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Full text of "Report of the Attorney General for the year ending .."

Public Document 



No. 12 



W^i}e (Hoxnmonbjeniti} ai JMassaciiusetts 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1993 




Ref 

MR 

340M3 

R467 

1993 

C.1 



Publication of this Document Approved by Philmore Anderson hi, State Purchasing Agent. 



U-151-1000-2/95 



Estimated Cost Per Copy $3.72 
Printed on Recycled Paper 

o 



State Library ct Massachusetts 
State f louse, Boston 



iHom 



Olomman6jealtl| of ^assaci]usetts 



In accordance with the provisions of Section 11 of Chapter 12 and of Chapter 32 
of the General Laws, I hereby submit the Annual Report for the Office of the 
Attorney General. This Annual Report covers the period from July 1, 1992 to June 
30, 1993. 



Respectfully Submitted, 



Scott Harshbarger 
Attorney General 



P.D. 12 



OFFICE OF THE ATTORNEY GENERAL 



Attorney General 
SCOTT HARSHBARGER 



First Assistant Attorney General 
Thomas H. Green 



ChiefufStaff 
Donald L. Davenport 



Richard Allen 
Thomas Alpert 
Dorothy Anderson 
Barbara Anthony 
Frederick Augenstern 
Thomas Barnico 
Judith Beals 
Thomas Bean'" 
Steven Berenson 
Edward Berlin 
Anne Berlin 
Cynthia Berliner 
Jean Berke'" 
William Berman 
Patricia Bernstein 
Ann Berwick 
Mark Bluver 
Edward Bohlen 
Barbara Boden 
David Bookbinder" 
John Bowen'" 
John Bowman 
Howard Brick 
Matthew Brock 
William Brownsberger' 
James Bryant 
David Burns 
Andrea Cabral™ 
Cecilia Calabrese""" 
John Capin 
Susan Carnduff " 
Eric Carriker 
James Caruso, Jr. 
R. Michael Cassidy 
Ellen Caulo"^ 
John Ciardi 
Eleanor Sinnott 
Richard Cole 



Assistant Attorneys General 

Mary Connaughton 
Kevin Connelly-' 
Joanna Connolly'* 
Scott Cooper'^ 
Peter Coppinger" 
Pierce Cray 
Phyllis Crockett 
Michael Cullen 
Maurice Cunningham 
William Daggett 
Leslie Davies 
Scott Davis-' 
Edward DeAngelo 
George Dean 
Paula DeGiacomo''' 
Emily Den* 
Stephen Dick^ 
Carol Dietz 
Elizabeth DiTomassi'" 
Lawrence Donnelly" 
Juliane Dow 
Mary Beth Downing-" 
William Duensing" 
Edgar Dworksy 
Deborah Ecker 
Stanley Eichner 
Betty Eng"' 
Judith Fabricant 
Michael Fabbri 
Jennifer Ferreira 
Freda Fishman 
Stacey Fortes"" 
Bettye Freeman 
Cynthia Gagne" 
Andree Gagnon" 
Rosemary Gale 
Nancy Geary 
Dwight Golann" 



1. Andrew Goldberg" 
Richard Goldstein'" 
Tania Gray 
Thomas Green 
Leslie Greer 
Mary Griffin 
Irene Guild'^ 
Kristin Guyot^" 
David Hallet'^ 
Daniel Halston 
Joslin Ham"' 
Natalie Hardy 
Nancy Harper 
LaDonna Hatton 
Bennet Heart'" 
Lisa Heinzerling^*' 
Virginia Hoefling 
David Hofstetter"" 
Philip Holmes 
Pamela Hunt 
Elizabeth Hyman" 
David Jackson'*" 
Marcia Jackson 
Joyce Johnson-^ 
Diane Juliar 
Michelle Kaczynski 
Gerald Kelly^^ 
Michelle King 
Michael Kogut 
Pamela Kogut 
Viveca Tung Kwan'^ 
Pablo Landrau 
Jon Laramore"' 
William Lee 
Judy Levenson 
Beth Levi 
Martin Levin 
Stephen Limon 



P.D. 12 



Diane Lund" 
Margaret Malek 
William Matlack 
David Marcus" 
Thomas McCormick 
Ellen McGinty 
Karen McGuire 
Susan McHugh 
Paul McLaughlin 
Mary McLaughlin 
Kristine McMahon 
Kevin McNeely'- 
William McVey 
William Meade'' 
Elizabeth Medvedow 
Joyce Meiklejohn 
Howard Meshnick 
Nicholas Messuri' 
James Milkey 
Jonathan Mishara 
Daniel Mitchell 
Margaret MonselF 
Sarah Morison 
Christopher Morog 
Madelyn Morris 
Susan Motika 
Mark Muldoon 
Timothy Mullen 
Robert Munnelly'" 
Linda Murphy 
Alexander Nappan 
Kevin Nasca 
Michelle O'Brien' 
Jerrold Oppenheim 
Donna Palermino 



William Pardee 
Margaret Parks 
Robert Patten'' 
Lora Pellegrini" 
Anthony Penski 
Djuna Perkins" 
Mary Phillips 
William Porter 
Anne Powers 
Edward Rapacki 
Carol Lee Rawn'" 
Elizabeth Reinhardt-" 
Benjamin Robbins' 
Deirdre Robbins"" 
Beverly Roby" 
Anthony Rodriguez'- 
Joseph Rogers'^ 
Deirdre Rosenberg'" 
Abbe Ross 
Stuart Rossman 
Linda Sable 
Peter Sacks 
Thomas Samoluk 
Ernest Sarason, Jr. 
Pasqua Scibelli 
Arlie Scott 
Robert Sherman 
Robert Sikellis 
Jeremy Silverfine" 
Myles Slosberg 
Eric Smith 
Joanne Smith 
Mark Smith 
Johanna Soris 
Amy Spector 



Susan Spurlock' 
Marie St. Fleur 
Carol Starkey" 
Kevin Steiling 
James Stetson 
Deborah Steenland 
Edmund Sullivan 
Michael Sullivan 
Walter Sullivan 
Mark Sutliff 
James Sweeney 
Diane Szafarowicz 
Pamela Talbot 
Rosemary Tarantino" 
Neil Tasser 
Jane Tewksbury 
Jean Thompson" 
Jeffrey Tocchio 
Edward Toro 
Margaret Van Deusen 
John Van Lonkhuyzen 
Lucy Wall 
Beverly Ward 
Rebecca Webb 
George Weber 
Mark Weber'" 
James Whitcomb 
Douglas Wilkins 
Jane Willoughby" 
Norah Wylie^ 
Judith Yogman'^ 
Pamela Young 
Andrew Zaikis 
Reed Zars-" 
Catherine ZiehP" 



Assistant Attorneys General Assigned To The Departfnent of Employment & Training: 



Brian Burke 
Elizabeth Ann Foley 



Glen MacKinley" 
Paula Fox Niziak 



Patricia Preziosa" 



P.D. 12 



APPOINTMENT DATE 


1. 


07/13/92 


2. 


07/22/92 


3. 


08/01/92 


4. 


08/02/92 


5. 


08/03/92 


6. 


08/31/92 


7. 


09/08/92 


8. 


09/09/92 


9. 


09/14/92 


10. 


09/21/92 


11. 


09/23/92 


12. 


09/28/92 


13. 


09/29/92 


14. 


10/01/92 


15. 


10/05/92 


16. 


10/08/92 


17. 


10/13/92 


18. 


10/19/92 


19. 


11/02/92 


20. 


11/09/92 


21. 


11/16/92 


22. 


11/30/92 


23. 


12/01/92 


24. 


12/07/92 


25. 


01/04/93 


26. 


01/11/93 


27. 


01/19/93 


28. 


02/01/93 


29. 


03/08/93 


30. 


03/15/93 


31. 


03/29/93 


32. 


04/01/93 


33. 


04/05/93 


34. 


04/26/93 


35. 


05/24/93 


36. 


05/25/93 


37. 


06/01/93 


38. 


06/14/93 



TERMINATION DATE 

50. 07/01/92 

51. 07/03/92 

52. 07/04/92 

53. 07/07/92 

54. 07/10/92 

55. 07/31/92 

56. 10/04/92 

57. 10/19/92 

58. 10/23/92 

59. 11/27/92 

60. 01/15/93 

61. 02/05/93 

62. 02/26/93 

63. 02/28/93 

64. 03/13/93 

65. 03/19/93 

66. 03/26/93 

67. 03/31/93 

68. 05/07/93 

69. 05/14/93 

70. 06/18/93 



P.D. 12 



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P.D. 12 15 

To the people of the Commonwealth of Massachusetts 

The list of cases, projects, and initiatives outlined in this annual report seems 
endless: cracking down on fraud statewide; protecting the elderly from financial 
exploitation; protecting the public's access to affordable health care; focusing 
on urban issues with a statewide approach; assisting our local police and 
District Attorneys with their efforts to respond to violent crime, domestic vio- 
lence, and the violation of our drug laws; working on education reform and 
the protection of the environment; prosecuting political corruption and civil 
rights violators; regulating public charities; protecting consumers through 
enforcement of our antitrust laws and consumer protection laws and regula- 
tions; investigating and prosecuting elder abuse and the illegal blocking of 
women's health clinics; and providing professional legal representation for the 
Commonwealth and its agencies. Whatever the issue, we are working hard to 
meet the challenge. 

Most important, we have depoliticized the Office of the Attorney General. 
Our decisions are based on the facts and the law — on the merits, not on the 
politics. The cornerstone of my administration rests on the premise that the 
Attorney General's office must be, first and foremost, an outstanding profes- 
sional law office. Decisions are made, and actions are taken, based solely on 
the law and clearly articulated policies, without regard to party, politics or 
favor. 

The only standard of performance in my office is professional excellence. 
And, while the vast power of the office is to be used aggressively and proac- 
tively, it must be used in a fair, responsible and balanced manner. To that end, 
I have appointed women and men of integrity, competence and commitment 
to positions in my office based on merit and their ability to get the job done. 

1 believe that it is not enough for the Attorney General to simply perform 
the traditional duties and responsibilities of the office competently; nor is it 
enough to defend and initiate lawsuits and to provide legal advice well. 
Rather, I believe that by using the powers of the office wisely, it is possible to 
begin to solve the underlying problems from which lawsuits could or did 
arise. Because our work is based on the principle of professional, non-political 
decision-making, based on the law and the facts, founded upon dedicated and 
competent professional and support staff, we have the credibility that permits 
us to test this belief. This is why: 

we prosecute drugs, gang and gun cases, and also devote consid- 
erable time and attention to the statewide development of pro- 
grams and strategies to combat and prevent urban, family, and 
school violence; 

we prosecute consumer scams and financial exploitation which 
target older Americans, and also conduct training and education 
programs, advocate for legislative change and seek resources to 
help prevent victimization from occurring in the first place; 

we represent the public interest in insurance and utility rate-set- 
ting cases, and also find innovative ways to cut the costs — particu- 
larly of fraud and waste — and seek to achieve systemic reform to 
avoid increases; 



16 P.D. 12 

we prosecute cases of Medicaid fraud, enforce public charities, 
consumer protection and antitrust laws, and also propose and 
implement comprehensive plans to change the way health care is 
delivered in the Commonwealth; and 

we defend state executive agencies, and also consult with 
agency heads and general counsel and, where appropriate, seek to 
influence agency policy-making and actions in ways designed to 
prevent litigation or expedite settlements in the public interest. 

These are just a few of the ways that we have been able to combine effective 
and aggressive performance of the traditional role of the Attorney General 
with an expansion of that role into areas of reform and change. 

Sincerely, 

Scott Harshbarger 

CRIMINAL BUREAU 

The Criminal Bureau is comprised of nine divisions: Appellate Division, 
Special Investigations, Medicaid Fraud Control Unit, Public Integrity Division, 
Environmental Strike Force, Urban Violence Strike Force, Division of 
Employment and Training, Economic Crimes Division, Narcotics and 
Organized Crimes Division. 



CRIMINAL APPELLATE DIVISION 

This report represents a summary of the activity of the Appellate Division 
for the period of July 1, 1992 through June 30, 1993. 

The Division handled 650 cases during the course of the year. These cases 
predominantly involved the defense of federal habeas corpus petitions attack- 
ing state criminal convictions, state habeas petitions, appeals from Criminal 
Bureau prosecutions and the defense of district attorneys, state correctional 
authorities and Treatment Center personnel, and other state officials and 
judges sued in the course of their official duties. This is 221 more cases than 
last year, an increase of 51%. 

Three hundred fifty two (352) new cases were opened by the Appellate 
Division in FY 1993. This is a significant (58%) increase from the 222 new 
cases opened during the previous year. Two hundred eighty two (282) cases 
were disposed during the fiscal year, a 36% increase over last year. 



P.D. 12 



17 





SUMMARY: 




TOTAL 








CASES 


CASES 


CASES 






OPENED 


DISPOSED 


HANDLED 


A. 


Federal Habeas 


92 


90 


172 


B. 


Federal Civil 


23 


15 


52 


C. 


State Habeas* 


48 


43 


72 


D. 


State Civil* 


67 


66 


201 


E. 


211, section 3 


32 


29 


36 


F. 


Criminal* 


86 


39 


113 


G. 


Other 


4 


1 


4 



TOTAL 



352 



283 



650 



•Includes eleven rendition habeas cases handled by other bureau attorneys 

•Includes one forfeiture appeal (Ditomassi) 

•Includes three criminal appeals (Cassidy; W. Sullivan) 

The following is a comparison of case activity for the Appellate Division for 
the last three years 



TOTAL CASES OPENED 
TOTAL CASES DISPOSED 
TOTAL CASES HANDLED 

APPELLATE BRIEFS FILED 



FY 


FY 


FY 


1991 


1992 


1993 


161 


222 


351 


N/A 


206 


282 


N/A 


428 


649 



By Court 

A. U.S. Supreme Court 

B. Court of Appeals 
(First Circuit) 

C. U.S. District Court 
(Bankruptcy Appeals) 

D. SJC 

E. Appeals Court 



2 
13 
26 

52 



By Case Type 
4 A. Criminal: 
7 B. Federal Habeas 

C. Civil/State Habeas 



19 

7 

26 

52 



RENDITIONS 176 warrants reviewed; 14 hearings 



SAAG Supervision 



Treatment Center 50 cases 

Parole Board 65 cases 

Other 9 cases 



18 P.D. 12 

I. CASES HANDLED 

A. FEDERAL HABEAS CORPUS 

During the fiscal year, the Appellate Division carried a total of 172 habeas 
corpus cases in the various federal courts, and 90 of these cases were disposed 
during the year. This only involves cases in which there was an order by the 
federal court to answer the petition. 

We were successful in all but one case. The writ was granted by the District 
Court in Scarpa v. Dubois (Duensing) on the ground that trial counsel did not 
provide effective representation in this drug trafficking case prosecuted in 
Suffolk County. We have filed a notice of appeal. Our petition for writ of cer- 
tiorari in the Supreme Court in Massachusetts v. Oses, a habeas case decided 
last year, was also unsuccessful. 

Judge Young selected Ortiz v. Dubois, a habeas case challenging the suffi- 
ciency of the evidence for felony murder of two Springfield police officers, for 
oral argument at Boston University Law School. (Geary). We were successful 
and the case is on appeal. 

Seven briefs were filed in federal habeas corpus matters: 

U.S. Supreme Court 

1. Amirault v. Fair (Hunt) 

2. Nadworny v. Fair (Hatton) 

3. Massachusetts v. Oses (Hatton; Hunt) 

U.S. Court of Appeals 

1 . Kingsky v. Harshbarger (Medvedow) 

2. Johnson V. Grigas (Medvedow) 

3. Siegfriedtv. Fair (Hunt) 

4. Watkins v. Ponte (Sikellis) 

B. FEDERAL CIVIL CASES 

During FY 1993 the Appellate Division handled 52 federal civil matters, 7 of 
which involved our motions to quash subpoenas in both civil and criminal 
cases. Fifteen (15) federal civil cases were disposed during the year. 

Of particular note is Cameron v. Tomes (Medvedow), which raised important 
questions about a Treatment Center resident's rights to treatment. While the 
First Circuit upheld the granting of injunctive relief, we were successful in 
convincing the court to limit the constitutional basis for any right to treat- 
ment. We also defended a civil rights action against an Assistant District 
Attorney in Waters v. Larkin (Tassel), and had an evidentiary hearing concern- 
ing qualified immunity in a civil rights action against parole officers in Crooker 
V. Metallo (Meade). 



P.D. 12 19 

C. STATE CIVIL/HABEAS CORPUS CASES 

The Appellate Division handled 61 state habeas cases, 32 of which were dis- 
posed during the year. 

We also represented various state officials in 201 state civil cases, 67 of 
which were disposed. Approximately 29 of these cases involved matters in 
which the investigative files of District Attorneys, the police or the Attorney 
General were subpoenaed in civil cases. Two public records cases by the Boston 
Globe seeking criminal investigative material, went to trial. (Hatton). In 
Commonwealth v. Devaney, representing the District Attorney for Essex County, 
we successfully intervened to stay discovery in a civil rights enforcement case 
to protect the criminal discovery process. (Murphy). In Dion v. Dion, we repre- 
sented all of the District Attorneys who had been subpoenaed to a probate 
divorce case in an attempt to show the adultery statute was not enforced. 
After considerable work, the subpoenas were withdrawn (Duensing; Guyot). In 
Aymard v. Reilly, we were successful in preventing a criminal defendant from 
bringing a civil action to force the District Attorney to enter into a plea bar- 
gain in a criminal case (Meade). 

D.G.L.C.211. SECTION 3 AND OTHER SJC SINGLE JUSTICE MATTERS 

During FY 1993 the Appellate Division handled 36 matters in the single jus- 
tice session of the SJC which involved the criminal justice system in some 
way. Twenty nine (29) of these cases were disposed. One case, Jenkins v. District 
Court Department and BMC (Hatton), involves a challenge to the Massachusetts 
court system's failure to provide those arrested without warrants with a proper 
judicial determination of probable cause within either 48 or 24 hours. Two 
cases {Stevens; Brossard) involve appeals from petitions seeking to vacate the 
issuance of domestic abuse 209A orders (Duensing). In another case (Nettis) we 
defended against an attack on the tolling provision of the statute of limita- 
tions. (Hatton). 

E. CRIMINAL CASES 
Criminal Appeals- Briefs were filed in 20 criminal cases. 

U.S. Supreme Court 

1. Galford v. Massachusetts (Hunt) 

Supreme Judicial Court 

1. Aime v. Commonwealth (Meade; Hunt) 

2. Commonwealth v. Brogan (Medvedow) 

3. Commonwealth v. Cintolo (Sikellis) 

4. Commonwealth v. Cotter (Medvedow) 

5. /// re John Doe Grand Jury Investigation (Hatton) 

6. Jenkins v. District Court Department & BMC (Hatton) 

7. Commonwealth v. A. Phillips (Tassel) 

8. In re Rape Crisis Services of Greater Lowell and 

In re Rape Crisis Center of Worcester (Tassel; Hunt) 



20 



P.D. 12 



9. In re Rhode Island Grand Jury Subpoena (Hunt) 

10. Commonwealth v. Wigfall (FAR Application) (Cassidy) 



Appeals Court 

1. Commonwealth v. 

2. Commonwealth v. 

3. Commonwealth v. 

4. Commonwealth v. 

5. Commonwealth v. 

6. Commonwealth v. 

7. Commonwealth v. 

8. Commonwealth v. 

9. Commonwealth v. 



Collazzo. et al. (Geary) 
Ferreira (Duensing) 
Goggin (Sikellis) 
Harkins (Murphy) 
C. Phillips (Tassel) 
Stockwell-Alpert (Tassel) 
Tabaras (Cassidy) 
Thompson (Meade) 
Trimarchi (Medvedow) 



Criminal Cases in the Trial Courts 
criminal cases in the trial courts: 



Division attorneys handled a number of 



Geary: 



Medvedow: 



Tassel: 



Duensing: 



Meade: 
Guyot: 



4 month rotation to Lowell District Court 

Commonwealth v. Ryan 

Commonwealth v. Katter (with Smith) 

Commonwealth v. Aponte/Granano 

Commonwealth v. Poole 

Stokes V. Weld (show cause hearing) 

Commonwealth v. Flynn (with Bernstein) 

Commonwealth v. Turner/Travers (with Sikellis) 
Commonwealth v. Cursio (expungement) 
Commonwealth v. Barnett (discovery; motion 
for new trial) 

Commonwealth v. Ramos (Rule 29) 
Commonwealth v. Builles (post conviction) 

Commonwealth v. Sequeira (Rule 30) 
Commonwealth v. Godfrey (Rule 30) 
Commonwealth v. Balboni (expungement) 
Commonwealth v. McQidllan (expungement) 
Commonwealth v. William (expungement) 
Commonwealth v. Stirrip (expungement) 
Commonwealth v. Juvenile (Abreu) (expungement) 
Commonwealth v. Hibbard (expungement) 
Commonwealth v. O'Donnell (expungement) 
In re Grand Jury Investigation (with Levin) 

Commonwealth v. Alvarez 

Commonwealth v. Webster (expungement) 



P.D. 12 21 

Murphy: Commonwealth v. Harkms (Rule 30) 

Commonwealth v. Vipraio (show cause hearing) 
Hunt: Commonwealth v. Schand (with Cassidy) 

F. CIVIL AND SDP APPEALS 
Briefs were filed in 26 civil (non federal habeas corpus) cases. 

U.S. Court of Appeals 

1. Cameron v. Tomes (Medvedow) 

2. Crooker v. Metallo (Meade) 

3. Waters v. Larkm (Tassel) 

U.S. District Court 

1 . In re Heritage Cabinets (Medvedow) 

2. In re Scott (Medvedow) 

Supreme ludicial Court 

1. Connery v. Commissioner of Correction and Tolley v. 
Chairman Parole Board (Hunt) 

2. Love V. LaTessa (Sikellis) 

3. Stevens v. lustices BMC (Duensing) 

Appeals Court-Civil: 

1. Bennett V. 355 Publications (Geary) 

2. Clegg V. Commonwealth (Tassel) 

3. Commonwealth v. $2,083 (Ditomassi) 

4. Commonwealth v. Penta (W. Sullivan) 

5. Daniels v. Vose (Guyot) 

6. Desmond v. Qiiincy District Court (Geary) 

7. Matchett v. DiPaulo (Duensing) 

8. Miller v. Fair (Geary) 

9. Pasquarelli v. Parole Board (Tassel) 

10. Stewart v. Gittens (Geary) 

11. Swain v. Tink (Hunt) 

SDP: 



1. Bumham (Medvedow) 


2. Lane (Tassel) 


3. Lund (Nutting Murphy) 


4. McHoul (Medvedow) 


5. Ready (Guyot) 


6. Redgate (Tassel) 


7. Tate (Hatton) 


G. OTHER 



22 P.D. 12 

The Appellate Division handled 4 cases in Bankruptcy Court in which crimi- 
nal prosecutions by the Department of Labor and Industries for nonpayment 
of wages were sought to be stayed pending the outcome of bankruptcy pro- 
ceedings. Two matters are currently on appeal to the U.S. District Court. 

Additionally, Criminal Bureau attorneys appeared in single justice sessions 
of the appellate courts in 9 cases as follows: Immunity - 2 (Cassidy; Fabbri); 
Interlocutory Appeal- 1 (McLaughlin); Stay - 3 (Nappan; Rawn); c. 211, section 
3 - 3 (Van Lonkhuyzen). 

II. BRIEFS FILED 

The Appellate Division filed 52 briefs during FY 1993, in the United States 
Supreme Court (4); First Circuit Court of Appeals (7); United States District 
Court (bankruptcy appeal) (2); Supreme Judicial Court (13) and Massachusetts 
Appeals Court (26). Of these, 20 were in criminal cases, 7 in federal habeas 
corpus matters and 25 in various civil actions or state habeas cases. 

Our cases in the Supreme Judicial Court more than doubled from last year. 
We were successful in PhiUips (Tassel) which challenged a police officer's dis- 
cretion to issue either a warning or a civil infraction in motor vehicle cases. 
The convictions for criminal contempt in two Operation Rescue cases were 
upheld {Coter; Brogan) in the face of numerous claims of error. (Medvedow) 
The Attorney General successfully intervened in a case involving the enforce- 
ment of a Rhode Island Grand Jury Subpoena to a Massachusetts witness. (Hunt) 
We were unsuccessful in Connery and Tolley, two cases in which we sought fur- 
ther appellate review and in which the Court declared that the way DOC and 
the Parole Board have calculated earned good time credits for twelve years vio- 
lates the legislative intent. (Hunt) And the Court rejected our argument in 
Cintolo in a wage case prosecution brought by the Department of Labor and 
Industries. (Sikellis) 

Joined by the District Attorneys, we filed an amicus brief in Aime v. 
Commonwealth, arguing in support of the constitutionality of the bail statute. 
(Hunt; Meade) Also joined by the District Attorneys, we were successful in 
arguing against public access to a grand jury ordered lineup and evidence In re 
John Doe Grand fury (Hatton). As previously discussed, we defended the District 
Courts in [enkins against a systemic attack on the Commonwealth's failure to 
comply with the Supreme Court's requirement of a timely determination of 
probable cause to make a warrantless arrest (Hatton). In a joint amicus brief 
with the Department of Public Health and the District Attorneys, in support 
of the rape crisis counselor privilege, we argued that the Stockhammer rule is 
not constitutionally required, is unworkable and harmful to victims, and 
should be abandoned. In re Rape Crisis Services and In re Rape Crisis Center 
(Hunt; Tassel). Finally, in a case argued this year, the Court upheld a challenge 
to the forfeiture statute. (Commonwealth v. One Mercury Cougar) (Sullivan). 

In the Appeals Court we were successful in affirming the conviction in 
Commonwealth v. Thompson, a joint AG-Hampshire DA prosecution for 
improper asbestos disposal (Meade), and in a number of appeals from nar- 
cotics trafficking convictions. We also filed a brief on behalf of the Hampden 



P.D. 12 23 

District Attorney in a civil obscenity proceeding where the bookstore sought 
to appeal the denial of its challenge to the constitutionality of the /// rem civil 
obscenity statute despite a verdict at trial that the books were not obscene. 
Bennett v. 355 Publications (Geary). We were unsuccessful in our defense of a 
criminal contempt finding imposed by the Court on an attorney trying a civil 
case. In re Stockwell-Alpert (Tassel) 

The Court affirmed the conviction of a man {Commonwealth v. Dedrick) who 
shot two Massachusetts State Troopers. (DeGiacomo) 

III. RENDITIONS 

Attorneys from the Criminal Bureau, at the request of the Governor's Office, 
review the legal sufhciency of applications for Governor's warrants. From July 
1, 1992 through June 30, 1993, 176 different cases were reviewed. Thirteen 
individuals hied petitions for writ of habeas corpus challenging rendition. 

IV. CONFERENCES, TRAINING AND OUTREACH 

1. Five division attorneys attended a conference on federal habeas corpus in 
January, 1993 (Hunt, Hatton, Geary, Duensing, Meade). 

2. We sent an attorney (Hunt) to the NAAG Supreme Court Conference. 

3. Division attorneys presented programs for criminal bureau training (Hunt, 
Hatton), and participated in a training program for Assistant District 
Attorneys (Tassel), and in meetings of the Commonwealth's appellate attor 
neys group (all). 

4. The LEN is produced and edited by LaDonna Hatton. 

5. Representing the Attorney General on the Criminal History Systems Board. 
(Hunt) 

6. Nancy Geary participated in the Urban Violence program in Lowell District 
Court for four months. 

7. Two attorneys (Hatton; Tassel) had speaking engagements at high schools. 

8. Nancy Geary was a member of the Code Enforcement Task Force. 



V. SAAG CASES SUPERVISED BY APPELLATE DIVISION 

A. CASES HANDLED BY SAAG (DMH ATTORNEY) 
AT TREATMENT CENTER 

Approximately fifty (50) civil and state habeas cases were handled, under 
the direction and supervision of the Appellate Division, by a DMH attorney 
assigned to the Treatment Center. During this year, DMH indicated that it 
would no longer be able to handle these cases, most of which were transferred 
to the Appellate Division and the Administrative Law Division. 

The DMH attorney continues to handle the annual review hearings pur- 
suant to G.L. c. 123A, section 9. This year there were 20 hearings conducted 



24 P.D. 12 

(14 resulted in findings that the petitioner remained sexually dangerous, 2 
resulted in release either to a concurrent prison sentence or absolute release), 
and 4 which have not been concluded. There are currently 119 men commit- 
ted to the Treatment Center. They have a total of 170 section 9 petitions pend- 
ing (many have more than one pending petition). 

Appeals from all cases handled by the DMH attorney are handled by the 
Appellate Division. 

B. CASES HANDLED BY SAAG AT PAROLE BOARD 

A number of civil cases and state habeas corpus/declaratory relief matter are 
handled, under the direction and supervision of the Appellate Division, by 
Parole Board counsel. In addition to the 32 cases pending at the beginning of 
FY 1993, 35 new cases were referred to Parole Board counsel during the year. 
Twenty-six matters were disposed, and there were 48 cases pending at the end 
of the year. 

Appeals from Parole Board cases are handled by the Appellate Division. 

C. OTHER SAAG CASES SUPERVISED 

1 . Various subpoena matters 

SAAG Kalman - Represented the Hampden District Attorney's Office in 
motions to quash subpoenas in 9 separate cases. 

2. Commutation Hearing of Lisa Grimshaw 

SAAG Dunphy-Farris represented the Commonwealth as an independent 
SAAG in opposing commutation at hearings before the Advisory Board of 
Pardons. The Board issued a split 3-3 decision in its recommendation to the 
Governor 

3. Globe Newspaper Co. v. District Attorney (Suffolk Superior Court) 
SAAG Cinquegrana to second seat AAG Hatton in public records case. 

SPECIAL INVESTIGATIONS UNIT 

During fiscal 1993, the Special Investigations Unit reviewed a total of 18 
new matters and initiated full investigations into 4 of those new matters. In 
addition, 3 ongoing investigations initiated prior to the start of the fiscal year 
Guly 1, 1992) continued into fiscal 1993. 

In November 1992, an individual was arrested and charged with possession 
and distribution of electronic devices illegally modified to allow the user to 
make toll and long distance telephone calls from public pay telephones with- 
out depositing any money, thereby fraudulently obtaining telephone services. 
State Police purchased a number of those illegal devices from the defendant 
during an undercover investigation. In April 1993 the defendant pleaded 
guilty and was sentenced to a term of probation along with a fine and costs. 

In December 1992, seven defendants were arrested and charged with multi- 
ple counts of selling cocaine in a school zone along with firearms violations 
after a three month undercover investigation by Chelsea Police. Of the seven 
arrested, 3 defendants have cases pending in District Court and the remaining 
4 defendants were subsequently indicted and their cases were pending at the 



P.D. 12 25 

close of fiscal year 1993. 

In February 1993, former State Senator William Q. MacLean, Jr. was indicted 
for violating the conflict of interest Law in connection with his financial 
interests in the deferred compensation program marketed to public employees 
in Massachusetts through Pilgrim Insurance Agency and a publicly financed 
elderly housing project in Fairhaven, Massachusetts. MacLean pleaded guilty 
to both indictments and, in a companion civil action filed by the Attorney 
General, forfeited $512,000 to the Commonwealth. 

In May 1993, former Massachusetts Attorney General Edward J. 
McCormack, Jr. and Paul A. Fanning were indicted for violating the conflict of 
interest laws in connection with another consulting arrangement between 
Pilgrim Insurance Agency and Fanning. Those cases were pending in Suffolk 
Superior Court at the close of fiscal 1993. 

Also during the spring of 1993, an ongoing undercover narcotics investiga- 
tion by State Police resulted in the arrests of two defendants on drug distribu- 
tion charges. In one case, over 200 grams of cocaine was seized during a trans- 
action with an undercover officer. In the other, over 2 pounds of marijuana 
was seized from the defendant's residence pursuant to a search warrant. Both 
of those cases were pending at the close of fiscal 1993. 

Also during fiscal 1993, SlU attorneys assisted in the preparation and review 
of 13 search warrants. Two pending multi-defendant cases which were initi- 
ated prior to the start of fiscal 1993 continued. In one case, involving 33 
defendants resulting from a series of court authorized wiretaps, various 
defense motions to suppress evidence derived from those wiretaps were 
argued, briefed and ruled on by the Court which upheld the legality of those 
wiretaps. In an unrelated case involving 14 defendants also resulting from a 
series of court authorized wiretaps, evidentiary hearings on defense motions 
were held during fiscal 1993. both of those cases were also pending at the 
close of fiscal 1993. 

URBAN VIOLENCE STRIKE FORCE 

During fiscal year 1993, the Attorney General continued his strong empha- 
sis on combatting urban violence and supporting community efforts to 
increase the safety and quality of lives in our urban communities. The urban 
violence initiatives under the auspices of the Criminal Bureau are described 
below. 

GANG UNIT INITIATIVE 

During fiscal year 1993, the Criminal Bureau devoted substantial resources 
to the Gang Unit in the Suffolk County District Attorney's Office. The Gang 
Unit's goal is to conduct priority prosecution of youthful offenders charged 
with violent crimes arising out of gang related activity, with a particular 
emphasis on crimes involving the distribution of drugs and/or the use of 
firearms. The Gang Unit works with the Boston Police Department Anti-Gang 
Violence Unit as well as uniformed officers and detectives assigned to Jamaica 
Plain, Roxbury, Dorchester and Mattapan police districts. As a result of direct 
indictments and aggressive prosecution of these individuals, our AAGs 



26 



P.D. 12 



assigned to the Gang Unit secured the incarceration of a significant number of 
major violators which has made a signihcant contribution to the reduction of 
gang related violence in the City of Boston. 

The statistics set forth below represent a variety of serious offenses, includ- 
ing armed assault with intent to murder, armed assault in a dwelling, armed 
robbery with a hrearm and other dangerous weapon offenses, kidnapping and 
distribution of drugs. 

GANG UNIT INITIATIVE CASE STATISTICS - FY 93 

Number of Defendants 97 

Number of Charges 150 

Number of Defendants Convicted 73 

Number of Defendants Incarcerated 64 

Number of Other Dispositions 27 

Number of Pending Cases 21 

SAFE NEIGHBORHOOD INITIATIVE 

On February 22, 1993, after several months of planning and negotiation, 
the Ofhce of the Attorney General, the Suffolk County District Attorney the 
Boston Police Department and the City of Boston launched the Safe 
Neighborhood Initiative (SNl) in the Dorchester community of Boston. The 
Safe Neighborhood Initiative focuses increased law enforcement and prosecu- 
torial efforts within a designated geographical area. The area designated for 
this project consists of the residential and business areas of Fields Corner, 
Bowdoin Street, Four Corners and Geneva Avenue. This area was designated as 
the target area for SNl based on the high incidence of urban crime (gang- 
related violence and drug distribution), the management of investigative and 
prosecution efforts within one police district and District Court as well as the 
level of existing community-based programs and neighborhood crime watch 
groups. 

The primary objective of the law enforcement component of the SNl is to 
focus efforts on the swift prosecution of major felons and career criminals, 
gang-related violence, drug distribution as well as other crimes which in 
recent years have plagued the community. All arrests occurring within the des- 
ignated area are screened by the Unit within twenty-four hours of arraign- 
ment. The Unit is notified of any major felony arrest or investigation prior to 
arraignment. 

