
entered in a civil proceeding that was brought against an Essex real estate
developer, Peter Van Wyck. that was a companion case to a criminal pro-
ceeding that charged Van Wyck with altering various wetlands areas on
property he owned without first gaining approvals required by the state
Wetlands Protection Act. In the civil proceeding, the consent judgment
requires Van Wyck to restore areas that he had altered and to pay a civil
penalty of $75,000 unless he fully complies with the injunctive provisions of
the judgment.
III. Cosf Recovery/Cleanup:
The Division spends considerable resources on suits to remedy con-
tamination caused by oil or hazardous materials, including contamination
caused by oil or hazardous materials, including litigation to recover costs
incurred by the Commonwealth when it takes cleanup actions. Major cases
handled in the last fiscal year include the following.
U.S. etaL v. AVXetaL: In this case, the Commonwealth and the United
States jointly prosecuted Superfund litigation against five defendants for
PCB contamination of New Bedford Harbor. The Court established three
separate defendant groups, each with a disdnct lifiagation schedule. The
Commonwealth and the United States reached a settlement agreement in
principle with the first defendant group. Aerovox and Belleville, for $12.6
million. The final terms of the agreement were approved by the parties and
court. If the judgment is not appealed, it will become finaland the monies
recovered will reimburse the governments for remedial costs and fund a
joint restoration plan for injured natural resources in the harbor. In August
1990. the governments reached an Agreement in principle with defendant
AVX for $66 million. The final terms of the agreement are sdll in negotia-
tion. An agreement in principle has also been reached with the last defen-
52 P.D. 12
dant group. Federal Pacific Electric Company and Comell-Dubilier Elec-
tronics, Inc., however, the final terms of that agreement are still being
negotiated.
Atlas Tack Corporation v. Commonwealth of Massachusetts: In June
1991. the Division obtained a consent judgment that resulted in the Com-
monwealth receiving more than $875,000. In this case. Atlas Tack filed suit
against the Commonwealth, claiming that it was not liable for the costs of
the cleanup of a lagoon containing electroplating wastes at its Fairhaven
site. The Commonwealth brought counterclaims pursuant to G.L. c. 21C
and c. 21E seeking penaldes, cleanup costs and treble damages. The judg-
ment represents cost recovery, interest and penalties.
Commonwealth v. Texaco, etal. In this case, the Commonwealth brought
an action against Texaco, and several other defendants in connection with
the gas station site from which were releases of hazardous materials and oil
in violafion of G.L. c. 2 1 E. The Division successfully negotiated a settlement
of the matter in the form of a consent judgment under which the Common-
wealth will recover $475,000.
Commonwealth of Massachusetts v. Owens-Coming Fiberglass Corp.. et
al.: The Division acting through a Special Assistant Attorney General com-
menced this major property damage action in Suffolk Superior Court. In
this case, the Division brought a six hundred million dollar claim against 50
former manufacturers, suppliers and distributors of asbestos. The goal of
the lawsuit is to recover for the property damage caused to the state's
buildings and facilities due to the installation of the defendants
asbestos products.
Johns Manville Bankruptcy: The Division participated through a claims
process to recover asbestos property damages from the Manville Property
Damage Trust. Sixty-two claims worth a total of $2,127,358 were filed. The
Commonwealth recovered more from the Trust in this claim cycle than any
other state in the country.
UNR Bankruptcy: The Division also obtained a recovery of approx-
imately $400,000 worth of securities and cash from the UNR bankruptcy
proceeding in Chicago for property damage caused to Gaebler State Hospi-
tal because of the presence of UNR's asbestos products.
IV. Defensive Cases:
The Division defends the regulatory and enforcement actions of state
environmental officials and agencies. In this fiscal year, the Division defen-
ded scores of such claims. These suits ranged from administrative appeals
to taking claims to challenges to state environmental regulations.
V. Intervention in Facility Siting Proceedings:
The Division intervenes in facility siting proceedings when it determines
that such intervention is necessary and appropriate to protect the public
health or the environment. Major siting controversies in which the Division
participated this year are as follows.
Clean Harbors Incinerator: In Augst 1990. the Division prepared and
submitted to DEP significant written comments, including comments from
four experts, regarding the unsuitability of the site in Braintree proposed by
Clean Harbors. Inc. for the construcfion of a rotary kiln incinerator to bum
hazardous wastes. After evaluating the site, the experts concluded that the
P.D. 12 53
proposed site rated extremely poorly on each of DEP's siting criteria, and
the written comments to DEP documented their findings. In September
1990, DEP issued a preliminary determination finding the site to be "an
inherently unsuitable location for such a project". The reasons DEP gave
for making this determination included many o( those the Division had
presented in our comments. Shortly thereafter. Clean Harbors announced
it was abandoning the project.
Halfmoon Power Plant: In 1990, the Division was granted permission to
intervene in Inter-Power of New York. Inc. - Proposed Powerplant. at Half-
moon, N.Y.. a proceeding before the New York State Board of Electricity
' Generation Siting and the Environment. The purpose of the proceeding is
to determine whether Inter-Power of New York, Inc., should be allowed to
build a 200 megawatt, coal-fired cogeneration facility in Halfmoon, New
York. Due to prevailing winds, the Berkshires will suffer the maximum acid-
deposition impacts from the proposed facility. The hearing officer assigned
to the proceeding issued a recommendation that the plant be sited as a gas
plant. That recommendafion was rejected by the Siting Board on a vote of
5-2. Thereafter, based upon newly discovered evidence that the air impacts
has been understated, the Board revoked its approval and remanded the
matter for further proceedings.
Seabrook Nuclear Power Plant: In January 1991, the United States Court
of Appeals for the District of Columbia issued its opinion in the case involv-
ing the licensing of the Seabrook Nuclear Power Plant. In its decision. Com-
monwealth of Massachusetts, v. NRC. the Court of Appeals upheld a
decision by the Nuclear Regulatory Commission (NRC) that concluded
that so long as emergency plans for nuclear power plants met certain
generic planning requirements, they may be approved without any specific
finding that the plans will in fact protect the public in the event of an
emergency. In reaching this conclusion, the Court of Appeals deferred to
the NRC's interpretation of its regulations. Because of the significant public
safety issues at stake, the Division filed a petition for ceriorari in the United
States Supreme Court seeking review of the Court of Appeals decision.
VI. Amicus Participation:
The Division participates as amicus curiae in matters that affect legal
rights of the Commonwealth. In this fiscal year, the Division filed an
amicus brief in a case in the Supreme Judicial Court which raised the issue
of whether private ownership in coastal areas extended to the mean low tide
line, the mean extreme low tide line, or the extreme extreme low tide line
(the lowest point the tide has ever been known to ebb). The Division filed a
brief arguing that private ownership could extend only down to the mean
low tide line and that areas extending seaward were owned by the Com-
monwealth. In a decision issued in February of 1991, the Supreme Judicial
Court rejected the extreme extreme low tide line, but did not reach the issue
of which of the other two boundaries applied. Rockwood v. the Snow Inn
Corp., 409 Mass. 361 (1991).
54 P.D. 12
DIVISION OF PUBLIC CHARITIES
The Attorney General represents the public interest in the proper solicita-
tion and use of all charitable funds. The Attorney General is authorized to
"enforce the due application of funds given or appropriated to public
charities within the Commonwealth and prevent breaches of trust in the
administration thereof. G.L. C.12. sec. 8. The Division of Public Charities
is established by G.L. c.l2. sec. 8B to carry out the Attorney General's res-
ponsibilities in this area.
The Attorney General's enforcement role extends across the spectrum of
charitable activity in order to protect charitable donors from diversion and
waste of funds, and to ensure that the beneficiaries of charitable funds
receive the intended benefits. Through the Division of Public Charities, the
Attorney General takes enforcement action (i) to ensure that charitable
funds held by trustees and charitable organizations are used properly, and
(ii) to protect the public from deceptive and fraudulent fundraising prac-
tices. In addition, the Attorney General is an interested party in the probate
of each estate in which there is a charitable interest and in legal actions to
modernize the provisions of philanthropic bequests.
To further protect the public interest in this area, more than 28.000
charides are registered with the Division, as well as over 180 fundraisers
operafing in Massachusetts. A charitable organization is one which is non-
profit and whose purpose is to benefit a portion of the public; in addition to
philanthropic organizafions. examples of public charities include non-
profit hospitals, schools, social service providers, and cultural organiza-
tions. As well as registering and obtaining financial reporting by charitable
organizafions and fundraisers, the Attorney General is the defendant in all
proceedings brought in the Supreme Judicial Court to wind up the affairs of
a charitable organizafion.
TABLE I: Money Recovered
For The Commonwealth Treasury
A. Charitable Registrafions. Certificate Fees.
And Fundraiser Registrafions $613,580.00
B. Escheats $693,671.12
C. Civil Penalties and Costs $106,300.00
TABLE U: Money Recovered And
Saved For Commonweahh Citizens
A. Judgments. Settlements and Resfitufion
in Public Charities Division Matters $125,000.00
A. ACCOUNTABILITY BY PUBLIC CHARITIES
Central to the Attorney General's responsibilities with respect to
charitable funds is the enforcement of laws requiring accountability by
public charifies.
P.D. 12 55
1. Charitable Organization Registrations and Annual
Financial Reporting
All public charities, with the exception of religious organizations and cer-
tain federally chartered organizations, must register with the Division. All
registered charities must submit annual financial reports. The registrations
and the financial reports are public records and public viewing files are
kept.
From July 1, 1990 through June 30, 1991. the Division processed 19,132
annual financial reports. Annual filing fees of $25 per report totalled
$478,300.
During this period, 1340 new charitable organizations were reviewed,
determined to be charitable, and registered. Each was sent the Division's
packet of information about the Division's registrafion and filing
requirements.
2. Administravie Enforcement of Registration and Filing Requirements
In addition to its ongoing program of contacts to charities whose annual
filings are deficient or delinquent, the Division confinued its priority com-
pHance project to ensure registrafion and fifing compliance by a list of 500
significant and active charities. Complete compliance reviews were conduc-
ted, with follow-up contacts with the charifies.
In total, the Division contacted 597 charities to rectify filing
deficiencies.
3. Dissolutions
To enforce the public's interest in the disposition of charitable assets, the
Attorney General is a party to all voluntary dissolutions of charitable cor-
porafions under G.L. c.l80,'§ llA. Under a procedure developed with the
Supreme Judicial Court, dissolving charifies submit draft dissolution
pleadings to our office. Following our review, negotiation of necessary mod-
ificafions, and our assent, the pleadings are filed by the dissolving charity
with the Supreme Judicial Court. We review pleadings to ensure that:
(1) there are adequate grounds for dissolution;
(2) charitable assets are not diverted to non-charitable uses; and
(3) any assets remaining after repayment of outstanding debts are
transferred, with Court approval, either (a) as restricted assets to a
charitable corporafion with a similar charitable purpose, or (b) as
funds restricted to such a purpose to a charitable corporation
whose purpose include but are broader than those of the dissolv-
ing charity.
After review of proposed pleadings and negofiafion of necessary mod-
ificafions, the Division assented to 28 mofions by dissolving charitable cor-
porafions for interlocutory orders permitting transfer of assets to other
charifies for similar charitable purposes, and to 61 final judgments dissolv-
ing charitable corporafions. For example, after negofiation and modifica-
fion, the Division assented to the petition of the HCHP Hospital (formerly
Parker Hill Hospital) to transfer its remaining restricted funds to the
56 P.D. 12
Brigham and Women's Hospital, with its remaining general assets dis-
tributed pio rata to prior creditors.
4. Sales of Corporate Assets
Under amendments to the non-profict corporations act which took effect
in April 1990, a charitable corporation must give 30 days advance written
notice to the Attorney General before making a sale or other disposition
involves or will result in a material change in the nature of the activities con-
ducted by the corporation. G.L. c. 1 80. § 8A(c). The Division developed and
publicized a procedure for responding to the notices and a checklist of
issues to be resolved upon receipt of such a notice.
The following is an illustrative example of notices received, analyzed and
responded to:
St. Luke's Hospital in Middleborough, which was ending operations
due to economic conditions, proposed to sell its assets to nearby non-
profit hospital for use as an out-patient clinic at the original hospital's
site, with trust funds transferred to the purchasing hospital for use in
connection with the clinic. Division position: Sec. 8A notice required;
court approval required because of the changed purposes to which the
hospital's restricted and unrestricted assets will be applied; dissolu-
tion required if corporation will not continue to function. After
lengthy negotiations, the Division assented to a court petition seeking
authorization for the sale and transfer, and the Court approved.
Under the agreement, two funds which were subject to gifts over to a
hospital in Boston if the first hospital ceased operation in
Middleborough were excluded from the transfer.
5. Enforcement of the Due Application of Charitable Funds
The assets of all charitable corporations and other public charities are
considered by law to be held by the charitable organization for charitable
purposes. Under common law and G.L. c. 12. §8. the Attorney General
represents the public's interest in the proper use of these assets.
For example:
Fairiawn Rehabilitation Hospital (Fairiawn). a Worcester charitable
corporation, informed the Division that it wished to sell its assets and
turn over its operations to a for-profit corporation. New England
Rehabilitation Services of Central Massachusetts. Inc. ("NERSCM").
After lengthly negotiations about the practicability of fulfilling its
charitable purposes and fair market value for Fairlawn's assets, the
Division agreed to the sale, conditioned on the recapture by Fairiawn
of a portion of any profit realized by NERSCM if it resold the assets
for non-hospital uses within a ten-year period. Fairiawn filed a com-
plaint in Worcester probate court seeking approval of the transaction,
and permitting Fairiawn to convert to a foundation. The Division
assented, and the Court issued an order approving the transaction.
The Fuller Museum of Art (the "Museum") of Brockton approached
the Division seeking authorization to borrow funds from the principal
P.D. 12 57
of a restricted, income-only endowment fund. After extensive negotiations
about the extent of the Museum's borrowing needs, availability of alter-
natives to borrowing from endowment, and ensuring prompt payback to
endowment, the Division assented to a motion for entry of final judgment
allowing the borrowing from endowment of $250,000 secured by a mortgage
on Museum property. The Museum trustees filed a Complaint and the
assented-to motion in Plymouth Probate Court, and the Court approved
shortly thereafter.
B. ESTATES AND TRUSTS IN WHICH THERE IS A
CHARITABLE INTEREST
Under statutory and common law. the Attorney General is an interested
party in the probate of all estates in which there is a charitable interest and
in ail other judicial proceedings affecHng charitable trusts. In its role of
enforcing the due application of charitable funds and preventing breaches
of trust, concerns addressed by the Division include:
a) is the trust functioning (i.e.. not dormant)
b) are the trustees complying with the trust purposes?
c) are the trustees accounting properly for the trust's funds?
d) are the trustees adhering to their fiduciary duties of care and
loyalty?
e) because of changed conditions, should the court be asked to
modernize the trust provisions through the doctrines of cy pres
or deviation?
1. Wills. Trusts, and Probate Matters
The Division received and reviewed 1760 new wills. 1513 of which con-
tained charitable bequests. As well. 1 787 executor and trustee accounts were
reviewed and approved along with 1083 final accounts. 716 which were
closed. The Division also reviewed, negotiated and assented to the follow-
ing pefitions: 144 petitions for sale of real estate. 13 to terminate trusts, and
74 for appointment of administrators.
Seventy-nine new probate cases were opened, and the Division was
involved in 105 actions on existing probate cases, which included petitions
for cypres or instructions to modernize or clarify outmoded trust terms or
terminate uneconomical trusts. For example, a charitable trust which is for
the benefit of the poor had been in existence for 16 years and no charitable
expenditures had ever been made. Under a resolution of the case worked
out by the Division, the corpus of the trust, approximately $200,000.00. was
turned over to the local Community Foundation so that the purposes of the
testator will be carried out expeditiously and economically.