Efforts are made to work closely with the Dorchester District Court 
Probation Department as well as the Probation Department in Superior Court 
to see that repeat offenders are surrendered to any outstanding sentence or to 
place hrst-time offenders on strict conditions of probation. The unit has also 
made attempts to focus prosecution efforts on reputed gang members regard- 
less of the nature of the offense. 

The Boston Police Department has increased police surveillance in certain 
trouble areas within the SNl target area resulting in an increase in arrests for 
trespassing, disorderly conduct and drug offenses. The unit has also been rep- 
resented at approximately six neighborhood group meetings ranging from 



P.D. 12 27 

business associations to crime-watch meetings. 

In addition to the prosecutorial resources committed to the initiative, other 
resources of the Office of the Attorney General have been used to support the 
efforts of the SNl. Some of these resources include ongoing Attorney General 
projects regarding domestic violence, lead paint enforcement, urban environ- 
mental threats, building code enforcement and school-based programs such as 
SCORE. 



SAFE NEIGHBORHOOD INITIATIVE STATISTICS 
February 22, 1993 to June 30, 1993 

1. Total cases handled by the Unit 37 

2. Total cases indicted by the Unit 9 

3. Total cases disposed by the Unit in 20 

Dorchester District Court 

4. Total cases disposed by the Unit in 2 

Superior Court 

5. Total cases disposed by the Unit 22 

URBAN COURT STRIKE FORCE 

During fiscal year 1993, the Criminal Bureau assumed oversight authority 
over the Urban Court Strike Force, the four month rotation program which 
affords Assistant Attorneys General an opportunity to prosecute cases in urban 
District Courts. The courts that served as sites for the program during this fis- 
cal year were Lowell, Brockton, Dorchester and Lawrence District Courts. 
Among the cases tried by the Urban Court Strike Force AAGs were stalking, 
domestic violence, drug, firearm and dangerous weapon offenses and assaults. 

The Criminal Bureau Assistant Attorneys General who were assigned to the 
urban violence initiatives during fiscal year 1993 are Paul McLaughlin, Marcia 
Jackson, Linda Sable and Nancy Geary. 

ENVIRONMENTAL STRIKE FORCE 

L The Strike Force: Organizational Growth and Change 

The Massachusetts Environmental Strike Force continued to perform as a 
relatively unique enforcement tool for the investigation and prosecution of 
the Commonwealth's environmental enforcement efforts. The Attorney 
General, Secretary of Environmental Affairs, Department of Environmental 
Protection, and Department of Fisheries, Wildlife, and Environmental Law 
Enforcement, continued to contribute attorney, technical, and police 



28 P.D. 12 

resources. With police consolidation, additional police responsibilities were 
transferred from the Metropolitan District Commission to the State Police. 

With the hiring of an additional prosecutor, the legal resources devoted to 
the Strike Force's efforts grew from three to four full-time criminal prosecu- 
tors — more than ever before devoted to environmental enforcement. In addi- 
tion, the Strike Force expanded its investigative staff with the hiring of a civil 
investigator whose responsibilities include design and implementation of 
proactive investigative strategies and increasing access to high technology 
investigative methods. 

//. Establishing A Credible Criminal Enforcement Presence 

The most significant accomplishment of fiscal year 1993 was the Strike 
Force's ability to establish that serious environmental offenses will be treated 
as crimes by the criminal justice system. Five of its cases resulted in imposition 
of jail sentences, including the first state prison sentence imposed in an envi- 
ronmental case in a decade, followed by the longest prison sentence ever 
imposed in an environmental prosecution by the Commonwealth. In addi- 
tion, the Strike Force successfully sought imposition of bail pending trial, and 
brought the first forfeiture action under the state Hazardous Waste 
Management Act. Strike Force case activity included the following: 

Com. V. Wayne Bell: After pleading guilty to district court complaints charg- 
ing illegal disposal of hazardous and solid waste in Foxborough, this defen- 
dant was fined $500 and given a 1 year house sentence, suspended for 2 years. 

Com. V. Salvatore Beriati, Joseph Lepera, and Eric Schaeffer: A Middlesex County 
Grand Jury returned 148 indictments against these defendants for illegal solid 
waste dumping, larceny, and other crimes committed during the course of a 
conspiracy which involved dumping junk tires on private properties in a half- 
dozen Boston area communities. After entering guilty pleas to solid waste and 
larceny indictments, Lepera was sentenced to 6-10 years in the state prison, 
the longest sentence ever imposed in a Massachusetts environmental prosecu- 
tion. Charges against the remaining defendants are still pending. 

Com. V. James Bounakes and Michael Reynolds: After trial, the two defendants 
were convicted of multiple indictments for illegal harvesting of shellfish in 
the contaminated waters of the Taunton River in Somerset. Each was sen- 
tenced to 2V2-3 years in state prison, the first state prison sentences imposed 
in an environmental case in a decade, and the first such sentences ever 
imposed in a prosecution of this kind. 

Com. V. Thomas Bourget: This Worcester area trucker pled guilty to illegal 
transportation and disposal of hazardous wastes. He was sentenced to two 
years in the house of correction, serving two months, with the remainder sus- 
pended for three years. In the first action of its kind, the defendant also for- 
feited three vehicles used to transport the wastes. 

Com. V. Dennison Mfg. Co.: A Middlesex County Grand Jury returned two 
indictments against this corporation for illegal disposal of hazardous waste. 
The company's practice of burning solvent soaked rags resulted in a fire. An 
employee died while attempting to extinguish the fire. The company pled 
guilty and paid $250,000, the largest sum collected by the state to date in a 
criminal environmental prosecution. 



P.D. 12 29 

Com. V. Edna Gilchrist and Bruce Adams: These defendants, respectively the 
owner and maintenance man of a Chicopee industrial park, each pled guilty 
to water pollution charges in connection with the discharge of the industrial 
park's raw sewage to the Chicopee River. Gilchrist was fined $5000, Adams 
$2500. 

Com. V. Gordon Realty Corp. of Worcester: A Worcester County Grand Jury 
returned one indictment against this corporation for illegal transfer of haz- 
ardous waste to an unlicensed hauler. 

Com. V. John Lemieux, George Winderlick, Michael Wiiiderlick, Stephen 
Winderlick, Robert Chapman, and Shawn Martin: These six South Dartmouth 
men were found guilty of illegally harvesting shellfish in a contaminated area 
of the New Bedford harbor. After pleading guilty. Chapman and Martin were 
each fined $1000. After trial, Lemieux (a former shellfish warden), G. 
Winderlick, and S. Winderlick were each fined $2500. M. Winderlick was 
placed on 6 months probation. 

Com. V. Robert Silva: A Suffolk County Grand Jury returned 5 indictments for 
illegal handling of solid waste, air pollution violations, and operating an unli- 
censed asbestos business. The defendant allegedly improperly removed 
asbestos from a multi-unit residence, releasing asbestos at a nearby day care 
parking lot used by him as a transfer point. Case pending. 

Com. V. Peter Stratford: In the first joint Strike Force/DA prosecution, this 
defendant was found guilty, after trial, of a water pollution violation in con- 
nection with the discharge of raw sewage to a stream in the Worcester/ Auburn 
area. The Worcester County District Attorney's Office prosecuted the case. The 
defendant was ordered to pay $3175 in fines and costs, and ordered to make 
restitution of approximately $1400. He was also placed on 1 year probation. 

Com. V. Carl Trant. Trant Equipment & Scrap Iron, hic, and Valley Holding, Inc.: 
These two corporations and their president pled guilty to indictments charg- 
ing solid waste, hazardous materials, and air pollution violations. Trant was 
sentenced to two consecutive two year terms in the house of correction, 18 
months to serve, the balance suspended for two years. Each corporation was 
placed on two years probation. Probationary conditions imposed on each 
defendant included compliance with DEP orders to submit and implement 
plans to reduce the risk of fire at, and ultimately clean up, defendants' 
Brimfield property, on which ten million tires had been illegally dumped. 
Trant's sentence was stayed for six months to give him the opportunity to 
begin to comply with the DEP orders. 

In total, the Strike Force initiated five new cases, bringing 161 indictments 
against seven defendants. Dispositions were obtained in nine cases, involving 
eighteen defendants, all of whom were found guilty (seven after trial). 
Sentences including jail time were imposed on five individuals, with a sus- 
pended sentence imposed on one additional defendant, and probation on two 
others. Fines, penalties, restitution, and forfeiture proceeds totalled 
$276,044.22. 



30 P.D. 12 

III. Setting New Directions 

The Attorney General continued his efforts to move environmental enforce- 
ment and protection to new levels of effectiveness, detailed in his April, 1993 
report, "New Directions in Environmental Protection." These efforts included 
the filing of new legislation, "The Conscientious Employee Protection Act", 
designed to protect employees who cooperate with law enforcement in the 
investigation of job-related legal violations, including environmental viola- 
tions. The Attorney General co-sponsored the re-filed Environmental Trust 
Fund and Forfeiture Act, Environmental Endangerment Act, and a bill to 
strengthen and harmonize existing environmental enforcement provisions. 

Beyond efforts to make important substantive and structural advances in 
the legal framework, the Attorney General continued efforts to enlist the sup- 
port of local authorities in environmental enforcement. These efforts 
included: the Environmental Enforcement training, which brought together 
hundreds of local regulatory officials, such as conservation commissioners and 
health officials, to learn about and discuss legal and practical issues in envi- 
ronmental enforcement; the Western Massachusetts Environmental Task 
Force, set up to encourage and assist environmental prosecutions by three 
western Massachusetts District Attorneys; and the Attorney General's Lead 
Paint Task Force, comprised of federal, state, and local officials and representa- 
tives of the private sector, which issued its Report on issues relevant to the 
current debate on the enforcement of, and proposed changes to, the lead, 
paint law. 

CRIMINAL INVESTIGATIONS DIVISION 

The Criminal Investigations Division within the Criminal Bureau provides a 
very diverse body of investigators to accomplish the bureau's goals and mis- 
sions. 

The Division has a corps of financial investigators with many years experi- 
ence working in the federal and state tax systems, and others with a wealth of 
experience in securities and bank fraud investigations. 

The State Police Unit assigned to the Criminal Bureau is commanded by 
Lieutenant Jack Kelly, Sergeant Andy Palombo (Organized Crime and 
Narcotics), Sergeant Bob Friend (Public Integrity/Economic Crime), and 
Sergeant Tom Quigley (Special Investigations Unit). During the past year the 
unit has been involved in many joint investigations with various federal, state 
and local law enforcement agencies. The number of joint investigations has 
increased dramatically because the Criminal Investigations Division has 
become recognized as a place where investigations are handled professionally 
and credit is shared by all involved. Most significant among these investiga- 
tions are the following. 

The Organized Crime and Narcotics Unit co-ordinated an investigation 
involving the theft of hundreds of Oriental rugs from residences in a number 
of municipalities. This investigation was conducted in conjunction with the 
New Hampshire State Police, FBI, and numerous local police departments. 
This investigation involved the use of a wire tap and numerous search war- 
rants and successfully destroyed a large inter-state theft ring. 



P.D. 12 31 

The Public Integrity Division, working with a local police department con- 
ducted a three month wiretap investigations that culminated in the arrest of 
two Holbrook Police Officers and six other individuals that allegedly had been 
operating a large-scale theft ring in Norfolk, Plymouth and Bristol Counties 
for many years. 

The Special Investigations Unit conducted a narcotics investigation in con- 
junction with the Waltham Police Department and subsequently arrested an 
ex-police officer for trafficking in cocaine. This case is one of many that the 
SIU has developed working in conjunction with local police departments. 

Also located within the Criminal Bureau is the Environmental Strike Force 
Police Unit. The Environmental Strike Force is a multi-disciplinary task force 
which investigates and prosecutes environmental crime. It is supervised by the 
Environmental Strike Force Chief, Assistant Attorney General Martin Levin. 
The police unit is supervised by Lt. Gail Larson of the Environmental Police 
and staffed by four other Environmental Police Officers and three State Police 
Officers. Also assigned to the Environmental Strike Force are three other 
Assistant Attorneys General within the Criminal Bureau, as well as technical 
personnel from the Department of Environmental Protection. 

Investigations conducted by the unit have ranged from hazardous waste 
violations, to water pollution, air pollution, solid waste, larceny and shellfish- 
ing violations. One investigation was initiated as a result of the death of a 
worker in a fire at a printing company and resulted in hazardous waste 
charges against the company, and a donation to the State's Environmental 
Challenge Fund, which cleans up hazardous waste sites. Eight defendants were 
prosecuted for violation of the state's laws prohibiting the taking shellfish 
from contaminated areas. Two of the defendants received the first state prison 
sentence for shellfish violations and are serving 2^/z-3 years in Cedar Junction. 

A lengthy investigation was conducted into an illegal solid waste disposal 
and larceny scheme involving tires. One defendant received the longest sen- 
tence for environmental crimes to date, 6-10 years in state prison. Another 
investigation involved the service of a search warrant at a trucking facility, 
and resulted in the first forfeiture of equipment under the state's Hazardous 
Waste Management Act, and a jail sentence for the defendant. 

During FY93 the Criminal Investigations Division accomplished the follow- 
ing: 



Investigations 


159 


Arrests 


156 


Search Warrants 


45 


Property Seized 


$141,000 


Background Investigations 


150 



ORGANIZED CRIME AND NARCOTICS DIVISION 

Fiscal year 1992-1993 brought with it a continued expansion of the mission 
and goals of the Organized Crime and Narcotics Division. The Division con- 
tinued to successfully investigate, prosecute and convict individuals for traf- 
ficking in significant quantities of narcotics, principally cocaine, perhaps the 



32 P.D. 12 

most significant contributing factor to the alarming rise in violent urban 
crime. Additionally, the division assumed an expanded role in the fight 
against drug abuse and urban violence by targeting the trafficking in heroin, 
the sale of handguns and machine guns, and has begun to focus more of our 
resources towards the investigation of non-traditional organized criminal 
activity. This expanded role has resulted in the successful prosecution of sev- 
eral criminal organizations that were formed for the express purpose of com- 
mitting the crimes of burglary, larceny, armed robbery, forgery and arson, 
among other criminal endeavors, in an organized, disciplined and surrepti- 
tious manner. Our efforts have ferreted out not only the perpetrators of the 
criminal activity themselves, but the often overlooked behind the scene par- 
ticipants that provide an easy avenue for the laundering of goods and money 
back into the normal flow of commerce. The prosecutorial statistics for the 
division follow: 

Number of arrests: 76 

Number of cases initiated: 85 

Number of defendants: 76 

Number of indictments: 201 

Number of cases disposed: 35 

Number of trials: 8 

Number of pleas: 25 

Number of dismissals: 2 

A summary of the Narcotics and Weapons seized follows: 

Cocaine: 6.6 kilos (approx. 6500 grams) 

Heroin: 7.14 oz. (approx. 200 grams) 

Percocets: 645 tablets 

Marijuana: 27.11 lbs. (approx. 433 oz.) 

Handguns: 7 

Machine Guns: 2 

The nine Massachusetts State Police Officers assigned to the Organized 
Crime and Narcotics Division continue to focus their attention on organized 
groups of individuals that are believed to be responsible for a disproportionate 
percentage of sophisticated criminal activity. Many of these investigations are 
initiated by, or are conducted in conjunction with, local police departments 
that lack the resources to dedicate the time necessary to intensive, long term 
investigations. In addition to contributing our electronic and physical surveil- 
lance expertise, this ofhce, and the State Police assigned to it, offers state-wide 
powers which allow for the comprehensive investigation of criminal activity 
wherever it may occur in the Commonwealth. 

We have endeavored to strengthen our relationship with various state and 
federal agencies to provide a forum for the prosecution of cases that are appro- 
priate for prosecution on neither the Federal nor the county level for a variety 
of reasons. To this end, we have developed relationships with, and are cur- 
rently working cooperatively with, the United States Secret Service, the Bureau 



P.D. 12 33 

of Alcohol, Tobacco and Firearms, the Federal Bureau of Investigation, the 
Drug Enforcement Administration, the Special Service Section of the 
Massachusetts State Police, as well as the New Hampshire and the Rhode 
Island State Police. This inter-agency cooperative effort has permitted the 
sharing of increasingly burdened financial and personal resources and has fos- 
tered a spirit of cooperation that can only aid in the war on crime. If the goal 
of the division is to continue to move beyond street level crime and to infil- 
trate the upper layers of organized criminal activity, we have taken yet 
another step towards achieving that goal. 

In addition to utilizing the criminal forfeiture law, the Division con- 
tinues to take advantage of existing civil drug forfeiture statutes to deprive 
narcotic traffickers of the powerful economic motive associated with his/her 
trade. In fiscal 92-93 the Division's forfeiture unit took the following actions: 

A. Civil Forfeiture Actions Filed: 

1. Real property: 3 

2. Conveyances: 3 

3. Monies: 1 
total: 7 

B. Forfeiture Cases Completed: 

1. Real Property: 1 

2. Conveyances: 8 

3. Monies: 7 
total: 16 

C. Federal Cases Filed: 3 

D. Federal Cases Completed: 2 

E. Monies Forfeited: 

1. Asset Forfeiture Unit: $171,261.54 

2. Federal Forfeitures: $ 75,690.24 

3. other: $3,521.33 
total: $250,472.11 

In addition to the traditional use of the forfeiture law, we have established a 
project and taken full advantage of a recent amendment that have as their 
objectives the targeting of both residences and business used by property own- 
ers as a platform for the sale of illegal narcotics. 

"Operation Take Back", as it has been named, has as its principal goal the 
seizure of nuisance property and the return of the property to community 
based organizations for legitimate purposes which will enhance both property 
values and the quality of life in the neighborhood where it is located. 

"Take Back" is but one segment of the Attorney General's commitment to 
addressing the issues of urban violence and the effect that such activity has on 
the quality of life in our cities. The Division's contribution to the Attorney 



34 P.D. 12 

General's safe neighborhoods initiative in the creation of this project is an 
example of aggressive and creative law enforcement. It is our hope that even 
in a depressed real estate market, the Division can still use existing forfeiture 
laws to help rid neighborhoods of criminal activity inherent in the illegal traf- 
ficking of narcotic substances. It will allow the community to "take back" the 
neighborhood from the unlawful and disruptive element that can transform a 
safe and comfortable community into a frightening place to live and work. We 
hope to file our first "take back" forfeiture within the next month. 

The Division recently used a recent amendment to the civil forfeiture law 
when we filed a forfeiture action against a business that was being used to pro- 
mote the sale of drugs. Contemporaneously with the filing of the complaint 
the Commonwealth filed a motion for the immediate seizure of the property 
which was allowed by a superior court justice. The execution of the seizure 
order effectively closed the establishment and deprived the owner/drug dealer 
of a sheltered environment from which he could ply his illegal trade. 

In summary, the Division, while continuing to focus on traditional areas of 
law enforcement, has successfully sought to broaden it's efforts to implement 
the Attorney General's initiative to address the issues of urban crime and the 
quality of life in many of the communities served by this office. The Division 
intends to continue to forge cooperative relationships with other law enforce- 
ment agencies and will aggressively pursue, identify, apprehend and prosecute 
criminal organizations that hinder progress towards enhancing safe and 
peaceful communities. 

PUBLIC INTEGRITY DIVISION 

In 1993, the Public Integrity Division continued to investigate, prosecute 
and convict those individuals who violated the public trust. The Division 
investigated and prosecuted a broad array of offenses including conflict of 
interest, bribery, larceny, tax evasion, forgery, perjury and related offenses. 

This year marked one of the first joint state-federal prosecutions of a politi- 
cal corruption case in the Commonwealth of Massachusetts. By pooling 
resources, the Public Integrity Division and the Public Corruption Unit of the 
United States Attorney's Office successfully prosecuted and convicted a state 
representative on bribery and child pornography charges. The conviction 
resulted in a state prison sentence of ten to twelve years on all charges, one of 
the largest sentences handed down for such violations. 

The Division also detected the embezzlement of approximately one million 
dollars by a school business manager in the Ashburnham-Westminster 
Regional School District. The official was sentenced to ten to twelve years in 
state prison after a jury trial in Worcester County. 

The Division successfully investigated and commenced criminal charges 
against two members of the Holbrook Police Department that were running a 
fencing operation. The officers were arrested as the result of an undercover 
sting operation that utilized the services of an undercover cooperating witness 
who successfully infiltrated the defendants' organization. One former police 
officer presently stands convicted of conspiring to protect illegal activity in 
the town of Holbrook. 

The Division also successfully prosecuted several other public employees for 



P.D. 12 35 

embezzlement of state welfare funds. Several of these employees received sen- 
tences as substantial as eight to ten years in state prison. The Division also 
commenced criminal prosecution of over 40 individuals and corporations. 
Furthermore, the Division obtained convictions on over 20 cases during the 
same time period. Almost 70% of those convicted received jail sentences, with 
the majority of those incarcerated presently serving time in state prison. 

The Division also coordinated the Attorney General's Public Integrity 
Advisory Group, which brought together representatives of a wide variety of 
officials from the various executive branches, independent authorities, state 
agencies and watchdog groups. This Advisory Group meets quarterly with the 
Attorney General to discuss issues of common concern regarding waste and 
abuse in government. The task force member agencies successfully referred a 
number of cases to the Public Integrity Division. Furthermore, these agencies 
were successful in pooling their resources to effectively investigate and prose- 
cute cases. 

This year also marked one of the first times the Attorney General's Office 
was able to successfully investigate and prosecute procurement fraud in the 
Commonwealth. As a direct result of the coordination with outside agencies, 
the Pubhc Integrity Division was able to target specihc private contractors that 
obtained public contracts at the state and local level. To date, the Public 
Integrity Division has detected and indicted cases alleging over one half mil- 
lion dollars in procurement fraud within the Commonwealth. Furthermore, 
the Public Integrity Division has focused on allegations of abuse of minority 
business enterprises, which have lead to the commencement of criminal 
charges by the division. The Public Integrity Division expects to continue its 
focus on abuses of both public contracting and minority businesses. 

In 1993, the Division also took an active role in training investigators from 
other state agencies. Assistant Attorneys General and financial investigators 
from the Public Integrity Division have provided training sessions on white 
collar crime to a variety of state agencies, including the Massachusetts State 
Police, the Criminal Investigation Bureau of the Department of Revenue, and 
the Division of Employment and Training. 

Additional staffing has been provided to the Public Integrity Division in 
1993, which reflects the Attorney General's commitment to combat public 
corruption. The Division presently consists of six full-time attorneys, two 
financial investigators and six state police officers. 

A review of the cases prosecuted by this Division reveals that it was success- 
ful in bringing cases at all levels of government in virtually every corner of the 
state. 



CASES CHARGED BY PUBLIC INTEGRITY DIVISION 

7/92 Commonwealth v. Katsiruhis 

(candidate for Norfolk County Sheriff) 

20 counts forgery 

12 counts false nomination papers 



36 



P.D. 12 



8/92 Commonwealth v. Valeria 

(ADA - Suffolk County) 
Criminal Assault & Battery w/Dangerous Weapon. 

8/92 Commonwealth v. John McNeil 

(state representative) 
5 counts bribery 

9/92 Commonwealth v. Bunk 

(Taunton Conservation Commissioner) 
4 counts conflict of interest 

10/92 Commonwealth v. Smart/Ellis 

(Dedham Patrolman's Association) 
3 counts larceny 

1 1/92 Commonwealth v. John McNeil 

(State Representative) 
Posing Child in a State of Sexual Conduct 

12/92 Commonwealth v. Lynch/Enterprise Equipment 

Procurement Fraud, False Claims, False Entries 

12/92 Commonwealth v. Wilson/Smith 

(Yarmouth Water Department) 34 counts larceny 
2 counts procurement fraud 
2 counts conflict of interest 



12/92 Commonwealth v. Caceda 

4 counts bribery 

12/92 Commonwealth v. Sylvia 

16 counts embezzlement 
4 counts forgery 
4 counts uttering 

12/92 Commonwealth v. Vipraio 

(Franklin Police Department) 
Harrassing Phone calls 

1/93 Commonwealth v. Jackson(s)/Gumer 

(state employee) 
Larceny, False Claims 

3/93 Commonwealth v. Scannell/0'Brien/Sheelian/Rust 

(Holbrook Police Department) 
Bribery, Receiving Stolen Property, Conspiracy 



P.D. 12 37 

4/93 Cormnotiwealth v. Procopio 

(Rehoboth clerk) 
2 counts larceny 
2 counts false written report and embezzlement 

6/93 Commonwealth v. Foley et al 

(Mass Highway Department employees) 
Larceny, False Written Reports 

6/93 Commonwealth v. Earls/Smksen 

(Manfield Police Department) 
False Claims, Procurement Fraud 

7/93 Commonwealth v. Donohue 

(State employee) 
Larceny, False Claims 

7/93 Commonwealth v. Marsh/Bergin/HaUigan/Burke 

(Massport Case) 
Larceny, Procurement Fraud, False Claims, Corrupt Gifts 

7/93 Commonwealth v. Fabiano 

(DET employee) 
Larceny 

7/93 Commonwealth v. Cater 

(DET employee) 
Larceny 

7/93 Commonwealth v. Voltaire 

(DET employee) 
Larceny 



Total Defendants Charged During Fiscal Year 1993: 42 



CRIMINAL CASES PENDING FISCAL YEAR 1993 

Commonwealth v. Quirk(s) 

(PRIM Board) 

Larceny, False Tax Returns 

Commonwealth v. Cronin 
(Methuen Housing Authority) 
2 counts Larceny 



38 P.D. 12 

Commonwealth v. Matchett 
(Veterans Services) 
2 counts Bribery 

Commonwealth v. Buker 
(Police Promotional Exam) 
Forgery, Civil Service Violations 



CONVICTIONS FISCAL YEAR 1993 

Commonwealth v. Katter 
(AWRSD Business Manager) 
Embezzlement of $1,000,000 
Worcester County 
12-15 MCI 

Commonwealth v. Widell 

(Housing Authority embezzlement) 

3-5 years MCI, suspended sentence 

Commonwealth v. Bowzer 
(State employee embezzlement) 

2 years H.O.C. 

Commonwealth v. Elliot 

(State employee embezzlement) 

3 years probation 

Commonwealth v. McNeil 
(state representative) 
7-9 MCI, conflict of interest 
10-12 MCI, child pornography 

Commonwealth v. Friedman 

Tax case 

1 year H.O.C, suspended sentence 

Commonwealth v. Foster 

(State employee - embezzlement) 

8-10 MCI 

Commonwealth v. Valente 
(Veteran's services - bribery case) 
2-3 years MCI, suspended sentence 

Commonwealth v. Matchett 
(Unemployment fraud) 
3-5 MCI 



P.D. 12 39 

Cominotiweahh v. Keoiigh 
(City Councillor Tax case) 
$31,250 fine 

Commonwealth v. Jackson. B 
(State employee - embezzlement) 
2 years H.O.C. 

Commonwealth v. Jackson. S. 

(State employee - embezzlement - joint venturer) 

4-5 MCI 

Commonwealth v. Sylvia 
(Embezzlement case) 
2 years H.O.C. 
6 months to serve 

Commonwealth v. Caceda 
(Bribery to RMV) 

1 year H.O.C. 
30 days to serve 

Commonwealth v. Avilla 

(former lottery employee - larceny) 

6 months H.O.C. 

2 months to serve 

Coinmonwealth v. Dalton 

State employee - embezzlement 

7-10 MCI 

Commonwealth v. LaMarca 

(State employee - embezzlement - joint venturer) 

3-5 MCI 

Commonwealth v. Valerio 

(ADA - Suffolk County) 

2 years HOC, Suspended for 5 years 

Commonwealth v. Scannell 
(Holbrook Police Officer) 
2-3 years MCI 

Commonwealth v. Rust 

(Holbrook Police Officer - joint venturer) 

3-5 years MCI 

Total Convictions Fiscal Year 1993: 20 



40 P.D. 12 

ECONOMIC CRIMES DIVISION 

INTRODUCTION 

In FY93 the Economic Crimes Division was expanded in order to deal with 
the heavy caseload of matters referred to the Division. New attorneys, investi- 
gators and support staff were added to the Division. At present, eight AAGs are 
assigned to work exclusively on Division cases. 

The Division focuses on three priority areas of attention; insurance fraud, 
tax crimes and financial crimes, including fraud against the elderly and other 
vulnerable citizens of the Commonwealth. Accordingly, the division consists 
of three separate units: the Tax Prosecution Unit, the Insurance Fraud Unit, 
and the Economic Crimes Unit. The Division works closely with outside agen- 
cies and other divisions in the Attorney General's Office to identify, investi- 
gate and prosecute appropriate cases. 

The Tax Prosecution Unit works on tax evasion and failure to file tax return 
cases so that fraud upon the Commonwealth can be curtailed, and so that tax- 
payers who pay their fair share of taxes will know that those who fail to do so 
will face consequences. 

The Economic Crimes Unit worked on investigations and prosecutions of 
businesses and professionals who steal with a pen, or a false pretense, or a 
business facade. Emphasis was placed on the prosecution of those who prey 
upon the elderly and on professionals who abuse a position of trust to embez- 
zle money from unsuspecting victims. 

The Insurance Fraud Unit, with assistance from AAGs throughout the office, 
continued to fight worker's compensation fraud and fraudulent claims involv- 
ing motor vehicle insurance. As an insurance "cost driver," fraud places a great 
burden on businesses, customers, homeowners, and drivers throughout the 
Commonwealth. Everyone who buys insurance has to pay extra for that insur- 
ance due to fraud and abuse. The Insurance Fraud Unit fights against those 
added costs by targeting individuals and businesses who commit fraud. 

The accomplishments and work in progress of the three units in the 
Economic Crimes Division for FY93 include the following: 

INSURANCE FRAUD UNIT 

In FY93 the Insurance Fraud Unit investigated and prosecuted an increas- 
ingly heavy caseload of matters referred to this office by the Massachusetts 
Insurance Fraud Bureau and other sources. Cases include charges of worker's 
compensation fraud, fraudulent claims under motor vehicle policies, fraud 
and larceny by agents, claims adjusters and "insiders," and larger investiga- 
tions of fraud by employers, health care providers and repair shop operators. 

The Unit now has three full-time prosecutors who handle only cases involv- 
ing insurance fraud. However, because of the volume of such cases, virtually 
all AAG's in the division, and a number of AAG's outside the division, have 
been assigned insurance fraud cases. Because of that assistance the Insurance 
Fraud Unit has been able to successfully prosecute cases while simultaneously 
handling a number of complex investigations. 



P.D. 12 41 

Cases which have been prosecuted to final dispositions include: 

On November 10, 1992, a defendant was convicted of larceny and 
sentenced to serve nine months in prison for staging phony chok- 
ing incidents in several restaurants. He was also convicted of insur- 
ance fraud for filing injury claims alleging that his throat was cut 
by glass he supposedly choked on. The defendant was sentenced to 
a five year suspended sentence on this charge, and was ordered to 
pay $3,000 in restitution. 

On November 2, 1992, a former claims adjuster received a sus- 
pended state prison sentence of two and one half to four years for 
larceny and making false entries in corporate books. The defendant 
filed false claims with motor vehicle insurers based on fictitious 
accidents and obtained proceeds for his own use. The court also 
ordered restitution of $4,232. 

On October 13, 1992, a defendant was sentenced to 30 days in jail, 
suspended for two years, after he pled guilty to attempted larceny. 
The defendant claimed to sustain injuries from an accident in 
which he was driving his taxi cab. He submitted forged wage verifi- 
cation forms and filed a lost wages claim based on the false wage 
information. 

On November 12, 1992, a defendant was convicted in connection 
with a plot to defraud an insurance carrier by staging an auto theft 
to obtain benefits to repair damage to the vehicle which was sus- 
tained while there was no collision coverage on the vehicle. The 
defendant was found guilty of conspiracy and concealing a motor 
vehicle to defraud an insurer. He received a suspended jail sentence 
and was ordered to pay $7,700 in restitution. 

On June 15, 1993, a defendant was convicted of filing a fraudulent 
insurance claim, larceny over $250, and attempted larceny after 
the defendant, whose motor vehicle insurance policy lapsed before 
the date of the accident, obtained a new policy and lied about the 
date of the accident to try to ensure coverage under the new policy. 
The defendant received a suspended jail sentence and was ordered 
to pay $690 in connection with the insurance claim. 

On June 7, 1993, a defendant was convicted in Superior Court after 
he filed a false operator's report of an accident and altered the date 
on an accident report prepared by a police officer to try to obtain 
coverage under a new auto insurance policy. The defendant 
received a suspended sentence but was ordered to pay full restitu- 
tion and a hne of $2,000. 

On June 2, 1993, a defendant was convicted in district court for 
concealing a motor vehicle to defraud an insurer, filing a fraudu- 



42 P.D. 12 

lent insurance claim, attempted larceny and making a false report 
to a police officer. The defendant was ordered to pay restitution of 
$430 and fines totalling $2,000 and was given a suspended jail sen- 
tence with probation supervision. 

On April 1, 1993, a defendant was convicted in Superior Court of 
Insurance Fraud, filing a false worker's compensation claim, filing a 
false claim against the Commonwealth and two counts of larceny 
over $250. The defendant filed simultaneous claims against a pri- 
vate insurer and against the Commonwealth for the same alleged 
injury. The court denied the Commonwealth's request for incarcer- 
ation and restitution and placed the defendant on a suspended 
sentence. 

On June 14, 1993, a defendant was sentenced in Superior Court to 
serve 10 months in jail, with a suspended sentence to follow and 
restitution of $700. This defendant was convicted of filing a fraud- 
ulent insurance claim and attempted larceny after he filed an 
injury claim for himself and two non-existent car passengers after a 
minor motor vehicle accident. 

On May 19, 1993, a defendant who was a former claims adjuster 
for an insurance company was sentenced to 3-5 years at MCI-Cedar 
Junction for creating fictitious automobile claims payable to his 
friends. Ten claimants who were charged in the case also resolved 
their cases, with sentences ranging from pre-trial probation to state 
prison sentences of 3 to 5 years. Restitution in excess of $10,000 
was ordered to be paid by a number of defendants. 

On May 10, 1993, a Superior Court defendant was sentenced to 
two years in jail, suspended for two years with restitution of $7,500 
and fines of $3,000. This defendant used the occasion of an auto- 
mobile accident to try to defraud three other insurance companies 
by filing identical claims as if he had been in several accidents. 

On July 1, 1993, a defendant was convicted in district court of lar- 
ceny and insurance fraud. The defendant collected total disability 
benefits and reported at an independent medical exam that she 
was not able to work. Nevertheless, she began working five days 
later, told her new employer that she had no physical limitations, 
and collected benefits for three months while working full time. 

In addition, the Insurance Fraud Unit filed charges in Superior and District 
Courts throughout the Commonwealth. Some of the highlights include the 
following pending cases: 

On November 18, 1992, a defendant was indicted in Middlesex 
Superior Court on charges of filing fraudulent worker's compensa- 



P.D. 12 43 

tion claim. The defendant received more than $66,000 from the 
Commonwealth and from a private insurer by filing a claim with 
the Commonwealth and then using the same loss, bills and facts to 
file a second claim for compensation against a private insurer. 