Over 35 small trust funds were transferred to charitable beneficiaries
under G.L. c. 203. sec. 25. resulfing in more income to charides by reason of
elimination of administrative costs. In addition, the Division reviewed 141
other miscellaneous probate matters.
58 P.D. 12
2. Public Administration
The Division represents the State Treasurer in the public administration
of intestate estates which escheat to the Commonweahh because the dece-
dent had no heirs. During July 1990 -June 1991, $693,671.12 was received in
escheates. the Division reviewed and approved 52 intestate estates. Forty
two estates were closed, and 27 other miscellaneous public administration
matters were handled.
3. Litigation
The Attorney General is a party in numerous cases in active litigation in
furtherance of his authority to "enforce the due application" of charitable
turst funds and to "prevent breaches of trust in the administration thereof.
For example:
The Division negotiated a resolution of a dispute between the town of
Rockport and the Smithsonian Institution over the rightful bene-
ficiary of a $1 million bequest left to Rockport in the will of a town resi-
dent. The Division filed an answer supporting Rockport's position
that the bequested funds may be used for renovating an old
schoolhouse into a new public library and asked the court to liberally
construe the bequest language to carry out the donor s stated intent to
"provide an adequate replacement" for the library. Pursuant to the set-
tlement entered into by the Attorney General. Rockport. and the
Smithsonian, the Essex County Probate Court entered a decree stat-
ing that the $1 million may be used for the necessary renovations.
Another case involved the creation of a trust instrument by a bank in
Springfield. Massachusetts, the purpose of which was to consolidate
approximately 27 charitable trusts totalling $900,000.00. Consolida-
tion is permitted under a statute G.L. c.203. § . which allows a court to
consolidate or terminate trusts if they are uneconomical to administer.
The Division worked with representatives of the Bank on the draft
provisions of the trust instrument to assure that trust purposes were
properly carried out. Memoranda were submitted to the court by the
bank and the Division. The Judge allowed the Petition to Establish the
Consolidated Trust.
Another example involved a complicated Statutory Estate Plan for the
decedent while under conservatorship which set up two trusts totall-
ing about one million dollars which were for her benefit during life
and then went principally to designated charities. There were pro-
visions for payment of expenses and equalizing of the trusts after her
death. The plans had not been implemented as required and there
were several hearings in New Bedford before the Probate Court Judge,
which we attended. The Judge first appointed a guardian ad litem and
then an accountant to help determine what had to be done. With our
assistance, an agreement was reached by all parties resulting in a judg-
ment and final distributions.
P.D. 12 59
D. CHARITABLE SOLICITATION ENFORCEMENT
The Attorney General represents the public interest in the proper solicita-
tion of solicited charitable funds and in the proper use of such funds.
1. Issuance of Certificates to Charities Who Fundraise
Under G.L. c. 68. sec. 19. every charitable organization which intends to
solicit funds from the public, except religious organizations, must apply to
the Division for a solicitation certificate before engaging in fundraising.
Upon receipt, the Division reviews the application for compliance with
statutory requirements. Unless there is a deficiency in the application, all
certificates are issued within a 10-day statutory period.
This year, 13.333 certificates were issued and $133,330 in cerficate fees
were received and processed.
2. Registration of Professional Solicitors and Fund Raising Counsel
Under §§22 and 24 of G.L. c.68. all persons acting as professional
solicitors or professional fundraising counsel for solicidng charitable
organizations must register annually with the Division. Solicitors must also
file a surety bond in the amount of $10,000.00. All fundraisers must also file
with the Division a copy of each fundraising contract which they sign with
any charitable organization, and solicitors must later file a financial return
regarding each fundraising campaign.
During the fiscal year ending June 30. 1991. a total of 195 registrations
were received and approved, resulting in $1950.00 in fees to the Common-
wealth. Of this total. 13 were new registrations for the remainder of calendar
year 1990 and 182 were annual registrations for calendar year 1991 (44
solicitors. 123 fund-raising counsel, and 15 commercial co-venturers).
3. Administrative Enforcement of Registration and Filing Requirements
In addition to its ongoing program of contacts to charities and fun-
draisers whose filings are deficient or delinquent, the Division focused its
compliance resources on charities formed during the Persian Gulf war for
the benefit of the troops and their families, because of the anticipated out-
pouring of donations for this purpose. The Attorney General issued a
public advisory warning Massachusetts residents about potential war-
related fundraising scams, and providing information to organizations and
the public about the registration and financial reporting requirements. In
June 1991. the Attorney General asked all war- related groups to file special
interim financail reports, to assure that the donations reach their
intended beneficiaries.
4. Charitable Solicitation Litigation
The Attorney General takes legal action against charities and fundraisers
for unfair or deceptive solicitation practices and to enforce their fiduciary
duties with respect to such funds.
60 P.D. 12
a.) Attorney General v. Watson & Hughey. et. als.
Massachusetts and nine other states will share a $2.1 million payment to
settle lawsuits against the Watson & Hughey Company, a Virginia-based
fundraiser, as well as a Washington D.C. attorney and several national
organizations which used them both in deceptive sweepstakes solicita-
tions campaigns.
The financial settlement is the largest ever in a national charitable
solicitafions case. Massachusetts will receive $125,000 of the settlement,
which is also a record amount for a solicitations case. This $125,000 will be
divided as follows: $65,476 will go to local community foundations across
the state for care or services for persons with cancer or related diseases or for
cancer research: the remaining $59,524 will be paid to the Attorney
General's Local Consumer Aid Fund to support local consumer groups.
The defendants also agreed to a comprehensive 30-page consent judgment
containing detailed requirements for any future fundraising by Watson &
Hughey or these organizations. The settlement was reach after months of
negotiations led by Massachusetts on behalf of the 10 participating
states.
b.) Commonwealth v. G.M.C. Advertising. Inc. et als.
The Attorney General filed suit against this Massachusetts solicitor,
alleging fraudulent and decepfive tactics to solicit funds on behalf of police
unions and associations and other groups. The office also obtained
assurances of compliance signed by three statewide police unions which
had hired the solicitor.
The defendants were charged with violating the state's charitable solicita-
tion and consumer protection laws during their telephone sale of adver-
tisements to Massachusetts businesses. The suit alleges that GMC
employees failed to inform donors of their status as professional, paid fund
raisers, as required by Massachusetts law. and made numerous misrep-
resentations, such as falsely representing that they were either state, registry
or local police officers or local city or town officials. The court issued a pre-
liminary injuncfion which requires the defendants to account for all money
raised for the past three years and to provide advance notice to the Attorney
General of all future fundraising. and prohibits them from making misrep-
resentafions in the course of fundraising.
c.) David P. Gargano. D & M Enterprises. American Federation of
Police. Vietnam Veterans of America. United Citizens Against Drugs.
United Publishing Service, and LAO Enterprises.
The Division obtained a preliminary injuncfion against David Gargano
and D & M Enterprises which prohibits further violafions of Massachusetts
law by this solicitor and requires the defendants to account for all charitable
monies which they raised within sixty days of the date of the injunction. The
Attorney General filed suit against Gargano. and his solicitation company.
D & M Enterprises, in June 1990 as a result of solicitations in the state on
behalf of three nafional charitable organizafions. the American Federation
of Police, the Vietnam Veterans of America, and United Citizens
Against Drugs.
P.D. 12 61
The suit was brought because of widespread misrepresentations by the
defendants during the soHcitations, including claims by the solicitors that
they were actually police officers, veterans or local town officials. The
solicitors also falsely represented that the campaigns had the support of
local police or other groups or officials when such was not the case, and led
donors to believe that the charities were local in nature rather than national
in scope. As well as filing the complaint against Gargano and D & M. the
Attorney General obtained letters of assurance from the three charities
involved and assurances of compliance were signed by the two national
solicitors for the charities. United Publishing Service and LAO Enterprises,
who hired Gargano to conduct the solicitation campaigns in Massachusetts.
d.) Attorney General v. Heaven's Children, Inc.. et al.
Early in the fiscal year, the Division obtained a contempt judgment by
consent against Heaven's Children. Inc.. a Canton-based charitable
organization, and its president. Kenneth Singer, for their failure to comply
with an earlier court order prohibiting further solicitation in Massachusetts
until they accounted for funds already raised from the public.
The contempt judgment directs Singer to take legal steps to dissolve
Heaven's Children and Nadonal Awards for the Handicapped. Inc.,
another organization started by Singer. Singer is also prohibited from direc-
tion or control of any Massachusetts charitable organizafion or any
involvement with the solicitation of charitable funds for three years. The
judgment further orders Singer to pay a civil penalty of $25,000 or be subjec-
ted to an additional three year ban.
Toward the end of the fiscal year, the Attorney General filed another com-
plaint for contempt against Singer, seeking to halt the solicitation of funds
for an upcoming awards event in violation of the earlier court orders. The
Court issued a preliminary injunction, requested by the Attorney General,
prohibiting the defendants from promodng or soliciting for such events and
requiring them to account for any funds which had been raised.
e.) Attorney General v. Jeffrey A. Young and Matthew Pinkham
The Division obtained a final judgment against Jeffrey Young and a judg-
ment by consent against Matthew Pinkham in the contempt acdons which
the Attorney General brought against these solicitors for their violations of
judgments previously entered against each of them. Under the new
judgments. Young is banned from engaging in any solicitation in
Massachusetts for a period of four and a half years while the ban on solicita-
tion by Pinkham is for four years. Pinkham and Young were also fined
$17,500 and $17,000 respecdvely. for their violadons of Massachusetts
law.
The two defendants were orginally partners in a charitable-sounding
organizadon. Cidzens Against Drunk Driving (CADD). and misled donors
into believing that CADD was affiliated with either Mothers Against Drunk
Driving (MADD) Or Students Against Driving Drunk (SADD.) when such
was not the case.
62 P.D. 12
f.) Attorney General vs. Capricorn Publishing Co. et. als.
This solicitation case involved fundraising by Capricorn, a professional
solicitor, on behalf of the American Postal Workers Union. Employees of
Capricorn pretended to be postal workers raising money for terminally ill
children. A settlement was reached with co-defendant William Chandler,
who agreed to an extensive consent judgment and a fine of $2500.00. Later,
the court approved a consent judgment enjoining Capricorn Publishing
Co. Inc.. and its sole director and president. William Morgan, from engag-
ing in decefDtive fundraising activities. The fundraiser was also ordered to
pay the Commonwealth $15,000.00
g). Attorney General v. Stephen Brochu and Brochu & Prodoehl
Company
The Division obtained a judgment by consent against this New
Hampshire-based fund-raiser and his company for their violations of the
Massachusetts Charitable Solicitation Act. Under this judgment, the
defendants agreed to comply with all applicable provisions of
Massachusetts law in any future solicitations in the state, to account to the
Division for all charitable funds previously raised, to offer refunds to all
persons who made contributions as a result of the solicitations, and to pay
$2000 in penalties.
The solicitors, who were selling advertisements in "All Hugs. No Drugs"
workbooks of a Washington D.C. based organization, did not disclose their
status as professional funds-raisers to all persons whom they contacted and
in some cases falsely told donors that they were volunteers for the NAF. In
addition, some donors were told that the NAF workbooks would be dis-
tributed to children in local schools although no arrangements had been
made with any local school systems to distribute these workbooks.
CIVIL RIGHTS
Enforcement of the Massachusetts Civil Rights Act
The Civil Rights Division enforces the Massachusetts Civil Rights Act
which authorizes the Attorney General to seek injunctive relief when the
exercise of legal rights is interfered with by threats, intimidation, or coer-
cion. In fiscal year 1991. a total of 17 new injunctions against 30 defendants
were obtained by the division involving racial, ethnic or anti-gay
violence.
A total of 8 injunctions with 12 defendants involved incidents in Boston.
Three of the cases arose in the South End. two of the cases arose in Dorches-
ter, one in South Boston, one in Hyde Park and one in Charlestown. The
Division also obtained injunctions against defendants in Revere,
Northbridge. Pembroke. Salem. Lynn. Haverhill. Milford and in
Provincetown.
Any violation of these court orders would constitute a criminal offense
punishable by a maximum fine of $5,000 or a two and one half year sentence
in a house of correction. If bodily injury results, the defendants would be
subject to a 10 year prison sentence and a maximum fine of $10,000.
P.D. 12 63
Reproductive Rights
The Attorney General intervened in Planned Parenthood League of
Massachusetts v. Operation Rescue. Middlesex Superior Court, an action
seeking injunctive relief against numerous organizations and individuals
who blockade entrances to abortion clinics or who physically invade abor-
tion clinics in order to prevent women from exercising their constitutional
right to obtain abortion services.
The underlying civil action, seeking permanent injunctive relief, pro-
ceeded to trial in March. 1991 following months of intensive pretrial litiga-
tion (including the addition of seventeen new defendants, and multiple
interlocutory appeals over patient confidentiality issues and discovery mat-
ters). The Attorney General proceeded to trial against forty individual
defendants and two organizations. During the three week trial, the Com-
monwealth presented testimony from twenty two witnesses and introduced
over one hundred and thirty exhibits concerning nine separate incidents at
locations throughout the Commonwealth.
In October. 1991. the Middlesex Superior Court issued a statewide perma-
nent injunction prohibiting such activity. In the 1 50 page opinion, the Court
stated "Should any of the defendants, or anyone acting in concert with them
who has notice of the Court's final order, be found to have violated the terms
of the Court's permanent injunction at any time in the future, they will face
the full consequences of sanctions authorized by the Massachusetts Civil
Rights Act. including the likelihood of a term of incarceration in state
prison".
Violation of the permanent injunction is a criminal offense punishable
by a maximum sentence of two and one half years in a house of correction
and a fine of $5,000. During 1991. the Attorney General's Criminal Bureau
indicted three individuals for violadon of the injunction.
The Civil Rights Division provided training to police and coordinated
enforcement of the injunction by local police departments and district
attorney's offices.
Housing Discrimination
Pursuant to its statutory mandate under the 1989 amendments to G.L.
C.151B §5. the Attorney General filed a number of lawsuits in Superior
Court on behalf of housing discrimination complainants including cases
involving allegations of marital status discrimination, race discrimination
and discrimination because of receipt of a housing subsidy.
The Civil Rights Division also has legally intervened to insure, over the
opposition of certain members of the community, that a proposed low
income-elderly housing project is built at the Lombard Farm in West
Barnstable, which is held in a charitable trust.
Sex Discrimination
In response to complaints that numerous Massachusetts hair salons were
charging more for women's haircuts than for men's, the Attorney General
secured the assistance of the Board of Registration in Cosmetology in
notifying all Massachusetts licensees that gender-based pricing is illegal
64 P.D. 12
under Massachusetts law.
The division also prepared and filed before a local liquor commission a
legal memorandum supporting the denial of a license for alleged dis-
criminatory conduct by a golf club. This legal position has resulted in
obtaining major changes in the policies of a number of golf clubs regarding
women's access to facilities and voting rights.
The Civil Rights Division also settled sexual orientation credit dis-
crimination claims against a national consumer credit company. General
Electric Capital Auto Lease. Inc. (GECAL). CECAL had allegedly refused
to enter iinto an automobile lease agreement with a lesbian couple, on
account of their sexual orientation and marital status.
Under the terms of an "Assurance of Discontinuance" entered into be-
tween the Attorney General and GECAL. GECAL agreed to the following:
It will not refuse to grant loans to non-spousal cosigners on account of mari-
tal status or sexual orientation, that it will place affirmative disclosures on
all credit applications in use in Massachusetts stating that Massachusetts
law prohibits credit discrimination on the basis of marital status or sexual
orientation, it will inform its employees and agents who are involved in
reviewing credit applications from Massachusetts that Massachusetts law
prohibits credit discrimination on the bases of marital status or sexual
orientation, and that loan applications from non-spousal cosigners may not
be denied on those basis.