On September 22, 1992, an insurance company claims adjuster was 
indicted on 52 counts of larceny and making false entries in corpo- 
rate books in connection with a scheme to issue over $46,000 to 
fictitious claimants. The defendant split the proceeds with ten 
friends, who were also indicted for their roles in the scheme. 

On December 15, 1992, two Peabody residents were charged with 
larceny, insurance fraud, and conspiracy for filing fraudulent insur- 
ance claims. The defendants filed automobile accident personal 
injury claims when they were not passengers in the vehicle at the 
time of the claimed accident. 

On September 22, 1992, a defendant was indicted for larceny, 
insurance fraud, and attempted larceny for staging a number of 
auto accidents and then filing claims with different insurance com- 
panies. The total claims were in excess of $18,000. Five associates 
of this defendant were also indicted for participating in the 
scheme. 

On February 9, 1993, an attorney in central Massachusetts was 
indicted along with his live-in girlfriend for submitting fraudulent 
wage verification statements in support of personal injury claims 
related to motor vehicle accidents. The attorney falsely reported his 
girlfriend's wages and claimed that he had lost wages as a result of 
an accident where he had not in fact missed any work. 

On March 17, 1993, six defendants were indicted in connection 
with fraudulent motor vehicle damage claims. The defendants, led 
by two individuals who operated a repair garage, filed damage 
claims for vehicles they did not own and which had already been 
damaged. One defendant was persuaded to cooperate with the 
prosecution by testifying against other defendants. 

On April 20, 1993, a defendant was indicted for larceny, insurance 
fraud, concealing a motor vehicle to defraud an insurer, and filing 
a false report with a police officer after he reported his car stolen 
and received over $10,000 from his insurer. The car was found to 
have been hidden at a friend's house. 

On March 30, 1993, a defendant was indicted for claiming total 
disability worker's compensation benefits while he was working. 
The defendant claimed to be disabled from his job as a security 
guard but he was found to be working for a different security com- 



44 P.D. 12 

pany while he was filing his claim and collecting total disability 
benefits. 

On March 9, 1993, a defendant was indicted on 34 counts of lar- 
ceny, forgery, uttering, and acting as an unlicensed broker after an 
investigation disclosed that he held himself out to be a licensed 
insurance broker even though his license had been revoked. The 
defendant embezzled worker's compensation insurance premiums, 
forged insurance refund checks, and issued fraudulent bonds in 
connection with his scheme. 

In February 1993, a former insurance sales representative was 
indicted in two counties for converting over $40,000 of premiums 
to his own use. The defendant faces ten counts of larceny over 
$250 based on evidence that he took premiums from customers 
and purported to issue policies, but, instead, deposited the money 
into his personal bank account and into a fictitious agency 
account. 

On June 22, 1993, a defendant was indicted for larceny, insurance 
fraud and filing a fraudulent worker's compensation claim after an 
investigation discovered him working while collecting total disabil- 
ity benefits. The defendant claimed to be disabled from his job as a 
truck driver/delivery person. He was caught doing the same type of 
work while collecting benefits. The total amount of benefits fraud- 
ulently obtained was in excess of $17,000. 

In June 1993, a defendant was arrested and charged in District 
Court after he attempted to bribe a claims adjuster to inflate a 
damage claim on a motor vehicle. The defendant, who operated a 
trucking company, repeated the bribe offer to an undercover state 
police officer who was posing as a second damage appraiser. He 
faces charges of commercial bribery and attempted larceny. 

TAX PROSECUTION UNIT 

In FY93 the Tax Prosecution Unit conducted several long-term investiga- 
tions of suspected tax law violations. Those investigations have been very 
time consuming. In order to conduct those investigations, while simultane- 
ously handling an increase in case referrals and prosecutions, additional AAGs 
throughout the Economic Crime Division have been assigned to prosecute tax 
cases. Eight cases alleging failure to file income tax returns were referred to the 
Division in early April and were indicted within ten days. 

In FY93 the Tax Prosecution Unit obtained convictions in ten cases involv- 
ing charges of tax evasion, willful failure to file income tax returns, and failure 
to pay meals or sales taxes. Five defendants received jail sentences. Other cases 
resulted in fines totalling $112,500 and, in one case, restitution to the 
Commonwealth of $130,000. 

In addition, eighteen cases were indicted, including eight cases charging 



P.D. 12 45 

individuals with failure to file income tax returns. Among the cases initiated 
or prosecuted to a disposition by the Tax Prosecution Unit in FY93 are the fol- 
lowing: 

Conviction of an owner of two sub shops who failed to pay meals 
taxes he had collected from customers and who subsequently filed 
false documents with the Department of Revenue. Unpaid taxes 
totalled $56,000. The defendant was sentenced to serve 89 days in 
jail and was placed on probation thereafter. 

Conviction of a restaurant and sporting goods store owner for fail- 
ure to pay over $130,000 in meals taxes and sales tax he collected. 
The Court refused to incarcerate the defendant despite the 
Commonwealth's sentencing recommendation. However, the 
defendant received a suspended state prison sentence with proba- 
tion for 5 years, 2000 hour of community service, and payment of 
all unpaid taxes. 

Convicted an attorney and municipal official who failed to file 
income tax returns for several years. The defendant received a sus- 
pended sentence and was ordered to pay a fine of $25,000. 

Convicted a municipal official on five counts of filing false income 
tax returns and one count of failure to file a return in connection 
with unpaid taxes of $38,000. The defendant agreed to cooperate 
with the Commonwealth in its ongoing investigation and has been 
ordered to pay a fine of $31,250. 

In four separate cases, convicted four defendants of failing to file 
income tax returns. One defendant received 7 days in jail. The 
other defendants received 2 year sentences with four days incarcer- 
ation and probation. (Recovery of unpaid taxes will be to the 
D.O.R.) 

Indicted an individual for 5 counts of aiding and assisting in the 
filing of false tax returns after he helped a relative prepare and file 
false tax returns. 

Indicted a canteen truck owner for evading and failing to report 
almost $10,000 in meals taxes, representing meals taxes collected 
on approximately $200,000 in sales. 

Indicted an attorney on 5 counts of failure to file income tax 
returns. This defendant owed the state over $20,000 in income 
taxes on earnings of over $400,000. 

Indicted a husband and wife for failing to file income tax returns 
on income over $450,000, earned by their executive recruitment 



46 P.D. 12 

service. These defendants owed over $17,000 in taxes. 

In two separate cases, indicted two individuals who reside in 
Massachusetts but worked for an out-of-state company. These indi- 
viduals failed to file income tax returns for several years and 
together owed $11,500 in taxes on income of over $270,000. 

Indicted a self-employed consultant on four counts of failure to file 
income tax returns. The defendant owed over $17,000 in taxes on 
income in excess of $420,000. 

Indicted a used car dealer for filing false income tax returns, based 
on evidence that he failed to report approximately $60,000 of addi- 
tional income during the years for which he filed returns. 

ECONOMIC CRIMES UNIT 

The Economic Crimes Division also prosecutes all other white collar or 
financial crimes, in addition to insurance fraud and criminal tax cases. 
Referrals are made to the Division by state and federal agencies, as well as 
judges, attorneys, the Board of Bar Overseers, private parties, and police 
departments throughout the state. The division has been able to develop good 
professional relationships with such groups as the Governor's Auto Theft 
Strike Force, the Board of Bar Overseers, The F.D.I. C, and various District 
Attorney's Offices in Massachusetts. The Economic Crimes Unit consists of 
three AAGs who handle all referrals to the Division which are not assigned to 
the Tax or Insurance Fraud Units. 

A distressing number of the cases referred to this unit involve claims of 
fraud committed against the elderly and vulnerable citizens of the 
Commonwealth. Therefore, the division has made it a priority to prosecute 
professionals or business people who prey upon the elderly. Several active 
cases involve attorneys who stole from elderly clients. Another case referred to 
the unit by the State Banking Commissioner involves a bank manager who 
took money from accounts of elderly customers. Another case referred to the 
unit by the State Department of Public Health involves a charge that a case 
worker stole money from a publicly funded food program that supplied food 
vouchers to families with young children. In a separate case, a woman was 
indicted for falsely holding herself out as a physician and administering 
check-up examinations to unsuspecting patients. Other cases were brought 
against individuals who use businesses to cheat their customers. 

Some of the more notable cases prosecuted by the unit in FY93 include: 

In November 1992 fourteen individuals were indicted in 
Plymouth and Bristol counties on 92 indictments charging larce- 
nies of motor vehicles and construction equipment, receiving 
stolen property, conspiracy and concealing vehicles to defraud 
insurers. These defendants stole trucks and construction equip- 
ment and resold the stolen vehicles and parts. It is estimated that 
they were responsible for well over $1,000,000 in losses. 



P.D. 12 47 

A woman who falsely held herself out to be a licensed physician 
was indicted in three counties. The defendant administered exami- 
nations to bus drivers to comply with safety requirements and pur- 
ported to conduct tests for controlled substances. In fact, the 
defendant was not a physician. 

Two women were indicted for running a flim-flam scheme, known 
as a "pigeon-drop," and targeting elderly women as victims. The 
defendants took money from several women and disappeared, 
leaving the victims without their life savings. Indictments are now 
pending in Norfolk and Bristol Counties. 

A bank manager was indicted in Norfolk Superior Court after an 
investigation revealed that she had systematically taken at least 
$117,000 from customer accounts. Several of the account holders 
were elderly, including one customer who had almost $60,000 
taken from three separate accounts. The defendant was indicted on 
32 counts of embezzlement and making false entries in bank 
records. 

A used car dealer and two associates were indicted on multiple 
counts of larceny and operating an unlicensed used car business. A 
number of customers paid money for vehicles only to have the 
vehicles disappear. The defendant operated several bogus dealer- 
ships and switched names and locations when customers com- 
plained. 

A New Jersey man was arrested while trying to take delivery of lap- 
top computers he had ordered using counterfeit bank checks and 
fake business documents. The defendant was arrested by state 
police officers assigned to this office and computers valued over 
$50,000 were recovered. The defendant now faces indictments in 
Middlesex and Worcester Superior Courts. 

A Brockton man was arrested after he cashed a death benefit check 
intended for the family of a Boston Police officer who was killed in 
the line of duty. The defendant also obtained the deceased officer's 
credit cards and identification and made numerous purchases at 
stores in the Brockton area. 

A Dorchester woman was charged with larceny after she falsified 
claims records and issued food vouchers to non-existent claimants. 
The defendant cashed the vouchers herself. The vouchers were 
intended to provide basic foods to families with young children 
who did not qualify for other assistance programs. 

A Fall River attorney was indicted and subsequently found guilty of 
larceny, based on evidence that he took $30,000 from clients to 



48 P.D. 12 

establish an escrow account and instead used the money for his 
business expenses. 

A Gloucester attorney was indicted in Essex Superior Court after an 
investigation revealed that he had wrongfully taken approximately 
$650,000 from trusts he administered and from funds being man- 
aged for elderly clients. In addition, while the indictments were 
pending the Division received information that the defendant had 
improperly accepted and cashed an $895,000 check intended for a 
trust fund. The defendant was promptly arrested and indicted on 
the new charges. A trial date is pending. 

Another attorney was indicted in connection with the theft of 
$1,000,000 from client funds and trusts he administered for elderly 
clients. The attorney falsified promissory notes and financial 
records in an attempt to disguise his thefts. 

A town employee who took money received for electrical and 
plumbing permits was charged with larceny over $250 after an 
investigation revealed a consistent pattern of missing entries in 
town registers and missing money. 

A woman was indicted for arson and burning insured property 
after she hired an individual to burn a dwelling in Haverhill in 
order to collect about $30,000 in insurance proceeds. A firehghter 
sustained injuries while fighting the fire. 

These cases, and the cases discussed previously in the sections dealing with 
the Tax Prosecution Unit and the Insurance Fraud Unit, are being prosecuted 
by a large number of AAG's throughout the office, including Ed Rapacki, Chief 
of the Bureau, John L. Ciardi, Chief of the Economic Crimes Division, Patricia 
Bernstein, Chief Prosecutor in the Consumer Protection Division, Mark Smith, 
Chief of the Public Integrity Division, Carol Starkey, Andy Zaikis, Margaret 
Parks, James Bryant, Michael CuUen, Jennifer Ferreira, Brian P. Burke, Howard 
Brick, Nancy Geary, Mary Phillips, Robert Sikellis, Abbe Ross, Bennet Heart, Ed 
Deangelo, and Jeremy Silverfine. The division was greatly assisted in its inves- 
tigations by state police troopers assigned to the ofhce and by investigators; 
Arthur Brown, Ed Noon, Cara Henderson, Phil McLaughlin, Daniel 
Ciccariello, Peter Darling, and investigators working with Carmen Russo in 
the Civil Investigations Division. 

DIVISION OF EMPLOYMENT AND TRAINING 

The following is the Criminal Bureau's Division of Employment and 
Training's Fiscal Year 1993 Annual Report. This year, as it did last year, the 
division has achieved an impressive record of productivity. 

One hundred and eighty-two cases were referred to the division, two hun- 
dred and forty-two cases were disposed, three hundred and thirty- two cases 
were closed, $866,488.14 was collected, 129 defaults were removed and 8 deci- 



P.D. 12 49 

sions were rendered by the S.J.C. and Appeals Courts. 

This past year the division worked with a variety of law enforcement agen- 
cies in conducting investigations, arrests, and has achieved several successful 
prosecutions. The agencies include, Department of Corrections, Immigration 
and Naturalization Services, Inspector General's Office, Department of Labor 
and Department of Health, Education and Welfare, Department of Public 
Welfare, Department of Revenue, Department of Labor and Industries, I.R.S. 
Internal Affairs Division and Criminal Investigations Division, U.S. Coast 
Guard Intelligence Division, and U.S. Army Intelligence Division. The division 
received 182 cases referred by D.E.T. This number is 101 cases less than the 
preceding year. This is not due to the fact that there are less cases to be 
referred to the division but rather caused by a turnover in personnel at D.E.T. 
in the Benefit Payment Control Unit. A review of B.P.C.U.'s case load has 
revealed that 748 cases are being prepared for referral to the division. It is 
expected that referrals will be on the rise in the near future. 

The division has continued to be aggressive and ventured into new areas of 
investigation, prosecution, and in sentencing. Early in the fiscal year Paula 
Niziak with the assistance of Mike Federico and investigators from the 
Inspector General's office, and Health, Education and Welfare executed a 
search warrant. As a result over eight boxes of incriminating evidence was 
obtained and opened a pandora's box of possible crimes extending beyond the 
large amounts of monies stolen from D.E.T. 

There have been more trials in the last year than in any other year of recent 
memory and although there is great disparity in judge's attitudes toward 
unemployment fraud, the division was successful in obtaining several signifi- 
cant sentences from the district court. Sentences handed down range from 
two years in the House of Correction, one year to serve with the balance sus- 
pended for one year with restitution in the amount of $7,899.00 to a plethora 
of CWOF'S. The division can point to a large number of cases where individu- 
als were sentenced to 90, 60, or 30 days to serve in the House of Correction. 

The division was fortunate to have two new computers and two printer 
installed this year. The new equipment is appreciated but is far short of 
automation that was requested and is needed for the division. In the interim, 
the new equipment will be a source of relief for the support staff who at times 
were lined up to use the computers. 

Attached are the annual statistics for the division. 



50 



P.D. 12 



COURT APPEARANCES 
July, 1992 -June, 1993 



Disposed 



Courts 



Cases 



July, 92 


24 


37 


92 


August 


25 


29 


66 


September 


12 


28 


61 


October 


12 


28 


62 


November 


10 


28 


60 


December 


13 


29 


63 


January, 93 


69 


32 


139 


February 


14 


23 


52 


March 


12 


31 


56 


April 


19 


28 


73 


May 


12 


32 


65 


June 


20 


29 


71 



Totals 



242 



860 



MONIES COLLECTED 



July 92 


60,343.18 


August 


158,432.99 


September 


31,667.09 


October 


87,906.39 


November 


35,891.53 


December 


63,315.56 


January, 93 


74,408.42 


February 


74,952.30 


March 


72,328.95 


April 


64,684.47 


May 


53,186.31 


June 


89.320.95 


Totals 


$866,488.14 



CASES PENDING AS OF JUNE 30, 1993 



Appeals 

Criminal Employee Claims 
Criminal Employer 
DET/Com. Actions 



Total 

13 
851 
836 

11 



Total Pending Cases 



1,711 



P.D. 12 



51 



CASES REFERRED FROM D.E.T. 

Appeals * 



July, 92 
August 
September 
October 


2 
1 
1 



November 





December 


3 


January, 93* 

February 

March 







April 
May 
June 








Employee 



Employer DET/Com. 



16 


4 


1 


24 


2 





20 


14 





4 


7 





10 


2 





7 


4 





12 


8 





2 








7 


13 








3 








5 








2 






Totals 



102 



64 



Total Cases Received: 182 

*Cases referred to Government Bureau as of January, 1993 



CASES CLOSED 





Appeals 


Employee 


Employer 


DET/Com. 


July, 92 


2 


1 








August 








2 





September 





2 








October 





18 


1 





November 


1 


21 








December 





16 


1 





January, 93 





41 


11 





February 





7 


18 





March 








52 





April 


3 





36 





May 


2 


41 


44 





June 





6 


6 






Totals 



153 



171 



Total cases Closed: 332 



52 P.D. 12 

MEDICAID FRAUD CONTROL UNIT 

/. INTRODUCTION 

The Massachusetts Medicaid Fraud Control Unit (MFCU) was established in 
1978 as a result of federal legislation authorizing individual states to investi- 
gate and prosecute waste, fraud and abuse within the Medicaid Program. The 
Massachusetts Unit has been certified annually since that time and receives 
75% of its operating budget from the federal government. 

The mandate of this Unit continues to be criminal prosecution and civil 
enforcement actions brought against 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 responsibil- 
ity in Massachusetts, as the state Medicaid Program is the largest line item in 
the state budget. The Massachusetts medicaid budget is ranked sixth largest in 
the nation. 

The providers who comprise the Commonwealth's Medicaid Program are a 
diverse group. Those who receive reimbursement for medical goods and ser- 
vices range from institutions such as nursing homes and hospitals to individ- 
ual health practitioners such as physicians, psychiatrists, dentists, pharma- 
cists, and psychologists. Also participating are outpatient clinics and home 
health agencies, ambulance and other transportation companies, laboratories 
and suppliers of durable medical equipment. Health care providers range from 
large multistate corporations to small family proprietorships and individual 
professional corporations. 

//. ENFORCEMENT ACTIONS 

1 . Pharmacies 

Massachusetts MFCU once again highlighted pharmacy activities for prose- 
cution and civil enforcement during this reporting period. A representative 
sample includes: 

A Roxbury pharmacy and its owner were convicted on 22 counts of 
larceny and 23 counts of submitting false medicaid claims for a 
period beginning February, 1989 to June, 1991. The defendant 
pharmacist was charged with submitting $86,700 in false medicaid 
claims during that period. In July, 1992 the defendants pled guilty 
to the multiple-count medicaid fraud and larceny indictment. The 
pharmacy's owner was sentenced to a three to five year suspended 
state prison term along with a two-year probationary period, 100 
hours of community service and $12,500 fine in addition to full 
restitution. 

Maintaining a commitment to balanced geographic enforcement 
throughout the state, the Western Regional MFCU prosecuted and 
convicted another pharmacist on larceny and medicaid false claim 
charges. The owner of a pharmacy in West Springfield and his cor- 



P.D. 12 53 

poration were indicted on a total of 99 counts of filing false medic- 
aid claims and larceny involving more than $35,000. On October 
2, 1992 the owner was convicted of the false claim and larceny 
charges and ordered to serve 60 days of a six-month jail sentence 
along with one year probation and $6,500 fine. The medicaid scam 
occurred during the period of February, 1989 to February, 1991. 

MFCU entered into a $300,000 consent judgment pursuant to 
M.G.L.c. 118E, SS 21E with a Revere pharmacy for alleged viola- 
tions of the state medicaid laws and regulations. The civil com- 
plaint alleged that the pharmacy wrongfully received $100,000 
from the state's medicaid program during the period from January, 
1988 to December, 1992. In addition, the complaint alleged a 
breach of contract with the state medicaid program. 

The terms of the consent judgment required the pharmacy to pay 
$100,000 in restitution and $200,000 in damages and civil fines to 
the Department of Public Welfare for payments allegedly received 
as a result of false statements and representations to the 
Commonwealth. The pharmacy denied any wrongdoing in this 
matter and its employees fully cooperated with the Attorney 
General's MFCU investigation. 

MFCU filed a $1.95 million consent judgment in Suffolk Superior 
Court against a major national pharmacy chain and entered into a 
separate settlement agreement with a total value of approximately 
$2.25 million. The agreement called for payment of $1.95 million 
by the chain to the state Medicaid program as a result of the 
chain's failure to pass its 10% senior citizen discount to the state 
during a three year period. An additional $50,000 was paid to the 
state to settle a variety of claims, including the manner in which 
the chain had advertised its senior citizen discount policy. A sepa- 
rate agreement also reached with the Attorney General's office 
required the chain to make 135 educational presentations to senior 
citizen groups and selected elementary schools over the next 12 
months. 

MFCU and a New Jersey pharmaceutical manufacturer reached an 
unprecedented civil settlement whereby the manufacturer agreed 
to distribute 27,000 NitroDur patches free of charge to 9 public 
hospitals across the state — a $30,000 savings to the state. MFCU's 
investigation centered around claims that the New Jersey corpora- 
tion excluded Medicaid and Medicare patients from the statewide 
NitroDur pharmacy program which provides nitroglycerin patches 
worn by angina patients to medicate heart difficulties. The corpo- 
ration also agreed to ensure that all Massachusetts angina patients 
who use its NitroDur patch will receive an educational video or 
written equivalent — including Medicaid and Medicare patients 



54 P.D. 12 

across Massachusetts. 

MFCU identified a medicaid error which resulted in overpayment 
within the state's medicaid pharmacy program which, upon correc- 
tion, resulted in a $1.7 million recoupment to the Massachusetts 
Department of Public Welfare's Medicaid Program. The MFCU 
investigation centered around the billing claims process to 
Massachusetts pharmacies. Due to a computer error discovered dur- 
ing the course of MFCU investigation, pharmacies across 
Massachusetts were paid a higher amount than allowed during the 
period dating from 1991 to December 31, 1992. Upon detection, 
MFCU immediately communicated its findings to the Department 
of Public Welfare and worked with the single state agency to 
recover the overpayments. 

MFCU investigation revealed that the maximum allowable cost 
(MAC) indicator which designates the pharmacy's cost for an 
approved generic or brand name drug was deleted from the com- 
puter system resulting in higher payment to the pharmacies. The 
physician certification override allowed the pharmacies to be paid 
for the more expensive brand name drugs when, in fact, generic 
brands were dispensed. 

2. Transportation 

Transportation services to medicaid recipients also continued to be an area 
of scrutiny for Attorney General Harshbarger's MFCU as evidenced by the fol- 
lowing: 

A Quincy chair car owner and his company pled guilty on April 20, 
1993 to two counts of larceny over $250, five counts of failing to 
file income tax returns and two counts of filing false medicaid 
claims. The owner was sentenced to serve 30 days of a one-year jail 
sentence along with two years probation and ordered to pay 
$12,000 in restitution to the Department of Public Welfare. MFCU 
investigators charged that the chair car company billed the medic- 
aid program for services which were never rendered to eligible 
medicaid recipients. Additionally, the MFCU investigation revealed 
that the defendant deliberately failed to file individual tax returns 
during years 1987 and 1991 at a time when he received over 
$65,000 from the medicaid program. 

On July 31, 1992 a Methuen taxi company owner was convicted 
on a multi-count indictment for larceny and medicaid fraud 
involving $58,500. The owner was sentenced to serve 60 days of a 
one-year jail sentence and placed on probation for 18 months dur- 
ing a time in which he was ordered to make full restitution. His 
company was convicted and fined $6,750 for filing false medicaid 
claims. The larcenous scheme centered around the owner padding 



RD. 12 55 

the mileage for rides his company provided to medicaid recipients 
and billing individual rides when more than one recipient was 
being transported. 

Chair Car Transportation Project - During this reporting period, 
MFCU also undertook an intense audit and investigation of chair 
car van transportation providers in the medicaid system. During 
the course of this exhaustive investigation a total of 62 providers 
entered into civil settlements with MFCU returning $714,237.80 to 
the medicaid program. Massachusetts chair car providers are cur- 
rently reimbursed at a level of more than $8 million per year. 

That amount is by far the largest component of the medicaid trans- 
portation budget. A review of Massachusetts companies by MFCU 
revealed that many chair car providers are simply not in compli- 
ance with applicable regulations. As an example, in order to qual- 
ify for chair car services, a recipient must be mobility handicapped 
or confined to a wheelchair. Many recipients walk on to chair cars. 
To ensure that those entitled to transportation but capable of less 
expensive taxi/dial-a-ride, providers were given the responsibility 
of determining which recipients qualify for chair car services. 
MFCU investigators found providers were not fulfilling this impor- 
tant function. 

3. Physician 

Massachusetts succeeded in prosecuting and incarcerating two physicians 
during this reporting period for medicaid fraud and larceny: 

A Waltham pediatrician was convicted in August, 1992 on a single 
count of larceny over $250 and one count of submitting a false 
medicaid claim. He was ordered to serve six months in jail and pay 
nearly $11,000 in restitution as a result of the convictions. The 
charge related to false claims for services from July to October, 
1988. 

MFCU indicted and convicted a North Andover emergency room 
physician and his clinic on medicaid fraud and larceny charges. 
The physician was convicted on October 9, 1992 and sentenced to 
a one-year jail sentence for submitting false medicaid claims total- 
ing $24,000 for 102 patients during a nine month period. The 
defendant was convicted for submitting claims for fractured bones 
and performing open and closed reductions when, in fact, no frac- 
tures existed. 

In addition to the above criminal prosecutions, MFCU entered into 
a civil settlement in the amount of $37,500 with a Needham physi- 
cian resolving an investigation of alleged improper billing practices 
for the period of July 1989 to April 1992. The allegations included 



56 P.D. 12 

billing for expensive psychotherapy visits when a less expensive 
service should have been billed and billing for services on dates 
when patients were not seen by the physician. 

4. Patient Abuse and Neglect 

Under the direction of MFCU Chief Michael T. Kogut and Director of 
Investigations James R. White, the Massachusetts MFCU implemented the use 
of a patient abuse and neglect prosecution team consisting of an Assistant 
Attorney General and three patient abuse investigators. This team approach 
has allowed MFCU to maximize its resources in investigating abuse and 
neglect cases in the Massachusetts long-term care facilities. 

Abuse, mistreatment and neglect of patients in Massachusetts long-term 
care facilities continues to be a priority in Attorney General Harshbarger's 
Medicaid Fraud Control Unit. The patient abuse and neglect prosecution team 
approach has worked efficiently in pursuing complaints of abuse and neglect. 
A sample of patient abuse/neglect and nursing home prosecutions follows: 

A 38 year old nurses aide at an East Boston nursing home was con- 
victed of patient abuse and neglect and assault and battery and 
sentenced to serve 30 days of a one year jail term along with two 
years probation. At the trial, witnesses testified that the defendant, 
after being asked to assist another nursing home aide with a resi- 
dent, struck the victim twice in the upper shoulder and stomach. 
Witnesses further testified that while the victim was being placed 
in a wheelchair, the defendant struck the victim three more times 
during the July, 1992 incident. 

A 46 year old former nursing home employee was charged by 
MFCU and arraigned on one count of patient abuse and one count 
of assault and battery in March, 1993. The charges stem from the 
defendant's alleged mistreatment and improper touching of a 
female patient on June 7, 1992 while administering medication. 
Witnesses reported the alleged incident immediately to the nursing 
facility. The defendant was suspended and then terminated from 
employment. 

MFCU investigators assisted by Lexington police located a former 
nursing home aide after a warrant for his arrest charging him with 
patient abuse and indecent assault and battery had been issued by 
Concord District Court. The defendant was arraigned and awaits 
trial on three counts of patient abuse and three counts of indecent 
assault and battery. The charges stem from the defendants employ- 
ment as a nurse aide at a Lexington facility. Two alleged victims in 
the complaint were females. 

A Worcester man pleaded guilty to a single count of patient abuse 
in Worcester District Court and was sentenced to three years proba- 
tion, community service and a $500 fine as a result of a MFCU 



P.D. 12 57 

patient abuse prosecution. Investigators alleged that in July of 
1992, while providing routine care to a resident of the home, the 
defendant improperly touched a female resident. The resident 
reported the incident to another nurse aide after she had ordered 
the defendant to leave the room. The defendant was terminated 
from his position when the incident was reported. 

MFCU prosecuted a former nursing home owner on four counts of 
larceny over $250, one count of perjury by written statement, 
three counts of making false representation to the Department of 
Public Welfare and 15 counts of making false statements to obtain 
unemployment benefits. The former nursing home owner was con- 
victed of embezzling funds belonging to elderly and disabled resi- 
dents of a Boston nursing home. The charges related to medicaid 
patients' personal needs allowance funds were are required by law 
to be used only for personal items and services. The defendant was 
convicted after admitting that the funds had been withdrawn from 
patient accounts and diverted to the home's payroll account. The 
remaining charges related to the defendant fraudulently obtaining 
welfare and unemployment benefits during this time. The defen- 
dant obtained general relief benefits and food stamps by represent- 
ing that she was totally disabled while concealing assets and simul- 
taneous receipt of unemployment benefits. 

MFCU investigators charged 2 former employees of a Taunton 
nursing home with assault and battery and patient abuse on a 91 
year old resident. A Bristol County grand jury returned indictments 
charging counts of patient abuse and assault and battery stemming 
from an incident which allegedly took place at the nursing home 
in November, 1992. Allegations center around the defendants' 
placing a 91 year old resident suffering from senile dementia into a 
plastic laundry bin and wheeling the resident into an elevator and 
onto another floor in the nursing home. 

MFCU investigators charged a Braintree nursing home employee 
with patient abuse and assault and battery for incidents which 
allegedly took place in December, 1992. Investigators alleged that 
the defendant slapped and pushed two patients suffering from 
Alzheimer's Disease in separate incidents, in which the two resi- 
dents involved were ages 85 and 89. 

///. STATISTICAL SUMMARY 





Cases 


Indictments 


Defendants 


ions Initiated 


26 


113 


90 


ions Resolved 


13 


18 


14 



The Unit secured convictions in 11 of the resolved prosecutions (the other 2 
cases were continued with a finding after the defendant admitted to sufficient 



58 P.D. 12 

facts). The Unit identified $3,254,416.80 in program overpayments and col- 
lected $280,815.17 in restitution. In addition to the overpayments and restitu- 
tion, an additional $29,250.00 in fines was assessed upon defendants during 
the reporting period and $584,750.00 was assessed for other receivables. The 
grand total for all categories of assessments and recoveries for the grant period 
is $4,149,232.00. 

FAMILY AND COMMUNITY CRIMES BUREAU 

The Family and Community Crimes Bureau is responsible for policy and 
program development in four issue areas: children and youth; elders and per- 
sons with disabilities; family violence; and victims of crime. In addition, the 
Victim Compensation and Assistance Division comes under the supervision of 
the Family and Community Crimes Bureau. 

THE ELDERLY 

The Attorney General has made protection of elders a top priority. For this 
reason, the Family and Community Crimes Bureau continues its focus on 
elder abuse and neglect, consumer fraud, and financial exploitation. 

In May of 1993, the Bureau co-sponsored the second annual elder issues 
conference, "Financial Exploitation of Elders and People with Disabilities: 
Prevention and Intervention." This event focused on the development of 
strategies to identify, combat and prevent financial exploitation through pub- 
lic education and communication; multi-disciplinary training; and legislative 
and legal advocacy. 

The Family and Community Crimes Bureau also launched the Elderly 
Protection Project to provide comprehensive, statewide training to improve 
the law enforcement community's response to abuse, neglect and financial 
exploitation. These trainings, funded through a grant from the Massachusetts 
Committee on Criminal Justice, have involved new police recruits, experi- 
enced officers and elder protective services workers. 

In April of 1993, the Attorney General conducted a public hearing on the 
proposed revision of regulations governing long term care facilities under the 
Consumer Protection Act, G.L. c. 93A. These proposed regulations set forth 
enhanced rights and protections for elders in several areas, e.g., non-discrimi- 
natory access to care, resident rights, and notice of transfer and discharge. 
These regulations were developed by the Consumer Protection Division in col- 
laboration with the Family and Community Crimes Bureau. 

The Attorney General has also been very active in legislative initiatives to 
develop "assisted living" for elders. This responds to a pressing need — the 
provision of a supportive living environment for frail elders which will allow 
them to age in place with dignity and independence. The Family and 
Community Crimes Bureau has worked cooperatively with private developers, 
elder advocates, and state agency representatives on pending legislation which 
will encourage development while at the same time providing important con- 
sumer safeguards. 

Finally, the Elder and Disabled Issues Task Force has continued to meet 
throughout this year to address issues such as financial exploitation, institu- 



P.D. 12 59 

tional abuse, guardianship reform, and legislation. 

FAMILY VIOLENCE 

The Attorney General, through the Family and Community Crimes Bureau, 
has continued to develop programs and policies to comprehensively address 
the problem of family violence. 

The Attorney General and the Harvard School of Public Health, sponsored a 
series of working luncheons, which involved a wide range of professionals 
actively working in the area of domestic violence. The sessions focused on the 
most critical issues in domestic violence prevention and protection efforts, 
such as the medical community's role in identifying and assisting domestic 
violence victims; guidelines for effective police response; judicial trainings; 
and family preservation for battered women and their children. The luncheon 
series culminated in the "Report on Domestic Violence: A Commitment to 
Action" which poses recommendations for early intervention and prevention; 
multi-disciplinary solutions, and long term strategies to protect victims and 
prevent further domestic violence. The luncheon series is continuing with a 
new focus on guns, violence prevention and public health. 

This year also marked the presentation of the Attorney General's second 
annual Domestic Violence Training Conference. Over 300 police officers 
attended the October training which focused on new issues which go beyond 
the legal procedures mandated by Chapter 209A. For example, the conference 
featured presentations on the new statewide domestic violence registry, the 
myths and misconceptions about the battering relationship and the effects of 
domestic violence on children. 

Finally, the Family and Community Crimes Bureau began a collaboration 
with the Dimock Community Health Center to provide comprehensive train- 
ing later in 1993 on early identification, assessment and intervention by 
health providers in family violence cases. 

CHILDREN AND YOUTH 

In 1992, the Attorney General's Office worked to establish collaborative rela- 
tionships among the Department of Education, local school districts and local 
law enforcement officials through the Superintendent's Advisory Committee. 
The Advisory Committee provided a forum for discussion of issues such as 
violence prevention, education reform, bilingual education, and expulsion 
policies. The Family and Community Crimes Bureau provided technical assis- 
tance and training in areas of mutual concern to law enforcement and the 
schools. To further support violence prevention initiatives in the schools, the 
Attorney General expanded the SCORE (Student Conflict Resolution Experts) 
program to five additional school districts, including Lawrence, Fall River, 
Springfield, Boston, and Holyoke. In addition, in January, 1993, he sponsored 
a statewide conference to evaluate Project Alliance, a program which fosters 
collaboration between local school officials and law enforcement on issues of 
substance abuse and violence prevention. 

The Children's Issues Group, staffed by the Family and Community Crimes 



60 P.D. 12 

and Government Bureaus, continued to review issues of concern to children's 
advocates to resolve some issues short of litigation and to foster a better 
understanding between children's advocates and the Office of the Attorney 
General. In 1992, the Children's Issues Group worked on reform of student 
expulsion policies, foster care, and the disposition of care and protection cases 
in the district courts. The Family and Community Crimes and Government 
Bureau played a central role in the establishment of the Supreme Judicial 
Court's Juvenile Justice Commission to address the timely disposition of care 
and protection cases in a comprehensive and systemic manner. 

In the area of juvenile justice, the Family and Community Crimes bureau 
prepared and presented a statewide educational seminar and manual for pros- 
ecutors on the legal implications of the 1991 amendments to the juvenile 
transfer law. The Family and Community Crimes Bureau played an active role 
in examining proposals for systemic reform of Massachusetts' juvenile justice 
system. For example, the Bureau co-authored a "Report of the Boston Bar 
Association's Task Force on the Juvenile Justice System" which critiqued the 
1991 amendments to the juvenile transfer law and set forth an alternative 
model for reform. 

In addition, it made recommendations to a committee of the Supreme 
Judicial Court for reform of the CHINS (Children in Need of Services) program 
for children who are unable, because of behavioral problems, to be cared for 
by their parents or guardians and require substitute care and treatment. 

Finally, the Family and Community Crimes Bureau presented the Attorney 
General's first training program designed for campus police and administra- 
tors. The conference included presentations on campus police powers and 
responsibilities; Criminal Offender Record Information (CORI) and its rela- 
tionship to school discipline; drug and alcohol abuse; date rape; and hate 
crimes. 



VICTIMS ISSUES 

1 . Victim Witness Assistance Board 

The Attorney General continued to personally chair the Victim Witness 
Assistance Board. In 1992, a major reorganization and restructuring of the 
support agency for the Board, the Massachusetts Office of Victim Assistance 
(MOVA), was undertaken following a drastic cut in the 1992 fiscal year budget. 
Under the leadership of Executive Director Heidi Urich, MOVA downsized its 
staff, consolidated its responsibilities, streamlined its data information sys- 
tems, and redesigned its oversight of the federal Victims of Crime Act (VOCA) 
program. By the end of 1992, MOVA and the Board had stabilized and were 
able to rebuild services for victims and victim programs across the state. With 
a small increase in the budget in fiscal year 1993 and a grant from the 
Massachusetts Committee for Criminal Justice, MOVA was able to resume its 
outreach and training efforts in cooperation with the District Attorneys' vic- 
tim witness program directors and the VOCA providers in the areas of multi- 
cultural sensitivity and advocacy services for domestic violence victims. 

In addition, in an effort to reach out to citizens in urban communities, the 



P.D. 12 61 

Family and Community Crimes Bureau and the Executive Bureau participated 
in the review and promulgation of a citizen handbook regarding civil and 
criminal legal issues for adults and juveniles. 

VICTIM COMPENSATION AND ASSISTANCE DIVISION 

The Massachusetts Victims of Violent Crime Compensation Act, G.L. c. 
258A, is administered through a court-based process in which victims file 
claims in the district court where they reside, or where the crime occurred. 
The Division investigates all such claims, and then prepares and submits to 
the district court a report and recommendation on whether, and to what 
extent, the claimant is entitled to compensation. Division attorneys appear in 
courts throughout the Commonwealth in connection with these claims. 

In 1993, the Division received 1,121 claims for compensation, representing 
a 6% increase over the previous year. Of the 984 cases that were closed, 587 
resulted in judgments for the claimant, while 397 resulted in dismissals. 
Payments to claimants totalling $2,761,935 were paid in 1993. This amount 
represents the largest expenditure of funds to crime victims in the Division's 
history. The largest categories of crime victims obtaining compensation 
through the Division in 1993 were victims of assault and battery; assault and 
battery with a dangerous weapon/knife, murder; assault and battery with a 
dangerous weapon/gun; and rape. Services to victims remained a priority for 
the Division. Victim advocates continued to provide a range of services and 
assistance to victims in dealing with the financial impact of crime, including 
creditor intercession services, and assistance in locating service providers. In 
1993, the Division also conducted training programs for victim advocates in 
District Attorneys offices throughout the State, and participated in special 
training events on domestic violence, cultural diversity, and other issues. 

The Division also continued to update and improve its claims processing. In 
1993, the Division implemented a new two-step processing system in which 
eligibility determinations are finalized before investigative resources are com- 
mitted to determining the amount of a claim. In addition, the Division imple- 
mented a document production requirement for claimants represented by pri- 
vate counsel. 

Also in 1993, the Division took steps to clarify the relationship between G.L. 
c. 118F ("free care") and the victim compensation fund which, pursuant to 
G.L. c. 258A, is a fund of last resort. The Division notified hospitals of its posi- 
tion that compensation will not be paid if a patient is eligible for free care or 
other public assistance. The Division also continued to work vigorously for 
passage of legislation to convert the victim compensation system to an 
administrative process . 

PUBLIC PROTECTION BUREAU 

The Public Protection Bureau is comprised of seven divisions: Antitrust 
Division, Consumer Protection Division, Regulated Industries Division, Civil 
Rights Division, Environmental Protection Division, and the Civil 
Investigations Division. Additionally, the Consumer Protection Division con- 
tains the consumer complaint section and oversees the local consumer fund 
which provides grants to local community groups to mediate and resolve con- 



62 P.D. 12 

sumer complaints at the local level. 

The role of the divisions in the Public Protection Bureau is to bring afhrma- 
tive litigation on behalf of the Commonwealth of Massachusetts, its citizens 
and businesses in the areas listed above. 

The Public Protection Bureau also has a responsibility for the development 
and implementation of policies dealing with health care and lead and lead 
poisoning issues. 

Bureau personnel also coordinate and staff the Attorney General's innova- 
tive program to reduce youth violence — SCORE — Student Conflict 
Resolution Experts. This program is a school-based mediation program using 
trained student mediators to resolve disputes among their peers and prevent 
them from escalating into violence. This unique program has been recognized 
nationally for its effectiveness in preventing violence and the Attorney 
General is committed to expanding it to every school in the Commonwealth. 

ANTITRUST DIVISION 

The Antitrust Division enforces federal and state antitrust law prohibiting 
anti-competitive activity. The U. S. Supreme Court has described these laws as 
the "Magna Carta" of our free enterprise system. Enforcement of these laws 
protects consumers from the adverse economic effect of price-fixing, boycotts, 
monopolization and other similar restraints of trade. Enforcement of these 
law also protects businesses, particularly small businesses by curbing the kind 
of anti-competitive activity that hampers the ability of a business to compete 
on an equal basis in the marketplace. 

The Division prosecutes violations that principally affect Massachusetts 
consumers. The Division also joins forces with other states to prosecute viola- 
tions that have a negative impact on consumers and businesses in multiple 
states including Massachusetts. Through the National Association of Attorneys 
General, the Division coordinates its activities with those of other states and 
with the activities of federal antitrust enforcers. 

I. Litigation 
A. Boycotts 
Mitltistate Insurance Antitrust Litigation 

On June 28, 1993, the United States Supreme Court substantially affirmed 
the judgment of the Ninth Circuit and allowed the case to proceed. Hartford 
Fire Ins. Co. et al. v. California et al., 113 S.Ct. 2891 (1993). In this litigation, 
the Commonwealth and 19 other states have sued leading domestic and for- 
eign insurers, reinsurers, and others for antitrust violations. The complaints 
allege that the defendants engaged in an illegal boycott to remove certain 
forms of commercial general liability ("CGL") insurance from the market. CGL 
insurance covers third party property and personal injury claims. In 1989, the 
U.S. District Court for the Northern District of California dismissed the com- 
plaints for failure to state a claim upon which relief could be granted, but in 
1991, the Ninth Circuit Court of Appeals reversed the dismissal. 

The Court unanimously held that the complaints had alleged actionable 
boycotts, although by a 5 to 4 vote the Court eliminated some of the boycott 



P.D. 12 63 

allegations. The Court also ruled by a different 5 to 4 vote that principals of 
international comity did not compel dismissal of the foreign defendants. The 
Court reversed the Ninth Circuit's holding that domestic defendants automat- 
ically lost their limited antitrust immunity by conspiring with non-immune 
foreign defendants. 

This Office wrote the brief for the states on the international comity issue. 
That brief received a U.S. Supreme Court Best Brief Award from the National 
Association of Attorneys General. 

It is anticipated that discovery will commence within the next few months. 

Optometrists Investigation 

In March 1993, Central Massachusetts Health Care, an HMO, signed an 
assurance of discontinuance agreeing to allow optometrists to be included in 
its provider networks. After reviewing documents procured pursuant to a Civil 
Investigative Demand, the Office concluded that CMHC's practice of exclud- 
ing optometrists from its provider networks appeared to be a group boycott in 
violation of federal and state antitrust laws. 

Under the terms of the assurance, CMHC will allow optometrists to accept 
referrals from primary care physicians and will evaluate each optometrist on 
the basis of the optometrist's individual education, experience, and capabili- 
ties. CMHC also agreed to provide a statement assuring non-discrimination to 
all optometrists seeking appointments, and to various optometry and ophthal- 
mology associations. 

In addition, CMHC agreed to contribute $50,000 to Daybreak Resources for 
Women, Inc., a shelter for victims of domestic violence. CMHC also agreed 
that it would not reduce the eye care benefits it offers its subscribers for two 
years from the date of the assurance. 

Conunonwealth v. Cahill. et al. 

In this federal court action, filed by the Division in August 1988, the 
Commonwealth alleged that twenty-four Springfield obstetrician/gynecolo- 
gists conspired to boycott Blue Shield of Massachusetts in violation of state 
and federal antitrust laws. The suit sought injunctive relief and the imposition 
of civil penalties against twenty-four defendant physicians. 

In 1992, the remaining eleven defendants entered into consent judgments 
with the Commonwealth: enjoining violations of the antitrust laws; contain- 
ing agreements to withdraw letters of resignation from Blue Shield and to 
notify the Commonwealth prior to submission of any future letter of with- 
drawal; and providing a total recovery to the Commonwealth of $140,000 in 
money and free medical services to low-income women. In total, the 
Commonwealth received over $300,000 in cash payments and free medical 
services from the twenty four defendants. 

B. Mergers 
Burbank Hospital - Leominster Hospital Merger 

In April 1993, the Office resolved antitrust concerns surrounding the merger 
of Burbank Hospital in Fitchburg, and Leominster Hospital in Leominster. 



64 P.D. 12 

Pursuant to an agreement between the Attorney General and the two hospi- 
tals, the hospitals will increase by $600,000 over the next four years contribu- 
tions to community benefit programs for underserved populations, such as 
children and the indigent. Further, the hospitals are required: (1) to undertake 
and fund a demonstration project that will study the effects of the merger on 
prices of services, the achievement of hospital efficiencies and the concerns of 
managed care providers, and (2) seek public input regarding any closure of 
emergency care facilities. 

Blue Shield - Baystate Merger 

The Attorney General agreed not to make an antitrust challenge to Blue 
Shield's merger with Baystate Healthcare, a failing HMO serving over 350,000 
subscribers in the Commonwealth. Pursuant to the agreement between the 
Attorney General and Blue Shield, Blue Shield agreed to contribute $2 million 
to provide free health insurance to uninsured children unless its operation of 
Baystate proves financially unsuccessful. Further, for two years, Blue Shield is 
prohibited from merging with any other health care insurer or HMO if the 
Attorney General finds the merger adversely affects competition. Blue Shield 
also agreed to fund a study to determine the causes of Baystate's failure and to 
aid the Attorney General in monitoring the competitive effects of the new 
health care financing law, M.G.L. c. 495, by responding to inquiries from the 
Attorney General within two business days. 

C. Monopolization 
Cable Television Anti Trust Case 

In June 1993, the Attorney's General of 40 states filed antitrust complaints 
against seven of the nation's largest cable television multiple system operators 
and Primestar Partners, L.P., a joint venture of the defendant MSOs and a sub- 
sidiary of the General Electric Co. The State of New York, et al., v. Primestar 
Partners, et al. At the same time, the states filed consent decrees with the 
defendants that prohibit defendant cable operators from entering into exclu- 
sive contracts with programmers that prevent the sale of programming to 
their competitors, and require that competitors be provided the programming 
controlled by the defendant cable operators at competitive rates. 

The defendants are further prohibited from entering into any agreements to 
restrict or control access to programming by any other television program- 
ming marketer. The decrees also required the defendants to pay $157,919.13 
to the Commonwealth in attorney's fees. 

In re Clozapine Antitrust Litigation. 

This case involved a multi-state lawsuit against Sandoz Pharmaceuticals 
Corp. and Caremark Corp. alleging illegal tying in violation of section 1 of the 
Sherman Act and monopolization under section 2 of the Sherman Act. The 
states' antitrust lawsuits were based on Sandoz's and Caremark's marketing of 
the "new" anti-schizophrenia drug, Clozaril. Sandoz refused to sell the drug 
unless the buyer also agreed to purchase a package of blood monitoring and 
blood testing services provided exclusively by Caremark. The Division was part 



P.D. 12 65 

of the eight member Case Management Committee that initiated and organized 
the litigation of this case. 

This case was settled in September, 1992 and was joined by all states in the 
United States and the District of Columbia. Sandoz and Caremark agreed to pay 
purchasers of the drug, including state agencies, $13 million plus attorneys fees 
and costs. In addition, $3 million will be paid to the National Organization of 
Rare Diseases to be used to treat newly diagnosed schizophrenia patients with 
Clozaril. The defendants also agreed to provide a 15% reduction in wholesale 
price of Clozaril to at least 2000 patients on social security disability income. The 
defendants are further prohibited from reinstating the tie between Clozaril and 
the blood testing services provided by Caremark. 

The United States District Court for the Northern District of Illinois approved the 
settlement on Nov. 24, 1992. 

D. Other 
Commonwealth v. Getty Petroleum Corp. 

In May 1993, the Division filed a consent judgment prohibiting Getty 
Petroleum Corp. from prescribing the hours or days of operation of its 
Massachusetts dealers. The Commonwealth alleged that Getty's policy of forcing 
dealers to stay open certain hours per day and days per week violated M.G.L. c. 
93E. The consent decree further requires Getty to train employees to act in com- 
pliance with the injunction, as well a pay $75,000 to the Commonwealth in set- 
tlement of the case. 

Delaware v. New York 

The case involves a dispute as to which state may take custody of unclaimed 
intangible property consisting of dividend, interest, and other distributions arising 
out of security transactions, held by financial institutions. On March 30, 1993, the 
U.S. Supreme Court ruled that the state of incorporation of the financial institu- 
tion through whom the funds were invested has the right to escheat funds 
belonging to beneficial owners who cannot be identified or located. The Court 
remanded the case to the Special Master for proceedings consistent with its mling. 

The Supreme Court's ruling is likely to be beneficial to states like Massachusetts 
in which many financial institutions are incorporated. It could result in a recovery 
by the Commonwealth of millions of dollars in past and future revenues. Since 
the decision was issued, however, 48 of the intervenor states have filed legislation 
to overrule the decision. 

II. Legislation 

5. 120 - An Act to Strengthen Enforcement of the Massachusetts Antitrust Act. 

In December 1992, the Division filed a bill to amend M.G.L. c. 93 to allow the 
Commonwealth to bring antitrust actions under state antitmst law against sellers 
of products even when the Commonwealth has not dealt directly with seller. 
United States Supreme Court precedent prevents the Commonwealth from using 
federal antitrust laws to collect damages from indirect sellers. The Supreme Court 
has also held, however, that states may enact state laws that would allow them to 
collect such damages. 



66 P.D. 12 

III. Amicus Briefs 
Hull Municipal Lighting Plant v. Massachusetts Municipal 
Wholesale Electric Company 

In November 1992, the Office filed an amicus brief in the above mentioned 
case, arguing that the Public Records Law has not abrogated either the attor- 
ney work product rule or the attorney-client privilege as applied to govern- 
ment attorneys. The Supreme Judicial Court decided the case on March 15, 
1993 without deciding this particular issue. 

CIVIL RIGHTS DIVISION 

The Civil Rights Division continued to actively enforce 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, intimida- 
tion, or coercion. In fiscal year 1993, a total of 16 injunctions against 32 
defendants were obtained by the Division involving violence on the basis of 
race, ethnicity, religion, gender, AIDS status, and sexual orientation. In one 
case, an injunction was issued against three defendants for violating, through 
intimidation and coercion, the first amendment rights of the victims. The first 
statewide injunction ever issued regarding intimidation and threats against a 
person because of his AIDS (disability) status, was obtained by the Division in 
May, 1993. The first injunction in Massachusetts against an individual who 
directly threatened an abortion clinic staff member, was obtained by the 
Division in April, 1993. 

A total of five injunctions with nine defendants involved incidents in 
Boston. One case arose in Dorchester, one in the North End, one in the South 
End, one in South Boston, and one in Brookline. The Division also obtained 
injunctions against defendants in Brockton, Lowell, Northampton, Wellfleet, 
Dedham, Cambridge, two in Quincy, and three in Provincetown. 

Any violation of these court orders would constitute a criminal offense pun- 
ishable 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 ten-year prison sentence and a maximum fine of $10,000.00. 

OPERATION RESCUE 

After a two week trial in 1991, a permanent injunction was issued against 
members of Operation Rescue which prohibited the blocking of entrances to 
clinics which provide abortion services and counseling. The Division is cur- 
rently drafting and filing a brief as an appellee to this decision. The 
Commonwealth has charged several members of Operation Rescue with viola- 
tion of the permanent injunction. 

HOUSING DISCRIMINATION 

The Division has hied, prevailed at trial, or settled nine claims of housing 
discrimination involving allegation of discrimination on the basis of race, 
marital status, section subsidy status, and gender. In the case of Commonwealth 
V. Robert and Florence Dowd, the court awarded substantial attorney's fees to the 



P.D. 12 67 

Attorney General. This is the first award of attorney's fees to the Attorney 
General in a housing discrimination case in which the court applied standards 
and rates for private attorneys. The decision is now under appeal and a 
Supreme Judicial Court brief has been prepared and filed. 

A Single Justice of the Supreme Judicial Court issued a precedent-setting 
decision granting summary judgment in favor of the Attorney General and 
the Town of Barnstable, against the Old King's Highway Regional Historic 
District Commission, which had filed a lawsuit that had effectively halted 
construction of a 30-unit housing development for low-income elderly indi- 
viduals and families in Barnstable. 

DISABILITY ISSUES 

Since the effective date, January 1992, Title II, of the Americans with 
Disabilities Act (ADA), Division staff have spent a substantial amount of time 
conducting presentations and trainings concerning the effect of the provi- 
sions of the ADA. On June 7, 1993, the Attorney General announced the for- 
mation of the Disability Rights Project within the Division. The establishment 
of the Project provides a centralized enforcement agency which will ensure 
compliance with various statutory and constitutional protections for individu- 
als with disabilities. In response to a May 1991 letter from the Attorney 
General to all cities and towns in Massachusetts, the Division has continued 
to assist and enforce regulations which guarantee physical access to all pro- 
grams and activities, including public meetings for residents with disabilities. 
In the case of Commotiwealth v. Holiday Health Spas, a comprehensive agree- 
ment was entered into in order to insure that in the future individuals with 
disabilities are not denied membership in or access to the health club or 
restricted in the full use and enjoyment of its facilities located in 
Massachusetts. 

POLICE RELATED MATTERS 

In an effort to promote civil rights, assist the police, and to provide depart- 
ments with technical assistance, the Division has continued to provide an 
extensive amount of civil rights training to police departments throughout 
Massachusetts including the Lowell, Medford and Provincetown departments. 
The Division also participated in the development of the curriculum and 
training module for the National Bias Crime Training Program for police offi- 
cers and victim witness advocates. 

The Division also organized and coordinated meetings of law enforcement 
officials from the Attorney General's Office, the District Attorney's Office, U.S. 
Attorney's Office, Federal Bureau of Investigations, State Police, the Boston 
Community Disorders Unit of the Boston Police Department, and Thompson 
Island staff in response to vandalism, verbal, and physical attacks of individu- 
als associated with the Thompson Island Outward Bound Education Center. 
The meetings resulted in wide-spread cooperation and the deterrence of fur- 
ther harassment of Thompson Island staff and students. 

The Division has continued to investigate allegations of police misconduct, 
when appropriate, and have worked with departments to take remedial steps 
when credible evidence is found to substantiate the complaints. 



68 PD. 12 

The Town of Chatham adopted new Internal Affairs procedure for its police 
department, to be publicly disseminated, and organized a Community 
Advisory Committee, resulting from the Division's investigation and issuance 
of a special report. 

MINORITY SET ASIDES 

In two separate cases, the Division continued to defend statewide minority 
and women set-aside programs from constitutional challenge, which poten- 
tially threaten the legality of all statewide minority and women set-aside pro- 
grams. A motion to dismiss one of the cases was consented to by the plaintiff 
while the second case remains active. 

The Division continued to be an active member of the Governor's Oversight 
Committee for the Department of Transportation's Minority and Women Set- 
aside Study. 

TASK FORCE/OUTREACH ACTIVITIES AND INITIATIVES 

The Division organized and coordinated a Hate Crime Study Group consist- 
ing of constitutional and civil rights experts to discuss the susceptibility of the 
Massachusetts civil rights statutes to constitutional challenge in light of the 
Supreme Court decision in R.A.V. v. St. Paul. On March 16, 1993 a special 
report was issued which concluded that Massachusetts civil rights laws were 
enforceable and rest on firm legal foundation. 

As a member of the Governor's Hate Crimes Commission the Division par- 
ticipated in drafting regulations and developing training programs for police 
and advocacy groups that govern reporting, investigating, and prosecuting 
hate crimes. 

The Division organized and held a Mortgage Lending Conference in April, 
1993, chaired by the Attorney General, and attended by state and federal regu- 
lators, bankers, mortgage bankers, researchers, community leaders, staff of the 
Attorney General's Office and other mortgage lending experts. In bringing 
together a broad cross-section of interested industry and community partici- 
pants, the Attorney General's goal was to develop a comprehensive under- 
standing of the nature and extent of past and present systemic discrimination 
in residential mortgage lending and to identify specific systemic solutions 
aimed at eliminating future discrimination in the industry. 

In May, 1993 the Chief of the Division acted as a presenter at the 
Department of Housing and Urban Development National Conference on 
mortgage lending discrimination, which included publication of a paper pre- 
pared by the Division Chef. 

The Division Chief participated as an active member of the Supreme 
Judicial Court Commission on Race and Ethnic Bias in the Courts, including 
involvement in public hearings. 

The Division participated in a comprehensive violence intervention initia- 
tive at Hingham High School resulting in major institutional changes. The 
intervention followed complaints of harassment based on sexual orientation 
and race. 
As a result of a large-scale racial incident at Medford High School, the 



P.D. 12 69 

Division was extensively involved with ongoing diversity awareness training 
and police civil rights training. 

The Division formally advised the Westfield School Committee to vote 
against a resolution which would have barred teachers with "accents" from 
teaching in elementary classrooms. The Division advised the school commit- 
tee that passing the resolution would be discriminatory, and potentially sub- 
ject the district to legal action. Consequently, the resolution was defeated by 
the School Committee in July of 1992. 

CONSUMER PROTECTION DIVISION 

The Consumer Protection Division enforces Massachusetts General Law 
chap. 93A and other consumer protection laws against businesses that engage 
in unfair and deceptive acts and practices. The Division's caseload primarily 
consists of actions affecting large numbers of vulnerable consumers who have 
been harmed by illegal activities, particularly by fraud. Other efforts include 
regulatory and legislative activities, participating in consumer outreach, and 
mediating individual complaints through the Consumer Complaint Section 
and Local Consumer Programs. 

MONEY RECOVERED 

RESTITUTION $1,870,189.00 

CIVIL PENALTIES/COSTS/ATTORNEYS FEES $198,512.50 

LOCAL CONSUMER AID FUND/"SCORE" $423,000.00 

COMPLAINT SECTION TOTALS: 

Direct Refunds to Consumers $84,542.02 

Amount Saved through Settlements $95,591.10 

Amount Received in Goods Services $108,472.03 

OTHER: 

Mattress Discounters $100,000 in mattresses to homeless 

shelters 
Resource Financial $25,000 to charity 

Beverly Enterprises $500,000 in medicaid patient costs 

In addition, more than $8,000,000 in consumer benefits and reduced pay- 
ments were also made possible through the U.S. Funding, Sears, and Fleet set- 
tlements. 



70 P.D. 12 

AUTOMOBILE 

USED CAR LEMON LAW CASES 

Commonwealth v. Guardian Leasing and Ronald Felt 
Commonwealth v. John Paulini, d/b/a Natick Auto Brokers 
Commonwealth v. Marjorie Venditti, d/b/a Mystic Auto Wholesale 
Commonwealth v. Dorco, Inc., d/b/a RRR Used Cars 

The Division obtained judgments against four used car dealers for violating 
the Massachusetts Used Car Lemon Law: 

On October 14, the Middlesex Superior Court upheld an arbitration award for 
$5,686.87 and a fine of $500 in the case against Guardian Leasing and Ronald 
Felt. The dealership is defunct and Felt later filed for bankruptcy. 

On November 4, the Division obtained approval of a judgment filed in 
Middlesex Superior Court against John Paulini, d/b/a Natick Auto brokers. Mr. 
Paulini had been charged with failing to comply with the order of a state certi- 
fied arbitrator to repurchase a used car from a consumer under the state's lemon 
law. Mr. Paulini failed to refund the consumer's money or appeal the decision to 
the District or Superior Court within the 21-day appeal period. Paulini paid 
$3,902 in restitution, a hne of $500, $1,250 in penalties, and $500 for the costs 
of the action. 

Marjorie Venditti, d/b/a Mystic Auto Wholesale, was similarly charged with 
failing to comply with the order of a state certified arbitrator to repurchase a 
used car from a consumer. Venditti neither refunded the consumer's money nor 
appealed the decision. On April 8, the Court awarded the lemon law award of 
$4,601.40 with interest of $374.23, the fine of $500, civil penalties of $2,000 
and costs of $712.50. 

In another suit, Dorco Inc., d/b/a RRR Used Cars, repurchased the consumer's 
car after the Division sent Dorco a five-day letter. However, the company did 
not pay the $500 fine levied by the Executive Ofhce of Consumer Affairs. In a 
default judgment entered on February 17, Dorco was assessed the $500 hne, 
$1,000 in civil penalties, and $1,050 in costs. (McVey) 

AVCAR 

Commonwealth v. Hovey Eordekian, Jr. and Brian Kittredge, d/b/a AVCAR 

In May, the Division entered into consent judgments with Hovey Eordekian, 
Jr. and Brian Kittredge who allegedly operated a phony business of selling the 
automobiles of private individuals for a sales commission, without ever turning 
over the sales proceeds to the owners. The defendants allegedly contacted con- 
sumers who had placed ads in newspapers to sell their cars. The consumers were 
allegedly led to believe that the defendants, operating the business under the 
name AVCAR, could obtain a higher selling price than the consumer would oth- 
erwise obtain. Under the terms of the consent judgment, the two men are per- 
manently enjoined from soliciting, selling, or accepting any fees in the consign- 
ment, lease, sale, or brokerage of motor vehicles. Additionally, the judgment 
also calls for over $800,000 in restitution, civil penalties, and costs; defendants 
currently have no assets to make the payments. (M. Sullivan, McVey) 



P.D. 12 71 

DEBT COLLECTION 

American Coradius and Vengroff, Williams & Associates 

Commonwealth v. American Coradius, Inc. 
Commonwealth v. Vengroff, Williams & Associates, Inc. 

On November 20, Suffolk Superior Court found that two New York debt col- 
lection agencies, American Coradius, Inc. and Vengroff, Williams and 
Associates, were in contempt of Final Judgments the Division obtained in 
1991. The 1991 judgments enjoined each company from engaging in debt col- 
lection until they had obtained licenses from the Commissioner of Banks. At 
the time of the most recent violations, neither company had obtained the 
required license. The two companies have been ordered to pay additional 
penalties and costs amounting to 20 times the sum they sought to collect 
from two consumers. American Coradius paid $17,500 and Vengroff, Williams 
and Associates paid $16,500. (McVey) 

CREDIT CONVERTORS 

{In the matter of Associated Bureaus, Inc., d/b/a Credit Convertors) 

On December 18, the Division reached an agreement with Credit 
Convertors, of St. Paul, Minnesota, in which they have agreed to refrain from 
engaging in unfair debt collection practices and from recording conversations 
with consumers without their consent. In addition, the debt collection agency 
has agreed to modify and install a new telephone line so that Massachusetts 
calls will not be recorded in the future and to pay $15,000. (Kogut, M. 
Sullivan) 

THREE DEBT COLLECTION AGENCIES 

Commonwealth v. Credit Protection Association, Inc. 
Commonwealth v. North American Collections, Inc. 
Commonwealth v. Viking Collections Service, Inc. 

On December 18, the Division reached settlement agreements with three 
out-of-state debt collection agencies. Credit Protection Association, Inc., 
North American Collections, Inc., and Viking Collection Services, Inc. The 
companies collected debts without licenses from the State Banking 
Commission and Viking violated the Massachusetts' debt collection regula- 
tions by contacting a consumer debtor at work more times than is allowed by 
law. Credit Protection Association and North American Collections each paid 
$3,500, while Viking Collection Services paid $9,000 in penalties and costs for 
collecting debts without a license. In three separate consent judgments, each 
company is prohibited from acting as a debt collection agency in 
Massachusetts until it has been granted a license from the State Banking 
Commission. (McVey) 



72 P.D. 12 

ACADEMY COLLECTION SERVICE, INC. 

Commonwealth v. Academy Collection Service, Inc. 

On February 18, the Suffolk Superior Court entered judgment against 
Academy Collection Service, Inc. for being an unlicensed debt collection 
agency. The company paid $3,000 in penalties and $500 in costs. (McVey) 

FAILURE TO DELIVER GOODS AND SERVICES 

BRIDGE- WAY REALTY TRUST 

Commonwealth v. Evelyn M. Trottier, et al. 

On September 9, the Division obtained a Consent Judgment in Suffolk 
Superior Court permanently enjoining Bridge-Way Realty Trust, an East 
Bridgewater land developer, from collecting deposits for subdivision lots with- 
out obtaining the necessary approvals required under the states Subdivision 
Control Law. According to the terms of the judgment, defendant Frederick L. 
Smith, a beneficiary of Bridge-Way Realty Trust, will pay restitution of S80,000 
to consumers who paid deposits for house lots in East Bridgewater. In addi- 
tion, defendant Evelyn Trottier, individually, and as special administratrix of 
the estate of Joseph Trottier, will pay $208,097.50 for restitution to consumers, 
interest, penalties, fees and costs. (Hoefling, McVey) 

AMERICAN WOMAN 

Commonwealth v. American Fitness Center, Inc., et al. 

In September, the Division obtained a Final Judgment in Suffolk Superior 
Court against American Woman, a fitness center, and its president, William 
Menchaca, who accepted membership due from consumers for his Taunton 
American Woman health club which he never opened. Mr. Menchaca is 
barred from owning or operating a health club in Massachusetts for three 
years and thereafter must give notice to the Division before he resumes own- 
ing or managing any health club in the state. In addition, Menchaca paid 
refunds to consumers in the amount of $11, 025. (Hoefling) 

JOY OF MOVEMENT 

Commonwealth v. Joy of Movement, et al. 

On October 23, CPD entered into a Consent Judgment with Kenneth 
Estridge, president and founder of the Joy of Movement health club chain. 
The Division sued Estridge personally and the Joy of Movement corporations 
in March, 1991, when they abruptly closed their doors and failed to give 
refunds to Massachusetts consumers for membership dues paid in advance. 
Shortly after we filed suit, Estridge and his company filed for bankruptcy 
thereby preventing us from pursuing his case until the bankruptcy litigation 
was completed. When Estridge was discharged from bankruptcy, the Division 
pursued its case against him and negotiated an agreement with him whereby 
he would pay $45,000 to partially reimburse consumers who had filed com- 



P.D. 12 73 

plaints with the office. In addition, Estridge is barred from owning or operat- 
ing a health club in Massachusetts for three years and thereafter must give 
notice to the office before he resumes owning or managing any health club in 
the state. (Anthony, Scott, Hoefling) 

BERKSHIRE CHALET 

Commonwealth v. Berkshire Chalet Resort Motel — A Condominium, Inc., and 
Robert F. Hatch 

On March 19, the Division filed a consent judgment in Suffolk Superior 
Court against the Berkshire Chalet Resort Motel and its principal officer, 
Robert F. Hatch, for engaging in unfair and deceptive practices in the market- 
ing and operation of the time-share resort located in Great Barrington. The 
Division received approximately 60 complaints against Berkshire Chalet alleg- 
ing high-pressure sales tactics, unfulfilled promises regarding vacation 
exchange programs, and numerous other misrepresentations. The Judgment 
prohibits Berkshire Chalet and Robert Hatch from marketing, selling, or bro- 
kering time-share units in the Commonwealth in the future. In addition to 
calling for $10, 000 in civil penalties and $5,000 in costs, the Judgment 
requires Berkshire Chalet and Hatch to provide relief to Massachusetts con- 
sumers who were injured in their purchase of a time-share unit. (M. Sullivan, 
T. Sullivan) 

BOSTON SCANDALS 

In re: Scandals, Inc. 

In early May, the Office received scores of complaints against Boston 
Scandals, a furniture chain, alleging that consumers' deposits on previously- 
ordered furniture were not being honored. As many as 800 consumers 
allegedly paid Boston Scandals approximately $385,000 for furniture not yet 
delivered. The Office organized a group of consumers to petition the U.S. 
bankruptcy Court to place Boston Scandal into involuntary bankruptcy. The 
petition, which was filed on May 14, was initially denied by the Bankruptcy 
Court judge. A trustee was appointed to review the finances of the company. 
In addition, the Office has a pending lawsuit against Boston Scandals alleging 
false advertising of discount prices. (Hardy, Bean, Dworsky, Praik) 

NEW ENGLAND FINE ARTS INSTITUTE 

Commonwealth v. Matthew R. Brooks d/b/a the New England Fine Arts Institute 

On June 3, the Office hied suit against Matthew R. Brook d/b/a the New 
England Fine Arts Institute, who promised, in return for substantial fees, to 
exhibit artwork from all over the country and from Europe in "the largest 
juried exhibition in the Northeastern United States." By the time the chaotic 
exhibition took place on Memorial Day weekend. Brooks had accepted hun- 
dred of thousands of dollars in fees but failed to exhibit many of the thou- 
sands of accepted works and failed to award prize money to the artists, as 
promised. Along with the filing of the complaint, the Office obtained a tem- 
porary restraining order and preliminary injunction in Suffolk Superior Court 



74 P.D. 12 

requiring the prompt return of the artwork, the freezing of Brooks' assets, and 
an accounting of assets and all proceeds from the exhibit. In addition. Brooks 
is enjoined from sponsoring future art shows. (Weber, Palermino, Matlack, 
Nasca, Praik) 

MILESTONE 

Commonwealth v. Milestone Educational Institute, Inc., et al. 