Credit Discrimination Claims
The division intervened in a case in the Massachusetts Commission
Against Discrimination in which two black women alleged a supermarket
maintained a racially discriminatory policy in the acceptance of checks. A
settlement was obtained to issue a consistent, non-discriminatory policy of
chech cashing and check acceptance.
Disability Issues
The Division has engaged in a comprehensive and ongoing effort to
ensure that the new federal and state statutes which prohibit discrimination
against people with disabilities are enforced. The Office of the Attorney
General convinced the City of Boston to amend their zoning regulations to
remove the special permit requirement for group homes. The division also
resolved a dispute with the City of Medford regarding physical accessibility
to Medford polling areas. It also negotiated an agreement with the Depart-
ment of Corrections and the Department of Mental Health to insure ade-
quate access by attorneys to patients at Bridgewater State Hospital.
On May 17. 1991. the Attorney General, in a joint letter with the Director
of the Massachusetts Office on Disability, sent a letter to all 351 cities and
towns in Massachusetts informing them that state and federal law require
that all programs and activities, including public meetings, have to be
physically accessible to people with disabilities. In response to the letter a
significant number of cities and towns modified their practices and per-
manently moved their meetings to accessible locations or temporarily
relocated until renovations could be completed to create permanently
accessible locations. Some of the cities and towns which took such steps
P.D. 12 65
include Southbridge. Provincetown, Maiden, Bridgewater. Hamilton.
Ashbumham. Natick, Brookline. Swampscott Hopedale, Webster,
Tyngsborough. Wakefield, Harwich and Nantucket.
Police and Correctional Officials
The Civil Rights Division established a new protocol to review all
allegations of police misconduct brought to the attention of this office. Each
allegation will be carefully reviewed by the Chief of the Civil Rights Divi-
sion to determine which complaint appear to merit investigation. In fiscal
year 1991, numerous complaints were filed with the Civil Rights Division
regarding allegations against police or correctional officers. The Civil
Rights Division will initiate timely and thorough investigations of
allegations of unconsdtutional or unlawful conduct on the part of police
departments and officers.
Through these investigations, the Attorney General will seek to identify if
any of the complained of individual officers or departments have violated
the law. At the conclusion of each investigation, the Civil Rights Division
will take one of five courses of action:
First, the division notifies the police chief at the conclusion of an inves-
tigation if there is no merit to the complaint or the complaint is unsubstan-
tiated. The majority of investigations have led to this result.
Second, if a pattern of illegal conduct by a department is identified, the
Attorney General will request that it modify the policies or practices that are
deemed to have led to the pattern or statutory or Consitutional Violations.
The Division will then work with local police departments, demonstrate the
areas requiring change and offer specialized training, specific to the
identified needs of the department. It is anticipated that departments will
modify their practices and welcome this special training, both to enhance
sensitivity to the individual rights of residents aiid to protect departments
and municpalities from civil liability and large damage and attorneys'
fee awards.
Third, in the circumstances in which the unlawful conduct is not deter-
mined to be criminal in nature, the Civil Rights Division will request that
the police chief commence disciplinary proceedings against an officer
whom it has determined participated in unlawful conduct, as an alternative
to the filing of a civil lawsuit against the individual officer. In this cir-
cumstance, the division will supply the police chief its investigative report
and its findings and conclusions to assist in the disciplinary process. The
division will request that such disciplinary process commence within a
month from receipt of the investigative report and be completed within
three monts of commencement. In general, when thorough, timely dis-
ciplinary proceedings have been inifiated and completed, the Civil Rights
Division will not take any further steps.
Fourth, whenever the facts require it and civil rights statutes permit, the
Criminal Bureau, in cooperation with the Civil Rights Division, will
criminally prosecute police officers who violate the civil rights of any
individual. Two police officers and one correctional officer were indicted in
1991 for alleged civil rights violations.
Fifth, if a department should refuse to provide necessary special training
or fail to modify any policies or practices found to be unlawful, or in other
66 P D. 12
special circumstances, the Attorney General's Office has notified the Police
Chiefs that it will contemplate court action. Such civil action would include
seeking injunctive relief to mandate training or policy changes or to pro-
hibit certain conduct. It is the Attorney General's expectation that legal
action will generally be unnecessary, and will be used only as a last
resort.
The Civil Rights Division was involved in training of a significant num-
ber of police officers, police supervisors and police chiefs from throughout
the state in 1991. Subjects of training include the investigation and prosecu-
tion of hate crimes as well as federal and state constitutional and civil rights
laws arid the civil liability of police officers.
One comprehensive resolution of a complaint resulted from a police
action that occurred in Revere on July 1, 1991, in which officers from four
different law enforcement agencies entered a three block segment of Revere,
inhabited almost entirely by Cambodian immigrants, to serve certain arrest
warrants. The police operation, although executed in good faith, aroused
anger and fear within Revere's Cambodian community and prompted
many complaints to the Attorney General's office. A five-point plan was
adopted and implemented to help to mend quickly any damage that was
caused, to solidify a relationship of trust and cooperation between the
police and the Cambodian community and to guide enforcement
operations in the future.
First, the Attorney General's office, in conjunction with the City of Revere
and the State Office of Refugees and Immigrants, successfully sought fund-
ing from the Federal Office of Refugees Resettlement to establish a full time
Outreach Liaison, assigned to the Attorney General's office, to work with
the Cambodian community. City of Revere officials and the police.
Second, members of the Civil Rights Division of the Attorney General's
office, the Revere city police and the State Police have worked with the
community leaders to organize and then participate in community
meetings to provide information to members of the Cambodian community
about their civil and legal rights, the role of the police in their community,
and the differences between the Cambodian and the American systems of
criminal justice.
Third, in order to bridge cultural barriers and to more fully understand
the cultural and historical background of the Cambodian community, the
State and Revere police have invited a liaison from the Cambodian
community to participate in training of their police officers as part of their
in service training.
Fourth, the Civil Rights Division has acted as a facilitator for the
formation of a Southeast Asian Community Advisory Committee to
provide a vehicle on an ongoing basis for members of the Southeast Asian
community residing in Revere, the Revere police. Revere Human Rights
Commission, the Revere political leadership, and the Office of the Attorney
General to communicate regularly.
Fifth, the Commissioner of Public Safety, the State Police, and the Revere
Police Department have agreed that any large scale police operation of this
specific nature and magnitude will be subject to prior review by appropriate
prosecutorial offices, including the Attorney General's office, to ensure
compliance with exisUng civil rights laws and standards.
P.D. 12 67
These initiatives have provided assurance to the Cambodian community
in Revere of the law enforcement community's sensitivity toward their
needs, their understanding of the negative feelings that this operation
engendered, and their intention to better communicate and work with them
in the future. The Attorney General expects that the steps taken by the Civil
Rights Division in this matter also will guide and serve as a model for law
enforcement agencies throughout the state.
Employer Interrogation of Employees
In November. 1990. the division settled a case against Christy's Markets.
Inc., National Investigation Bureau and several individuals, involving
alleged coercive employee interrogation practices. Christy's agreed to
specific limitations on its interrogation practices such as limiting question-
ing to one hour, using only company employees, and making clear that the
questioning is voluntary, the National Investigation Bureau also agreed to
limit its practices.
Education
The Civil Rights Division filed a brief in the United States Supreme
Court in Boston Teachers Union v. Morgan, on behalf of the Massachusetts
Board of Education in response to the Boston Teachers Union's petition for
writ of certiorari seeking review of the final orders issued in the Boston
School desegregation case. The Division opposed the School Committee's
challenge to a recent U.S. District Court decision retaining jurisdiction and
ordering continued compliance with its desegregation orders, until a
unitary school system in Boston is achieved. The petition was
subsequently denied.
Outreach
The Division continued to participate with a group of Somerville civic,
education, social service, law enforcement and housing leaders to discuss
problems of racism and racially motivated violence in the city. Topics dis-
cussed included the need to communicate the message that civil rights
violations are illegal, reviving recreational programming for youth, street
outreach to older adolescents, and the dearth of women and people of color
in leadership positions in the city.
The division coordinated meetings between Chelsea schools, and com-
munity leaders and service providers to address problems of racial harass-
ment and tension between Asian and Hispanic youths, in the Chelsea
schools.
The division developed a civil rights advisory group to provide input to
the Attorney General and the Civil Rights Division about statewide civil
rights issues and problems.
Legislation
The division drafted an amendment to the Massachusetts Civil Rights
Act (MCRA) to provide the Attorney General the ability to obtain attorneys
fees, costs and penalties from violators of the MCRA. The amendment
68 P.D. 12
would create a special fund for future civil rights enforcement from money
collected from the Attorney GeneraFs civil rights cases.
The Civil Rights Division participated in drafting and testified in support
of Chapter 156 of the Acts of 1990. which amended Chapter 93 to include
persons with disabilities and the elderly within protected classes of this
state's new civil rights statute.
CIVIL INVESTIGATIONS DIVISION
The Civil Investigation Division investigates all non-criminal matters
within the Office, both affirmative and defensive, for all divisions within the
Public Protection and Government Bureaus (including the former Civil
Bureau).
The major dufies of Division investigators are: locating and interviewing
vicdms. witnesses, subjects and others; obtaining and reviewing documen-
tary evidence from numerous sources including individuals, corporations,
and federal, state, county and municipal agencies and offices; conducting
surveillance, background checks and asset checks; analyzing financial
records; serving process such as summonses complaints, injunctions and
other court orders; and representing the Office at Industrial Accident Board
concilations in Boston. Lawrence. Fall River. Worcester and Springfield.
The major focus in the second half of FV '91 was the consolidation of
three pre-existing civil investigation units with the Public Protection
Bureau Civil Bureau and Western Massachusetts Office into one Division.
Through case management, training and an improved working relafion-
ship with Assistant Attorneys General throughout the Office, the Division
has assumed an important role in hundreds of invesfigations in the follow-
ing major subject areas:
Civil Rights
The Division invesfigated "hate crimes"; allegations of police miscon-
duct and several other violations of the Massachusetts Civil Rights Act by
interviewing the alleged victim(s) and locating and interviewing available
witnesses and. when appropriate, these subjects of such invesfigations. In
cases of alleged police misconduct, investigators also obtained and
reviewed police reports, court documents and other available evidence.
Public Charities
The Division invesfigates individuals or organizafions who raise funds
from the public when allegations are received that Massachusetts laws have
been violated. Invesdgators generally interview the vicfims. usually
businesses, who made donations to a charity based on the misrepresenta-
tion of a solicitation and. on several occasions, have worked with local
police in locafing "couriers" whose actual practice is to pick up such
donations. In one case, in conjunction with the Criminal Bureau, various
Massachusetts police departments and the New Hampshire Attorney
General, a Division investigation led to indictments and civil acfions
against several individuals and corporations unscrupulously solicifing
funds allegedly on behalf of charitable or law enforcement organizations.
P.D. 12 69
Consumer Protection
Investigators continue to perform their traditional role by assisting
the Office in bringing c. 93A enforcement actions against businesses
and individuals in major consumer problem areas such as automobiles,
health 'spas. travel, retail sales, home improvement and banking/
mortgage scams.
Environmental Protection
The Division's role in EPD cases primarily involved locating and
identifying assets of potentially responsible parties liable for paying costs
incurred by DEP in the clean up of polluted or hazardous waste sites. In
several cases, investigators located former employees and officers of
defunct companies responsible in part for such environmental violations.
Industrial Accidents
Investigators represented the Office at an average of 350 conciliations per
month at five lAB offices throughout the state. Conciliation is the first step
of the process whereby the employer (the Commonwealth) and employee
attempt to resolve disputes about the worker s compensation claim of a state
employee. In addition. Division staff investigated allegations of industrial
accident fraud by state employees.
Torts
The Division investigated the deaths of clients in state care, injuries on
state property and accidents on state roads or involving state vehicles in
order to obtain accurate information relevant to tort actions filed against
the Commonwealth.
III. STATISTICS
By subject area within the Public Protection Burueau the Division
opened 123 investigations in FY '91, with 85 ongoing investigations as of
June 30, 1991. The breakdown by Division is as follows:
Opened during FY '91 Ongoing as of 6/30/91
Civil Rights 57 39
Consumer Protection 30 22
Environmental Protection 17 9
Public Charities I5 I3
Nuclear Safety j j
Regulated Industries 2 1
Anti Trust , ^
123 85
Throughout FY '91, investigators represented the Office at approximately
4,200 conciliations in Boston, Fall River, Lawrence, Worcester and
Springfield.
70 P.D. 12
In addition, staff investigated various aspects of more than 100 tort claims
filed against the Commonweahh.
The financial benefits derived by the Commonwealth from such inves-
tigations are the savings and benefits which are included in the sections of
the annual report by the various divisions to which the Civil Invesfigation
Division provided support.
ELECTIONS DIVISION
The Elecfions Division is responsible for providing legal representation
to the Secretary of State, the Office of Campaign and Political Finance and
the State Ballot Law Commission regarding election and campaign finance
related issues.
The Division was involved in several elecfions related litigations during
fiscal year 1991. In Collins v. Connolly, the Division defended the Attorney
General's decision not to certify a propsed referendum quesfion that would
have repealed the state's civil rights law regarding sexual orientation. The
Supreme Judicial Court held that the Attorney General was correct in not
certifying the quesfion because it impacted statutes regarding religion and
was. thereby, not a proper matter for a referendum.
In Capezzuto v. State Ballot Law Commission, the Division defended the
State Ballot Law Commission's determination that 12 signers of an inifia-
tive petition regarding recycling had properly signed the pefition. satisfying
the constitutional requirement of 10 valid signatories. The SJC held,
however, that only 9 of the signators had actually had the final draft in their
possession and therefore the petition did not meet the consfitutional
requirements. The Division defended the SJC's decision when the pro-
ponents of the peUfion sought relief in federal court. The First Circuit Court
of Appeals upheld the SJC's decision in Henry v. Connolly.
The Elecfions Division, working with the Secretary of State's Office,
appeared and filed an amicus brief in a case regarding the proper counting
of absentee ballots. In Colten v. City of Haverhill, the SJC. agreeing with the
Attorney General's office that the votes of absentee voters should be coun-
ted when they substantially comply with the reguladons. decided that elec-
tion officials may not reject absentee ballots for insubstantial technical
defects or for omissions that can be easily recfified.
In Armstrong v. Connolly, the Division appeared in Hampshire County
Superior Court to ensure that an independent party candidate who had
collected the proper number of signatures appears on the ballot in the spe-
cial general election for the First Congressional District.
The Division is currently litigating a case in Federal District Court, Polito
V. Connolly, in defense of the state statute that prohibits campaign posters
within 150 feet of polling places on election days.
The Elecfions Division, working with the Government Bureau, inifiated
suit against the Census Bureau to invalidate the decision to reduce from 1 1
to 10 the number of Congressional seats that Massachusetts would be
entitled to as a result of the 1990 Census. In Commonwealth v. Mosbacher,
the Attorney General's Office argues that the inclusion of overseas federal
employees in the apportionment population and the use of a biased appor-
tionment formula unconstitutionally deprived Massachusetts of its proper
P.D. 12 71
number of Congresspersons.
The Division also prepared to bring suit against over 1 30 Candidates and
treasurers of political committees that had failed to file the required cam-
paign finance disclosure forms with the Office of Campaign and Political
Finance. In March 1991. the Division sent warnings to all non-filers asking
them to file. Suit will be brought against those who do not file, seeking court
orders requiring them to file the reports mandated by state law.
The Elecfions Division is also responsible for enforcing state statutes that
require legislative agents (lobbyists) and their employers to file financial
disclosure statements with the Office of the Secretary of State. The Secretary
reported five lobbyists and employers to the Elections Division who had
failed to file as required. As a result of enforcement actions taken by the
Division, all five delinquent parties filed.