On June 9, the Office filed suit against Milestone Educational Institute, Inc., 
a Cambridge-based student tour operator, which allegedly took millions of 
dollars in deposits from students and others around the country without pro- 
viding the promised trips. Milestone, operating under the name American 
Leadership Study Group (ALSG) and American Educational Travel, Inc. (AET), 
shut its doors on June 3 and its owner, Chistopher Dumello Kenyon, appears 
to have moved to Great Britain. As part of the lawsuit, a temporary restraining 
order and a preliminary injunction were obtained in Middlesex Superior Court 
freezing the company's assets and prohibiting the defendants from offering 
travel arrangement services. (Anthony, Bernstein, Berlin, Davies, Szafarowicz, 
Thomson) 

FINANCIAL SERVICES 

GREENWOOD TRUST CO. 

Greenwood Trust Co. v. Commonwealth 

On August 6, the First Circuit Court of Appeals, reversing the Federal district 
court, ruled that federal law allows Greenwood Trust Co., a Delaware Bank 
that issues the Discover Card credit card, to impose late charge on its 
Massachusetts consumers, despite a Massachusetts law which prohibits such 
late charges. On November 4, the Division filed a petition for a writ of certio- 
rari with the United States Supreme Court asking for the reversal of the Court 
of Appeals decision. Twenty-six states filed amici briefs, supporting the peti^ 
tion for certiorari. The Attorney General argued that the First Circuit's opin- 
ion, if allowed to stand, could have a dramatic impact on states' traditional 
ability to regulate all consumer lending practices, not just late charges. On 
January 11, 1993, the U.S. Supreme Court denied the petition for writ of cer- 
tiorari. (Sarason, Brownsberger) 

FIRST INVESTORS 

Commonwealth v. First Investors, et al. 

On October 9, Attorney General Scott Harshbarger and Secretary of State 
Michael J. Connolly sent a letter to the U.S. District Court for the Southern 
District of New York opposing the proposed settlement of a private federal 
class action against First Investors Corporation and others. The letter stated 
that the settlement would undermine the full compensation of Massachusetts 
consumers through that action. The Commonwealth had hied suit in Suffolk 
Superior Court against First Investors and other companies and individuals on 
September 25, 1991. In October 1992, the Court in the Massachusetts action 



P.D. 12 75 

lifted a stay of discovery, thereby allowing the Commonwealth to proceed 
towards trial. (Sarason, Willoughby) 

MANAGEMENT ADVISORY GROUP 

Commonwealth v. Management Advisory Group, Inc., etal. 

On December 16, the Division filed a civil suit in Suffolk Superior Court 
against Management Advisory Group (MAG), an alleged venture capital 
finance firm located in Boston. MAG solicited small or new businesses need- 
ing investment capital and then failed to provide financing or any financial 
services. Individuals and businesses paid advance fees for services ranging 
from $3,000 to $39,500, but did not receive any refunds of those fees, even 
though demands for refunds were made to MAG. The complaint sought per- 
manent injunctive relief, restitution for victims, a temporary freeze of assets, 
civil penalties, costs, and attorneys' fees. MAG sought a stay of the 
Commonwealth's action arguing that it was unfair (and unconstitutional) to 
be required to defend a civil action when to do so would supply information 
to criminal prosecutors who MAG believed were investigating the matter. The 
trial court partially granted the stay, and following the Commonwealth's 
appeal, a single justice upheld the stay but concluded that the trial court's 
stated reasons for having granted it were not appropriate. The case is now in 
discovery, in the limited manner permitted by the order. (Kogut, Marcus) 

WILLIAM J. CAMUTl 

Commonwealth v. William /. Camiiti, et al. 

The Division filed a Complaint to Determine Dischargeability against Mr. 
Camuti in U.S. Bankruptcy Court, alleging that his unpaid judgment debt of 
$206,000 in c. 93A civil penalties and costs was not dischargeable under the 
Bankruptcy Code. The Office had previously sued Mr. Camuti, the Loan 
Depot, and other corporations in state court for contempt and further penal- 
ties under c. 93A for their failure to pay a c. 93A judgment (entered after a 
securities fraud lawsuit). On the eve of Mr. Camuti's state court trial, he filed 
his bankruptcy petition. On April 1, U.S. Bankruptcy Court ludge Hillman 
ruled that c. 93A, § 4 civil penalties are not dischargeable under 11 U.S.C. § 
523(a)(7). (Sarason) 

HEALTH MEDICAL ISSUES 

SONOTONE HEARING AID CENTERS CORR 

Convmmwealth v. Sonotone Hearing Aid Centers Corp. 

On July 22, a Final Judgment was entered by Judge Cratsley in Suffolk 
Superior Court against Sonotone Hearing Aid Centers Corp. and its president, 
Anna Gordon. The order prohibits Anna Gordon from advertising and selling 
hearing aids and orders the payment of $29,681 in restitution for 56 con- 
sumers and $10,000 in civil penalties. The Bristol County District Attorney's 
Office also obtained an indictment against Anna Gordon on 47 counts of lar- 
ceny. On December 3, Ms. Gordon was sentenced in Bristol Superior Court to 



76 P.D. 12 

6-10 years in prison with one year to be served beginning December 3, 1993 
plus an order to pay $400 per month in restitution. (Berlin, Dietz, Hardy, T. 
Sullivan) 

ELM MEDICAL LABORATORIES 

Commonwealth v. Elm Medical Laboratories, Inc. 

On July 27, the Massachusetts Appeals Court upheld a permanent injunc- 
tion obtained by the Division which prohibits two individuals who formerly 
supervised Elm Medical Laboratories from supervising a medical lab. The 
Court agreed with our argument that the laboratory had violated the 
Massachusetts Consumer Protection Act by improperly and inadequately per- 
forming pap smears and other tests, and further agreed that under this law a 
laboratory is required to disclose to doctors and patients material information 
about the laboratory's practices that could render its diagnoses inaccurate. The 
Appeals Court also held that the state is not a person subject to suit under the 
Civil Rights Act. (McHugh, Matlack) 

S&B INTERNATIONAL CORPORATION 

In the Matter ofS&B International Corporation 

On October 8, the Division joined the Attorneys General from 10 other 
states in a $33,000 settlement with S&B International Corp., a California- 
based food manufacturer, which allegedly misled consumers about the 
monosodium glutamate (MSG) content of some of its seasoning mixes. S&B 
falsely claimed in radio advertisements and on product labels that its season- 
ing mixes contained no MSG, when, in fact, they contained hydrolyzed pro- 
tein. The Attorneys General alleged that when a substance is hydrolyzed to 
create a hydrolyzed protein using the methods employed by food manufactur- 
ers, MSG is created. (McHugh) 

MOUTHWASH PETITION 

On February 25, the Office joined with the Attorneys General of 27 other 
states in filing a petition with the U.S. Consumer Products Safety Commission 
proposing that the Commission require child-resistant packaging for mouth- 
washes containing more than 5 percent alcohol. With some commonly-used 
brands of mouthwash containing 14 to 26.7 percent alcohol, ingestion of only 
one ounce of mouthwash containing alcohol can produce serious effects in a 
child. In the past five years, at least three children have died after ingesting 
mouthwash. The petition explains that child-proof caps may cost as little as 
two cents per bottle. (McHugh) 

CIBA-GEIGY 

In the Matter ofCIBA-Geigy Corporation 

On March 17, the Division joined the Attorneys General of 10 other states 
in a $550,000 multi-state settlement with the New Jersey-based CIBA-Geigy 
Corporation for false advertising and deceptive trade practices related to its 



P.D. 12 77 

nicotine patch, Habitrol. CIBA-Geigy allegedly failed to disclose important 
information about the effectiveness and potential risks of the nicotine patch. 
Under the terms of the settlement, CIBA-Geigy is required to disclose signifi- 
cant facts about Habitrol in direct-to-consumer advertisements and in a writ- 
ten disclosure statement. The Division obtained $55,000 for the Local 
Consumer Programs. (McHugh) 

MARION MERRELL DOW 

In the Matter of Marion Merrell Dow 

On June 9, the Division joined with eleven other states in a settlement with 
Marion Merrell Dow, Inc. regarding its nationwide consumer advertising cam- 
paigns for its antihistamines, Seldane and Seldane-D, and its nicotine patch, 
Nicoderm. The settlement requires Marion Merrill Dow to include in adver- 
tisements important information about the efficacy and potential risks of 
these prescription drugs. The company has agreed to provide the Seldane and 
Seldane-D information to the public in a package insert and to include the 
Nicoderm disclosure in a booklet provided to consumers. Finally, of the 
$600,000 to be shared among the twelve states for costs, attorney fees or con- 
sumer education funds, $50,000 will go to the Attorney General's SCORE pro- 
gram. (McHugh) 

HOME IMPROVEMENT & MORTGAGE CASES 

U.S. FUNDING 

Commonwealth v. U.S. Fiindmg, Inc. of America, et al. Hass v. Chrysler 

In July 1993, Suffolk Superior Court approved a class action settlement of 
homeowners' claims against U.S. Funding, Inc. of America, a large South 
Weymouth mortgage company now in bankruptcy. Under the settlement 
agreement, approximately $2.5 million in mortgage loans will be forgiven by 
the present holders of defective mortgages. Class members will also be entitled 
to other financial compensation from a fund of approximately $375,000. 
Some U.S. Funding consumers who lost their homes through foreclosure may 
also be able to repurchase their homes. U.S. Funding had represented to con- 
sumers that the proceeds of refinanced mortgages would be used to pay off 
the prior debt. Instead, U.S. Funding made only partial or, in many cases, no 
payment of prior mortgages, leaving consumers with outstanding "unfunded" 
or "underfunded" loans. At the request of our office, the Court also perma- 
nently enjoined Guy Scarpaci, operator of U.S. Funding, from ever acting as a 
mortgage broker or mortgage lender. (Sarason, T. Sullivan) 

NATIONAL CREDIT UNION ADMINISTRATION 

Commonwealth v. Barnstable Community Federal Credit Union, et al. 

In December, the Division filed an emergency lawsuit against the National 
Credit Union Administration (NCUA) (successor to Barnstable Community 
Federal Credit Union), a developer, and one of the developer's companies to 
try to enjoin the foreclosure of a consumer's home in Mashpee. The consumer 



78 P.D. 12 

had purchased a home from the developer but never received notice of the 
foreclosure sale because neither the deed nor the purchase money mortgage 
from Dacey were ever recorded. Judge Cratsley of Suffolk Superior Court 
signed a Temporary Retraining Order, but it could not be served in time to 
stop the foreclosure. The Division then filed a Motion for a Preliminary 
Injunction which the Court granted thereby enjoining NCUA for 30 days 
from evicting the consumer or selling the home. (Sarason, Kogut) 

ATLANTIC WEST FINANCIAL RESOURCES 

Commonwealth v. Atlantic West Financial Resources, Inc. ami Robert E. Ciardi, ]r. 

On December 22, the Office obtained a settlement with Atlantic West 
Financial Resources, Inc. and its president, Robert Ciardi, Jr., regarding its 
alleged unfair and deceptive mortgage lending practices. The complaint 
alleged that First Atlantic and Ciardi collected application and rate-lock fees 
from consumers for mortgages that were either not processed or never closed, 
and then failed to return these fees to consumers. The consent judgment, filed 
simultaneously with the lawsuit, requires Atlantic West and Ciardi to pay 
$50,000 in restitution to consumers and $50,000 in civil penalties and costs. 
In addition, the defendants are enjoined for four years from acting as mort- 
gage brokers and lenders, and from engaging in business activities which 
involve accepting consumers' money in advance of providing a service. 
(Talbot, Anderson, Cooper, Ormond, Mozzer) 

FIRST FIDELITY FINANCING GROUP 

Commonwealth v. First Ficielit}' Financing Group, et al. 

On January 14, a Consent Judgment was hied in Suffolk Superior Court set- 
tling the claims of the Commonwealth against Diane C. Zeiner. The Division 
alleged that Diane Zeiner and co-defendant Kevin Boulais engaged in unfair 
and deceptive acts by promising to arrange financing for homeowners facing 
foreclosure, but never providing that funding. Zeiner agreed to pay $2,500 to 
the Local Consumer Aid Fund, and agreed not to engage in offering to finance 
loans for consumers in the future. Kevin Boulais was also indicted in a crimi- 
nal action. (Dietz, Szafarowicz) 

FLEET 

Alabama et al. v. Fleet Mortgage Corp. 

On February 8, the Office joined with the Attorneys General of 25 other 
states to file, in Federal District Court in New York, a consent decree in which 
Fleet Mortgage Corporation and Fleet Real Estate Funding Corporation have 
agreed to stop overcharging on mortgage escrow accounts. Fleet Mortgage and 
Fleet Real Estate Funding allegedly violated the federal Real Estate Settlement 
Procedures Act of 1975 (RESPA) which creates a formula that determines the 
maximum amount a mortgage lender can require a customer to pay. The 
Massachusetts agreement will result in more than $4 million in refunds and 
reduced monthly payments to the company's 26,000 Massachusetts con- 
sumers. Nationally, one million mortgage holders will receive approximately 



P.D. 12 79 

$150 million in refunds and reduced payments. (Sarason) 
NEWPRO WINDOWS 

In early 1993, the Division resolved several consumer complaints from 
senior citizens in the upper Cape Cod area involving the sales practices of 
Newpro Windows, Inc. Newpro allegedly engaged in high pressure sales tac- 
tics. Three consumers, ranging in age from 72 to 88 years, have received 
deposits back totaling $5,694 and have been relieved of contractual obliga- 
tions amounting to $28,846 for replacement windows. (McVey, Praik) 

RESOURCE FINANCIAL GROUP 

hi re: Brent Lambert 

On April 8, the Office obtained a consent judgment against Dr. Brent 
Lambert, the principal shareholder of Resource Financial Group, Inc. which is 
allegedly one of the worst offenders in the home improvement mortgage 
scams. Under the consent judgment, which is subject to approval by the U.S. 
Bankruptcy Court and Suffolk County Superior Court, Dr. Lambert is barred 
from consumer lending in Massachusetts for 10 years, is required to pay a 
total of $100,000 to the Local Consumer Aid Fund in the three years following 
the close of bankruptcy proceedings, and is required to donate $25,000 in 
charitable contributions to aid low-income and elderly individuals. (Weber, 
Sarason) 

AETNA d/b/a ITT FINANCIAL 

Agreement by and between Aetna Finance Company and the Attorney General of 
the Commoyiwealth of Massachusetts 

On April 22, the Division reached a settlement worth approximately 
$250,000 with Aetna Finance Company, doing business as ITT Financial 
Services. The settlement resolves claims regarding Aetna's potential liability as 
a lender for the financing of home improvements done by Carefree Building 
Products, Inc. (against which there is a suit pending). Under the terms of the 
settlement, consumers will receive cash or loan balance reductions, and may 
also be eligible for loan rewrites at more favorable interest rates. At least 19 
consumers are eligible to benefit from the settlement. (Weber, Sarason, Scott, 
Gagnon) 

SEACOAST 

Commonwealth v. Home Repair hic, formerly Seacoast Industries, Inc., et at. 

On April 30, the Division entered into a consent judgment with Home 
Repair, Inc., formerly known as Seacoast Industries, its president, Robert 
Finestone, and its vice president, Todd Finestone, for allegedly engaging in 
unfair and deceptive acts and practices in the home improvement business, 
including high pressure sales tactics, misrepresentations related to loan and/or 
mortgage financing, and shoddy work. The judgment provides $80,000 in 
restitution to consumers, bars Robert Finestone from the home improvement 
business for life, and bars Todd Finestone from the business for four years. 



80 P.D. 12 

(Sherman, Berlin, Dietz, McVey, Marcus, Woo) 
LEAD PAINT 

DELUXE DELEADING/TIGER HOME INSPECTION/SHAWN HANCOCK 

Commonwealth v. Daniel C. Robinson d/b/a Deluxe Deleading, Tiger Home 
Inspection, Inc., and Shawn Hancock 

On January 25, the Division hied suit against Daniel Robinson, a deleading 
contractor. Tiger Home Inspection, Inc., a home inspection company, and 
Shawn Hancock, a lead inspector, for allegedly violating the state's lead laws. 
Two apartment buildings in Lowell were supposedly deleaded and brought 
into compliance with lead abatement regulations during March 1992. In sub- 
sequent inspections, however, over 200 alleged violations of the lead law were 
uncovered, including failure to remove thick layers of lead dust after delead- 
ing. The complaint requests restitution and civil penalties, and injunctions 
prohibiting the defendants from performing lead abatement or inspections. 

On February 17, a Final Judgment was entered in Suffolk Superior Court 
with respect to Shawn Hancock's involvement in the case. In addition to 
returning his lead inspection license and paying $1,000 to the Local 
Consumer Aid Fund, Hancock is permanently enjoined from performing lead 
inspections. (Anderson, Gagnon, L. Russo) 

ROBERT STEVENS 

Commonwealth v. Robert Stevens 

On February 16, the Division obtained an Assurance of Discontinuance 
from Robert Stevens, trustee and landlord of residential properties in the 
Commonwealth. Under the Assurance, Stevens agreed to comply with lead 
abatement law and regulations, to have all units in which children under age 
six reside in compliance within a stated period of time, to provide certain lead 
abatement documents and notifications to the Office, and to pay $1,500 to 
the Commonwealth. (Anderson, Gagnon) 

KEVIN FRENCH 

Comtnonwealth v. Kevin Fretich 

On June 21, the Office filed suit in Suffolk Superior Court against Kevin 
French, a Wilmington lead inspector, for allegedly violating the state's lead 
laws in connection with the abatement and inspection of two properties in 
Salem. The complaint alleges that French issued letters of abatement compli- 
ance for deleading work done by an unlicensed contractor and for deleading 
work that did not comply with state lead law. In addition, the Office alleges 
that French performed deleading without a license and without taking proper 
safety precautions. The complaint seeks an injunction prohibiting French 
from performing lead inspections for a period of five years, restitution, and 
civil penalties. (Anderson, Cooper) 



P.D. 12 81 



MOBILE HOMES 

PINE HILL ESTATES MOBILE HOME PARK 

Commonwealth v. George A. Bumila, Sr., et al. 

On August 13, the Division filed suit in Southeast Housing Court against 
Pine Hill Estates Mobile Home Park in Raynham, for allegedly harassing and 
intimidating their mostly elderly residents. Some of the allegations in the 
complaint state that Pine Hill Estates and its owner, George Bumila, attempted 
to close the park illegally, continually harassed and intimidated park residents, 
enforced unfair and unreasonable park rules, fixed fuel prices, illegally dis- 
criminated on the basis of age, and destroyed Commonwealth wetlands. In 
addition to injunctive relief, the Attorney General is seeking civil penalties, 
costs, and attorneys' fees. (Morison, T. Sullivan) 

NURSING HOMES 

BEVERLY ENTERPRISES, INC. 

In the Matter of Beverly Enterprises, Inc. 

Beverly Enterprises, a nation-wide nursing home chain, violated licensure 
regulations by purchasing five Massachusetts facilities without having 
obtained necessary approvals. Beverly also "paid" far more for the homes than 
the facilities' medicaid reimbursable basis could support, indicating that the 
homes were likely to encounter financial and patient care problems. In 
addressing the matter, the Division obtained an agreement on September 11 
under which Beverly refinanced the sales so that a total of $5,795,492 of debt 
was transferred from these homes to others owned by Beverly outside the 
state, paid approximately $500,000 of medicaid patient costs, and paid a civil 
penalty of $39,000. (Dietz) 

CARLYLE HOUSE 

Commonwealth v. Carlyle, Inc., and Bruce Bedard 

On November 9, the Division filed a Consent Judgment in Suffolk Superior 
Court settling a case brought against The Carlyle House, a Framingham nurs- 
ing home, and the facility's owner and administrator. The case involved alle- 
gations of Medicaid discrimination and the improper discharge of Medicaid 
patients. Under the terms of the Consent Judgment, the nursing home is 
enjoined from various discriminatory acts targeting medicaid patients and 
from discharging or transferring patients without complying with required 
discharge procedures. The defendants paid $22,000 in penalties, plus "dam- 
ages" of $500 to each of four former patients, a sum calculated not to put 
their medicaid eligibility at risk. (Dietz) 

HARVARD MANOR NURSING HOME 
Attorney General and Commonwealth by its Department of Public Health v. 



82 P.D. 12 

Harvard Manor Nursing Home et al. 

On November 23, following the termination of the Harvard Manor Nursing 
Home's federal Medicaid funding, the Consumer Protection Division inter- 
vened to have a patient protector receiver appointed to ensure the patients' 
health and safety, since federal authorities had determined that patients were 
not receiving adequate care. In addition, the withdrawal of federal ftmding 
had resulted in the loss of 50 of the funds for patients' care. (Dietz) 

CLIFF HOUSE NURSING HOME 

Attorney General and Commonwealth by its Department of Public Health v. Cliff 
House Nursing Home, Inc. and W. Mikolinski, Jr. 

In April, the Division obtained the Court appointment of a receiver to pro- 
tect the patients at Cliff House Nursing Home, an 87-bed facility located in 
Winthrop, from the risk of serious physical harm as a result of the facility 
management's fiscal irresponsibility. The Office requested that the Court 
require the former operators of the nursing home to account for all monies 
received and expended by Cliff House since the beginning of the year. (Dietz) 

ASSOCIATED GROUP HOMES 

Attorney General and Commonwealth by its Deparhnent of Mental Retardation v. 
Associated Group Homes, Inc., Healthnet, Inc., and R. Hill 

By order of the Court on June 23, 1993, the third (and last) of three inter- 
mediate care facilities for the mentally retarded formerly run by Associated 
Group Homes, Inc., a health care provider that we had placed in receivership 
some years ago, was transferred out of receivership and became part of the 
Greater Lynn Mental Health & Retardation Association, Inc. Termination of 
the Salem facility's receivership had been complicated by rate issues and prob- 
lems related to the impossibility of relocating its patients in comparable facili- 
ties at acceptable costs. These issues were resolved in negotiations, under the 
supervision of the Superior Court with representatives of Rate Setting 
Commission, Department of Mental Retardation, and Department of Public 
Works. (Dietz) 

NEW PINE GROVE VILLA NURSING HOME 

Attorney General and Commonwealth by its Department of Public Health v. 
Oxfram, Inc. d/b/a New Pine Grove Villa Nursing Home and S. Hochhauser 

In June, the Suffolk Superior Court entered a Final Judgment by Default 
which included an award of $82,920 in damages against the defendants in 
this nursing home case. We had obtained the appointment of a receiver for 
the New Pine Grove Villa Nursing Home when the facility's owner/operator, 
Hochhauser, tried to resolve his financial difficulties by abandoning the nurs- 
ing home and all its patients. We worked with the receiver to effectuate the 
purchase and sale of the heavily mortgaged nursing home to a suitable health 
care provider. We then obtained the Final Judgment with injunctive relief, 
penalties, costs, and attorneys fees against Hochhauser. (Dietz) 



P.D. 12 83 



RETAIL SALES & ADVERTISING 

GREAT EXPECTATIONS 

Commonwealth v. Greatex of Mass., Inc. 

On July 16, the Division filed an Assurance of Discontinuance in Suffolk 
Superior Court in which Great Expectations, a Newton-based video dating ser- 
vice, agreed not to engage in high-pressure sales tactics. Great Expectations 
will also pay $20,000 to the Attorney General's Local Consumer Aid Fund. The 
Division had received over 60 complaints that charged Great Expectations 
with allegedly using various high-pressure sales tactics, such as telling the con- 
sumer the price would increase significantly if a contract was not signed 
immediately, taking consumers to an ATM machine so they could withdraw 
money to pay for a deposit, and denying refunds to most consumers who 
joined under these conditions. (Dworsky) 

SEARS AUTO CENTERS 

In the Matter of Sears Roebuck & Co. 

On September 2, the Division joined with the Attorneys General in 43 states 
in a nationwide settlement with the Chicago-based Sears Auto Center. Sears 
agreed to distribute $50 coupons to any Sears customers who had certain 
items installed in their cars from August 1990 to January 1992. Sears expects 
that the settlement will affect 41,566 Massachusetts consumers and result in 
more than $2 million in restitution. In addition. Sears has agreed to reform 
certain of its policies in order to avoid abuses in its auto repair practices. 
(Sherman) 

GENERAL ELECTRIC 

In the Matter of General Electric Company 

On November 9, the Division joined the Attorneys General of 32 states in a 
settlement with the General Electric Company concerning the claims that the 
company's "Energy Choice" line of light bulbs represents a new, environmen- 
tally sound product. The Attorneys General allege that GE made various mis- 
representations about its Energy Choice light bulbs including statements that 
these light bulbs save energy and that using these bulbs could help eliminate 
pollution from the atmosphere. In fact, most of the energy savings realized 
from using Energy Choice incandescents are due to the fact that they are sim- 
ply lower wattage bulbs, and not because they are significantly more efficient. 
The agreement required GE to pay $15,000 to each of the 11 original signa- 
tory states, including Massachusetts. (Dietz) 

MATTRESS DISCOUNTERS 

Commonwealth v. Mattress Discounters, Inc. 

On December 9, CPD obtained a settlement from Mattress Discounter's to 
settle multiple charges of false advertising practices. The settlement, filed in 



84 P.D. 12 

Suffolk Superior Court, requires that Mattress Discounters pay $950,000, mak- 
ing it the largest false advertising case settlement ever obtained in 
Massachusetts. Among the allegations put forth by the Division were that 
Mattress Discounters inflated prices to offset advertised coupon discounts, 
sold mattress sets without disclosing that box spring supplied contained no 
springs, and ran never-ending "sales." 

The landmark settlement provides $700,000 in restitution to consumers 
injured by the alleged deceptive sales practices, $100,000 in mattresses to be 
donated to the Massachusetts Coalition for the Homeless, $100,000 for media- 
tion of consumer complaints at 18 local consumer programs, and $50,000 for 
the Attorney General's "SCORE" program. In addition, the settlement lists spe- 
cihc forbidden practices. (Anthony, Hardy, Dworsky) 

KEYES FIBRE 

In the Matter ofKeyes Fibre Company 

On March 18, the Division joined with the Attorneys General of nine other 
states in a $100,000 settlement that requires Keyes Fibre Company to discon- 
tinue claims that its "Chinet Disposable Tableware" products are biodegrad- 
able, recyclable, and compostable. The states allege that various claims made 
by Keyes Fibre are misleading because, for instance, the tableware cannot be 
recycled through curbside recycling programs and can only be composted in 
composting facilities for paper products that are available to less than one half 
of one percent of the U.S. population. (Dietz, Griffin, McHugh) 

EGGLAND'S BEST 

Commonwealth v. Eggland's Best, Inc. 

On April 8, the Office hied a false advertising lawsuit against Eggland's Best, 
Inc., marketers of Eggland's Best Eggs, which targeted cholesterol-conscious 
and other consumers with the message that they could eat up to 12 eggs per 
week without raising their cholesterol levels. The lawsuit alleged that adver- 
tised claims such as, "Now you can eat real eggs again... and not increase your 
serum cholesterol," were deceptive and misleading, and that the one short- 
term study which the company used to support its claims was seriously 
flawed. In addition to civil penalties, the lawsuit seeks corrective advertising 
to counteract the false impressions created by the company's advertising cam- 
paign. (Anderson, McHugh, Marcus, Ecker, Thomson) 

CRIMINAL ACTIONS 

ROBERT MANOUKIAN 

Commonwealth v. Robert Manoukian 

In August, a Middlesex Grand Jury returned a total of six indictments 
against Robert Manoukian who was charged with larceny and forgery in two 
separate cases. The indictments result from a joint effort by the Consumer 
Protection Division and the Criminal Bureau. In the hrst case, Manoukian was 
indicted on three counts of larceny over $250. The charges stem from a scam 



P.D. 12 85 

whereby Manoukian allegedly bilked 84 members of the Ladies Guild of St. 
George's Albanian Church out of $15,855. Manoukian allegedly promised 
round trip bus transportation, overnight accommodations and meals at vari- 
ous restaurants in New York, none of which were delivered. Manoukian 
refunded approximately $10,000 to the victims after complaints were made to 
the Consumer Complaint Section. 

STEPHEN THIBAULT 

Commonwealth v. Steven Thibault 

In December, Stephen Thibault was indicted on twelve counts of larceny 
over $250. Thibault was doing business as a kitchen and bath renovator under 
the name T'BO's, Inc. in the City of Everett. He allegedly stole over $90,000 in 
funds solicited over a three year period from customers for work that was 
never performed and products that were never delivered. The case first came 
to the attention of the office through the consumer complaint section. It is 
pending in Middlesex Superior Court. (Bernstein, Sarason, Berlin) 

CARRIE'S BUS LINES 

Comtnonwealth v. Camacho 

On March 3, Paul Camacho, owner and president of Carrie's Bus Lines and 
Tours, Inc., was indicted by a Middlesex County Grand Jury on 18 counts of 
larceny over $250 and 8 counts of larceny under $250. Camacho allegedly 
offered bus tour packages and took payments from consumers for bus trans- 
portation and hotel and casino accommodation, but never ran the trips. In 
most instances, Camacho did not have any confirmed reservations with hotels 
and casinos for the paying consumers, many of whom were senior citizens. 
(M. Sullivan, Mozzer) 

FRANK CAMOSCIO & PAUL YOCAS 

Commonwealth v. Camoscio; Commonwealth v. Yocas 

On April 9, Frank Camoscio and Paul Yocas were indicted by a Suffolk 
County Grand Jury on multiple criminal charges, including unauthorized 
practice of podiatry after revocation of licenses and possession of a Class E 
controlled substance. (E. Sullivan, Goldberg) 

ROBERT LISI and RUSSELL ADAMS 

Commonwealth v. Robert Lisi, Russell Adams 

On June 1, a Bristol County Grand Jury indicted Robert Lisi and Russell 
Adams, two Rhode Island men who allegedly solicited funds for a fraudulent 
telemarketing operation, on charges of larceny, attempted larceny, and decep- 
tive solicitation practices. Lisi and Adams allegedly contacted private busi- 
nesses and individuals and falsely represented that contributions would go 
toward drug education programs in the local schools, fire safety education. 



86 P.D. 12 

local police and fire departments, and the "McGruff the Crime Dog" cam- 
paign of the National Crime Prevention Council. Prosecutors allege that the 
funds solicited by the defendants were not distributed to any of the educa- 
tional programs. (Bernstein, Matlack) 
CHESTER MCLAUGHLIN, JR. 

Conimotiwedlth v. Chester McLaughlin, Jr. 

On June 3, Chester McLaughlin, a former licensed deleading contractor, 
pled guilty in Brockton Superior Court to eight counts of larceny over $250 
and three counts of larceny under $250. McLaughlin, who operated a com- 
pany called Allfaze Construction, stole more than $23,000 over a five-year 
period by promising to provide materials and services to homeowners who 
were required to remove lead from their property. He never delivered the 
materials, nor completed any of the work after receiving payments. On June 
16, the Court ordered McLaughlin to refrain from deleading contracting for 
two years and sentenced McLaughlin to two-and-one-half years in the House 
of Correction, suspended for two years. He was also ordered to pay $14,821 in 
restitution and provide 200 hours of community service. (Bernstein, Cooper, 
Brownsberger, Simmons) 

WILLIAM REGO 

Commomvealth v. William Rego et al. 

On June 23, William Rego, Nancy Helger, and Leo Couture were indicted by 
a Bristol County Grand Jury on various criminal charges in connection with 
their alleged involvement in a series of fraudulent car sales involving more 
than $50,000. The indictments relate to allegations that Rego, who was 
indicted on 12 counts of larceny over $250 and two counts of engaging in the 
sale of a motor vehicle without a license, took money from consumers, but 
never delivered the vehicles or returned the money. In some cases, Rego did 
not even own the cars. Helger was indicted on two counts of engaging in the 
sale of a motor vehicle without a license and Couture was indicted on one 
count of the same. (Bernstein, Ciardi) 

OTHER INITIATIVES 

RETAIL CREDIT CARD INTEREST RATES 

On October 28, as part of National Consumers' Week, the Division released 
a survey conducted by the Consumer Protection Division of retailer-issued 
credit card interest rates. The survey showed that almost half of the 23 retail- 
ers surveyed charge credit card users between 20 and 23.5 percent interest and 
none charge less than 18 percent. Attorney General Harshbarger asked that 
Massachusetts retailers voluntarily lower their credit card interest rates to 
those comparable with bank-issued credit cards which average between 15.49 
percent for gold cards and 17.15 percent for standard cards, more adequately 
reflecting today's lower cost of funds. (Dworsky) 



P.D. 12 87 



CITE YOUR RIGHTS CARDS 

In October, the Division released the first set of "Cite Your Rights" cards 
designed to teach consumers basic consumer rights in the areas of store return 
policy, defective goods, automobile lemon laws, security deposits, and a half 
dozen other areas. The National Association of Consumer Agency 
Administrators (NACAA) recognized Edgar Dworsky for his work in producing 
the "Cite Your Rights'" cards by giving him top honors in the category of 
print media in a large agency. Distribution of the cards is through the 8400 
line and local consumer programs. (Dworsky) 

CONFERENCE FOR ELDERS 

On April 23, the Office, in cooperation with the Massachusetts Association 
of Older Americans, sponsored a consumer awareness conference for elders. 
The conference, held at Brandeis University, was designed to help elder con- 
sumers make more informed buying decisions, identify telemarketing and 
mail order scams, and learn how to file complaints with the Office's 
Consumer Complaint Hotline. (Dworsky, M. Sullivan, Praik) 

NAAG CONFERENCE 

On May 6-8, the Office hosted the National Association of Attorneys 
General Spring Consumer Protection Seminar. Some of the topics addressed by 
various Attorneys General and Assistant AGs were debt collection, bankruptcy, 
fraud in automobile sales, ethics, and public service announcements. 

REGULATIONS & STATUTES 

HOME IMPROVEMENT CONTRACTOR LAW 

This law regulating home improvement contractors signed December 31, 
1991, took effect on July 1, 1992. The law prohibits home improvement con- 
tractors from acting as mortgage brokers or lenders in connection with the 
home improvement contracts they enter into, requires a written contract for 
any job over $1,000, requires that contractors register with the Bureau of 
Building Regulations and Standards, establishes a guaranty fund to provide 
limited restitution to consumers who have been defrauded by a registered 
contractor but are unable to collect on a judgment, and provides for criminal 
penalties for those who fail to obtain a certificate of registration. An addi- 
tional bill designed to streamline the process for injured consumers to obtain 
access to the "guaranty fund" currently is in the legislature. (McVey) 

MORTGAGE LENDER AND BROKER REGULATIONS 

The Attorney General's regulations under c. 93A governing mortgage 
lenders and mortgage brokers were published in May and took effect on 
August 1, 1992. The regulations require that all brokers and many lenders pro- 
vide borrowers with standardized copies of the Attorney General's Mortgage 
Broker and Lender Disclosure forms, which identify the essential features of a 



88 PD. 12 

mortgage loan transaction as well as the cost and interest rate for the bor- 
rower. The regulations also require that lenders and brokers must take reason- 
able steps to assure that borrowers, including non-English speaking con- 
sumers, understand the loan transaction. Unconscionable rates or other loan 
terms, advertising ploys such as "immediate approval" and "immediate clos- 
ings," are prohibited, and the use of other advertising terms such as "bad 
credit, no problem"' and avoid foreclosure are restricted. These regulations 
were promulgated to prevent future abuses involving second mortgages or 
refinancing, while creating a level playing field for legitimate businesses. 
(McHugh, Sarason, Anthony) 

MOBILE HOME PARK LEGISLATION 

An ominbus bill amending the Manufactured Housing Statute was enacted 
by both the House and Senate in November and was forwarded to the 
Governor for his signature. Governor Weld sent it back to the legislature with 
suggested minor amendments. The revised bill passed the House, but died in 
the Senate at the end of the legislative session. The bill was refiled in 1993. 