PUBLIC RECORDS, FAIR INFORMATION PRACTICES
ACT AND OPEN MEETING LAW
The responsibility for the enforcement of the Public Records Law. the
Fair Information Practices Act. and the Open Meedng Law belong to the
Elections Division.
The Division advised state agencies and the public on the requirements
of the Public Records Law and the Fair Informadon Practices Act. The
Division worked with the Supervisor of Public Records in the Secretar\' of
State's Office to resolve disputes regarding the responsibility of public agen-
cies to make documents available to those requesting public records.
The Elections Division was also responsible for advising state agencies
and the public on the requirements of the State Open Meeting Law. The
Division mediated many Open Meedng Law disputes, including ones
involving the University of Massachusetts and the Massachusetts Bay
Transportation Authority, without resorting to litigation.
WESTERN MASSACHUSETTS DIVISION
The Western Massachusetts Division of the Office of the Attorney
General is responsible for legal matters in the four western counties of
Berkshire. Franklin. Hampden and Hampshire. The Division is located in
Springfield and is staffed by assistant attorneys general, invesdgators and
support staff During fiscal 1991. the division was responsible for approx-
imately 500 cases.
The office litigates a wide range of cases, including tort, contract, eminent
domain, worker's compensation, environmental, consumer protection civil
rights, administrative appeals and vicdms of violent crime compensation.
The division also prosecuted fraud cases for the Division of Employment
and Training.
Upon taking office in January. 1991. Attorney General Harshbargercom-
mited to expanding the Western Massachusetts Division and began the pro-
cess by establishing a Medicaid Fraud Control Unit secdon in the Division
and by appointing an assistant attorney general for consumer protection.
Addidonally resources were devoted to upgrading the andquated computer
72 P.D. 12
and word processing equipment.
The future holds out the prospect of additional resources being allocated
to the Western Massachusetts Division with the intention of providing the
residents of the Western Massachusetts area access to their state
government.
GOVERNMENT BUREAU
The Government Bureau has four functions: (1) defense of lawsuits
against state officials and agencies concerning legality of governmental
operations; (2) initiation of affirmative litigation on behalf of state agencies
and the Commonwealth: (3) legal review of all newly-enacted municipal by-
laws: and (4) preparation of legal opinions for constitutional officers, heads
of agencies, and certain other officials concerning issues arising from the
performance of their official duties. During Fiscal Year 1991. significant
events occurred in each of these areas.
1. Defensive Litigation.
The Government Bureau defends the Commonwealth and its officials
and agencies in litigation in state and federal courts, and in certain cases,
before federal administrative agencies. These proceedings typically involve
challenges to the validity of governmental decisions, initiatives, regulations,
or statutes, and raise important issues of administrative and constitutional
law in a variety of subject areas.
During Fiscal Year 1991 the Bureau opened 339 new defensive cases and
closed 758 defensive cases. The number of closures resulted in part from the
final stages of a long-term project to obtain dismissal of inactive cases, and
in part from a project, undertaken in the Spring of 1991. to review open files
and close those that had reached judgment.
Cases handled by Government Bureau attorneys resulted in 35 reported
decisions of the Supreme Judicial Court. 17 reported decisions of the
Massachusetts Appeals Court. 3 reported decisions of the United States
Court of Appeals for the First Circuit, and 4 reported decisions of the United
States District Court. Each of these courts issued other decisions on
Government Bureau cases in the form of unpublished memorandum
opinions.
State and federal appellate courts also decided six cases in which the
Commonwealth was not a party, but in which Government Bureau attor-
neys had presented its interests by submitting Amicus Curiae briefs: these
cases included the decisions of the United States Supreme Court in Rust v.
Sullivan, regarding federal regulations that prohibit clinics receiving
federal family planning funds from providing information about abortion,
and in Gregory v. Ashcroft. which concerned application of the Age Dis-
crimination in Employment Act to mandatory retirement rules for state
court judges. In addition. Government Bureau lawyers provided daily con-
sultation, assistance, and supervision to state agency lawyers who handle
large numbers of relatively routine cases, primarily at the trial court
level.
P.D. 12 73
Significant individual cases decided in Fiscal Year 1991 include the
following:
In German v. Weld, the SJC upheld a statute mandating furloughs of state
employees in order to alleviate the Commonwealth's fiscal crisis. The Court
rejected arguments that the furlough was unconstitutional, either as a tak-
ing of property without compensation or as a selective tax. The fiscal crisis
also gave rise to an SJC decision in County of Barnstable, etal. v. Common-
wealth, in which the Court declined to order the Commonwealth to pay the
counties some fifteen million dollars for the rental of courthouses.
In two cases, the SJC rejected contentions by municpalities that pro-
visions of state law infringed on local mandate restrictions: City of Cam-
bridge V. Attorney General (mandated benefits in employer-funded health
insurance), and Boston Water & Sewer Commission v. Metropolitan Dis-
trict Commission (sewer assessments). The SJC also decided five cases
involving disciplinary orders entered by professional licensing boards to
protect the public: D^ Amour v. Board of Registration in Dentistry: Strasnick
V. Board of Registration in Pharmacy: Friedman v. Board of Registration in
Medicine: and Bettencourt v. Board of Registration in Medicine.
The SJC issued three decisions on questions of taxation: Globe
Newspaper Co. v. Commissioner of Revenue (invalidating the extension of
sales and use tax to machinery and materials used in the manufacture of
newspapers); Commissioner of Revenue v. Molesworth (regarding the
allocation of late payments as between taxes owned and interest and
penalties); and Polaroid v. Commissioner of Revenue (construing statutory
provisions governing the Urban Job Incendve Program). Two cases
addressed election issues: Weld for Governor v. Director of the Office of
Campaign and Political Fianance (regarding joint purchase of campaign
materials by candidates for Governor and Lieutenant Governor); and
Attorney General v. Town Clerk of Hudson (regarding the validity of a town
recall election).
Litigation in federal court let to three reported decisions of the United
States Court of Appeals. In Inmates of Suffolk County Jail v. Kearney, the
Court upheld an order prohibiting double-bunking at the new Suffolk
County jail. The United States Supreme Court has granted certiorari to
review this decision, and will hear argument in October of 1991. In United
States V. Metropolitan District Commission, the Court of Appeals upheld a
District Court order banning new sewer hookups pending the transfer of
state-owned land to the MWRA for use as a landfill in connection with the
Boston Harbor clean-up project. The District court subsequently vacated its
order in response to legislative action effecting the transfer. In Reopell v.
Commonwealth, the Court construed the Vietnam Veteran's Reemploy-
ment Rights Act as abrogating the Commonwealth's Eleventh Amendment
immunity so as to authorize an award of prejudgment interest.
Noteworthy decisions of the federal District Court include Equal
Employment Opportunity Commission v. Commonwealth, in which the
Court struck down statutory provisions barring public employees over age
70 from accruing credits toward pension benefits. In Davrod v. Coates. the
federal District Court rejected a federal constitutional challenge to a set of
fishery conservation regulations, but struck down one regulation restricting
sea-based processing as violative of the Commerce Clause. In Aetna
74 P.D. 12
Casualty and Surety Co. v. Commissioner of Insurance, with challenges the
Commonwealth's regulatory scheme governing withdrawals from the auto
insurance market, the District Court denied a motion to dismiss, rejected
abstention and ripeness arguments. In McNamara v. Dukakis, after a
lengthly evidentiary hearing, the District Court denied a preliminary
injunction against planned changes in mental health services necessitated
by budget cuts.
Government Bureau litigation at the state trial court level, as well as some
new cases in the federal Disctrict Court, has reflected the effects of the
Commonwealth's fiscal situation. Cases have included challenges to a large
variety of budget-related measures, including reductions in services, mod-
ifications to contracts with service providers, new regulations designed to
reduce or control reimbursements to service providers, lay-offs of
employees, changes in eligibility standards for benefit programs, and the
imposition of new or increased fees and taxes. Plaintiffs bringin such
challenges have included participants in various benefit and human service
programs, human services providers, public employees, and businesses
affected by fees. Noteworthy cases in this categorv' include Morales v.
Department of Welfare and Cole v. Department of Public Welfare (both
resulting in injunctions against proposed modifications in eligibility stan-
dards for General Relief): Massachusetts Coalition for the Homeless v.
Department of Public Welfare (enjoining proposed changes in the
emergency assistance program for payment of rent and mortgage
arrearages): Massachusetts Council of Human Services Providers v. Nessen
(denying an injunction against a statutory 1% reduction in human services
provider contracts), and Massachusetts Hospital Association v. Depart-
ment of Public Welfare (denying an injunction against the Welfare
department's exercise of its new statutory veto power over hospital rates for
Medicaid pafients).
A second significant category of litigation being handled by Government
Bureau attorneys at the trial court level involves challenges to various
aspects of the Central Artery/Third Harbor Tunnel Project. Five separate
cases have been filed by four groups of plainfiffs. including the City of Cam-
bridge, the Sierra Club, the Charles River Watershed Association, and the
Committee for Regional Transportafion.
Other noteworthy lifigation at the trial court level includes Washington
Legal Foundation v. Massachusetts Bar Foundation (challenging the Com-
monwealth's Interest on Lawyers' Trust Accounts program on first and fifth
amendment grounds): Rushworth v. Gnazzo (challenging the automatic
suspension of driver's licenses of persons convited of dmg offenses), and
Boston Police Superior Officers Federation v. Civil Service Commission
(involving the establishment of a civil service list for appointments of
lieutenants in the Boston Police Department after a security breach
invalidated the results of the original examination).
SJC decisions during the fiscal year in cases handled by Government
Bureau attorneys, in addition to those discussed above addresses issues
involving child support enforcement (Department of Revenue v. LaFratta:
Department of Revenue v. Sorrentino): hospital reimbursement (Ch/7dren'.s
Hospital V. Rate Setting Commission: Emerson Hospital v. Rate Setting
Comm/ss/on ^.insurance regulation Massachusetts Auto Body Association
P.D. 12 75
V. Commissioner of Insurance: Liabiliw Investigative Fund Effort. Inc. v.
Medical Malpractice Joint Underwriting Association; and Aetna Casualty
and Surety Company v. Commissioner of Insurance): implementation of
the Commonwealth's program to encourage the development of minority
and woman-owned businesses (Sturdy v. State Office of Minority and
Women's Business Affairs): public employment (Smith v. McCarthy:
Gloucester v. Civil Service Commission): administration of public
employee retirement benefits (Plymouth County Retirement Association v.
Commissioner of Public Employee Retirement): child welfare (Care and
Protection of Frank: regulation of subsidized housing Ar/jngfoji Housing
Authority v. Secretary of Communities and Development): eligibility for
General Relief (Faretra v. Commissioner of Public Welfare): guardianship
of the mentally ill (Guardianship of Weedon): and sovereign immunity
(Ware v. Commonwealth).
Reported decisions of the Massachusetts Appeals Court in cases handled
by Government Bureau attorneys included three involving child welfare
(Custody of Quincy: Adoption of Seth: Adoption of Gwendolyn): three
involving regulation of alcoholic beverages (Heublein, Inc. v. Alcoholic
Beverages Control Commission: Dolphino Corporation v. Alcoholic
Beverages Control Commission): and AC Cruise Line. Inc. v. Alcoholic
Beverages Control Commission): and two involving hospital reimburse-
ment (Rate Setting Commission v. Baystate Medical Center: Glenbeigh.
Inc. V. Rate Setting Commission). Other Appeals Court decisions included:
Hotel Dynamics v. Architectural Access Board (construing requirements
for handicapped accessibility in the context of the renovation of a hotel:
State Street Bank v. Commissioner of Revenue (regarding time limits for
applications for tax abatements): Zelesky v. Commissioner of the Division
of Public Employee Retirement Administration (regarding the calculation
of disability retirement benefits): Police Commissioner of Boston v. Civil
Service Commission (regarding jurisdiction of the Civil Service Commis-
sion): Department of Revenue v. Richard Roe and Department of Revenue
V. Fontaine (both regarding child support enfocement): Andonian v.
Hutchinson (upholding the suspension of driver's liceses for habitual traf-
fic offenders): and United Oil Paintings. Inc. v. Commonwealth (rejecting a
challenge to a statute regulating the sale of art).
2. Affirmative Litigation.
Government Bureau attorneys opened more than fifty affirmative litiga-
tion matters in Fiscal Year 1991. The largest single category of affirmative
cases involved challenges to the contitutionality of state statutes arising in
the context of private litigation: in such cases. Bureau attorneys have inter-
vened or filed amicus briefs to defend the consdtutionality of the statutes. A
second major category of affirmative cases involved proceedings to enforce
agency adjudicatory decisions or to appeal decisions by administrative law
judges reversing agency decisions.
Less routine affirmative litigation matters handled by the Bureau in fiscal
year 1991 include Planned Parenthood League of Massachusetts, et al. v.
Operation Rescue, in which the Attorney General joined private plaintiffs
in seeking a permanent injuncfion under the Massachusetts Civil Rights
Act to prevent fortv' named defendants from blocking access to abortion
76 P.D. 12
clinics. The case is now under advisement after a three week trial.
Substantial resources have been dedicated as well to bringing cities and
towns into compliance with state and federal laws that prohibit zoning
ordinances which discriminate against group homes for the disabled. In fis-
cal year 1991, Bureau attorneys persuaded the cities of Boston and Woburn
to remove or to refrain from enforcing discriminatory provisions. Litigation
is pending against the City of Medford. alleging that a zoning code amend-
ment adopted in fiscal year 1991 discriminates against the disabled.
The Government Bureau is regularly called upon to represent the Com-
missioner of Banks in proceedings before the Supreme Judicial Court
involving liquidation of insolvent state chartered banks: at least six such
proceedings occurred in fiscal year 1991. In addition, in the Government
Bureau initiated proceedings on behalf of the Commissioner of Insurance
for receivership of the Monarch Life Insurance Company.
Another major component of the Government Bureau's affirmafive
litigation program is the prosecution of state claims against the federal
government. Activity occurred in fiscal year 1991 in three such cases relat-
ing to the operation of the Food Stamp program. Commonwealth of
Massachusetts v. Secretary of the Department of Food and Agriculture,
pending before the United States Court of Appeals for the First Circuit,
challenges the federal government's decision to sanction the Common-
wealth for operating the Food Stamp Employment and Training program
on a volunteers-first basis. A second case pending in the LInited States Dis-
trict Court challenges the federal governement's method of determining
error rates in food stamp programs. In a third case, Watcrflow v. Common-
wealth of Massachusetts. Bureau attorneys obtained a judgment declaring
unlawful the federal government's policy of requiring states to include
funds placed in Plan to Achieve Self Support (PASS) accounts in calculat-
ing food stamp eligibility. In fiscal year 1991, Government Bureau attorneys
also brought suit against the Census Bureau, alleging that errors in the com-
pilation of census data wrongfully deprived the Commonwealth of a
seat in Congress.
3. Municipal By-Laws.
Town by-laws, home rule charters, and amendments thereto are reviewed
and must be approved by the Office of the Attorney General before they
take effect. This review function is performed by attorneys in the Govern-
ment Bureau. During the fiscal year 1991, the Municpal Law Unit reviewed
1,994 by-laws and 25 home rule charter actions from over 300 cities and
towns. There were 103 disapprovals or disapprovals in part, making an error
rate of 5.1 percent for the submittals involved.
The by-laws received this year consisted of 923 general by-laws and 969
zoning by-laws. General by-laws pertain to town government and the exer-
cise of municipal power. The zoning by-laws are a continuing exercise of
the police power over land use. Zoning by-laws tend to generate the most
local controversy since they affect the landowner's rights to own, use and
enjoy property.
This year saw continuing efforts by municipalities to protect natural
resources and the environment by means of overlay zoning districts, haz-
ardous materials use restricdons, and water resource protection provisions.
P.D. 12 77
4. Opinions.
The Attorney General is authorized by M.G.L. c. 12, § § 3, 6, and 9 to ren-
der legal advice and opinions to constitutional officers, agencies and
departments, district attorneys, and branches and committees of the
Legislature. Opinions are given primarily to the heads of state agencies
and departments.
The questions considered in legal opinions must have an immediate,
concrete relation to the official duties of the state agency or officer request-
ing the opinion. Hypothetical or abstract questions, or questions which ask
generally about the meaning of a particular statute, lacking a factual under-
pinning, are not answered.
Opinions are not offered on questions raising legal issues that are the sub-
ject of litigation or that concern ongoing collective bargaining. Questions
relating to the wisdom of legislation or administrative or executive policies
are not addressed. Generally, federal statutes are not considered and the
constitutionality of enacted state or federal legislation is not determined.
Opinion requests from state agencies that report to a cabinet or executive
office must first be sent to the appropriate secretary for his or her considera-
tion. If the secretary believes the question raised is one that requires resolu-
tion by the Attorney General, the secretary then requests the opinion.
Between July 1, 1990 and June 30, 1991, five formal Opinions of the Attor-
ney General were issued. An additional 62 requests were considered and
either resolved informally or declined.
The formal Opinions follow.
78 PD. 12
August 29. 1990
Number 1
The Honorable Michael Joseph Connolly
Secretary of the Commonwealth
State House
Boston, Massachusetts 02133
Dear Secretary Connolly:
In a letter dated August 2. 1990, you transmitted a series of proposed
ballot questions' to me and requested my opinion whether these questions
are ones of public policy within the meaning of G.L. c. 53, § 19, and, if so,
what simple, unequivocal and adequate form is best suited for presentation
of these questions on the November. 1990 state election ballot. I have pre-
viously had occasion to conclude that one of these questions was a question
of public policy, and I reaffirm that conclusion now.- As to the remaining
questions, I have analyzed each which may appear, in the form provided
herein, on the November ballot.
The principles relevant to my review of proposed ballot questions may be
simply summarized.^ The term "public policy" as used in G.L. c. 53, § 19.
should be construed broadly. See 1986/87 Op. Att'y Gen. No. 2, Rep. AG..
Pub. Doc. No. 12 at 55 (1986); 1954/55 Op. Att y Gen.. Rep. AG.. Pub. Doc.
No. 12 at 51-52 (1954). Matters of public policy involve determinations of
what governmental action is desirable or necessary for the public interest,
as opposed to individual concerns. See 1988/89 Op. Att y Gen. No. 1, Rep.
AG., Pub. Doc. No. 12 at 103 (1988) (slip op. 3). See also 1966/67 Op. Att'y
Gen. No. 32, Rep. AG., Pub. Doc. No. 12 at 76, 77 (1966). Generally, a
' Twelve questions were submitted, several of which are proposed to appear on the ballot in more than
one district.
^ In 1988. 1 concluded that a question which concerned the establishment of a new city out of various wards
and precincts of the City of Boston was a public policy question, and I provided an appropriate form for the
question to appear on the ballot. See 1988/89 Op. Att'y Gen. No. 1 . Rep. A.G., Pub. Doc. No. 1 2 at 108 (1988).
The question has been resubmitted this year for placement on the ballot in the Seventh Suffolk Representa-
tive District, and you have made a determination, which is currently under court challenge, that it is barred
from the ballot both because it failed to receive a sufilcient number of signatures, see G.L. c. 53. § 19, and
because it is substantially the same as the 1988 ballot question, see G.L. c. 53, § 21 (prohibiting questions
from appearing on a ballot more than once in three years). If a court subsequently determines that the ques-
tion should be included on this year's ballot the form of the question which I have previously provided will
suffice. See 1988/89 Op. Att'y Gen. No. 1. supra (slip op. at 14).
' For a more detailed canvassing of the relevant law concerning public policy questions. I refer you to my
opinion reviewing the ballot questions proposed for the 1988 ballot. See 1988/89 Op. Att'y Gen. No. 1,
supra.
P.D. 12 79
question of public policy must concern an important public matter in
which every citizen of the Commonwealth would have an interest and not
be simply a matter of local concern. See 1988/1989 Op. Att y Gen. No. 1.
supra (slip op. at 3-4). 1984/85 Op. Att y Gen. No. 2. Rep. A.G., Pub. Doc. No.
12 at 75 (1984): 1982/83 Op. Att y Gen. No. 3. Rep. A.G.. Pub. Doc. No. 12 at
84 (1982). Moreover, the instruction contained in each question must be
consistent with the powers of the legislature, and the subject matter must be
fit for legislative action. See 1986/87 Op. Att y Gen. No. 2. supra, at 55: 1984/
85 Op. Att y Gen. No. 2. supra, at 75. 77: 1978/79 Op. Att'y Gen. No. 8. Rep.
AG.. Pub. Doc. No. 12 at 114 (1978).
Several of the questions this year require analysis in light of the require-
ment that public policy questions must involve matters in which every
citizen of the Commonwealth would have an interest. In conducting this
analysis. I have kept in mind that this requirement should not be applied in
a restrictive way. See 1988/890p. Atty Gen.No. 1. supra (slip op. at 4): 1984/
85 Op. Att y Gen. No. 2.. supra, at 75. It has been repeatedly recognized that
questions affecting a small geographic area often address problems which
are of concern to the Commonwealth in general. See e.g.. 1974/75 Op. Atty
Gen. No. 11. Rep. A.G.. Pub. Doc. No. 12 at 54. 55 (1974): 1982/83 Op. Att'y
Gen. No. 3. supra, at 84. Even a question which, viewed narrowly, would be
difficult to characterize as of wide concern, should be approved if. viewed in
a larger context, it can be articulated in terms broad enough to encompass
the general public interest. "* See 1984/85 Op. Att y Gen. No. 2.. supra, at 75.
See. e.g.. id. (question of where representative district boundaries should be
drawn in Allston-Brighton seen to implicate general concern in "how the
representative districts of the General Court are drawn"): 1978/79 Op. Att'y
Gen. No. 16. Rep. A.G.. Pub. Doc. No. 12 at 121 (1978) (question whether a
trash incinerator should be buiU in the town of Amesbury seen as "an
important environmental issue" of general interest): 1978/79 Op. Att'y Gen.
No. 18, Rep. AG.. Pub. Doc. No. 12 at 122. 123 (1978) (question whether
MBTA Red-Line should be extended to Alewife approved because "the
Indeed. I am aware of only one instance in which a proposed ballot question has been rejected on the
ground that it was of purely local concern. That question, however, asked voters whether their legislator
should oppose revisions to the Saugus town charter, and it was impossible to articulate any broad statewide
concern since the question made no reference to the subject matter of the proposed charter changes. See
1978/79 Op. Att'y Gen. No. 8. .supra, at 114. Moreover, the Attorney General did not rely solely on that ground
in rejecting the question, since the question, as posed, also violated the requirement that ballot questions
concern matters fit for legislative action. Id.: see post at n. 5.
80 P.D. 12
problem of public transportation is one of great concern to the Common-
wealth in general").
Four of the questions which I have approved this year deal with specific
geographic areas. None, however, may be said to be of purely local concern.
One question, for example, proposes a Cape Cod-wide beach parking pro-
gram. The general interest of Massachusetts citizens in Cape Cod. par-
ticularly in the utilization of its coastline resources, is well established. See
1988/89 0p. Atty Gen. No. 1. supra, (slip op. at 6-7). Another question pro-
poses the establishment of a commission to study the feasibility of
establishing a new city out of certain wards and precincts of the City of Bos-
ton. I have already recognized the public policy status of the formation of
such a city. id. (slip op. at 7 n. 5). and it follows that the establishment of a
commission to study the issue is likewise a matter of public policy. A third
question seeks legislation prohibiting the Massachusetts Municipal
Wholesale Electric Company from conveying property it owns in Ludlow to
the Commonwealth for the construction of the Hampden County Jail. If
nothing else, the wide public interest in the siting of corrections facilities, an
interest of which I am permitted to take note, see 1968/69 Op. Att y Gen. No.
5. Rep. A.G.. Pub. Doc. No. 12 at 37. 38 (1968). would qualify this as a public
policy question. Finally, a fourth question proposes legislation to adopt a
charter for Essex County which would abolish the elected offices of com-
missioner and treasurer. This question, viewed broadly, relates to the com-
position of county government, a question which is of general interest. See
1976/77 Op. Atfy Gen. No. 7. Rep. A.G.. Pub. Doc. No. 12 at 89. 91 (1976)
(approving public policy question seeking the abolition of the county level
of government).-''
'' 1 note that in a 1978 opinion, a proposed question was rejected which would have asked. "Should the State
Representative be instructed to oppose the Charter Revision changes as proposed by the town meeting and
support the development of a charter commission for the town of Saugus?" 1978/79 Op. Atty Gen. No. 8.
supra, at 1 14. Because the question was posed in terms of the process of charter revision by a town charter
commission, a process which does not contemplate legislative involvement, the question violated the
requirement that a proposed public policy question must concern a matter appropriately subject to some
type of legislative action. Id. Here, by contrast, the question asks that a charter for Essex County be adopted
by legislation, a matter which is on its face fit tor legislative action.
P.D. 12 81
The remaining questions I have approved for placement on the ballot are
clearly public policy questions under the relevant principles and do not
require extended discussion.^ I turn then to the two questions which I have
determined must be disapproved.
The first question I must disapprove asks:
Should the town of Chelmsford activate a traffic safety
operation?
Primary function is to issue traffic tickets as a municipal
revenue source.
This question is not necessarily deficient because it concerns only a
single town. Viewed generally, it appears to concern traffic safety and
municipal revenues, subjects which may be viewed as of state-wide concern.
On its face, however, the question, by asking whether ''the town [should]
activate a traffic safety operation" (emphasis added), appears to seek action
from town officials rather than action from the state legislature. See 1968/69
Op. Att y Gen. No. 5. supra, at 38 (Attorney General may draw reasonable
inferences from the form of the statement of the question in the petition).
This view, moreover, is confirmed by information, including news
accounts, provided by the proponent of the quesUon. which indicate that
the question concerns a budget proposal before the Chelmsford Town
Meedng to fund a traffic safety unit of police officers. See id. (in reviewing
public policy questions. Attorney General may rely on such facts of com-
mon knowledge, actual or presumed, in the voting district concerned as
may be reasonable). The question, therefore, clearly violates the require-
ment that public policy questions pursuant to G.L. c. 53. § 19. instruct state
legislators on matters fit for legislative action. See 1986/87 Op. Att'y Gen.
No. 2. supra, at 55: 1984/85 Op. Att'y Gen. No. 2. supra, at 76-77: 1978/79 Op.
Two questions, for example, would instruct legislators to vote in favor of resolutions memorializing the
Congress and the President of the United States, and another question would seek in part to require the elec-
tion of legislative committee chairpersons by the full membership of the Massachusetts Senate. Although
these questions do not involve the passage of laws, it is well established that matters fit for legislative action
are not limited to the passage of laws and mav include both the passage of resolutions, see 8 Op. Att'y Gen.
490, 491-492 (1928). 1984/85 Op. Atty Gen. No. 2., supra, at 77. as well as the ordering of the internal pro-
cedures of the legislature, see id.: 1978/79 Op. Atty Gen. No. 14, Rep. A.G., Pub. Doc. No. 12 at 1 19 (1978).
These questions, therefore, clearly meet the requirement that public policv questions concern matters which
are fit for legislative action. See 1986/87 Op. Att'v Gen. No. 2. supra, at 55; 1 984/85 Op. Att'y Gen. No. 2, supra.
at 76-77; 1978/79 Op. Att'y Gen. No. 8. supra, at 1 14.
82 P.D. 12
Att'y Gen. No. 8. supra, at 1 W
The second proposed question which I must disapprove asks the voters to
provide a definition of when human life begins. A similar question was sub-
mitted for my review in 1988, and in the opinion I issued at that time. I dis-
cussed at length my reasons for disapproving the question. See 1988/89 Op.
Att'y Gen. No. \. supra. The quesfion proposed in 1988 would have inquired
of the voter: "In biological terms, when does an individual human life
begin?" (emphasis in original); and would have instructed the voter to
answer by selecting one of three choices: "conception." "viability." or
"birth." or by writing in a "different biological term." Id. (slip op. at 7).
The question as currently proposed is phrased in substantially similar
terms as the 1988 version except that the query as to when life begins is
followed by the phrase "so that the Representative from this district may be
instructed to vote for legislation that protects human life, insofar as permit-
ted by the United States Constitution."^ I need not determine whether the
addition of this clause cures certain of the failings I identified with the pre-
vious question.^ because the current question retains intact from the 1988
version another flaw which clearly bars it from the ballot. As with the 1988
version, this year's question utilizes a multiple choice format which would
not allow voters to choose that no instruction on the issue be given. For the
reasons discussed in my 1988 opinion, a multiple choice quesfion which
fails to allow voters to reject enfirely any instrucfion to their legislator on the
subject of the quesfion. is impermissible, see 1988/89 Op. Att'y Gen. No. 1.
^ Although the procedure provided by G.L. c. 53. § § 19 ef seq.. is not an appropriate means for voters to
advise local officials, citizens wishing to express their views to local officials through the use of the ballot are
not without the means to do so. General Laws c. 53. § 18A. provides a method for placing a "nonbinding
public opinion advisory question" on the ballot for a regular municipal election in any city or town.
* The full question (including emphasis as in the original) is as follows:
Which of the following biological terms most accurately de/ines when an individual human life begins.
so that the Representative from this district may be instructed to vote for legislation that protects such
human life, insofar as permitted by the United States Constitution?
To vote on this question, mark a cross X in the square at the right of the answer you select. Only
vote for one.
A. Conception (the moment of fertilization)
B. Viability (approximately 24-28 weeks into pregnancy, when the fetus can survive outside the womb,
with or without artificial aid)
C. Birth
D. Write-in: Specify a different biological term
' Those failings included the absence from the question either of any indication to the voters of what public
policy would be affected by their vote or of any instruction or direction to a legislator regarding some
governmental action. See 1988/89 Op. Att'y Gen. No. 1. supra (slip op. at 5. 8-9).
P.D. 12 83
supra (slip op. at 9-10 & n. 9). and I conclude on that basis that the question
cannot be included on the ballot."^
For those questions which I have determined to be ones of public policy,' '
it is my responsibility, in conjunction with you. to prepare the questions in a
"simple, unequivocal and adequate form" for the ballot. G.L. c. 53. § 19. In
keeping with that responsibility. I provide the following form, in which, in
my opinion, the questions should appear on the ballot:
Representative Districts: Barnstable, Dukes and Nantucket: Sixth Essex
Shall the Representative from this district be instructed to vote in favor of
a resoultion memorializing the Congress and the President of the United
States to immediately reduce the military budget by ten percent, leading to
at least a fifty percent reduction in the next five years, the savings to be spent
on civilian needs, especially housing, education, health care, day care,
environmental clean-up. infrastructure repair, and the conversion from a
military to a peacetime economy?
Representative District: 26th Middlesex
Shall the Representative from this district be instructed to submit a
resolution calling upon the United States Congress: 1) to enact reductions
in military expenditures each year for the next five years that decrease the
total military budget by at least fifty percent from the 1991 to the 1996 budget
year: (2) to provide assistance to communities and employers in converting
from military to peacefime production: and (3) to reallocate funds from
military uses to reduction of the federal deficit and to increased revenue-
sharing with state and local governments in support of revitalized programs
in health, housing, law enforcement, environmental protection, education,
and other pressing domesdc needs?
'" I note that my rejection ofthe question on this ground was. based on my 1988 opinion, entirely foreseeable.