This important legislation seeks to protect the estimated 35,000 mobile 
home tenants in Massachusetts, many of whom are elderly. The law would 
require that park owners who wish to close their park reimburse tenants either 
the fair market value of their home or pay the relocation costs, give tenants 
120 days to sell their mobile homes after they have been evicted, mandate 
that the park owners give new tenants the option of a five-year lease term, 
clarify that residents cannot be unreasonably restricted in their choice of ven- 
dors of goods and services, and simplify and expand the right of first refusal 
accorded to a tenant association when a park is to be sold or leased. The 
Attorney General's Office, in conjunction with Senator-elect Marc Pacheco, 
drafted the legislation in response to complaints received by the Consumer 
Protection Division. (Morison, Sherman, T. Sullivan) 

UPDATE: On August 13, 1993, Governor Weld signed the bill into 
law. The bill became effective immediately. 

LONG TERM CARE FACILITY REGS: PUBLIC HEARING 

On April 8, the office conducted a public hearing on a draft of completely 
revised regulations governing Long Term Care Facilities. Since 1976, 940 CMR 
4.00 et seg provided a series of rights and remedies to residents of rest homes 
and nursing homes in the Commonwealth. However, over time the need for 
modification, revision and expansion of the original regulations became 
increasingly obvious. The proposed revision of 940 CMR 4.00 et seeks to 
address this need by updating the old so-called Nursing Home regulations. 
(Dietz) 

CONSUMER COMPLAINT SECTION 

During fiscal year 1993, the Consumer Complaint Section opened 2,001 
cases for mediation and closed 2,626. In addition, the clerical staff referred 



P.D. 12 89 

approximately 2,500 written complaints to state agencies, other states, local 
consumer programs, and divisions within the Attorney General's Office. 

A Task Force has been organized to enforce the new Home Improvement 
Contractor Law. As a result, the Complaint Section has developed protocols, 
mediated cases, and found a number of contractors to be operating without 
the proper registration. Over 100 cases, with an estimated value of $70,000, 
have been assigned to mediators since the inception of the program. 

Finally, approximately eighty college students were recruited and trained to 
participate in the Undergraduate Internship Program. These interns mediated 
individual consumer complaints, and monitored and developed cases against 
companies who displayed patterns of unfair and deceptive practices. 

LOCAL CONSUMER PROGRAM/FACE-TO-FACE MEDIATION SERVICES 

The Local Consumer Program/Face-to-Face Mediation Services are responsi- 
ble for the administration of the Local Consumer Aid Fund (LCAF). The LCAF 
supports the state-wide network of nineteen Local Consumer Programs and 
seven Face-to-Face Mediation Programs through annual grants for the resolu- 
tion of consumer problems. The Local Consumer Program Coordinator and 
Mediation Services Coordinator and Assistant Coordinator provide continuing 
training and technical assistance to grant recipients. The LCPs and FTFMPs, 
working in cooperation with the Office of the Attorney General, resolve thou- 
sands of complaints each year, and also identify patterns of unfair and decep- 
tive acts and practices in the marketplace. 

Funding for the local programs is allocated by the General Court pursuant 
to G.L. C.12 §11G. In fiscal year 1993, $605,901 was appropriated by the legis- 
lature to the LCAF. Ten percent of that figure ($60,590) was retained by the 
Office of the Attorney General for administrative purposes. An additional 
$155,690, which had been earmarked for the LCAF from settlements of con- 
sumer cases, was used to supplement the legislative appropriation, for a total 
grant expenditure of $701,000 in 1993. 

In 1992, the nineteen local consumer programs handled over 12,000 writ- 
ten complaints, recovering over $2.5 million for consumers in the 
Commonwealth. The seven face-to-face mediation programs held 1067 media- 
tions, with 891 agreements made, for a settlement rate of 83%. 

In addition to its consumer complaint resolutions, the Mediation Services 
program has continued to implement its school-based mediation project. 
Student Conflict Resolution Experts (SCORE). There are now 16 schools taking 
part in the program, and the Office of the Attorney General has provided 
$100,500 in funding to these programs, from- settlements in consumer and 
other cases. In 1992/93, 700 mediations were held in these program; 95% 
resulted in agreements. Mediation Services also coordinated emergency 
responses to crises in Medford High, Boston English High, Haverhill and 
South Boston High. Volunteer mediators responded to these crises using their 
skills to resolve disputes and facilitate discussion to vent feelings. A number of 
the disputes involved threats of physical violence and racial issues, and 
SCORE was extremely effective in defusing the situations, providing a valuable 
resource to the affected schools. 

In June 1993, the Charles Hayden Foundation of New York gave $75,000 to 



90 P.D. 12 

SCORE and Metropolitan Mediation Services (MMS) to pilot a 3-year compre- 
hensive violence prevention program at Boston English's High School in 
Jamaica Plain. (Szafarowicz, Grant, Washburn, and many others) 

ENVIRONMENTAL PROTECTION DIVISION 

The Environmental Protection Division (EPD) serves as litigation counsel on 
environmental issues for various state agencies, particularly those within the 
Executive Office of Environmental Affairs. EPD handles all of the 
Commonwealth's civil litigation to enforce environmental protection pro- 
grams established by state statutes and regulations. EPD brings suits to enforce 
the Commonwealth's regulatory programs governing air pollution, water pol- 
lution, water supply, waterways, wetlands, hazardous waste, solid waste, bill- 
boards and pesticides. In addition, EPD is responsible for the 
Commonwealth's asbestos cost recovery litigation and matters arising from 
the operation of nuclear power plants. Based on the Attorney General's broad 
authority to protect the environment of the Commonwealth, EPD initiates 
and intervenes in state and federal litigation, and participates in administra- 
tive hearings before federal agencies on significant environmental issues. 

MONEY RECOVERED FOR THE COMMONWEALTH TREASURY: 

Civil Penalties and Payments: $3,269,734 

Hazardous Material Cost Recovery: $3,721,328 

Asbestos Cost Recovery/Damages: $1,188,072 

TOTAL: $8,179,134 

MONEY SAVED THE COMMONWEALTH: 

Many cases resulted in court judgments requiring private parties to under- 
take costly cleanups — a savings of millions of dollars for the Commonwealth. 

L STATE ENFORCEMENT 

One of the most important functions of EPD is to bring litigation to enforce 
state and federal environmental statutes. In the past fiscal year, EPD handled 
numerous major enforcement cases, including the following: 

A. Air Pollution 

Commonwealth v. CITGO Petrolemn Corp.: EPD obtained a consent judgment 
that requires air pollution control equipment for CITGO's truck and barge 
loading operations. In addition, the settlement requires CITGO to pay a total 
penalty of $1.7 million. Pursuant to the settlement, CITGO paid $200,000 to 
the Massachusetts Environmental Trust, a board administered by the 
Commonwealth to fund projects to benefit the Massachusetts environment. 

Commonwealth v. Teknor Apex Company: This case involved a factory in 
Attleboro that allegedly violated the state's Clean Air Act. As the case pro- 
gressed, EPD took a multi-media approach that examined all environmental 



P.D. 12 91 

compliance issues uncovered at the plant. EPD obtained a consent judgment 
in August, 1992 that required the company to pay an $850,000 penalty, and 
to invest over $2 million in environmental improvements, including the 
installation of air and water pollution treatment equipment. The judgment 
also required the company to come into compliance with environmental per- 
mitting requirements, to assess potential soil contamination at the site, and to 
reduce the use of toxics in its manufacturing processes. 

Commonwealth v. Consolidated Rail Corp. (Conrail): This case is the first of its 
kind in the nation to challenge the freight rail industry's practice of continu- 
ously idling its diesel locomotives. Unnecessary locomotive idling causes air 
pollution and creates severe smoke and nuisance problems for those living 
near train yards. EPD entered into a partial settlement agreement in the case 
under which Conrail agreed to stop unnecessary idling in warm weather com- 
pletely, and to reduce its idling in cold weather. As part of the settlement, 
Conrail also agreed to relocate idling locomotives to areas that reduce their 
impacts on nearby residents, and to test some innovative technology that 
could provide an alternative to winter idling. Other issues, including the rail- 
roads claim that federal law preempts the Commonwealth's request for addi- 
tional relief, are still pending. 

Conmionwealth v. Findley: This air pollution case involved a company in 
bankruptcy. As a result of a settlement approved by the bankruptcy court, the 
company will bring its emissions of certain toxic pollutants into compliance 
with the Clean Air Act and pay $100,000 out of the bankrupt estate. 

Commonwealth v. Brewer Petroleum: This matter involved the alleged failure 
of an employee of a gasoline distributor to comply with state air pollution reg- 
ulations that mandate the use of "vapor recovery equipment" when gasoline 
is transferred from a tank truck to tanks at service stations. EPD obtained a 
consent judgment in February, 1993 that enjoined further violations of the 
regulations and required the defendants to pay $40,000 in civil penalties. The 
settlement is also noteworthy in that it required defendants to publish an 
"open letter" to the gasoline distributor industry notifying it of the terms of 
the settlement and urging compliance. 

B. Water Pollution/Water Supply 

Commonwealth v. New England Power Company: New England Power allegedly 
used an inadequate chlorination system at its Brayton Point facility that 
caused a large fish kill. EPD obtained a consent judgment in July, 1992 that 
required the power company to switch to "targeted chlorination" to reduce 
substantially the use of chlorine. The judgment further required the power 
company to pay $500,000, including $315,000 in penalties, $100,000 in envi- 
ronmental damages, $75,000 to the Atlantic States Marine Fisheries 
Commission for a striped bass management plan, and $10,000 towards an 
environmental education project. 

Commonwealth v. Leahy Construction Company: In July, 1992, EPD resolved a 
case involving illegal disposal of "septage," the concentrated waste product 
produced by pumping out septic tanks. EPD obtained a consent judgment that 
required the defendant to pay $135,000, including a $100,000 penalty, 
$30,000 for an education project on the hazards of septage, and $5,000 to the 



92 P.D. 12 

Town of Holden Conservation Commission. 

Commonwealth v. Amesbury Circuit: EPD brought suit against an Amesbury 
manufacturer for allegedly discharging contaminants into the sewer system in 
violation of water pollution laws. The case was resolved through a consent 
judgment that required the company to install wastewater treatment/recy- 
cling equipment and to pay a $105,000 penalty. 

Commonwealth v. Diiro Industries: The Commonwealth alleged that the 
defendant violated state water pollution and hazardous materials laws by 
pumping the residual chemical contents of a storage tank into the sewer sys- 
tem. The defendant paid a $40,000 penalty. 

MWRA Cases: EPD began a new enforcement project with the Massachusetts 
Water Resources Authority (MWRA). For the first time, EPD initiated litigation 
on behalf of the MWRA to enforce violations of MWRA's regulations govern- 
ing the discharge of contaminants into the sewer system that may discharge 
into Boston Harbor. This project resulted in four consent judgments mandat- 
ing compliance with MWRA permits and regulations, and requiring payment 
of a total of $515,000 in penalties. The cases involved H.B. Fuller Corp. in 
Wilmington, Regalite Plastics Corporation in Newton, Lapuck Laboratories in 
Watertown, and Laser Photonics in Bedford. 

Municipal Septage Cases: A major environmental problem in the 
Commonwealth has been many towns' use of unlined lagoons for the disposal 
of septage. EPD and the Department of Environmental Protection initiated an 
ambitious project to close down unlined lagoons across the Commonwealth. 
As a result, lagoons in Sandwich, Truro, Wellfleet and Provincetown have been 
closed. EPD is currently seeking closure of noncomplying lagoons in other 
towns. 

Commonwealth v. City of Gloucester: An important part of EPD's work is to 
ensure that the municipalities of the Commonwealth adequately dispose of 
the sewage generated by their residents. In close cooperation with the federal 
government, EPD obtained a consent decree requiring the City of Gloucester 
to eliminate illegal discharges of raw sewage in north Gloucester by extending 
its sewer system to this area. The Commonwealth and Gloucester recently 
agreed to modify the federal court consent decree to allow the city to try to 
demonstrate that innovative subsurface disposal systems may be used in a 
portion of north Gloucester as an alternative to extending the sewer system. 

C. Hazardous Waste 

EPD brings lawsuits against responsible parties to remedy contamination 
caused by oil or hazardous materials, including litigation to recover costs 
incurred by the Commonwealth when it undertakes cleanup actions. Major 
hazardous waste cases that EPD handled in the last fiscal year include the 
following: 

PCB Contamination in New Bedford Harbor: This case was brought to its full 
conclusion in this fiscal year. Total recovery by the state and federal govern- 
ment is approximately $110 million. Most of this money will be used for the 
remediation and restoration of natural resources in New Bedford Harbor. 



P.D. 12 93 

Charles George Landfill: This case involves a heavily contaminated landfill in 
Tyngsborough. In December, 1992, the state and federal governments lodged 
a settlement with federal court that provides for payment by a number of 
defendants of over $35 million in costs and damages, of which $12 million 
will go to the Commonwealth. In July, 1993, the Commonwealth obtained a 
consent decree with the junior members of the George family to pay $3.1 mil- 
lion in costs and damages in connection with the landfill. 

Sullivan's Ledge Site: This Superfund site in New Bedford is on the National 
Priorities List. The state and federal government obtained a consent decree in 
1991 requiring private parties to perform a multimillion dollar cleanup on a 
portion of the site. In the last fiscal year, the governments reached a similar 
settlement for the remaining portion of the site. 

Silresim Site: The Silresim Superfund site in Lowell is a five-acre abandoned 
chemical waste recycling facility. The Commonwealth and the United States 
entered a consent decree in April, 1993 that requires 230 defendants to pay 
$41 million in a cash-out settlement for remediation of the site. 

McMahon v. Amoco: This matter involved leaking underground gasoline stor- 
age tanks that threatened to contaminate Provincetown's principal wellfield. 
Under a consent judgment entered this fiscal year, the Commonwealth will 
receive $1.8 to $1.9 million, and Provincetown approximately $1.2 million, to 
reimburse them for costs incurred or to be incurred in abating the problem. 

In re: The Circle K Corporation: Under a settlement filed in bankruptcy court, 
the Commonwealth will receive approximately $839,000 to be used toward 
the cleanup of various sites contaminated by leaking underground gasoline 
storage tanks . 

In re: Microfab: In another case involving a bankruptcy, the Commonwealth 
reached a settlement with the trustee-in-bankruptcy that freed up $400,000 to 
be used toward the cleanup of a hazardous waste site in Amesbury. 

Commonwealth v. Karam (a/k/a First Church): This case involved contamina- 
tion from underground gasoline tanks that leaked from a gas station into a 
nearby church in Weymouth. Pursuant to a consent judgment obtained in 
1993, the Commonwealth will recover $700,000 in cleanup costs. 

D. Wetlands 

Commonwealth v. Scannell: EPD obtained a permanent injunction barring the 
defendant from opening "great ponds" on Nantucket, a practice that involves 
digging trenches between the ponds and the ocean. The defendant had 
repeatedly engaged in this practice, with attendant destruction of enormous 
areas of wetlands and wildlife habitat. The court enjoined such action unless 
all necessary approvals are first obtained. 

Commonwealth v. Dicroce: The court ruled that the defendant illegally altered 
several acres of wetlands in Raynham. EPD also obtained a pre-judgment 
attachment in the amount of $100,000 to secure the Commonwealth's 
penalty claims. 

E. Pesticides 

Commonwealth v. Baptiste: This case involved an alleged misuse of pesticides 



94 P.D. 12 

in a cranberry bog that killed fish in a nearby ocean estuary. The consent judg- 
ment prohibited use of pesticides on the cranberry bog until the defendant 
implemented an effective water management plan, and imposed a $30,000 
penalty. 

F. Deceptive Environmental Advertising 

Environmental awareness has generated consumer demand for products 
that have a reduced impact on the environment. Unfortunately, some compa- 
nies have attempted to take advantage of this development by making decep- 
tive statements about just how "green" their products are. EPD and the 
Consumer Protection Division have been involved in a multi-state 
Environmental Marketing Task Force that has issued recommendations for 
responsible environmental advertising as well as taken enforcement actions 
against companies engaged in allegedly deceptive advertising. For example, 
the office reached a settlement with General Electric Company prohibiting 
advertisement of its "Energy Choice" lightbulbs as saving energy, reducing 
pollution or otherwise benefitting the environment relative to other bulbs, 
until the company can substantiate such claims with competent scientific evi- 
dence. The settlement also required GE to pay $165,000. 

II. CLEAN STATE INITIATIVE 

During the past year, EPD also focused on Attorney General Harshbarger's 
clean state initiative. The clean state initiative seeks to ensure that the state's 
own facilities are in compliance with environmental laws and that any envi- 
ronmental problems at state facilities are addressed promptly. Discussions 
between the AG's Office and Governor Weld's Office resulted in Governor 
Weld's issuance of an executive order designed to bring state agencies into 
compliance. Attorney General Harshbarger will monitor implementation of 
the executive order. 

III. INTER VENTION IN FA CILITY SITING PROCEEDINGS 

EPD intervenes in facility siting proceedings when it determines that such 
intervention is necessary and appropriate to protect the public health or the 
environment. In the past year, EPD has been involved in ongoing proceedings 
in opposition to the siting of coal-fired power plants that will produce signifi- 
cant amounts of air contaminants. These proceedings involve the Silver City 
facility in Taunton and the Eastern Energy facility in New Bedford. In addi- 
tion, EPD has intervened in the siting of the Interpower facility in Halfmoon, 
New York because, due to prevailing winds, the Berkshires will suffer the maxi- 
mum acid-deposit impacts from the proposed facility. 

IV. DEFENSIVE CASES 

One of the most important functions of EPD is the defense of lawsuits chal- 
lenging the regulatory and enforcement actions of state environmental offi- 
cials and agencies. These cases range from scores of small administrative 



P.D. 12 95 

appeals that challenge state permit decisions to larger "impact cases" involv- 
ing, for example, wholesale challenges to state environmental regulations. For 
example, in this fiscal year EPD prevailed in defenses against challenges to the 
Commonwealth's tidelands and wetlands protection regulations. 

V. AMICUS PARTICIPATION 

EPD participates as amicus curiae in matters that affect legal rights of the 
Commonwealth. This year, EPD filed a number of important amicus briefs, 
including one in a suit in federal court in New York defending states' ability to 
adopt air pollution regulations requiring low emissions automobiles. 



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 administra- 
tion thereof." (G.L. c.l2, sec. 8). The Division of Public Charities is established 
by G.L. C.12, sec. 8B to carry out the Attorney General's responsibilities in this 
area. 

To protect the public interest in this area, more than 8,000 charities are reg- 
istered with the Division, as well as 199 fundraisers operating in 
Massachusetts. A charitable organization is one which is non-profit, whose 
purpose is charitable and which benefits a portion of the public; in addition 
to philanthropic organizations, examples of public charities include nonprofit 
hospitals, schools, social service providers, and cultural organizations. As well 
as registering and obtaining financial reporting by charitable organizations 
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 
organization. 

In addition to enforcement of laws requiring annual reporting by public 
charities operating in the Commonwealth, the Division focused its activities 
during the last fiscal year in three primary areas: enforcement litigation and 
legislative reform to address deception and fraud in charitable fundraising; 
estate and trust actions to ensure charitable trust funds are appropriately 
administered and applied; and corporate governance and oversight initiatives 
to ensure charitable governing boards are carrying out their fiduciary duties of 
due care and loyalty. 

In partnership with the Attorney General's Advisory Committee on Public 
Charities, the Division has also undertaken a continuing public education 
campaign. In June 1993, the Attorney General hosted a statewide conference 
for charity board members and issued "The Attorney General's Guide for 
Board Members of Charitable Organizations," containing recommendations in 
key areas of charity stewardship. 

SOLICITATION OF CHARITABLE FUNDS 
The Attorney General takes affirmative legal action against charities and 



96 P.D. 12 

professional fundraisers for unfair or deceptive solicitation practices and to 
enforce their fiduciary duties with respect to funds raised. In addition to 
injunctive relief, he may seek restitution of funds intended by the public to 
benefit a specific charity, or particular charitable purpose, penalties, and fees. 

Following are examples of deceptive charitable solicitation cases in which 
the Division was involved in the last fiscal year: 

BLS Concepts d/b/a Safety Fact/Safety First, Barry Singer, Fleet Associates, fames 
Linehan, and Mitchell Brown 

In May, 1993, the Division brought suit against two professional solicitors 
alleging that they deceptively solicited charitable funds from the public by 
falsely representing that: (i) a for-profit New York company, Safety Facts/Safety 
First, was a charity; and, (ii) that donations to it would benefit Massachusetts 
school children through distribution of safety education materials in their 
schools. At the same time, a consent judgment was obtained against defen- 
dant Safety Facts/Safety First, permanently banning the corporation from 
doing business in Massachusetts. Stipulated preliminary injunctions also 
entered against the remaining defendants and litigation is on-going. 

The Chosen Children Foundation. Inc., Joel Weinstein and Eric Weinstein 

After ordering the officers of this charity for handicapped children to turn 
control over to a temporary receiver, in February, 1993, the court entered a 
preliminary order banning its directors from fundraising anywhere in the 
country, and ordering expedited discovery. In bringing suit against the 
Foundation and its directors, Joel Weinstein and his son Eric Weinstein, the 
Division seeks, inter alia, to permanently enjoin the Defendants from engag- 
ing in deceptive solicitation practices through the pervasive placement of coin 
collection cans in stores across New England and telephone sales of advertis- 
ing throughout the country. Misrepresentations made in the course of these 
solicitations included leading potential donors to believe their donations 
would support Make-A-Wish, an unconnected and well-established charity, 
and false representations that monies collected would be used for charitable 
purposes, when in fact, they were used for personal enrichment. 

Elite Systems, Robert Betti, Jeffrey Young and Howard Kustanovitz 

Following an investigation conducted in conjunction with the Registry of 
Motor Vehicles, in October 1992, the Division filed a complaint and obtained 
an agreed-to preliminary injunction prohibiting the defendants in this decep- 
tive solicitation case from engaging in charitable fundraising until further 
notice. The complaint alleges that the defendants deceived the public by mas- 
querading as inspectors with the Registry, State Fire Examiners office and local 
fire departments; made coercive suggestions of favorable treatment in return 
for a donation; and falsely represented that funds raised would be used for 
charitable purposes, when, in fact, they were used for personal enrichment. 

Association of Retired Police Chiefs. Inc. and Samuel Farrell 

The Division filed suit and obtained a stipulated preliminary injunction 



P.D. 12 97 

against this allegedly phony police chiefs organization and its president, 
Samuel Farrell, banning them from soliciting charitable funds during the 
course of litigation in May, 1993. In its complaint, the Division alleges that 
Farrell deceived donors by falsely stating that the chiefs organization was 
comprised of local police officers and that donations would be used to fight 
domestic and child abuse. 

David Gargano 

In July, 1992, judgment was obtained in this civil and criminal contempt 
action filed against David Gargano, the ring leader of a fraudulent fund-rais- 
ing group which raised more than $200,000 in charitable donations by imper- 
sonating police officers and other law enforcement officials. The court ordered 
Gargano to pay $100,000 in civil penalties and permanently barred him from 
engaging in telemarketing activities of any kind in Massachusetts. 
Concurrently, the Criminal Bureau prosecuted Gargano on larceny and decep- 
tive solicitation charges, to which he pleaded guilty and was sentenced to 
three-and-one-half years to five years at MCI-Cedar Junction. 

Global Entertainment and Richard Garden 

"The Big Circus" permanently folded its tent in Massachusetts, after a con- 
sent judgment was obtained in November, 1992, against a Sarasota, Florida 
corporation and its owner. In this case, the defendants approached non-profit 
groups in the Commonwealth, offered to raise funds for them by putting on 
circuses, and later cancelled the shows after tickets had been sold. In addition 
to a permanent injunction prohibiting future circus promotions or charitable 
solicitation campaigns, the defendants agreed to pay restitution to two organi- 
zations who sold tickets for the circus in an effort to raise funds. 

David Giovannucci d/b/a Professional Consultants and International Missing 
Children's Foundation 

In March 1993, the Division filed suit and obtained a consent judgment 
against David Giovannucci, a professional fundraiser doing business as 
Professional Consultants, requiring him to pay a $13,000 fine and prohibiting 
him from engaging in deceptive fundraising practices in the future. Three 
police and firefighter unions also signed Assurances of Compliance in this 
case and paid penalties and/or restitution in settlement of claims that 
Giovannucci's telemarketers represented themselves as police officers or fire- 
fighters and misled the public to believe all of the money donated would be 
used for charitable or governmental purposes when donations were actually 
used for union purposes. A preliminary injunction has been obtained against 
International Missing Children's Foundation, a California based charity on 
whose behalf Giovannucci was also soliciting, and litigation against this 
defendant is in progress. 

National Awareness Foundation. Sean O'Leary, O'Leary Enterprises, Marcus 
Smith, Bruce Derosier, Vincent Marchetti d/b/a Consult Telecommunications. 

In January 1993, the Division brought suit against the National Awareness 



98 P.D. 12 

Foundation, a Washington D.C. based charity which raises money under the 
name "Hugs Not Drugs," and obtained a consent judgment imposing a one 
year ban on all charitable solicitation by NAF in the state and $15,000 in resti- 
tution and fees. In its complaint against this charity and its professional solici- 
tors, the Division alleged the Defendants engaged in deceptive fundraising 
tactics by falsely implying "Hugs Not Drugs" was a local charity and stating 
that funds raised would benefit Massachusetts children through distribution 
of a drug awareness workbook in the local schools when, in fact, those claims 
were largely untrue. Consent judgments were subsequently obtained against 
Defendants Bruce Derosier, New Hampshire based Vincent Marchetti d/b/a 
Consult Telecommunications, and O'Leary Enterprises, Inc. Preliminary 
injunctions are also in place and litigation is ongoing against the remaining 
defendants. 

Kenneth Singer and Nationwide Productions. Inc. 

In a judgment obtained in November, 1992, in this civil contempt action, a 
Stoughton man who was the sole director and employee of Nationwide 
Productions, Inc. was ordered to pay $50,000 in civil penalties and was perma- 
nently enjoined from engaging in charitable solicitation in the 
Commonwealth or sitting on the boards of charitable organizations. Among 
other things, the defendant sold $100 tickets to an awards dinner ostensibly 
held as "a tribute to the most neglected segment of our society, the HANDI- 
CAPPED," and as a way to provide "'ROLE MODELS' to other disabled peo- 
ple," while disguising the true purpose of the event — which was to provide 
himself with a source of income. This contempt action was prompted by 
Singer's violation of two prior court orders. 

Suffolk County Corrections Officers Local 419. fake V. Kinoian d/b/a f.V.K. 
Enterprises, Kevin Flynn d/b/a Futuretel Communications. 

Court orders requiring a union of corrections officers and their fundraisers 
to pay $32,000 to the Attorney General's Local Consumer Aid Fund and pro- 
hibiting them from conducting deceptive fundraising campaigns in the future 
were obtained in March, 1993. The Division's complaint alleged that Suffolk 
County Correction Officers Local 419 and their professional fundraisers vio- 
lated the state's charitable solicitation and consumer protection laws during a 
phone solicitation campaign. The fundraisers misled the public to believe they 
were corrections officers raising funds solely for the benefit of certain hospital 
pediatric wards and failed to inform donors that they were paid solicitors. 

United Citizens Against Drugs and Richard Gold et al. d/b/a Massachusetts 
Charitable Services 

A consent judgment obtained in June, 1993, against Massachusetts 
Charitable Services, a local fundraising company, banned it from engaging in 
charitable solicitation in Massachusetts for five years. In a separate consent 
judgment United Citizens Against Daig (UCAD), a California based charity, 
agreed to pay $4,500 to the Attorney General's Local Consumer Aid Fund and 
to injunctive provisions governing future fundraising. The Division's com- 



P.D. 12 99 

plaint alleged that Massachusetts Charitable Services, on behalf of UCAD, 
engaged in deceptive charitable solicitation by falsely representing UCAD as a 
local charity and by falsely stating that local schools were affiliated with the 
solicitation and/or would benefit from donations to it. 

ESTATES AND TRUSTS 

In furtherance of his authority to "enforce the due application" of charitable 
trust funds and to "prevent breaches of trust in the administration thereof," 
the Attorney General is an interested party in the probate of all estates in 
which there is a charitable interest and in all other judicial proceedings affect- 
ing charitable trusts. Accordingly, the Division continued to handle a large vol- 
ume of cases in this area involving such matters as proposed allowance of 
accounts, will compromises, sale of real estate, change of purposes or beneficia- 
ries of charitable trusts and bequests, amendment of charitable trusts to meet 
IRS requirements, and termination of charitable trusts under G.L. c.203, §25. 
For example: 

Baybank South v. Attorney General (Parti) 

Partial summary judgment was obtained in this cy pres action arising out of 
cessation of operations at the Massachusetts Osteopathic Hospital. In granting 
the Division's motion, the Court found that general charitable donative intent 
will permit a three million dollar gift establishing the Florence Robertson Trust 
to be applied cy pres at the cessation of hospital operations. Part II of the case 
will concern selection of a successor beneficiary to receive trust income. 

Samuel Colsia Trust 

In April 1993, the Division consented to termination of this trust and distrib- 
ution of funds to the family after negotiating a settlement for a substantial sum 
to be distributed immediately for the benefit of disabled persons in the 
Commonwealth, in lieu of a trust with similar purposes to be established in 40 
years. 

DeTorrijos. et al. v. Miliora, et al. 

The Division successfully intervened in this civil action, thereby ensuring 
that charitable assets contained in the Theosophical Society Trust are protected 
while issues of internal governance are litigated. 

Fuller Trust, Inc. 

Established in 1933 under the will of Caroline Weld Fuller, the Fuller Trust's 
original purpose was to provide housing for women in need of a home at a rea- 
sonable expense. In 1988, the Trust's trustees obtained authorization to pro- 
ceed with development of a life care community, which has yet to be built. In 
May, 1993, the Probate Court reserved and reported seven questions to the 
Massachusetts Appeals Court, later lodged by petition in the Supreme Judicial 
Court of Massachusetts, in this matter concerning trustee expenditure of 
almost all of the Fuller Trusts liquid assets on pre-development costs, including 



100 P.D. 12 

sizeable legal fees to the Trustees law firms, to develop the life care community. 

Prior to the reservation and report, the Division negotiated a settlement 
agreement resulting in resignation of two trustees, both lawyers with promi- 
nent Boston area firms, and repayment of $250,000, each, to the Trust. It was 
the position of the Division that the trustees' actions caused the development 
of the facility to stall and become more difhcult to accomplish. The questions 
reported concern probate court jurisdiction to review the terms of the settle- 
ment agreement. 

At the end of the fiscal year, the Fuller Trust was in receivership and succes- 
sor trustees had been presented to the Court for appointment. 

Harvey Hanscom Trust 

In this matter, a decedent provided for a trust to accumulate for 25 years 
and then to be distributed to a college, his alma mater, as a scholarship fund. 
The trust has grown to over a million dollars, but the college went bankrupt a 
few years ago. In May 1993, the Division assisted the attorney for the trustees 
in bringing a petition for instructions prior to the trust's termination date. 
Division involvement continues, as a number of educational institutions have 
moved to be admitted as parties, claiming they are the most appropriate recip- 
ients of the trust funds. 

Henry Kupfer Estate 

Representing the Commonwealth as a specific legatee, the Division joined 
with counsel for the State of Israel and the United States, residuary legatees, in 
opposing the claims of two sisters who alleged they were promised the estate 
of the decedent in return for care and substantial services. In April 1993, a set- 
tlement was reached according to which the sisters received sums calculated 
in quantum meruit with the remainder of the disputed funds going to the 
legatees. 

Lynch, et al. v. Attorney General, et al. 

Judgment was entered on a cy pres petition developed in consultation with 
the Division, allowing the transfer of the 600-acre Ravenswood Park and its 
endowment, created in 1889 under the will of Samuel E. Sawyer, to The 
Trustees of Reservations (TTOR). The world's oldest land trust operating on a 
statewide or regional basis, TTOR manages 72 other open space reservations 
and wildlife refuges in the Commonwealth. 

Estate of Marion Mavrogenis 

In this case, the Division took the lead in the compromise of the will of a 
decedent who was murdered several years ago. Acting to protect the charitable 
interest in scholarships established under the will, the Division secured the 
appointment of fiduciaries in substitution for the individual named in her 
will, who was convicted of her murder, and negotiated a compromise agree- 
ment for allowance of the will. Trust funds presently exceed one million dol- 
lars and, as a result of the compromise agreement, award of scholarships 
began in 1993. As of June 1993, the status of the legacies to those in jail for 



P.D. 12 101 

the decedent's murder remained unsettled, as their appeals were pending. 
Springfield YMCA/Moses Trust 

The Division negotiated and assented to a cy pres petition, which was 
approved by the court in March, 1993, allowing both income and principal of 
a trust established for the benefit of the West Springfield YMCA to be used for 
the Springfield YMCA. The West Springfield YMCA has been closed. The 
Springfield YMCA was able to resolve serious financial problems with the help 
of the trust. 

In Re: The Estate ofWeltshe 

In June 1993, an order of the Essex Probate Court concluded this contested 
accounting matter in which the Division alleged that a trustee had charged 
the estate excessive fees. A voluntary reduction, negotiated by the Division, 
was allowed. This effectively terminated a charitable trust, with distribution of 
remaining funds to be made to the Greater Lawrence Community Foundation. 

Worcester City Hospital 

A cy pres petition developed in consultation with the Division, on which a 
favorable judgment was entered, shifted the use of hospital land formerly uti- 
lized for operation of an acute-care hospital to use as a general health care 
facility. 

CHARITABLE CORPORATIONS 

The assets of all charitable corporations and other public charities are con- 
sidered by law to be held by the charitable organization for charitable pur- 
poses. Under common law and G.L. c.l2, §8, the Attorney General represents 
the public's interest in the proper use of these assets. Under amendments to 
the non-profit 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 of all or substantially all of the char- 
ity's assets if the disposition involves or will result in a material change in the 
nature of the activities conducted by the corporation. G.L. c.l80, §8A(c). 