1 reiterate the view expressed in that opinion that the requirements for public policy questions do not pro-
hibit a properly posed public policy question that involves a theory of when life begins. See 1988/89 Op. Atty
Gen. No. 1. supra (slip op. at 10 n. 9). See. e.g.. 1976/77 Op. Atty Gen. No. 7. supra, at 90 (approving question
asking whether representative should vote to support and ratify an amendment to the IJnited States Con-
stitution permitting states to prohibit abortions and affirm the right to life ofthe unborn).
" I note that G.L. c. 53. §§ 19. 20. and 21. contain additional requirements which must be .satisfied before a
public policy question may appear on the ballot. These requirements involvedeterminationsof fact, which
you. as Secretary ofthe Commonwealth, arc in a better position than I to make. See 1984/85 Op. Atty Gen.
No. 2 supra, at 77-78. Consequently, and in accordance with prior practice. I have made no independent
inquiry to determine whether the proposed questions are statutorily defective for any reason other than a
failure to qualify as public policy questions in proper form for presentation on the ballot.
84 P.D. 12
Representative District: Seventh Essex. Senatorial District: First Essex
Shall the Senator/Representative from this district be instructed to vote in
favor of legislation adopting a charter for Essex County providing for the
abolition of the elected offices of county commissioner and treasurer?
Representative District: Seventh Hampden
Shall the Representative from this district be instructed to vote in favor of
legislation prohibiting the Massachusetts Municipal Wholesale Electric
Company from conveying any of its property in Ludlow to the Common-
wealth for the purpose of constructing the Hampden Count} Jail'.'
Senatorial District: Eirst Hampden
Shall the Senator from this district be instructed to vote in favor of legisla-
tion abolishing the state welfare system?
Representative District: Sixth Suffolk
Shall the Representative from this district be instructed to vote in favor of
legislation establishing a commission for the purpose of examining the
feasibility of establishing a new city within the boundaries of the following
wards and precincts of the City of Boston: ward 4. precincts 3 and 4: all of
wards 8. 9. 12. and 14; ward 10. precincts 1.2. 6. and 7: ward 1 1. precincts 1.2.
3.4. 5. and 6: ward 13. precincts 1. 2. 4. and 5; ward 15. precincts 1. 2. and 5;
ward 17. precincts 1.2.3.5.7.8, 10. and 12: and ward 18. precincts 1.2.3.4.5.
6. and 21?
Senatorial District: Fourth Middlesex
Shall the Senator from this district be instructed to vote in favor of requir-
ing the election of committee chairpersons by the full membership of the
Senate and allowing the State Auditor and the Inspector General to have
access to the records of the Legislature?
Representative Districts: First, Second, Third, and
Fourth Barnstable: Barnstable, Dukes and Nantucket
Shall the Representative from this district be instructed to vote in favor of
legislation that would create a Cape Cod-wide beach sticker system
whereby: (1) Cape Cod towns which elect to participate would share beach
parking facilities; (2) Cape Cod-wide beach stickers would be available for
optional purchase by any resident who possesses a beach sticker for his or
her own town; and (3) the sticker system would be put into effect for a one
P.D. 12 85
year trial period and stickers would be valid for use Monday through Friday
only?
Representative District: Fifth Essex
Shall the Representative from this district be instructed to vote for legisla-
tion that would permit public policy questions to be posed to the voters in
the form of multiple choice questions?
Very truly yours,
JAMES M. SHANNON
ATTORNEY GENERAL
86 PD. 12
August 29, 1990
Number 2
Daniel S. Greenbaum, Commissioner
Department of Environmental Protection
1 Winter Street
Boston, Massachusetts 02108
Dear Commissioner Greenbaum:
Section 26 of chapter 21 of the General Laws provides that "[no] person
may serve as a director (of the Division of Water Pollution Control] who
receives, or who has during the preceding two years received, ten percent or
more of his income directly or indirectly from persons who are required to
obtain discharge permits under section forty-three [of chapter 21]." That
statute also provides that "the attorney general upon request may issue
guidelines and such opinions as may be necessary to implement this provi-
sion." Pursuant to this latter provision, you have asked, through your
general counsel and with the authorization of the Secretary of Environmen-
tal Affairs, for my opinion whether the applicant whom you wish to appoint
as Director of the Division of Water Pollution Control meets the
requirements of section 26. I conclude, based on the facts set forth in the
opinion request, that the applicant is not prohibited by section 26 from
serving as Director.
The relevant facts, as stated in your opinion request, are as follows.
Within the previous two years, the applicant has been employed by a
nationwide consultant engineering firm (the engineering firm) with a
regional office in Boston.' The engineering firm is not itself an endty which
is required to obtain a water discharge permit under G.L. c. 21, § 43.-
ninety percent of the applicant's gross personal income. The applicant's
position with the engineering firm was as the "Business Development
I am informed that in recent months the applicant has become employed by the Division ofWatcr Pollu-
tion Control, although not. of course, in the position of Director.
~ General Laws c. 21. § 43. provides in pertinent part that "[no] person shall discharge pollutants into waters
of the commonwealth nor construct, install, modify, operate or maintain an outlet for such discharge or any
treatment works, without a currently valid permit issued by the director |of the Division of Water Pollution
Control]. No person shall engage in any other activity that may reasonably be expected to result, directly or
indirectly, in discharge of pollutants into waters of the commonwealth, nor construct, effect, maintain, mod-
ify or use any sewer extension or connection, without a currently valid permit issued by the director, unless
exempted by regulation of the director."
P.D. 12 87
The engineering firm compensated the applicant by means of a fixed
salary paid from a general account, and this salary constituted more than
Manager - Water Resources" in the "Government Business Development
Department." In addition to other national business development activities,
the applicant, as Business Development Manager, directed all phases of
business development, marketing, and contract negotiations for current or
potential municipal, state and federal government clients in the New
England region. These clients included a significant number of
Massachusetts governmental entities, and I infer from your letter that some
of these entities are required to obtain discharge permits under secfion 43.^
The applicant's involvement with a client concerning a specific contract
proposal and related contract negotiations, however, terminated once a
contract between the client and the engineering firm was executed, and
none of the applicant's time was billed to any client.
The question whether G.L. c. 21. § 26. permits the appointment of the
applicant as Director of the Division of Water Pollution Control requires a
determination whether the applicant has during the preceding two years
received ten percent or more of his income "directly or indirectly" from
entities (I shall call them "permit holders") that are required to obtain water
discharge permits. See G.L. c. 21. § 26; and ante, at nn. 1. 1.'* Since, during
the preceding two years, the applicant has received at least ninety percent of
his income through his salary from the engineering firm, his appointment
as Director is permitted by section 26 if that salary does not constitute the
direct or indirect receipt of income from permit holders. I conclude that his
' "Persons" required to obtain a discharge permits under section 43 include state and local governmental
entities. See G.L. c. 21. § 26A (defining "Person" for purposes of G.L. c. 21. §§ 26-53).
■* This ten percent rule was added to section 26 in 1973. see St. 1973. c. 546. § 1. in apparent response to the
Federal Water Pollution Control Act Amendments of 1972. Public Law 92-500. which mandated the
Administrator of the Environmental Protection Agency to require states desiring to adminster their own
permit programs for discharges into navigable waters to prohibit their permit granting bodies from includ-
ing "any person who receives, or has during the previous two years received, a significant portion of his
income directly or indirectly from permit holders or applicants for a permit." 33 U.S.C. § 1314(iK2KD)(1988
ed.). Federal guidelines issued under this provision define "significant portioii of income" to generally mean
ten percent or more of gross personal income for a calendar year. 40C.F.R. § 123.25 (cHlKii) (1989). The
guidelines, however, do not delineate what constitutes the "direct or indirect" receipt of income, and I am
aware of no federal administrative interpretations of this requirement which would aid in my interpretation
of the related state statutory requirement.
88 P.D. 12
salary does not constitute such a direct or indirect receipt of income.""
To begin. I note that the engineering firm is not itself a permit holder. The
salary the applicant receives from the engineering firm, therefore, phiinly
does not constitute the direct receipt of income from a permit holder. The
question then is whether the applicant's salary constitutes an indirect
receipt of income from permit holders by virtue of the fact that the engineer-
ing firm derives some of its income from permit holders.*"
What constitutes the indirect receipt of income cannot be deduced from
any lexical definition of the term "indirect." taken in the abstract. The term
"indirect" is exceedingly general, and as such "may have varying meanings
according to the circumstances in which it is used." Town of Oxford v.
Oxford Water Co.. 391 Mass. 581. 587 n. 4( 1984). See QuincyCity Hospital v.
Rate Setting Commission. 406 Mass. 431. 448 (1996); International
Brotherhood of Electrical Workers v. Western Massachusetts Electric Co..
15 Mass. App. Ct. 25. 27 (1982). I must therefore look to the statutory
language as a whole and the purpose that can be discerned from it in order
to find a meaning that is consistent with the intent of the Legislature. See
Quincy City Hospital v. Rate Setting Commission. 406 Mass. at 442-443;
Commissioner of Corporations & Taxation v. Chilton Club. 318 Mass. 285.
288-289(1945).
The express purpose of section 26 is to prevent the appointment to Direc-
tor of persons who have in the recent past received substantial income from
those whom the Director regulates. It is a confiict of interest provision
aimed at ensuring that the person serving as Director shall both be and
have the appearance of being dispassionate in executing his or her permit
granting dudes. Excluding from consideration as Director as person such
as the applicant, whose salary is not drawn from any fund attributable to a
permit holder client and whose salary is fixed and in no part based on com-
missions or bonuses derived from securing a permit holder as a client,
would not serve this purpose to any signifcant degree. Although it would.
^ In light oflhis conclusion. I need not determine whether olhcr income (comprisini: less than ten percent of
total income) received hy the applicant from private consulting activities iluriiii: the previous two years con-
stituted the direct or indirect receipt of income from permit holders.
I note, in addition, that you have not asked for my opinion whether the applicant could, consistent with
section 26. continue to engage in private consulting activities to the extent that they generated income from
permit holders. Your general counsel has informed me. moreover, that the applicant is no longerengaged in
and docs not intend to engage in any such activities while employed at the Division. I therefore do not
address this question, except to note that the ten percent rule of section 26 applies to income received while a
person acts as Director as well as to income received during the two years prior to appointment. Sec Ci.L. c.
21. § 26. In addition, the state contlict of interest law. G.L. c. 26KA. imposes other reslriclions on a stale
employee's receipt of outside income.
''The opinion request does not tell me what percent of the income of the engineering firm was tierived from
permit holders during the preceding two years. Since the engineering firm does business nationwide, that
figure may well be less than ten percent, in which case the applicant wtnild qualifv to be Direcloreven under
a rule which attributed the percentage of income earned by the employer from permit holders as intiirecl
income to its salaried employees. In any event, in light of my conclusion that the engineering firm's income
is not indirectly attributable to the applicant. I do not require this information.
P.D. 12 89
perhaps, not be impossible to view all of an employer's salaried employees
as in some attenuated sense indirectly receiving the income received by the
employer from permit holders, such a view of the prohibition would sweep
too broadly and include employees who did not work with permit holder
clients or who would even have reason to know that the employer's clients
included permit holders. Not only would such a broad prohibition fail to
serve any conflict of interest purpose, it would bar from service as Director
many potentially qualified persons and would therefore impede the
achievement of another legislative purpose expressed in the additional sec-
tion 26 requirement that the person chosen to be Director "shall be
qualified by training and experience to carry out the duties of the division
[of water pollution control]." G.L. c. 21, § 26.
In reaching this conclusion, I take note of the fact that previous Attorneys
General as well as the State Ethics Commission have taken a similar
approach in interpreting analogous language in the state conflict of interest
laws prohibidng state employees from having a "direct or indirect financial
interest" in a contract made by a state agency. G.L. c. 268A, § 7. Those
decisions have concluded that, where an employer pays an employee with
funds which are directly derived from a state contract, the employee has an
indirect financial interest in the contract even though the pay is received
from the employer and not from the state. See. e.g.. Op. Ethics Comm'n Nos.
EC-COI-79-5 and EC-COI-79-70 (1979); Conf Op. Att'y Gen. No. 798
(1978). Where the employee is paid a fixed salary from a general fund not
attributable to any specific contract, however, no indirect financial interest
has been found. See Op. Ethics Comm'n No. EC-COI-81-12 (1981) (an
insurance agency employee who sells insurance to agencies of the Com-
monwealth has no direct or indirect financial interest in those contracts
where his salary from the insurance agency is "unrelated to any specific
insurance policy which [the employee] may sell"); Op. Ethics Comm'n No.
EC-COI-79-86 (1979) (employee of a construcfion company which con-
tracts with various state agencies does not have a direct or indirect financial
interest in those contracts where his "hourly compensation is not directly
funded from the company's contracts with the Commonwealth"); Conf Op.
Att'y Gen. No. 810 (1978) (similar).
Similarly, the federal Office of Government Ethics has reached a conclu-
sion like my own in deciding what consdtutes indirect compensation for
puposes of 18 U.S.C. § 203, which in part prohibits a federal employee from
"directly or indirectly" receiving compensation related to representational
90 P.D. 12
services before the federal government. See Op. Off Gov't Ethics No. 83-19
(1983) (a federal employee who receives compensation from a private cor-
poration which itself earns compensation related to representational ser-
vices before the federal government, does not directly or indirectly receive
compensation based on those services where his compensation from the
firm is a fixed salary and not. for example, contingent on the successful
securing of a federal contract as a result of the corporation's represen-
tational activities).^
In sum, I conclude that the applicant's salary from the engineering firm
does not constitute the indirect receipt of income from holders.*^ It is my opi-
nion, therefore, based on the facts you have provided me. that the applicant
has not in the preceding two years received more than ten percent of his
income directly or indirectly from person required to obtain water dis-
charge permits. You may. therefore, appoint the applicant as Director of the
Division of Water Pollution Control consistent with the ten percent rule of
G.L. c. 21. § 26.
Sincerely yours,
JAMES M. SHANNON
ATTORNEY GENERAL
' While the examples I have just cited involve the interpretation of statutory provisions which are not identi-
cal to section 26. the purposes of these provisions, like that of section 26. is the avoidance of real or perceived
conflicts of interest and the delimitations of the term "indirect" in those contexts are. in my view,
relevant here.
** I need not decide whether there are any factual circumstances in which a salaried employee's work with
permit holders might be so involved or practically speaking contingent on a permit holder's payments to the
employer as to constitute the indirect receipt of income from a permit holder. Here, the applicant's work in
developing business with a client ceased at the point when the contract was executed, and his .securing of the
client's business for the firm did not result in his receipt of any bonuses or commissions.
P.D. 12 91
December 21. 1990
Number 3
Philip W. Johnston. Secretary
Executive Office of Human Ser\'ices
One Ashburton Place
Boston. Massachusetts 02108
David H. Mulligan. Commissioner
Department of Public Health
150 Tremont Street
Boston. Massachusetts 021 1 1
Dear Secretary Johnston and Commissioner Mulligan:
You have requested an opinion on behalf of the Department of Public
Health concerning the meaning of G.L. c. 123. § 35. Specifically, you ask
whether "the directors of facilities which provide substance abuse treatment
services to individuals who are committed for treatment under Section 35
may release such individuals prior to the expiration of the commitment
upon a determination that the release would not result in a likelihood of
harm."' I conclude for the following reasons that section 35 does permit
such an early release.
Section 35 authorizes a district court, upon petition by certain
individuals, to commit a person for not more than thirty days upon a find-
ing that "said person is an alcoholic or substance abuser and there is a
likelihood of serious harm as a result of his alcohol or substance abuse."-^
The statute provides that "commitment shall be for the purpose of inpatient
care in public or private facilities approved by the department of public
health under the provisions of chapter one hundred and eleven B for the
care and treatment of alcoholism or substance abuse. "•* In the alternative,
"[tjhe person may be committed to the Massachusetts correctional institu-
tion at Bridgewater, if a male, or at Framingham if a female, provided that
there are not suitable [DPH-approved] facilities available under chapter
' You inform me that the question has arisen "due in part to the recent expansion orser\ices lor civilly com-
mitted women within the community-based substance abuse system. Such expansion has been undertaken
in furtherance of the administrations policy to eliminate the need for women to be civilly committed to
M.CM. Framingham."