Bay State Health Care. Inc. v. Attorney General 

Bay State HMO, a registered charitable organization, was failing financially. 
As a strategy for the HMO's survival. Bay State and the Division of Insurance 
settled on dissolution of Bay State and a transfer of assets and designated lia- 
bilities to Blue Cross-Blue Shield. This Division reviewed the proposed transac- 
tion and negotiated changes in it, while keeping communications open with 
concerned hospitals and other providers. The Division filed an answer and 
assent stating that the Attorney General concurred with the judgment of Bay 
State and the Division of Insurance that the proposed transaction was the last 
and only feasible alternative available for resolving this emergency in a man- 
ner that assured uninterrupted service to Bay State's plan members, and that 
the terms of the transaction were necessary in order to continue this health 
care coverage without imperiling the financial stability of the transferee. Blue 



102 P.D. 12 

Cross-Blue Shield. Because time was of the essence, the Division also inter- 
vened to oppose attempts, one in Middlesex Superior Court and one in the 
SJC Single Justice session, to stop the transaction. The SJC Single Justice 
approved the transaction, and Bay State was dissolved with assets and desig- 
nated liabilities transferred to Blue Cross-Blue Shield. 

In the matter of the Bwokline Firefighters Association 

After an investigation into allegations of deceptive charitable solicitation 
and misuse of charitable funds by members of this firefighters union, in June 
1993, the Division obtained an Assurance of Compliance from the Brookline 
Firefighters Association. Under this agreement, the union agreed to make 
restitution in the amount of $22,205 and to conduct any future charitable 
fundraising in compliance with Massachusetts law. The restitution will benefit 
the Brookline Multi-Service Center, an organization serving the elderly of 
Brookline. 

Biirbank/Leominster Hospital 

In June 1993, after lengthy negotiation, the Division assented to a cy pres 
petition merging two hospitals through transfer of control of the two con- 
stituent corporations' assets to a new parent corporation. Division approval 
was predicated on the agreement, upholding the intent of an original hospital 
trust, that the new corporation will continue to operate an acute care hospital 
in Fitchburg and/or Leominster. 

Isabella Stewart Gardner Museum v. Attorney General, et al. 

The Gardener Museum sought court approval to alter its premises by build- 
ing a gallery on the first floor of the museum for periodic exhibits of art works 
not already owned by the museum. Court approval was necessary because of 
the provision in Isabella Stewart Gardner's will prohibiting the trustees from 
moving any art object or bringing in any art objects not already on display in 
the museum. The museum contended that the space in which it wanted to 
build the gallery did not fall within the prohibition. After investigation the 
Attorney General agreed with the allegations of the museum that such a 
gallery did not violate the provisions of the will and were necessary in order 
to more effectively carry on the purpose of the museum. Court authorization 
to build the gallery was granted in August 1992. 

New Bedford Glass Museum v. The Attorney General, et al. 

Voluntary dissolution of this hnancially-troubled museum involved compli- 
cated issues relating to the proper distribution of the museum's glass collec- 
tion and archival materials. With the Division's guidance, the museum fol- 
lowed a procedure which invoked both trust law and ethical codes governing 
museum collection management in order to identify proper beneficiaries. The 
Supreme Judicial Court ordered the collection to be distributed according to 
the museums plan and dissolved the museum in August 1992. 



P.D. 12 103 



SIGNIFICANT DIVISION INITIATIVES 

"The Attorney General's Guide for Board Members of Charitable Organizations" 

In June, 1993, the "Attorney General's Guide for Board Members of 
Charitable Organizations," a project of the Division and the Attorney 
General's Advisory Committee on Public Charities, was published. Intended to 
help board members of charitable organizations in the exercise of their fidu- 
ciary duties, the Guide contains recommendations in key areas of charity 
stewardship. To date. Charities staff have mailed over 27,000 copies of the 
Guide, available at no cost to members of the public, and 2,000 copies of a 
supplemental Board Members packet. 

Statewide Conference: "Non-Profit boards: Are You Doing The Right Thing?" 

The Guide was presented on June 9, 1993, at a statewide educational confer- 
ence hosted by the Attorney General for members of charity boards entitled 
"Non-Profit Boards: Are You Doing The Right Thing?" The conference was 
attended by an over-capacity 630 participants representing a wide range of 
organizations from the smallest volunteer charities to the largest hospitals and 
universities in the state. After a keynote address by the Attorney General, two 
panels of speakers discussed a variety of topics including "Structure, 
Development & Function of an Effective Board" and "Monitoring the 
Organization's Financial Health." 

Division Admhiistration and Statistics 

Enforcement of laws requiring accountability by public charities is central to 
Division responsibilities with respect to charitable funds. With the exception 
of religious organizations and certain federally chartered organizations, all 
public charities must register with the Division and all registered charities 
must submit annual financial reports. The registrations and financial reports 
are public records and public viewing files are maintained. The Division 
responded to over 2,700 requests to view files in the past fiscal year and, in 
response, approximately 6,200 files were pulled. 

Charitable Organizations: Registration and Enforcement 

From July 1, 1992 through June 30, 1993, the Division processed approxi- 
mately 10,500 annual financial reports and annual filing fees totalled 
$550,830.00. During this period, 1,700 new organizations were reviewed, 
determined to be charitable, and registered. Each was sent the Division's 
packet of information about the Divisions registration and filing require- 
ments. 

As part of an ongoing compliance program, the Division contacted approxi- 
mately 3,000 charities whose annual filings were deficient or delinquent to 
rectify filing deficiencies. 

Issuance of Certificates to Charities Who Fundraise 



104 P.D. 12 

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 certificate applications for compliance with statu- 
tory requirements. Unless there is a deficiency in the application, all certifi- 
cates are issued within a 10-day statutory period. 

This year, 3,814 certificates were received and processed. 

Registration of Professional Solicitors and Fund Raising Counsel 

Under §§22 and 24 of G.L. c.68, all persons acting as professional solicitors, 
professional fundraising counsel, or commercial co-venturers in conjunction 
with soliciting charitable organizations must register annually with the 
Division. Solicitors and commercial co-venturers 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 organi- 
zation, and solicitors must later file a financial return regarding each fundrais- 
ing campaign. 

During the fiscal year ending June 30, 1993, a total of 199 registrations were 
received and approved, resulting in $43,500.00 in fees to the Commonwealth. 
Registrations were received from 67 solicitors, 112 fund-raising counsel, and 
20 commercial co-venturers. 

Wills, Trusts, and Other Probate Matters 

During the past fiscal year, the Division received and reviewed 1,950 new 
wills, 1,824 of which contained charitable bequests. Also, 1,662 executor and 
trustee accounts were reviewed and approved, along with 877 final accounts, 
626 of which were closed. In addition, numerous petitions were reviewed, 
negotiated and assented to; including 134 petitions for sale of real estate and 
73 petitions to terminate trusts. 

Also during the year 61 new probate cases were opened; the Division was 
involved in 48 actions on existing probate cases; and over 261 small trust 
funds were transferred to charitable beneficiaries under G.L. c.203, sec. 25, 
resulting in more income to charities by reason of elimination of administra- 
tive costs. 

Public Administration 

The Division represents the State Treasurer in the public administration of 
intestate estates which escheat to the Commonwealth because the decedent 
had no heirs. During July 1992 - June 1993, $226,731.00 was received in 
escheates. The Division reviewed and approved 118 intestate estates, 182 
estates were closed, and 148 other miscellaneous public administration mat- 
ters were handled. 

Dissolutions 

In order to cease corporate existence, charitable corporations must dissolve. 
To enforce the public's interest in the disposition of charitable assets, the 
Attorney General is a party to all voluntary dissolutions of charitable corpora- 



P.D. 12 105 

tions under G.L. c.180, §11A. After review, negotiation of necessary modifica- 
tions, and assent by the Division, the pleadings are filed by the dissolving 
charity in the Supreme Judicial Court. After review, the Division assented to 
46 motions for interlocutory orders permitting transfer of assets to other char- 
ities for similar charitable purposes, and to 88 final judgments dissolving char- 
itable corporations. Also during the fiscal year an Omnibus Petition was filed 
to dissolve a group of 29 inactive charitable corporations under G.L. c.180, 
§11B. 

TABLE 1: Money Recovered For The Commonwealth Treasury 

A. Charitable Registrations, Certificate Fees, $594,330.00 And Fundraiser 
Registrations 

B. Escheats $226,731.00 



REGULATED INDUSTRIES DIVISION 

The Regulated Industries Division represents consumer interests in regard to 
two specific industries: insurance and public utilities. Although some of the 
Division's work is carried on in state and federal courts, most is performed 
before administrative regulatory bodies: the Massachusetts Department of 
Public Utilities, the Federal Energy Regulatory Commission, the Federal 
Communications Commission, and the Massachusetts Division of Insurance. 
In many of these matters, particularly public utility rate cases, the Division is 
the only active participant advocating on behalf of Massachusetts consumers. 

INSURANCE 

The division's representation of consumer interests in insurance matters is 
divided into several distinct categories. The division intervenes in both auto- 
mobile and health insurance rate setting proceedings. The division also has a 
consumer protection and insurance enforcement component: through the 
Office's consumer hotline and direct mail and telephone communications, the 
division receives many consumer questions and complaints. Through media- 
tion, negotiation and, if necessary, litigation, the division obtains both restitu- 
tion and injunctive relief for insurance consumers. Finally, the division 
engages in non-case related work to advance insurance consumer interests, 
including legislative, educational, and other outreach activities. 

RATE CASES 

1 993 Private Passenger Automobile Insurance Rates: 

Beginning with its evidentiary filing in July of 1992, the division challenged 
the insurance industry's request for an 11.25% increase over the previous 
year's premiums ($300 Million, or $95.00 per car). After several days of eviden- 
tiary hearings and responsive briefs by the parties, on December 22, 1992, the 
Commissioner of Insurance fixed the 1993 average rate at a level 5.2% higher 
than the 1992 average rate but 58% lower than the increase requested by the 
insurance industry. The division's intervention resulted in savings to con- 



106 P.D. 12 

sumers of $150 million, or $45.00 per car. 

On January 8, 1993, the AIB (Automobile Insurance board) appealed the 
decision of the Commissioner to the Supreme Judicial Court and on June 8, 
1993, the Supreme Judicial Court remanded the case to the Commissioner for 
recalculation of the cost containment adjustment in accordance with the 
Court's finding that certain of the Commissioner's assumptions were faulty on 
review of the decision. In the remand proceeding, the division argued that the 
Commissioner's original calculation was reasonable, notwithstanding an 
apparent oversight in the explanation of that calculation and that, therefore, 
no recalculation was necessary. A decision by the Commissioner was pending 
at year end. 

1994 Private Passenger Automobile Insurance Rates: 

Proceedings concerning 1994 automobile insurance rates began in April of 
1993 with the annual hearing called by the Commissioner to determine 
whether it was necessary be fixed and established 1994 rates in accordance 
with G.L. c. 175 § 113B. The division participated in these hearings and rec- 
ommended that market conditions continued to require that rates be fixed 
and established. 

HEALTH CARE RATE ISSUES 

1993 Blue Cross ami Blue Shield of Massachusetts 
Non-Group Health InsuranceRates 

Following hearings held in the summer of 1992 in which the Division par- 
ticipated as the representative of consumer interests, in February, 1993 the 
Commissioner of Insurance issued her decision establishing Blue Cross' 1993 
non-group health insurance rates. As a result of the division's advocacy, the 
Commissioner reduced the magnitude of the increases proposed by the Blues 
— 39.6 percent composite increase in premiums for the Managed Major 
Medical Health Statement insureds and a 49.4 percent composite increase in 
premiums for Group Conversion insureds — to a 23.6 percent increase for 
both of insureds. The overall savings as a result of this decision equalled more 
than $30 million or approximately $600 per average insured. 

1993 Blue Cross and Blue Shield of Massachusetts 
MEDEX Insurance Rates: 

On August 3, 1992, BCBS sought a proposed 18 percent increase in the pre- 
mium rates for its MEDEX Medi-gap insurance products, which are purchased 
by Massachusetts seniors to cover deductibles, co-payments, and services not 
covered under the Medicare health insurance program. The division partici- 
pated in hearings before the Division of Insurance on behalf MEDEX sub- 
scribers and challenged various cost projections in the BCBS Filing. In 
February of 1993, the Commissioner issued a decision reducing the proposed 
average rate increase to 14.7 percent. 



P.D. 12 107 



1994 Blue Cross and Blue Shield of Massachusetts 
Non-Group Health Insurance Rates: 

In April of 1993, BCBS sought a 23.6 percent average increase in the pre- 
mium rates for its non-group health insurance. Evidentiary hearings began in 
May, with the division sponsoring the testimony of two experts. Hearings con- 
tinued through June and a decision was pending at the close of the fiscal year. 

Consumer Protection/Enforcement 

The division also engaged in non-rate case related insurance work during 
fiscal year 1993 that involved consumer protection issues and/or enforcement 
of the Commonwealth's insurance laws. Representative matters include: 

City of Cambridge, et al v. Attorney General: 

In October of 1992, the division entered into a consent judgment with Blue 
Cross and Blue Shield of Massachusetts which was filed with the Suffolk 
Superior Court concluding this case that was initiated by BCBS and seven 
municipalities seeking a declaration that Proposition 2V2 obviated the need to 
provide certain "mandated" health benefits to the participants in their health 
insurance plans. In an earlier decision, the Supreme Judicial Court had 
rejected this argument. The division asserted that the blues had to provide 
coverage for chiropractic and infertility treatment and diagnosis on and after 
July 1, 1988. The terms of consent judgement provide that the Blues must: (1) 
review and pay valid claims for chiropractic and infertility treatment services 
rendered to City of Cambridge employees who are insured by BCBS (at the 
date of signing the Consent Judgments, BCBS had already paid $74,377.57 of 
these claims); (2) pay $20,000 to the Massachusetts Caring for Children 
Foundation for the provision of primary and preventive health care to chil- 
dren of limited means in the City of Cambridge (the Foundation is a charity 
that buys health care coverage for school age children who have no health 
insurance and are not eligible for Medicaid); (3) pay $20,000 to the Attorney 
General for the costs of the investigation and litigation; and (4) comply with 
all mandated health care benefits provisions of M.G.L. C.176A and 176B, not 
just those applying to chiropractic and infertility treatment, for all the health 
care programs which it provides or administers for the City of Cambridge. 

Commonwealth v. Poitras ("Massachusetts Lobstermen's Association"): 

The case began in April of 1990, when the Office filed a complaint in 
Suffolk Superior Court against the Massachusetts Lobsterman's Association 
(MLA) and several other defendants. The suit alleged that although the defen- 
dants were not licensed insurers, they had marketed and sold an accident and 
health insurance plan to fishermen and others in Massachusetts, refused to 
pay legitimate claims of close to $3 million; repeatedly misrepresented the 
existence of insurance coverage and claim payments; and induced participants 
to remain in the plan by falsely informing them that prior claims would be 
paid by a successor administrator if they would pay an additional $50.00 to 
the company. In September of 1992, the defendants' motions for summary 



108 P.D. 12 

judgment were denied. An attachment on MLA's property in Scituate was 
obtained in addition $200,000 of MLA funds already held in escrow. Discovery 
and the resolution of several motions proceeded during the year and a trial 
date has been set for August. 

Life Insurance and Annuity Product Complaints: 

The division resolved several consumer complaints concerning life and 
annuity products, including complaints that these products were marketed 
deceptively as investments and that agents were taking advantage of con- 
sumers through the cancellation of existing policies and the use of the cash 
value proceeds to fund new policies. As a result of the division's investigations 
and intervention with insurance companies, consumers of General Service 
Life Insurance Company, Prudential Insurance Company, Metropolitan Life 
Insurance Company, and Midland National received benefits in excess of 
$200,000. 

Misclassification House With Subsidized Tenants: In response to a complaint 
that a local insurer had mis-classified buildings with subsidized tenants as 
public housing units and therefore denied elibigility for lower insurance pre- 
miums, the division obtained the insurer's agreement to stop this practice. 
The division is working with the Division of Insurance on a plan to inform 
the entire industry as to the appropriate definition of public housing for clas- 
sification purposes. 

Health Care: Continuous health insurance coverage, a priority of the 
Attorney General, motivated the division's involvement with Thorbahn 
Insurance Agency — the administrator of a group plan. Resulting from the 
Attorney General's intervention, continuous health insurance coverage was 
achieved for a group of retired seniors whose coverage had been cancelled due 
to the failure of the administrator to make timely payments. Additionally, the 
administrator agreed to refund $66,150 in premiums which had not been 
timely transferred. 

The division addressed Claddagh Home Health Aid Services, an employment 
agency which represented itself as employing registered nurses, when in fact it 
did not. The division received complaints from concerned individuals regard- 
ing care being given by non-registered individuals. The division is presently 
investigating this company and its operation with investigators from the Civil 
Investigations Division. 

The division initiated several investigations into products aimed at senior citi- 
zens. Some of the products analyzed were found to be unauthorized legal 
insurance plans. Legal insurance plans are required by law to file and follow 
detailed application and reporting procedures for licensing with the Division 
of Insurance. Pre-paid Legal Services offered such a plan through a senior citizen 
organization (American Association of Senior Citizens (AASC) had previously 
entered into an Assurance of Discontinuance with the Attorney General's 
Office). A multi-state Attorneys General Task Force was formed to coordinate 
action against Pre-Paid Legal. The task force is involved in negotiations with 
Pre-Paid Legal to reimburse consumers in Massachusetts and other states for 
the portion of their AASC joining fee that was paid to Pre-Paid. 

Consumer hot-line and paralegal resolution of inquiries and complaints During 



P.D. 12 109 

the fiscal year, the division received more than 400 telephone inquiries; 166 
written complaints received of which 141 were resolved and 25 complaints are 
pending; with an estimated $116,000 in refunds and benefits to consumers. 

OTHER ACTIVITIES 

The division has also initiated a large-scale investigation to assess availabil- 
ity of insurance to urban and low-income areas. Assistant attorneys general 
have met with individuals to investigate claims of discrimination in the pur- 
chase of insurance, industry representatives, insurance agents, community 
groups, the FAIR plan and industry trade associations. The division is working 
closely with members of the Civil Rights Division and the Civil Investigative 
Division on this project, and it is ongoing. 

In addition to involvement in rate hearings, the division also took a proac- 
tive position in reform through commissions and legislative actions. During 
the summer of 1992, the Non-Group Commission, including members of the 
division as designess of the Attorney General, continued to meet to try to 
reach a consensus as to how to reform the non-group market. The commis- 
sion had been initiated by the Attorney General because of his concern for ris- 
ing costs of health care. While the Commission came to some consensus as to 
the problems that have arisen in the non-group market, consensus was not 
reached as to a solution. As a result, the division drafted proposed legislation, 
in December 1992, which was sponsored by the Honorable Carmen Buell and 
which called for both: (1) market reform of the non-group market in 
Massachusetts; and (2) a tax credit to make a basic health insurance product 
more affordable to those most in need. The division assisted the Attorney 
General in the preparation of his testimony before the legislature supporting 
this legislation. This legislation is still pending. In the meantime, the division, 
as part of the Attorney General's Health Care Task Force continues to consider 
other legislation which might be filed, particularly to ensure a smooth with 
the anticipated federal health care reform. 

During fiscal year 1993, members of the division also participated in the 
Medigap Commission appointed as a special working group by Consumer 
Affairs Secretary Gloria Larson. The commission was charged with reviewing 
the Medicare supplemental (medigap) insurance market in Massachusetts and 
to make recommendations for needed changes. The Commission issued its 
report on November 10, 1992, recommending various programs to make 
medigap more accessible and more affordable while maintaining a choice for 
consumers among medigap products. 

CONSUMER ISSUES 

A member of the division frequently sits as the Attorney General's designee 
on the Boston Committee on Access to Health Care. This Committee presents a 
report each year on the level of access to health care in the City of Boston, 
and offers recommendations to improve access. 

This year's report includes recommendations on the free care pool: the 
range of services covered by the free care pool should include preventive, pri- 
mary, ambulatory, and inpatient care; the free care pool should be adequately 



110 P.D. 12 

funded and services should be delivered more cost effectively in the most 
appropriate setting; there should be increased consumer education about 
access to care for the uninsured. 

The Attorney General stressed the need to support the design of commu- 
nity-institutional partnerships for outreach to the uninsured. Effective pro- 
jects are those developed through joint needs assessment and which are lin- 
guistically and culturally sensitive to the community. 

In October of 1992, a member of the division appeared on behalf of the 
Attorney General before the Commissioner of Insurance during hearings on 
an industry proposal to sell cancer insurance. The Attorney General presented 
both written and oral testimony. The Attorney General urged the 
Commissioner to retain the ban on cancer insurance because it is of little eco- 
nomic value and tends to be marketed in an abusive manner. The ban on 
these policies is still in effect. The division spent considerable time and effort 
preparing for the Insurance and Health sections of the National Association of 
Attorneys General Conference. The Attorney General, as chairman of the 
National Association of Attorneys General's Health and Insurance committee, 
as well as several Massachusetts Assistant Attorneys General, addressed the 
assembled representatives on a variety of Insurance and Health related topics. 

Members of the division were Guest Speakers to several organizations. Some 
of these activities included speaking at the mid-winter meeting of the 
Massachusetts Bar Association in January, 1993, on the topic of continuation 
of health insurance for divorced spouses; at Brandeis University in April of 
1993, at a convention for Protection for Elder Consumers, providing an 
overview of the Regulated Industries Division, and also on the integration of 
Medicare, Medigap, and health insurance policies; in May of 1993, at Holy 
Cross to another group of Senior Advocates on the issue of financial exploita- 
tion of elders and people with Disabilities; also in May, to the local UAW - 
4222 Retirees Chapter regarding retiree health benefits; and in June of 1993, 
to the "Stroke-Club" at Jordan Hospital in Plymouth, about insurance issues 
including long-term health care and balance-billing in Medicare. 

As stated previously, members of the Division participated in legislative 
efforts by drafting legislation, providing interpretive legal analysis in response 
to queries from legislators, and participating in round-table discussions with 
the health care community. These efforts focussed on Medigap reform. Non- 
group reform, and access to health care. 

UTILITIES 

The Attorney General is the designated representative of Massachusetts 
ratepayers in utility rate matters pursuant to M.G.L. c.l2 § HE. The Utilities 
section is the primary, and usually the only, representative of consumer inter- 
ests in gas, telephone, and electric rate and related matters within the 
Commonwealth. Most of the rate cases in which the Division appears are both 
heard and decided by the Department of Public Utilities (DPU). The Utilities 
section also appears on behalf of Massachusetts ratepayers before the Federal 
Energy Regulatory Commission (FERC) and Federal Communications 
Commission ( FCC) . 

The following are examples of the many different cases the division handled 



P.D. 12 111 

during fiscal year 1992-1993: 
RATE CASES 

In March 1992, Massachusetts Electric Company (MECo), DPU 92-78, filed a 
request for a $66 million or 4.8% increase to its base rate revenues. The 
Division represented ratepayers at 16 days of hearings before the DPU during 
the four weeks beginning June 4, 1992. In September 1992, the DPU allowed 
MECo a $45.6 million or 3.3% increase in its rates. 

The Division intervened at the DPU to oppose New England Telephone's 
(NET), third request in a continuing series of annual increases in basic residen- 
tial rates, DPU 92-100. The DPU granted the rate increase but also approved a 
Partial Settlement with the Division which requires NET to increase its efforts 
to notify low-income consumers of low-cost telephone service options and to 
limit its efforts to sell extra-cost optional services to such consumers. NET 
must also seek to place additional pay phones in low-income neighborhoods 
and notify customers in Dorchester, Roxbury and Mattapan about how to 
obtain satisfaction of their complaints for poor service. 

In April, 1992, Bay State Gas Company, DPU 92-111, filed with the DPU tariff 
schedules of proposed rates and charges designed to increase the Company's 
annual retail gas revenues by $20,646,572 or 7% percent. The Division inter- 
vened in the case before the DPU on behalf of the ratepayers of the 
Commonwealth. Eighteen days of evidentiary hearings were held at the 
Department beginning June 23, 1992. As a result, the DPU issued its order on 
October 30, 1992, allowing Bay State Gas to file new schedules of rates and 
charges to produce additional gross revenues of $11,523,418. 

In April 1992, Boston Edison Company (BECo), DPU 92-92, filed a request for 
an $87 million or 10% increase to its base rate revenues. The Division repre- 
sented ratepayers at 23 days of hearings before the DPU during the five weeks 
beginning June 15, 1992. The DPU accepted a Partial Settlement filed by the 
Division, BECo and the Division of Energy Resources which avoided any rate 
increase for the first year, and limited rate increases in the two following years 
to $29 million (less than 2.5%). The Settlement also expanded eligibility for 
residential low income rates and instituted performance incentives for ECo's 
fossil fuel generating units as well as the Pilgrim nuclear plan. 

In June 1992, Eastern Edison Company (EECo), DPU 92-148, filed a request for 
a $16 million or 8.2% increase to its base rate revenues. The Attorney General 
represented ratepayers at 15 days of hearings before the DPU during the four 
weeks beginning August 24, 1992. The DPU accepted a Partial Settlement filed 
by the Attorney General and EECo which limited the rate increase to $8.1 mil- 
lion and further limited the increase to residential customers to 1.1% overall 
(including demand-side management costs). The Settlement also expanded 
eligibility for residential low income rates. 

In October 1992, the Berkshire Gas Company filed a request for a $2.4 million 
or 5.45% increase to its base rate revenues, DPU 92-210. The Attorney General 
represented ratepayers at 12 days of hearings before the DPU during the four 
weeks beginning December 3, 1992. On March 31, 1993, the DPU rendered its 
decision on Berkshire Gas Company's request to increase its rates. In its deci- 
sion, the DPU cut the Company's proposed increase by nearly 50 percent (it 
allowed an increase of $1.25 million notwithstanding the fact that the 



112 P.D. 12 

Attorney General had argued that the DPU should cut Berkshire's rates by 
almost $800 thousand) and accepted the Attorney General's argument that 
the Company should not be allowed to initiate a so-called "weather stabiliza- 
tion adjustment" that would work to increase [what is this c (decrease)] its 
prices when the average temperature in a given period is warmer [and this c 
(colder)] than "normal." Importantly, in reaching its decision, the DPU articu- 
lated a new and novel rate-making principle that would bar any challenge to 
the appropriateness of a company earning a return on and of any investment 
once it has been included in the "rate based" used to establish rates. This 
holding is contrary to many years of regulatory practice and the Attorney 
General sought reconsideration of this decision in a motion filed in April of 
1993. No decision has yet been rendered on this motion. 

Cambridge Electric Light Company, a subsidiary of Commonwealth Energy 
System which serves the metropolitan Cambridge area, had requested an 
increase in its electricity rates of $10.1 million or 9.3 percent, DPU 92-250. 
Such an increase, if allowed, would have raised the monthly bill of a residen- 
tial customer who used 450 kwh per month by approximately $4.95. Rate 
design, intra-company cost allocations, rate of return and efficiency of man- 
agement were some of the issues under review and subject to discovery. 
Hearings began in February of 1993 and were completed later that month. 
The Attorney General's Initial Brief, setting out the position of the Office, was 
submitted on March 26, 1993. On May 28th, 1993, the DPU rendered its deci- 
sion, cutting the Company's proposed increase by approximately 30%. The 
decision did, however, allow an increase of $7 million notwithstanding the 
arguments of the Attorney General that the DPU should allow no increase in 
excess of $2.1 million, and the DPU's own finding that Cambridge Electric's 
management was deficient. 

On April 15, 1993, Boston Gas, DPU 93-60, requested approval of a rate 
increase of $61.9 million or 11 percent. Discovery was conducted in April and 
May. Evidentiary hearings began on June 15 and will conclude on July 23. Our 
Initial Brief is then due August 20 with a reply brief set for September 14th. 
The DPU decision will be out by November 1, 1993. Also on April 15, 1993, 
Colonial Gas Company, DPU 93-78, requested approval of a rate increase of 
approximately $10.7 million or 7.87 percent (the proposed increase for the 
Company's Lowell Division is 8.61 percent and 6.8 percent for the Cape Cod 
Division). Under the Company's proposed inter-class allocation of costs, there 
would be a 16 percent average increase for the residential non-heating cus- 
tomers in the Lowell service area and a 14.9 percent increase for those in the 
Cape Cod service area. Four weeks of evidentiary hearings will be held during 
the period from June 21 through July 16. Our Initial Brief is due August 13 
and our Reply Brief on September 8. 

On May 15, 1993, Essex Gas Company, DPU 93-107, requested approval of a 
rate increase of approximately $2.9 million or 7.25 percent. A public hearing 
was held in Haverhill during an evening in June during which one city repre- 
sentative/ratepayer and one residential ratepayer appeared and stated their 
opposition to the proposed rate increase. Although we are conducting discov- 
ery in this proceeding, a prehearing conference has yet to be held and a proce- 
dural schedule has not been established. Evidentiary hearings will likely begin 



P.D. 12 113 

in mid to late July with briefs to be filed in September. 

The Attorney General intervened at the Federal Energy Regulatory 
Commission (FERC) to oppose the rates proposed by the owners of the Ocean 
State II (OSPII) power plant in Rhode Island. The rates affect Massachusetts 
ratepayers because OSPll sells power to Boston Edison Company and to affili- 
ates of Massachusetts Electric Company and Eastern Edison Company. The 
FERC allowed the proposed rates, even though the Petitioners did not satisfy 
FERC standards on self-dealing (adopted since the inception of the project) 
which require that projects selling to companies affiliated with owners must 
show that proposed rates are comparable to rates based on a competitive market. 

The Attorney General also intervened at the Federal Energy Regulatory 
Commission (FERC) to oppose the change proposed by FERC Staff in the allo- 
cation of savings and generating costs following the merger of Montaup 
Electric Company with Newport Electric Corporation. Although the merging 
companies had contracted to allocate the bulk of savings to Montaup based 
on its much larger generating capacity, the FERC found that Montaup and 
Newport must split the savings. This decision has the effect of adding about 
$1 million annually to Montaup's costs, most of which will be collected from 
the ratepayers of Eastern Edison Company. 

The Yankee Rowe decommissioning case, FERC ER92-592-000, was settled and 
final approval of the Settlement is pending at the Federal Energy Regulatory 
Commision (FERC). With regard to decommissioning, this Settlement leaves 
unresolved the question of the cost that will be borne by ratepayers. Any deci- 
sion on that issue has been put off until a site plan (green spacing, repowering 
or low level waste repository plan) has been adopted by Yankee Atomic and 
approved by the Nuclear Regulatory Commission (NRC). To the extent that 
the Attorney General is concerned with the path chosen by the Company, the 
Settlement provides for 40-day confidential preview of Yankee's NRC filing 
with a three week comment period. This is after public hearings the NRC will 
require in advance of Yankee's plan formulation. 

What the Settlement does provide for is a $3 million reduction in the $48.6 
million amount of unrecovered investment in the plant including $21 million 
in owner's equity. The interveners generally felt "a degree of discomfort" argu- 
ing in favor of keeping this 30 year old nuclear plant open, an argument of 
dubious merit given the NRC safety rehabilitation costs, seven year license life 
and current glut of baseload power. It was also a concern that advocating non- 
recovery of unamortized plant balances would provide a "perverse incentive" 
to companies considering the closure of plants in the "autumn" of their eco- 
nomic lives. Facing possible nonrecovery of their unrecovered plant invest- 
ment might provide too stringent a potential penalty and cause utilities to 
keep uneconomic plants open beyond their useful, safe and economic lives. 
The bottom line is that the intervenors settlement position can be read as 
their having a reasonably high degree of comfort with the company's decision 
to close the plant. 

On June 14, 1993, New England Telephone (NET), DPU 93-125, filed its third 
annual rate restructuring proposal in which it seeks to increase the average 
monthly residential flat rate local service by $1.96: from $14.88 to $16.84 
(this is the third such filing since the DPU's 1990 decision mandating that 



114 P.D. 12 

over the next five to seven years NET increase its average basic monthly ser- 
vice charge for residential customers from $9 to about $25). Based upon the 
past three DPU orders concerning these annual "transitional" filings, we 
believe that the proposed new rates will be accepted. 

ELECTRIC GENERATING UNIT PERTORMANCE REVIEWS 

In July 1992, Nantucket filed its annual generating unit performance data 
for the twelve month performance period April 1991, to March 1992. The 
Attorney General represented ratepayers in several days of hearings noting the 
poor performance of the Company's generating units. The Attorney General 
opposed replacement power cost charges for two of the Company's outages of 
its base-load units. One outage (Unit 7) was due to an explosion of unknown 
cause, and the other (Unit 6) had an extended outage due to a failed rotor 
repair. A decision from the DPU is pending. 

During the first part of 1992, the Attorney General intervened In the review 
of Boston Edison Company's (BECo's) generating unit's performance for the period 
from November, 1990 through October 31, 1991, DPU 92-lA. The review, under- 
taken by the DPU, centered on BECo's most important generating units: New 
Boston 1 and 2; Mystic 4,5,6 and 7; and the Pilgrim Nuclear Plant. During the 
process, the Attorney General identified a number of instances in which 
BECo's performance was evidently imprudent and asked the DPU to translate 
those episodes of substandard performance into fuel credits to BECo's rate- 
payers. On April 15, 1993, the DPU issued its decision. As urged by the 
Attorney General in representation of the Massachusetts consumers, the 
Department ordered the disallowance of nineteen outage days for the Pilgrim 
Nuclear Plant, 12 outage days for the New Boston 1 Plant, and nine outage 
days for the New Boston 2 Plant. BECo has requested that the Department 
reconsider its ruling and a decision on that request is pending. If the 
Department's decision remains unchanged, Massachusetts consumers will get 
a credit of millions of dollars in future billings. 

The Attorney General intervened in the DPU's annual performance review of 
Western Massachusetts Electric Company's (WMECo) generating plants, DPU 92- 
8C-A. WMECo's nuclear generating units performed poorly in the June 1, 
1991 to May 31, 1992 review period. Millstone Units 1, 2, 3, and Connecticut 
Yankee produced only a fraction of the total electricity they could have gener- 
ated. (24.9%, 57.7%, 36.5% and 53.6% respectively). WMECo's performance 
falls far short of the DPU's established goals of 76.5% for the Millstone Units 
and 84.2% for Connecticut Yankee. Although still in the discovery phase, the 
Attorney General will seek refunds of replacement power costs charged to cus- 
tomers that resulted from the plants failure to generate. The Attorney General 
has been continuing discovery and work with his expert consultants (MHB 
Technical Associates) in the preparation of our direct case in the D.P.U.'s 
annual performance review. The Attorney General's attention has been 
focused on the performance of the three Millstone nuclear units which failed 
to meet DPU established targets during the time period as a result of a string 
of incidents at the plant that resulted in WMECo incurring approximately $15 
million of replacement power costs. The Company has already agreed not to 
seek recovery of replacement power costs amounting to $1.2 million resulting 



P.D. 12 115 

from an outage at Millstone Unit 1 that was the result of plant operators fail- 
ing to pass NRC requalification exams. During the last three months of Fiscal 
1992-1993, the procedural schedule has been suspended as a result of a discov- 
ery dispute concerning WMECo's assertion of privilege. In a decision, issued 
on June 25, the DPU affirmed an April 23 order of the hearing officer and 
ruled that there was no "qualified" privilege for "self critical reviews" recog- 
nized under existing Massachusetts law and that it could not create any new 
privileges against disclosure. Settlement discussions are ongoing and we will 
be seeking substantial refunds. Hearings will be held later during the summer 
of 1993 if settlement negotiations break down. 