"The term "likelihood of.serious harm" is defined in G.L. c. 123. § Land, to summarize, generally requires a
"substantial risk of physical harm" to the person or to others as manifested by evidence of various forms of
violent behavior, or "a very substantial risk of physical impairment or injury" as manifested by e\ idence that
the person's judgment "is so affected that he is unable to protect himself in the community."
' See G.L #c. lilB. §§ I cl scq. In this opinion. I shall generally refer to these facilities as "DPH-
appro\eil facilities. "
92 P.D. 12
one hundred and eleven B; and provided further that the person so commit-
ted shall be housed and treated separately from convicted criminals/* The
statute then provides in the following terms for release prior to the end of the
commitment period: "A person so committed may be released prior to the
expiration of the period of commitment upon determination by the
superintendent that release of said person will not result in a likelihood of
serious harm."'*
In your opinion request you seek to focus my attention on the meaning of
the word "superintendent" and ask specifically whether the head of a DPH-
approved facility is a "superintendent" for purposes of G.L. c. 1 23. § 35. who
is authorized to permit early release. Your question arises because of certain
language in the definitional section of chapter 123 which suggests that the
head of such a facility is not a "superintendent." That language concerns the
general definitions for purposes of chapter 123 of the terms "facility"
and "superintendent."
Chapter 123 generally regulates the Department of Mental Health, and
the definitional section of chapter 123 defines the term "facility" as a facility
for "the care and treatment of mentally ill persons" rather than for the care
and treatment of alcoholism or substance abuse. A "superintendent" in turn
is defined as the head of a facility for the treatment of mentally ill persons.''
You are concerned that, if this definition of "superintendent" applies to sec-
tion 35. then the heads of DPH-approved alcohol and substance abuse
treatment facilities would be excluded from the category of "superinten-
dents" authorized to release persons committed for drug and alcohol abuse
The full text of the relevant portions of section 35 is as follows:
If. after a hearing, the court based upon competent medical testimony finds that said person is an
alcoholic or substance abuser and there is a likelihood of serious harm as a result of his alcoholism or
substance abuse, it mav order such person to be committed for a period not to exceed thirty days. Such
commitment shall be for the purpose of inpatient care in public or private facilities approved by the
department of public health under the provisions of chapter one hundred and eleven B for the care and
treatment of alcoholism or substance abuse. The person may be committed to the Massachusetts correc-
tion institution at Bridgewater. if a male, or at Framingham. if a female, provided that there are not suit-
able facilities available under chapter one hundred and eleven B:and provided, further, that the person
so committed shall be housed and treated separately from convicted criminals. A person so committed
may be released prior to the expiration of the period of commitment upon determination by the superin-
tendent that release of said person will not result in a likelihood of serious harm. Said person shall be
encouraged to consent to further treatment and shall be allowed voluntarily to remain in the facility for
such purposes ....
G.L. c. 123. § 35. fourth paragraph.
■ The pertinent definitions are as follows:
"Facility", a public or private facility for the care and treatment of mentally ill persons, except for the
Bridgewater State Hospital.
"Superintendent", the superintendent or other head of a public or private facility.
G.L. c. 123. § 1.
P.D. 12 93
treatment facilities would be excluded from the category of "superinten-
dents" authorized to release persons committed for drug and alcohol abuse
treatment. You propose, however, that the general definitions contained in
section 1 need not apply to section 35 because the context of section 35
requires a different definition.
Accepdng. for the purposes of this opinion, your assumption that the
definition of "superintendent" contained in section 1 does not include the
head of an alcohol and substance abuse treatment facility.^ I agree with
your proposition that the definifions contained in section 1 need not apply.
As you point out. section 1 contains a provision that its definitions apply
within chapter 1 23 "unless the context otherwise requires." See G.L. c. 1 23. §
1. first paragraph. The context of secdon 35 plainly requires that the
"superintendent" authorized to release committed persons from DPH-
approved facility for the treatment of alcoholism and substance abuse is the
superintendent or other head of that facility.
This is because, whatever types of treatment facilides are included in the
section 1 definidon of facility, secdon 35. by its express terms, prescribes
that the facilities to which it refers are "facilities ... for the care and treat-
ment of alcoholism or substance abuse." G.L. c. 123. § 35. The head of such
a facility is the only logical "superintendent" who would be in a position to
make the determination required by the statute whether the release of the
person committed to his or her facility would result in a likelihood of
serious harm. On a more basic level, there simply is no "facility for the care
and treatment of mentally ill persons" to which secdon 35 refers whose head
could be intended by the term "superintendent." As between the superinten-
dent of the alcoholism and substance abuse treatment facility to which a
person has been committed and the head of some unspecified facility for
the treatment of mental illness nowhere referred to in section 35, it is plainly
the former which must have been intended by the word "superintendent" in
secdon 35. In sum. therefore, to the extent that the general definitions of
section 1 exclude the head of a DPH-approved facility, these definitions
would not apply to section 35.
It might not be impossible to view alcohol and substance abuse treatment facilities as included within the
term "facility for the care and treatment of mentally ill persons." G.L. c. 123. § 1. In light of my conclusion
that the general definitions of section 1 need not apply in the context of section 35. see text immediately posJ.
I will, for the purposes of this opinion, accept your assumption and refrain from addressing any question
concerning the precise scope of the general definitions ofsuperintendent" or "facility" contained inG.L. c.
123. § 1.
94 P.D. 12
This conclusion, however, does not fully resolve the question whether
section 35 authorizes the head of a DPH-approved facility to release com-
mitted persons prior to the end of the commitment period. Entirely apart
from the concern raised by the definition of "superintendent" in section 1. 1
discern in the section 35 early release provision an ambiguity which raises
the question whether the early release provision applies to all persons com-
mitted pursuant to section 35 or whether it applies only to persons commit-
ted to the facilities at the Massachusetts Correctional Institutions at
Bridgewater and Framingham. If the early release provision applies only to
the latter, then the only official to whom the word "superintendent" could
logically refer is the superintendent or other head of the Massachusetts
Correctional Institutions' facilities, and. in any event, no person committed
to a DPH-approved facility would be eligible for application of the early
release provision.
The ambiguity to which I refer is in the phrase "(a] person so committed."
G.L. c. 123. § 35. ^ As previously noted, section 35 provides that a court,
upon appropriate fundings, may order an alcoholic or substance abuser "to
be committed for a period not to exceed thirty days." The statute states that
"such commitment" shall be to a DPH-approved facility, but that, if no suit-
able facilities are available, the person may be committed to the
Massachusetts Correctional Institutions at Bridgewater or Framingham
"provided that . . . the person so committed shall be housed and treated
separately from convicted criminals" (emphasis added). The next sentence
is the provision concerning early release, and it states that "A person so
committed may be released prior to the expiration of the period of commit-
ment upon determination by the superintendent that release of said person
will not resuh in a likelihood of serious harm" (emphasis added).
Viewed in isoladon. it is unclear whether "[a] person so committed"
refers, as did the phrase "the person so committed" in the previous sentence,
to persons committed to the Massachusetts Correctional Institutions or
whether it refers more generally to any persons committed pursuant to sec-
tion 35. including those committed to DPH-approved facilities. Viewed in
context, however, and in light of its legislative purpose, the phrase must be
seen to refer to any persons committed pursuant to section 35.
^ Although your opinion request does not specifically seek my interpretation of this phrase. I must do so in
order to resolve your question, and I therefore proceed to consider the issue. See Op. Atty Gen. No. 3. Rep.
A.G.. Pub. Doc.' No. 12 at (1985) (slip op. at 8).
P.D. 12 95
Looking first to context, the use in the sentence on early release of the
generic term "the superintendent." together with the use of the generic term
"the faciUty" in the subsequent sentence which speaks of encouraging "said
person" to remain voluntarily in "the facility." see ante at n. 4. suggests that
the early release provision refers to commitment to any facility for drug and
alcohol abuse treatment, not just the facilities at the Massachusetts Correc-
tional Institutions. Indeed, when elsewhere in section 35 a reference is made
specifically to the Massachusetts Correcdonal Institutions, a more specific
term, "separated facilites." is used.^
As to legislative purpose, it too leads to the conclusion that the early
release provision be interpreted to apply to the release of any committed
persons. Under the express terms of section 35. the only basis for the com-
mitment of a alcoholic or substance abuser is that there exist "a likelihood
of serious harm as a result of [the] alcoholism or substance abuse." The
plain purpose of the early release provision is to avoid a person's continued
involuntary commitment once the basis for the commitment has ceased to
exist by authorizing someone, i.e. "the superintendent." to release the per-
son, without having to return to court for a modificafion of the commitment
order, once the likelihood of serious harm has passed. A reading of the sen-
tence on early release to refer only to persons committed to the
Massachusetts Correctional Institudons would leave no method for the
speedy early release of other persons committed to DPH-approved
facilifies. I can conceive of no reason why a speedy, non-judicial method of
release would have been made available only to some committed persons
who no longer meet the criterion for commitment but not to others.
Finally, although the legislative history is not conclusive, an early draft of
section 35. appearing in 1970 House Bill No. 5021. indicates that the early
release provision was not conceived as a special provision for the early
release only of persons committed to Massachusetts Correctional
Institutions. This draft of section 35 (then numbered section 33) contained
the same ambiguity as currently appears in the use of the phrase "[a] person
so committed." It provided, however, for the early release of such "(a] person
so committed" by either "the superintendent of a departmental facility or
The reference is contained in the fifth paragraph of G.L. c. 123. § 35. which reads as follows:
Nothing in this section shall preclude any public or private facility for the care and treatment of
alcoholism or substance abuse, including the separated facilities at the Massachusetts Correctional
Institutions at Bridgewater and Framingham. from treating persons on a voluntary basis.
96 P.D. 12
the medical director of Bridgewater State Hospital." 1970 House Bill No.
5021. The reference to "departmental facility" seems clearly to be to DPH-
approved (and also, at that time. Department of Mental Health-approved)
facilities since no other "departments" are mentioned in the draft. Early
release from DPH-approved (and DMH-approved) facilities as well as
from the Massachusetts Correctional Institutions was. therefore, plainly
intended. The use in the enacted version of section 35 of the single generic
term "superintendent" to refer to the official authorized to permit early
release does not suggest an abandonment of that intent but only a belief that
the general term was adequate to encompass the heads of all relevant
facilities. Indeed, had the final intent been to permit only early release from
commitment to the Massachusetts Correctional Institutions, the drafters
would have been expected to resort to more specific rather than more
general terminology.
In sum, I conclude that the term "superintendent" as used in section 35
includes the superintendent or other head of a DPH-approved facility for
the care and treatment of alcoholism or substance abuse, and that section 35
permits the head of such a facility to release a person committed to the
facility prior to the termination of the commitment period upon a deter-
mination that release would not result in a likelihood of serious harm.
Sincerely yours,
JAMES M. SHANNON
ATTORNEY GENERAL
97 P.D. 12
Februarv- 7. 1991
Number 4
The Honorable Michael Joseph Connolly
Secretary of the Commonwealth
State House
Boston, Massachusetts 02133
Dear Secretary Connolly:
You have asked my opinion whether chapter 408 of the Acts of 1990.
entitled "An Act to Provide Protection for Endangered and Threatened
Species." may be the subject of a referendum petition under Article 48 of the
Amendments to the Massachusetts Constitution. Your opinion request
arises because a referendum petition calling for the repeal of this law.
signed by ten qualified voters, was filed with your office in a timely fashion.
For the reasons discussed below, I have concluded tha the law in question is
an appropriate subject for a referendum petition.
The primary effect of chapter 408 of the Acts of 1990 is to insert into the
General Laws a new chapter 131 A. In general, the new law provides legal
protection for species of plants and animals that it classifies according to
degree of endangerment into three categories: "endangered," "threatened,"
and "of special concern." G.L. c. 131 A, § 1, as added by St. 1990. c. 408. §4.
Following standards and procedures set forth in the law. the Director of the
state Division of Fisheries and Wildlife is required to list protected species
into the prescribed categories and to designate "significant habitats" which
contain features important to the conservafion of threatened or endangered
species. G.L. c. 13 1 A, § 4. Subject to various limitations and exceptions, the
law prohibits the possessing, transporting, buying, selling or conduct of cer-
tain other acfivities involving protected species, and it prohibits the altera-
tion of a "significant habitat" without a permit issued by the Director. G.L. c.
131 A. § § 2, 3, 5. Other provisions relate to such matters as the promulgation
of regulafions to implement the law. id. at § 4, the creation of a right of
appeal of decisions of the Director to the Secretary of Environmental
Affairs, id. at § 4. and the prescription of penaldes for violation of the law.
id. at § 6.
A law that relates to any matter excluded by Article 48 from the referen-
98 P.D. 12
dum process may not be the subject of a referendum petition.' I have
examined the various provisions of the law and have determined that they
contain no excluded matter. Only two issues require a brief discussion.
First, among matters excluded from the referendum process are laws
which are inconsistent with the right to receive compensation for private
property appropriated to public use. Amendments, art. 48, The Initiative, pt.
II. § 2. Chapter 408 provides for restrictions on the alteration of private
property which, because of its importance to the conservation of threatened
or endangered species, the Director of Wildlife and Fisheries designates as
a "significant habitat." G.L. c. 131A. § § 2. 4. 5. as added by St. 1990. c. 408. §
4. The law. however, expressly provides that owners of land containing a
significant habitat may petition the Director to consider purchasing the
habitat, id. at § 4. par. 9. and that a landowner aggrieved by the designation
of a significant habitat may file an action in court to determine whether the
designadon constitutes a taking requiring compensation under the Con-
stitution of the United States. Id. at § 5(e). The law. therefore, provides for a
means of obtaining compensation for any restrictions on the use of a signifi-
cant habitat that would effectively constitute a taking of property for public
use. It does not, therefore, fall within the exclusion. See Yankee Atomic
Electric Co. v. Secretary of the Commonwealth. 402 Mass. 750, 753
(1988).
Second, Article 48 excludes from the referendum process any law that
relates to the "powers . . . of courts." Amendments, art. 48, The Referendum,
pt. Ill, § 2. The questions as to the application of this exclusion to chapter
408 is raised because, as previously mentioned, the law provides for court
actions to determine whether the designation of a "significant habitat" con-
stitutes a taking requiring compensation under the Constitution of the
Amendments, art. 48. The Referendum, pt. III. § 2. provides the following exclusions:
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
courts; or the operation of which is restricted to a particular town, city or other political division or to
particular districts or localities of the commonwealth; or that appropriates money for the current or
ordinary expenses of the commonwealth or for any of its departments, boards, commissions or
institutions shall be the subject of a referendum petition.
In addition. Amendments, art. 48, The Initiative, pt. II. § 2, sets forth the following additional
exclusions:
No proposition inconsistent with any one of the following rights of the individual, as at present declared
in the declaration of rights, shall be the subject of a[l . . . referendum petition: The right to receive com-
pensation for private property appropriated to public use; the right of access to and protection in courts
of justice; the right of trial by jury; protection from unreasonable search, unreasonable bail and the law
martial;
freedom of the press; freedom of speech; freedom of elections; and the right of peaceable assembly.
P.D. 12 99
United States. G.L. c. 131 A. § 5 (e). as added by St. 1990. c. 408. § 4. The law
also criminalizes the unauthorized alteration of "significant habitats" and
the conduct ot certain activities involving protected species. Id. at § 6. In
this regard the law prescribes penalties including fines and imprisonment,
and it permits a court to order a violator who alters a significant habitat to
restore the habitat to its prior condition. Id.
In determining whether these provisions operate to place the law within
the "powers . . . of courts" exclusion, the test is whether the "main design" of
the law relates to the courts and their powers. Horton v. Attorney General
269 Mass. 503. 509. 511 (1929). As the Court explained in Horton. "(a}
general law covering a subject disconnected with the courts in its main
features does not come within the prohibition of . . . art. 48 . . . because, in an
incidental or subsidiary way. the work of the courts may be increased or
diminished or changed." Id. at 511. Accord Opinion of the Justices. 375
Mass. 795. 814-815 (1978): Cohen v. Attorney General. 354 Mass. 384. 387
(1968). The main design test has been specifically applied to conclude that
the criminalization of certain conduct in and of itself does not trigger the
exclusion. See Commonwealth v. Yee. 361 Mass. 533 (1972). Similariy. the
creation or abolition of rights or remedies which are enforceable in court
does alone not implicate the exclusion. See Massachusetts Teachers
Association v. Secretary of the Commonwealth. 384 Mass. 209. 226 (1981):
Horton. 269 Mass. at 51 1. Otherwise, as the Court has observed, the exclu-
sion would be so broad as to encompass "any change in any law that was
enforceable in the courts, that is virtually any change in the law at all."
Massachusetts Teachers Association. 384 Mass. at 226.
Chapter 408 is plainly "disconnected with the courts in its main features."
Horton. 269 Mass. at 5 1 1 . The law's main design, in light of its fitle and prin-
cipal provisions, see id. at 509. is to create a regulatory system adminstered
by the Director of the Division of Fisheries and Wildlife aimed at protecting
endangered animal and plant species. The main thrust of the law. therefore,
is not directed at the powers of courts, and. although the court-related pro-
visions may operate to increase the work of the courts in some degree, such
an increase touches only incidentally on the powers of the courts. Id. at 51 1.
Accordingly, chapter 408 does not fall within the powers o( courts
exclusion.
In sum. I conclude that chapter 408 of the Acts of 1990 does not contain
matter excluded from the referendum process and is appropriately the sub-
ject of a referendum petition. I have, therefore, in accordance with your
further request, provided you with a fair and concise summary of the law for
100 P.D. 12
inclusion on the petitions that you must prepare for use in
gathering additional signatures and for inclusion on the ballot
should a sufficient number of signatures be filed with your
office within the time period allowed by Article 48.
Sincerely
SCOTT HARSHBARGER
P.D. 12 101
SUMMARY OF CHAPTER 408 OF THE ACTS OF 1990
The law provides legal protection for species of plants and animals that it
classifies according to three categories as "endangered," "threatened," and
"of special concern."
The Director of the state Division of Fisheries and WildHfe is required to
list protected species into these categories following standards and pro-
cedures set forth in the law. The law provides that no person may take,
possess, transport, export, process, sell or buy any protected species. Nor
may a common or contract carrier knowingly transport or receive for ship-
ment a protected species.
Certain exceptions are provided. Protected species which enter
Massachusetts from out-of-state may be transported, possessed, or sold in
accordance with the terms of any necessary state and federal permit. Protec-
ted plant species may be possessed, propogated, or sold provided that their
source is not taken from the wild. The Director may also pemit the use of
protected species in certain other circumstances, including for scientific or
educational purposes, for propogation in captivity, and. in the case of spe-
cial concern species, for purposes of falconry. Finally, the Director may also
permit the removal, capture, or destruction of protected species to protect
human health.
The Director, following standards and procedures set forth in the law. is
also required to designate "significant habitats" which contain features
important to the conservation of threatened or endangered species. Owners
of land designated as a "significant habitat" may appeal that designation to
the state Secretary of Environmental Affairs and may petition the Director
to consider purchasing the habitat. The law also provides that, in general,
no alteration of a significant habitat may commence without a written per-
mit issued by the Director. The Director may issue a permit only if he or she
finds that the proposed action will not reduce the viability of the habitat to
support the endangered or threatened species population involved.
The law contains certain exceptions and qualificafions to the permit pro-
visions just described. Special permitting rules apply to certain vegetation
management acfivities of gas and electric utility companies and to activities
for which a final environmental impact report certified by the Secretary of
Environmental Affairs has been issued or has been found by the Secretary
not to be required. No permit is required for work performed in the normal
maintenance or improvement of land in agricultural or aquacultural use.
Separate provision is also made for the construction of certain single family
houses on land in existence and owned by the person wishing to construct
102 P.D. 12
on January 1, 1991.
Landowners aggrieved by a decision of the Director or by the Director's
failure to act under the law may appeal to the Secretary of Environmental
Affairs. In addition, a landowner aggrieved by a decision of the Director
may file an action in court to determine whether the Director's decision
constitutes a taking requiring compensation under the Constitution of the
United States.
Finally, the law requires government agencies to use their power to
further the purposes of the law, and it requires the Division of Fisheries and
Wildlife to adopt implementing regulations following standards and pro-
cedures set forth in the law. It also provides criminal penalties for violations
of the law including fines and imprisonment. In addition or as an alterna-
tive to these penalties, a court may order a violator who alters a significant
habitat to restore the habitat to its prior condition.
P.D. 12 103
June 12. 1991
Number 5
Peter Nessen. Secretary
Executive Office tor Administration and Finance
State House Room 373
Boston. MA 02133
David A. Haley
Personnel Administrator
One Ashburton Place. Second Floor
Boston. MA 02108
Dear Secretary Nessen and Mr. Haley:
You have asked my opinion as to the interpretation of a provision of G.L.
c. 31. § 33 (1988 ed.) that governs the calculation of seniority in connection
with layoffs of firefighters. This issue has arisen because fiscal emergencies
are causing several Massachusetts cities and towns to lay off firefighters.
The civil service laws require layoffs to be implemented according to
seniority as calculated under section 33. See G.L. c. 31. § 39. Several cities
and towns therefore have sought guidance on the proper interpretation of
section 33 from the Personnel Administrator, who is charged with the
administrafion and enforcement of the civil service law and rules. See G.L.
c. 31. § § 5(a). 77. No interpretation of section 33 can avert the layoffs of
firefighters or limit their extent, but a proper interpretadon is necessary in
order to determine which firefighters must be laid off
Secfion 33 sets out numerous rules for calculadng the seniority of civil
service employees. Various paragraphs of that secdon apply differing rules
for calculating seniority to different categories of employees. These
categories are primarily defined according to how the employee came to
occupy his or her present civil service position. The third paragraph, for
example, applies to (among others) those employees who obtained their
posidons through an original or promodonal appointment, either within a
city or town or from one city or town to another. The fourth paragraph
applies to (among others) those employees who obtained their positions
through a transfer from one city or town to another.
Secdon 33 also contains a sentence that specifically governs firefighter
seniority. The Legislature inserted this provision in the fourth paragraph of
section 33. You have asked whether that provision applies only to
employees who transferred into their current firefighter posidons as des-
cribed in the fourth paragraph, or whether the provision also applies to
employees who obtained their positions as described in the third paragraph
or the other paragraphs of section 33. For the reasons discussed below. I
conclude that the firefighter provision applies only to those firefighters who
transferred into their current positions as described in the fourth paragraph
of secdon 33.
If the firefighter provision had been set off in a separate paragraph of sec-
tion 33. 1 would conclude that it was intended to except firefighters from any
other conflicting rules set forth in section 33. This would also be true if the
provision for firefighters were read in isolation from the paragraph in which
104 P.D. 12
it appears. But every word or phrase of a statute must be read in context, see
Attorney General v. School Committee of Essex. 387 Mass. 326. 337 (1982).
and without overemphasizing its effect on the remainder of the statute. See
Massachusetts Commission Against Discrimination v. Liberty Mutual
Insurance Co.. 371 Mass. 186. 190-91 (1976). The applicability of a sentence
of a statute may be unclear when the sentence stands alone, but more clear
when the sentence is viewed in its statutory context. See. e.g.. James J. Welch
& Co. V. Deputy Commissioner ol Capital Planning and Operations. 387
Mass. 662. 664 (1982). Here, the placement of the provision for firefighters in
the fourth paragraph, viewed against the overall structure of section 33.
indicates that the Legislature intended that provision to affect only those
firefighters who otherwise fall within the terms of that paragraph.
St. 1987. c. 252. which inserted the provision for firefighters into section
33. expressly stated that "[t]he fourth paragraph of section 33" was to be
amended by adding the sentence concerning firefighters. It is a basic princi-
ple of statutory construction that wherever possible, every word of a statute
must be given some meaning: no word should be considered superfluous.
Risk Management Foundation of the Harvard Medical Institutions. Inc. v.
Commissioner of Insurance. 407 Mass. 498. 503 (1990): International
Organization of Masters. Mates & Pilots v. Woods Hole. Martha 's Vineyard
& Nantucket Steamship Authority. 392 Mass. 811. 813 (1984). Here, the
Legislature's explicit decision to place the provision for firefighters in the
fourth paragraph indicates an intention to limit the effect of that provision
to that paragraph, rather than to section 33 generally.
The placement of the provision for firefighters at the end of a paragraph
rather than as a separate paragraph is similar to the effect of punctuation in
a statute. "[M]atters of punctuafion are not necessarily determinative and
should not be allowed to defeat the true purpose and meaning of a statute."
Globe Newspaper Co. v. Boston Retirement Board. 388 Mass. 427, 432
(1983): see Schlesinger v. Merrill Lynch. Pierce. Fenner& Smith. Inc.. 409
Mass. 514. 518 ( 1991). But where, as here, "the true purpose and meaning" of
the provision at issue are unclear. "'[p]unctuation . . . may be resorted to
when it tends to throw light upon the meaning of the language."' Moulton v.
Brookline Rent Control Board. 385 Mass. 228. 232 (1982) (quoting
Greenough v. Phoenix Insurance Co.. 206 Mass. 247. 252 (1910)). Punctua-
tion and paragraphing, taken together, may also shed some light on the
meaning of a statute. See Haynes v. Grasso. 353 Mass. 731. 735 (1968).
Because the scope of the firefighter provision is not clear, the insertion of
that provision into an existing paragraph rather than as a separate
P.D. 12 105
paragraph is entitled to some weight.
Moreover, in two respects, the special provision for firefighters constitutes
an exception to the general approach of section 33, suggesting that the pro-
vision should be applied narrowly rather than to the entire section. First, as
noted above, section 33 generally makes the choice of the applicable
seniority rule turn on how the employee came to occupy his or her current
position (i.e., through an original or promotional appointment, a transfer,
reinstatement, etc.) rather than on what kinds of duties the position
involves. The firefighter provision, however, makes the seniority rule turn
on the fact that the employee is a firefighter rather than some other type of
employee, and not on how the employee came to occupy his or her
position.
Second, section 33 generally permits the employee, once specified con-
ditions are met, to include periods of prior civil service employment and/or
absence from the payroll in calculating length of service in the current posi-
tion. The firefighter provision, in contrast, bars those firefighters to whom it
applies from including any prior service in other civil service positions in
calculating their length of service for the purpose of a reduction in rank
or force.
In these two ways, therefore, the firefighter provision is an exception to
the general approach of section 33. The Supreme Judicial Court has held
that "'[e]xceptions to a general law, whether statutory or consfitutional,
should be strictly construed.'" Commonwealth v. Germano, 379 Mass. 268,
272 (1979) {quoting Commonwealth v. Yee, 361 Mass. 533, 537 (1972); cifing
Baker Transport, Inc. v. State Tax Commission, 371 Mass. 872, 877 (1977)). A
strict construction of the firefighter provision requires applying it only to
the paragraph in which it appears.'
I have also considered the Legislature's approach to an earlier amend-
ment to section 33. When in 1982 the Legislature amended section 33 to add
a provision creating a special rule for layoffs after reemployment, the
Legislature chose to set this rule off in a new and separate paragraph (the
sixth paragraph) at the end of section 33. See St. 1982, c. 571. This suggests
It might also be suggested that the firefighter provision should apply only within the fourth paragraph
because of the rule of statutory construction that the effect of a modifying clause, provison, or exception is
confined to the last antecedent unless there is something in the subject matter or dominant purpose that
requires a different interpretation. E.g.. Moullon. 385 Mass. at 230-3 1 ( 1982). This is, however, in part a rule of
grammatical construction. See id. It thus has diminished force where, as here, the exception being construed
is not a clause within a sentence but instead is set off in a separate, grammatically complete sentence.
106 P.D. 12
that when the Legislature creates a special rule for the calculation of
seniority for layoff purposes and intends that rule to be an exception to the
entire remainder of section 33, the Legislature places the special rule in a
separate paragraph. The Legislature's 1987 decision to place the firefighter
provision in the fourth paragraph thus suggests that the Legislature did not
intend the provision to apply generally to section 33. Cf. Commonwealth v.
Galvin, 388 Mass. 326, 328-30 (1983) (construing statutory provision in light
of overall structure of statute).
This interpretation leads to a reasonable result. See School Committee of
Greenfield v. Greenneld Education Association. 385 Mass. 70, 79-80 (1982)
(noting that imprecise statute should be given reasonable construction).
One of the apparent purposes of section 33 is to reward service with a par-
ticular employer.- Under the interpretation reached here, firefighters who
transfer from one city or town to another may not include prior service
when determining seniority for purposes of reductions in rank or force, but
those employees who become firefighters through an original or pro-
motional appointment or a transfer within a city or town may include prior
service, as a reward for continuing service to the city or town. This inter-
pretation seems most consistent with the policies embodied in section
33.3
The Legislature could certainly have reached a different conclusion as to
the appropriate rule for calculating firefighter seniority. The Legislature
could have determined, for example, that the controlling factor for all
firefighters should be the length of service to a particular city or town s fire
~ This is reflected in the different rules stated in the third and fourth paragraphs regarding how long
employees who receive different types of original or promotional appointments or transfers must serve in
their new positions before being permitted to count their prior service. On the municipal level, employees
who receive appointments or transfers within the same department of a city or town are treated most
favorably; employees who request and obtain transfers from one city or town to another are treated
least favorably.
' I recognize that, based on the conclusion I reach here, an employee who became a firefigher through an
original orpromotional appointment from a position in one city or town to a firefighter position in another
city or town would, in accordance with the third paragraph of section 33. be permitted to include the prior
service in calculating seniority as a firefighter. This may appear to be in tension with the rule slated in
paragraph four for employees who transfer from a fircfighting position in one city or town to a firefighting
position in another city or town. The Legislature may have concluded, however, that the original and pro-
motion appointments just referred to were sufficiently rare so as not to warrant special attention in section
33.Seegenera//yCommonwea///jv, Henry sDrvwa/ZCo.. 366 Mass. 539. 546 (1974) (holding that Legislature
may proceed one step at a time, addressing those problems it deems most acute). It is plain that the Legisla-
ture adopted a step-by-step approach to the problem of civil service employment changes from one city or
town to another. The Legislature chose to establish a special rule for firefighters who changed their employ-
ment in this fashion, rather than for all civil service employees in the public safety field or for all civil service
employees of cities and towns.
P.D. 12 107
department, rather than the combined length of service to all departments
of a city or town. Alternatively, the Legislature coiild have concluded that
firefighting is a unique occupation involving critical skills affecting the
public safety, and therefore that total length of service as a firefighter should
be the sole criterion for determining firefighters' seniority. But the context,
history, and structure of section 33 indicate that the Legislature chose a
third option: to make service to a particular fire deparment determinative
only in the limited instances described by paragraph four of section 33.
For these reasons, I conclude that the special provision for firefighters in
the final sentence of the fourth paragraph of section 33 applies only to those
firefighters who are otherwise within the terms of that paragraph.
Sincerely,
SCOTT HARSHBARGER
STATE
LIBRARY OF MASSACHUSETTS
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