MISCELLANEOUS 

On January 29, 1993, the Department of Public Utilities approved a settle- 
ment of the 1993 Conservation and Load Management ("C&LM") budget for 
Massachusetts Electric Company, DPU 92-217, jointly filed by the Company, 
Conservation Law Foundation, Attorney General, Energy Consortium, 
Massachusetts Save James Bay, and the Department's Settlement Intervention 
Staff. The approved settlement sets forth a 1993 C&LM budget, which approx- 
imates $68.4 million. 

In a proceeding initiated by the DPU in February, 1993, concerning New England 
Telephone (NET), DPU 93-45, in response to requests by the Regulated 
Industries Division and others, the Attorney General entered into a settlement 
agreement with NET under which the Company will be allowed to continue 
implementation in the 413 LATA of a new seven digit dialing scheme for 
intra-lata toll calls. In exchange for the Attorney General's assent, NET agreed 
to conduct an extensive consumer notification advertising scheme, to track 
consumer complaints concerning this change, provide the Attorney General 
with a report relative to such complaints no later than December of this year, 
and to raise no "timeliness" objections if the Attorney General decides early 
next year to file a motion to reopen the record in this proceeding to recon- 
sider the appropriateness of seven digit dialing prior to its implementation in 
the 617 and 413 area codes. MCI, Sprint and other toll carriers have opposed 
net's continued implementation of seven digit dialing — they favor an 
eleven digit dialing scheme for all toll calls — and the DPU has not yet 
reached its decision in proceeding. 

On April 30, 1993, the DPU issued a decision rejecting the Attorney 
General's arguments and approving Boston Gas Company's proposal, DPU 92- 
259, that it be allowed to negotiate special contracts with large gas users. 
Under the proposal, large users who could switch to a competitive fuel alter- 
native will be allowed to negotiate contract rates lower than those set forth in 
its filed rates. The Company will be allowed to keep half of the margins, or 
"profits", on such contracts, instead of refunding the full margins as they are 
required to do now. On August 14, 1992, New England Telephone (NET), DPU- 
Mass-10, filed for effect January 1, 1993, revisions to its Tariff No. 10 that 
would introduce Circuit 9 Service, a call management service which, among 
other features, includes Automatic Number Identification (ANI). The Attorney 
General on November 30, 1992, filed a letter requesting that the DPU suspend 
and investigate NET's filing as it relates to privacy issues raised by the provi- 



116 P.D. 12 

sioning of ANI. The DPU on December 3, 1992, approved the revisions. 
However, NET must first develop a customer notification program for the 
DPU's pre-approval before the service is offered. Once service is offered, NET 
must take certain steps relating to privacy and blocking. 

In September 1992, the Attorney General filed with the DPU 14 settlement 
agreements that were reached with Customer Owned Coin Operated Telephones 
(COCOT) against whom earlier complaints had been filed alleging violations 
of applicable regulations governing the provision of COCOT service. The 
agreements provide the funding necessary to ensure future monitoring of the 
COCOT industry's compliance with applicable laws and regulations. Hearings 
were held and briefs filed in the cases of three COCOT operators with whom 
no settlement was reached. No order has yet been issued by the DPU as to 
acceptance of the settlement agreement terms, or the individual cases that 
were litigated. 

On May 21, 1993, the Attorney General filed comments with the DPU in 
response to its request for comments on the appropriate standard of review to 
be applied to economic development rates in general and a "Vacant Space" 
rate proposed by ComElectric in particular. In those comments, the Attorney 
General urged the DPU to continue to defer until an appropriate base rate case 
the question of whether other customers should be required to make up rev- 
enues foregone under any economic development rate and argued that such 
rates should only be allowed after a finding that such rates were, in fact, not 
likely to lead to future uneconomic use that would hurt all consumers but 
instead would result in net benefits for all customers. The Attorney General 
took the position that ComElectric had not provided sufficient information to 
allow such a finding to be made with regard to its proposed Vacant Space rate 
and that the DPU should not approve that rate until such information was 
submitted. A further hearing has been scheduled for July 19. 

The division continues action on an older case before the DPU, Newbay 
Corporation, DPU 88-265. On May 26, 1993, the division, representing the 
Attorney General, filed comments in response to a request for comments by 
the DPU concerning the standard of review that should be applied by the 
Department in its consideration of power contracts submitted for DPU 
approval by municipal utilities. In these comments, the Attorney General took 
the position that although the DPU does accord substantial deference to some 
municipal light department decisions, in light of the potential far reaching 
impacts under the terms of the Clean Air Act Amendments of 1990 of any 
resource acquisition decision, the DPU should conduct a full "least cost analy- 
sis" of proposed municipal power contracts submitted for its approval. A deci- 
sion on the scope of the proceedings in this five year old case is expected 
sometime during the summer of 1993. Because it is clear that the five year old 
power contracts between Newbay Corporation (the developer of a proposed 
coal fired plant in Rhode Island) and the eleven municipal light department 
parties in this proceeding (Braintree, Groton, Hingham, Holden, Littleton, 
Middleborough, Middleton, North Attleboro, Princeton, Shrewsbury, and 
Taunton) are now patently uneconomic, it is likely that the contracts will be 
withdrawn and the proceeding terminated if the DPU decides to apply any 
standard of review that approaches that applied to power contracts with 



P.D. 12 117 

investor owned utilities. 

In June of 1993, the DPU approved the Attorney General's settlement with 
Boston Edison Company, DPU 93-37, under which the Company would be 
allowed to create and invest up to $45 million in a wholly owned non-utility 
subsidiary Boston Energy Technology Group upon the condition that the 
Company employ specified cost allocation rules for joint utility/non-utility 
costs. Under the terms of the settlement the DPU will, after briefing to occur 
later this year, also decide the appropriate terms of a tax sharing agreement 
between Edison and BETG. The settlement followed two days of hearings in 
April. 

The division, representing the Attorney General petitioned to intervene in a 
proceeding before the Nuclear Regulatory Commission concerning BECo's request, 
NEC 50-293-OLA, to amend the terms of its operating license for the Pilgrim 
Nuclear Power Plant so as to allow an expansion of the capacity of the plant's 
spent fuel pool through the addition of six spent fuel racks. Through written 
submissions, it is the Attorney General's contention that expanding the pool 
by more than two racks will increase the possibility of a spent fuel pool acci- 
dent and increase decommissioning costs and that BECo should use dry cask 
storage for spent fuel rods while they await transportation to the federal High 
Level Waste Repository. 

In a DPU investigation of the Com/Electric Companies' (Commonwealth Electric 
and Cambridge Electric Light Companies) DSM performance in 1992, DPU 93- 
15/16, discovery, hearings and briefing were conducted at a near-record pace 
with a decision promised at the end of July. The division sponsored an expert 
witness with DOER and recommended a disallowance and establishment of a 
milestone/penalty system. 

A generic investigation was initiated by the DPU concerning investor owned 
electric utility compliance with the tenns of the Clean Air Act Amendments of 1990, 
DPU 93-112. The division, representing the Attorney General, filed a 
Comment recommending the Department require each electric utility to file 
its compliance plans and that the Department review those plans using least- 
cost principles (in IRM cases where appropriate), including the use of external- 
ities to choose the least-cost resource. 

The DPU Electric Power Division (EPD) is investigating the question of why 
NEPOOL, with a 35% reserve margin for summer 1993, will require the use of 
emergency Operating Procedure No. 4 during August, 1993, in order to main- 
tain operations. The answer appears to be that (once again) NEPOOL sched- 
uled two nuclear maintenance outages in August (and three in September); 
the DPU will be informally investigating the reasons for this scheduling. The 
division has provided information at the request of EPD and will continue to 
participate in this investigation. 

CIVIL INVESTIGATION DIVISION 

The Civil Investigation Division conducts investigations primarily for divi- 
sions within the Public Protection and Government Bureaus and, on occasion, 
for the Executive Bureau, Family and Community Crimes Bureau, or in con- 
nection with the Criminal Bureau. 



118 P.D. 12 

The major duties of Division investigators are: locating and interviewing 
victims, witnesses, subjects and others; obtaining and reviewing documentary 
evidence from numerous sources including individuals, corporations, and fed- 
eral, state, county and municipal agencies; conducting surveillance, back- 
ground checks and asset checks; analyzing financial records and performing 
other forensic accounting tasks; and testifying in the grand jury and at trial. 

In fiscal year 1993, the Division initiated over four hundred investigations 
in the following major areas: 

PUBLIC PROTECTION BUREAU 

CONSUMER PROTECTION AND ANTITRUST 

Investigators continued to perform their traditional role by assisting the 
office in bringing M.G.L. c. 93A enforcement actions against businesses and 
individuals in major consumer areas such as automobiles, health spas, travel, 
mobile home parks, retail sales, hearing aids and other health related matters, 
advance fee loan scams and insurance/investment scams affecting the elderly. 
CID continued to play a major role in the office's HIMS investigation of 
banks, mortgage companies, brokers and home improvement contractors. 

CIVIL RIGHTS 

The Division investigated "hate crimes," allegations of police misconduct 
and other violations of the Massachusetts Civil Rights Act by interviewing 
alleged victims, witnesses and, where appropriate, subjects of such investiga- 
tions. In cases of alleged misconduct by police or others in law enforcement, 
investigators obtained and reviewed police reports, court documents and 
other available evidence. 

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. Investigators located for- 
mer employees and officers of defunct companies responsible in part for such 
violations, and reviewed, evaluated and analyzed financial documents and 
prepared ability to pay analysis. 

PUBLIC CHARITIES 

The Division investigated individuals and/or organizations who raised funds 
from the public, allegedly in violation of Massachusetts laws. Investigators 
interviewed victims, usually business people, who made donations to a charity 
based on the misrepresentation of a solicitor. In some instances, solicitors 
posed as either law enforcement or other public officials. On several occasions, 
investigators worked with local police departments, local district attorneys 
and neighboring state attorneys general in locating "couriers" who picked up 
donations. The Division's financial investigators reviewed and audited books, 
records and financial reports of many non-profit organizations. 

BUREAU PROSECUTOR 



P.D. 12 119 

Investigators worked with the new Criminal Bureau prosecutor on several 
cases which resulted in indictments against several individuals in matters 
involving Consumer Protection and Public Charities scams. 

GOVERNMENT BUREAU 

TRIAL 

The Division played a major role in the investigation of tort actions filed 
against the Commonwealth which include: the alleged abuse, mistreatment 
and deaths of clients in state care, alleged wrongful termination of state 
employees, and personal injuries and other damages which occurred on state- 
owned property and/or in accidents on state roads or involving state cars. The 
Division also investigated cases of contract disputes and matters involved in 
eminent domain proceedings. 

INDUSTRIAL ACCIDENTS 

In August, 1992 investigators concluded their representation of the 
Commonwealth at Industrial Accident Board conciliations in Boston, 
Lawrence, Fall River, Worcester and Springfield, in accordance with the office's 
"devolution" of these responsibilities to appropriate state agencies. 

CRIMINAL BUREAU 

WORKERS' COMPENSATION PRAUD 

In conjunction with the protocols established by the Attorney General's 
Task Force to Reduce Waste, Fraud and Abuse in the Workers' Compensation 
System, the Division continued to investigate allegations that state employees 
or employees of self insured companies were fraudulently receiving workers 
compensation benefits. 

STATISTICS 

The Division opened 419 investigations in Fiscal Year 93, with 253 investi- 
gations ongoing as of June 30, 1993. Case distribution by division and/or 
bureau is as follows: 





Opened during 


Ongoing as 






FY 93 


6/30/93 


Consumer Protection and Antitrust 


58 


48 


Civil Rights 




20 


8 


Environmental Protection 




30 


26 


Public Charities 




11 


9 


Regulated Industries 




4 


3 


PPB/Criminal 




8 


8 


Government 




8 


5 


Trial 




269 


135 


Worker's Compensation Fraud 


11 


11 



120 P.D. 12 

419 253 

GOVERNMENT BUREAU 

The Government Bureau provides representation for the Commonwealth 
and its agencies and officials in all types of civil litigation, and for employees 
of the Commonwealth with respect to certain civil claims made against them 
resulting from the performance of their duties. The Bureau also provides 
advice and consultation to officials with respect to legal issues arising in con- 
nection with their official functions, particularly in instances where such 
advance consultation may serve to prevent unnecessary litigation. 

As in the previous two years, the Bureau in fiscal year 1993 continued and 
expanded its efforts to develop and maintain close working relationships with 
agency counsel and to provide them with information and advice on matters 
of broad common interest. Meetings with all agency general counsel were 
held in October, 1992 and April, 1993. In October, 1992, we published the 
first issue of the Agency Counsel Newsletter, containing reports on legal devel- 
opments in areas of relevance to agencies of the Commonwealth generally. A 
second issue was published in April, 1993. 

The Government Bureau consists of an Administrative Law Division and a 
Trial Division. In fiscal year 1993 the Bureau continued to implement the pre- 
vious year's merger of these two divisions, which were formerly separate 
bureaus. During fiscal year 1993, three attorneys were assigned permanently 
to work in both divisions, and an increasing number of cases were assigned 
across division lines, so as to broaden the exposure of the attorneys in both to 
the full range of cases the bureau handles. In addition, fiscal year 1993 saw 
increased attention to the development of consistent standards and practices 
in the handling of cases in the two divisions, particularly with respect to com- 
munication and consultation with agency clients and review and approval of 
written materials and significant case decisions. 

Both the Administrative Law Division and the Trial Division initiate affirma- 
tive litigation on behalf of state agencies and the Commonwealth. The 
Administrative Law Division defends suits concerning the legality of govern- 
mental operations, particularly those seeking injunctive or declaratory relief. 
The Division is also responsible for legal review of all newly enacted town by- 
laws, and for preparation of legal opinions for constitutional officers, heads of 
agencies, and certain other officials concerning issues arising from the perfor- 
mance of their official duties. The Trial Division defends suits seeking damages 
or other relief for alleged wrongful acts of government officials or employees, 
particularly contract-related disputes, real estate matters, torts, civil rights vio- 
lations, employment disputes and environmental claims. The Trial Division 
also reviews certain contracts, leases, bonds and various conveyancing docu- 
ments submitted by state agencies for approval as to form. 

AFFIRMATIVE LITIGATION 

Despite the substantial demands placed upon Government Bureau attorneys 
in defensive litigation, the Bureau maintained an active and varied docket of 
affirmative litigation in fiscal year 1993. Often, these were suits brought on 
behalf of a state agency to resolve a dispute related to the discharge of the 



P.D. 12 121 

agency's mission or responsibilities. At other times, the Bureau pursued claims 
in the name of the Commonwealth to further the interests of Massachusetts 
citizens generally. A number of significant affirmative cases were concluded in 
fiscal year 1993, by both judicial decision and settlement. 

In Connecticut, Massachusetts and Rhode Ishind v. New Hampshire, an original 
action filed in the United States Supreme Court, the plaintiff States challenged 
a property tax assessed by New Hampshire on the owners of the Seabrook 
nuclear power plant as violating the Commerce Clause and a federal statute 
because companies doing business in New Hampshire received a separate tax 
credit. On the eve of oral argument before the Court, the parties reached a set- 
tlement under which New Hampshire repealed the unconstitutional portion 
of the tax, agreed to refund half of the tax collected to date, and lowered the 
rate of the property tax for the future. 

The Bureau obtained decisions in two cases challenging federal agency rul- 
ings regarding reimbursement in federally funded programs. In Commonwealth 
V. Secretary of Health and Human Services, the United States District Court held 
that HHS erred in denying federal reimbursement for certain pension costs in 
federally assisted programs; after remand to the administrative board, HHS 
agreed to pay the Commonwealth approximately $88 million. In 
Cotnmonwealth v. United States Department of Agriculture, the Court of Appeals 
for the First Circuit rejected the Commonwealth's challenge to a monetary 
penalty imposed by the Food and Nutrition Service for errors in administering 
the food stamp program. The Bureau successfully resolved, without litigation, 
a claim by the United States Department of Education ("DOE") that the Client 
Assistance Program (CAP) of the Massachusetts Office on Disability violated 
federal regulations when it refused, on grounds of attorney-client privilege, to 
provide the names and addresses of its clients to federal auditors; DOE agreed 
to audit records with information identifying clients redacted and withdrew 
its notice disallowing federal funding for the CAP program for fiscal years 
1988 through 1992. 

The Government Bureau also pursued a wide range of affirmative litigation 
in Massachusetts state courts in fiscal year 1993. In Board of Education v. Quincy 
School Committee, the Supreme Judicial Court rejected the Board's position that 
the compulsory education statute requires school committees to provide edu- 
cational services to all students within the ages of compulsory attendance, 
including those that are excluded from the regular school premises for disci- 
plinary violations. In Attorney General v. Commissioners of Norfolk County, the 
Supreme Judicial Court affirmed a preliminary injunction prohibiting the 
County from imposing a charge for parking at the courthouse complex in 
Dedham. 

Commonwealth v. Nationwide Life Insurance Company was an action filed on 
behalf of the state Treasurer and thousands of state employees who participate 
in the Commonwealth's Deferred Compensation Plan. The suit challenged 
Nationwide's assessment of various charges against Plan funds and its use of a 
valuation formula which had the potential to reduce substantially the value of 
participants' accounts. Under a settlement reached in February 1993, 
Nationwide's contract with the Plan was terminated and Nationwide agreed to 
return to the Plan the approximately $677 million in funds invested with it. 



122 P.D. 12 

Nationwide also agreed not to apply its valuation formula to participants' 
accounts and to eliminate or substantially reduce the challenged charges. 
Nationwide also paid approximately $4 million in cash to the Plan. 

Bureau attorneys were particularly involved in initiatives involving housing 
and public health. An inter-bureau group was convened under the leadership 
of the Trial Division to explore how best to address widespread code violations 
in residential rental properties. After obtaining information from the Housing 
Courts, local housing inspectors, tenant advocates and other governmental 
agencies, the group has developed a plan for stepped up enforcement activity 
in target communities. 

In fiscal year 1993 the Government Bureau continued to represent, with the 
Civil Rights Division, various state agencies in matters related to siting group 
homes for persons with mental illness, mental retardation and AIDS. Bureau 
attorneys successfully resolved, without litigation, siting disputes in five 
Massachusetts communities. In Watros v. Prakas, the Bureau filed an amicus 
brief in the Massachusetts Appeals Court in support of the siting of a group 
home for mentally retarded persons in Winchester, over an abutter's objec- 
tion, where the Winchester Board of Zoning Appeals approved the project. 
Bureau attorneys also participated in an inter-agency working group to ensure 
that portions of the state building code concerning residences for disabled per- 
sons are consistent with state and federal fair housing laws. 

The Bureau also participated in litigation defending the validity of munici- 
pal by-laws and policies, particularly where those policies coincide with the 
policies or interests of state agencies. In Take Five Vending. Ltd. v. Town of 
Provincetown, Bureau attorneys intervened on behalf of the Attorney General 
in the successful defense before the Supreme Judicial Court of a Provincetown 
by-law banning the sale of cigarettes by vending machine town-wide. In Curtis 
V. Falmouth School Committee, the Bureau filed an amicus curiae brief in 
Superior Court on behalf of the Department of Public Health and the 
Department of Education in support of the constitutionality of Falmouth's 
decision to make condoms available to students as part of the schools' AIDS 
prevention program. We also filed an amicus curiae brief in Osgood v. Town of 
Andover, an Appeals Court case raising an issue of the effect of failure to notify 
the Attorney General of a challenge to a by-law. 

Bureau attorneys also filed amicus curicv briefs in two other cases raising 
issues of substantial concern to the Commonwealth: In Massachusetts Water 
Resources Authority v. Associated Builders and Contractors of Massachusetts/Rhode 
Island Inc., we submitted a brief to the United States Supreme Court arguing 
that federal labor law did not prohibit a project labor agreement for work on 
the Boston Harbor clean-up project. The Court's decision, reported at 113 S.Ct. 
1178 (1993), upheld the agreement. In Town of Burlington v. Bedford, in the 
Supreme Judicial Court, we argued that a town could not recover for the 
alleged loss, through a neighboring town's taking, of the "reasonable probabil- 
ity of establishing future access" across another's land. 

Bureau attorneys were also involved in inter-bureau initiatives involving the 
investigation or civil prosecution of violations of the age discrimination and 
mortgage lending laws and criminal prosecution of insurance fraud. 



P.D. 12 123 

THE ADMINISTRATIVE LAW DIVISION 

During fiscal year 1993, the Division opened 1,106 cases and closed 859 
cases. These numbers reflect a substantial increase in the Division's caseload 
over the previous year. 

1. Defensive Litigation. 

Cases defended by Division attorneys resulted in 33 reported decisions of 
the Supreme Judicial Court, 8 reported decisions of the Massachusetts Appeals 
Court, and 13 reported decisions of the United States Court of Appeals for the 
First Circuit. As well, Division attorneys were involved in many cases in these 
courts and in the state and federal trial courts that resulted in unpublished 
decisions. 

The Division made substantial progress during fiscal year 1993 in terminat- 
ing or reducing judicial oversight under consent decrees regarding public 
institutions. On our motion, the United States District Court terminated the 
consent decree in United States v. Massachusetts, governing Worcester State 
Hospital. In Riai v. Okiu and related cases concerning state schools for the 
mentally retarded, although the Court of Appeals rejected our appeal of the 
District Court's extension of its disengagement orders, the District Court sub- 
sequently entered an order vacating all prior decrees and substituting one 
final order that guarantees class members individualized services and outlines 
procedures for changing the staffing at mental retardation facilities. In Riifo v. 
Inmates of Suffolk County Jail, on remand from the United States Supreme 
Court, the United States District Court denied the Commissioner of 
Correction's motion to vacate the consent decree governing the Suffolk 
County Jail; we have appealed from that denial to the United States Court of 
Appeals for the First Circuit. The court's denial of the Sheriff's motion to mod- 
ify the decree to allow for some double bunking is also on appeal, but that 
appeal has been stayed pending a ruling on the Sheriff's alternative modifica- 
tion motion. In Cornelius v. Sullivan, a case involving the timely provision of 
welfare and social service benefits, the United States District Court denied 
plaintiffs' motion for contempt, which had been pending for seven years, and 
dismissed the case. 

As the culmination of a decade of litigation handled by this Division involv- 
ing the validity under the Massachusetts Constitution of the state system for 
financing public education, the Supreme Judicial Court ruled in McDuff^' v. 
Secretary of Education that the Massachusetts Constitution creates a right to a 
quality education, that the state has the duty to ensure that such education is 
provided to each child, and that the state had failed to fulfill this duty. In 
Arriaga v. Members of the Board of Regents, another case involving school 
financing, this time at the higher education level, after the United States 
District Court declared unconstitutional a retroactive tuition increase imposed 
on out-of-state students at the Commonwealth's public colleges and universi- 
ties, we negotiated a settlement in order to avoid state court litigation on the 
students' breach of contract claims. 

The Division spent significant time and resources in fiscal year 1993 defend- 
ing a variety of state human services programs against statutory and constitu- 



124 P.D. 12 

tional challenges. In Williams v. Secretary of Health and Human Services, the 
Supreme Judicial Court ruled in the Commonwealth's favor on all counts of 
the complaint, which sought to force the Department of Mental Health to 
devote more resources to the homeless mentally ill. In Corriea v. Department of 
Public Welfare, the Supreme Judicial Court concluded that the Superior Court 
had exceeded its authority in issuing a preliminary injunction entirely 
revamping procedures for denying or terminating emergency aid for elderly, 
disabled, and children. In Healey v. Gallant, the Supreme Judicial Court ruled 
that federal law requires the Department of Public Welfare to provide child 
care to all participants in the Massjobs training program, regardless of the 
availability of state resources. In Avanzato v. Commissioner of Public Welfare, in 
which plaintiffs claimed that the absence of a clothing allowance from the 
state's AFDC program violated federal law, the United States District Court 
granted summary judgment in the Commonwealth's favor on the ground that 
the federal statute on which plaintiffs relied does not create any rights 
enforceable under 42 U.S.C. § 1983. In Norris v. Department of Public Welfare, a 
class action challenging the process by which the Department of Public 
Welfare recovers benefit overpayments, the parties agreed to changes in the 
challenged procedures, and the case was dismissed by the United States 
District Court on that basis. 

Other significant litigation involved challenges to state statutes and regula- 
tions in various areas. In Massachusetts Wholesalers of Malt Beverages v. 
Commonwealth, the Supreme Judicial Court upheld the constitutionality of the 
1990 amendment to the Bottle Bill that escheated abandoned deposits to the 
Commonwealth, but declared unconstitutional the retroactive funding provi- 
sion requiring bottlers and distributors to place an amount equal to the 
deposits received in the three months prior to the amendment in a deposit 
transaction fund. In Americati Trucking Association Inc. v. Secretary of 
Administration, the Supreme Judicial Court struck down, on Commerce Clause 
grounds, three fees imposed on interstate motor carriers operating in the 
Commonwealth. In Murphy v. Campbell, the Supreme Judicial Court struck 
down the requirement that workers' compensation claimants represented by 
counsel pay a fee to defray the cost of the impartial medical examination. In 
Washington Legal Foundation v. Massachusetts Bar Foundation, the United States 
Court of Appeals for the First Circuit upheld the constitutionality of the 
Massachusetts Interest on Lawyers Trust Accounts (lOLTA) program. In Weaver 
V. Henderson, the United States District Court denied plaintiffs' request for a 
preliminary injunction against State Police grooming regulations prohibiting 
mustaches; the denial of preliminary injunctive relief was affirmed by the 
United States Court of Appeals on the ground that plaintiffs were unlikely to 
prevail on their constitutional claims. 

The Division handled a number of cases arising from the Initiative and 
Referendum process. In Associated Industries of Massachusetts v. Secretary of the 
Commonwealth, Gilligan v. Attorney General, Thompson v. Attorney General, and 
Citizens for a Competitive Massachusetts v. Secretary of the Commonwealth, the 
Supreme Judicial Court cleared the way for the appearance on the November 
1992 ballot of four laws proposed by initiative petition: one that would 
impose an excise tax on certain oils and hazardous materials and place the 



P.D. 12 125 

proceeds in a fund to be used, subject to appropriation, to pay for hazardous 
waste cleanup and response activities; one that would impose an additional 
excise tax on cigarettes and smokeless tobacco and would place the proceeds 
in a fund to be used, subject to appropriation, to pay for health education and 
protection activities; one that would impose restrictions on packaging and 
require recycling; and one that would require certain corporations to disclose 
the amount of state taxes they pay along with supporting data. In an Opinion 
of the Justices, the Justices accepted our arguments that we correctly certified 
for appearance on the 1994 ballot a proposed constitutional amendment con- 
cerning term limits. Later in the year, the proponents of that measure brought 
an action, LIMITS v. President of the Senate, seeking to compel the President of 
the Senate and a joint session of the Legislature to vote on the proposal; 
unless one-quarter of the members voted in favor of the proposal before the 
end of the 1991-92 session, the proposal could not appear on the 1994 ballot. 
The Supreme Judicial Court held that neither declaratory nor injunctive relief 
was available against the Senate President or the Legislature and therefore dis- 
missed the complaint. 

The Division also represented state agencies and officials in a variety of 
cases involving state employment policies and practices. In Alliance. 
AFSCME/SEIU v. Secretary of Administration, the Supreme Judicial Court rejected 
claims by three state employee unions that wage increases set forth in collec- 
tive bargaining agreements had become contractually binding notwithstand- 
ing the Governors decision not to sign the necessary appropriation bills. In 
Mackin v. City of Boston, a reverse discrimination case, the United States Court 
of Appeals for the First Circuit held that the affirmative action goals of a con- 
sent decree, under which certain minority applicants for positions in the 
Boston Fire Department were to be granted a hiring preference, had not been 
met and that the decree was an appropriate use of race-conscious judicial relief 
for past discrimination. In another reverse discrimination matter, Massachiisett 
Association of Afro-American Police, Inc. v. Boston Police Department, the United 
States Court of Appeals for the First Circuit rejected a union's attempt to block 
court approval of a settlement of discrimination claims made by the the 
Massachusetts Association of Afro-American Police concerning the 1991 civil 
service examination for police promotions. In EEOC v. Commonwealth, the 
United States Court of Appeals for the First Circuit held that a state statute 
requiring public employees over age 70 to undergo an annual medical exam as 
a condition of continued employment is and superseded by the federal Age 
Discrimination in Employment Act. In another age discrimination case, Gately 
V. Commonwealth of Massachusetts, the United States District Court preliminar- 
ily enjoined the State Police from manditorily retiring State Police officers at 
age 55; the First Circuit declined to stay that injunction pending our inter- 
locutory appeal. In Robinson v. Teachers Retirement Board, the Supreme Judicial 
Court upheld the Board's determination that no interest was available on a 
retroactive payment of death benefits to a retiree's spouse. In Aquino v. Civil 
Service Commission, the Massachusetts Appeals Court held that the hiring pref- 
erence given to veterans in provisional civil service appointments does not 
extend to provisional promotions. 

The Division also handled several cases involving access to information. In 



126 P.D. 12 

Globe Newspaper Co. v. Chief Administrative fiistice of the Trial Court, the United 
States District Court struck down as violative of the First Amendment those 
portions of the Criminal Offender Record Information Law that deny the pub- 
lic access to alphabetical indices of closed criminal cases and that impose civil 
and criminal sanctions on persons disclosing criminal offender record infor- 
mation that is contained in a record open to the public. In WBZ-TV v. 
Executive Office of Labor, the Supreme Judicial Court held that state law 
requires that certain licensing hearings held by the Department of Labor and 
Industries be closed to the public and that such a requirement does not violate 
the First Amendment. In Wallerstein v. Board of Bar Examiners, the Supreme 
Judicial Court held that the Board of Bar Examiners is not subject to the Fair 
Information Practices Act. 

The Division also handled the following cases involving licensing or permit- 
ting decisions: West Lynn Creamery, Inc. v. Commissioner of the Department of 
Food and Agriculture (Supreme Judicial Court upheld the conditional revoca- 
tion of milk dealers' licenses for failure to comply with a milk pricing order, 
which the Court found to be constitutional under the Commerce Clause; the 
milk dealers have petitioned the United States Supreme Court for certiorari); 
Catlin V. Board of Registration of Architects (Supreme Judicial Court affirmed 
Board's decision to discipline an architect for affixing his seal to drawings not 
prepared by him); Palmer v. Board of Registration in Mediciiie (Supreme Judicial 
Court affirmed revocation of physician's license for engaging in sexual rela- 
tions with a patient); Municipal Light Co. v. Commonwealth (Appeals Court 
affirmed dismissal of complaint brought by nine municipalities and their 
municipal utility companies seeking damages based on the Commonwealth's 
opposition to a federal Nuclear Regulatory Commission license for the 
Seabrook nuclear power plant). 

The Division also handled the following tax cases: Space Building Corp. v. 
Commissioner of Revenue (Supreme Judicial Court held that the Commissioner 
of Revenue need not conduct adjudicatory hearings in deciding requests for 
tax abatements); FDIC v. Commissioner (United States District Court certified 
for immediate appeal its order denying our motion to remand this multi-mil- 
lion dollar bank excise tax to the Appellate Tax Board); William F. Sullivan & 
Co. V. Commissioner of Revenue (Supreme Judicial Court held that a scrap metal 
processor was a "manufacturer" for state tax purposes); Berenson v. 
Commissioner of Revenue (Supreme Judicial Court held that persons responsible 
for collecting certain taxes to be paid by corporations and transmitting them 
to the Commissioner of Revenue are also responsible for the interest and 
penalties that have accrued on such taxes); Koch v. Commissioner of Revenue 
(Appeals Court held that taxpayers purported assignment of stock to Delaware 
corporations must be disregarded for tax purposes; application for further 
appellate review pending). 

Other significant cases handled by the Division that were decided this year 
include Mitchell v. Secretary of Administration and Finance, in which the 
Supreme Judicial Court upheld the Governor's 1991 transfer of money from 
the Highway Fund to the General Fund; and American Bald Eagles v. Bhatti, in 
which the United States District Court upheld state regulations governing a 
deer liunt at the Quabbin Reservoir against a claim that the hunt constituted 



P.D. 12 127 

an illegal taking under the Endangered Species Act. 

2. Municipal Law. 

Town by-laws, home rule charters, and amendments thereto are reviewed 
and must receive the approval of the Attorney General prior to becoming 
effective. The review function is performed by attorneys in the Municipal Law 
Unit within the Administrative Law Division of the Government Bureau. 
During fiscal year 1993, the Municipal Law Unit reviewed 1,670 by-laws and 
27 home rule actions from over 300 towns. Eighty-five submissions, 5.1 per- 
cent of the total, were disapproved in whole or in part. 

The by-laws received this year consisted of 745 general by-laws and 925 zon- 
ing by-laws. General by-laws pertain to town government and the exercise of 
municipal power. Zoning by-laws are a continuing exercise of local police 
power over the use of land. Zoning by-laws often generate the most local con- 
troversy since they affect what landowners consider as their basic constitu- 
tional right, i.e., to own, use, and enjoy their property. This year, like last year, 
saw continuing attempts by municipalities to address pressing environmental 
concerns, including the enactment of groundwater protection overlay zoning 
districts, sewage disposal restrictions, and strict stand-alone local wetlands 
protection by-laws. 

In addition to reviewing by-laws, the Municipal Law Unit publishes the 
semi-annual Municipal Law Newsletter, which provides municipal officials 
with up-to-date information on developments in the law governing their 
functions. During fiscal year 1993, issues of the Newsletter were published in 
November 1992 and May 1993. 

THE TRIAL DIVISION 

In fiscal year 1993, the Trial Division embarked upon an ambitious program 
to restructure its operations in order to improve its efficiency and effectiveness 
in representing the Commonwealth's interests. During the previous year, 
teams had been assigned to reorganize and coordinate all of the Division's 
files. The current status of all existing cases was updated and verified. As a 
result of this major effort, in July, 1992, the Trial Division became the first 
unit of the Attorney General's Office to be fully integrated on our computer- 
ized Management Information System. This achievement allows the Division 
to share information while closely monitoring and supervising the progress in 
its cases. 

The next step was to consolidate all of the sub-units within the Trial 
Division in order to create a unified entity. At the beginning of the fiscal year, 
the Trial Division consisted of four units: Contracts, Real Estate, Torts, and 
Industrial Accidents. Early in the year, we completed the process begun in the 
previous year of transferring to state agencies responsibility for appearances 
before the Industrial Accidents Board and of dissolving our Industrial 
Accidents Unit. In November of 1992, we combined the Contracts, Torts and 
Real Estate units to form a single, consolidated Trial Division. The new struc- 
ture makes more efficient use of available limited resources, increases flexibil- 
ity, and maximizes productivity. It also allows the implementation of more 



128 P.D. 12 

uniform practices and procedures throughout the Trial Division. 

As of November, 1992, the Trial Division adopted standard procedures for 
all of its new cases, designed to focus attention on the preliminary stages of 
litigation, so as to promote early evaluation, preparation, and resolution. 
Cases opened after that date are assigned to a trial team made up of one or 
more attorneys, a paralegal and a civil investigator. The team, working 
together, is responsible for preparing an initial case plan within 60 days, and a 
further report, including settlement evaluation and trial strategy, within 180 
days of assignment. Team efforts are coordinated through the Management 
Information System. In April of 1992, we also convened a task force to 
develop settlement guidelines, so as to provide a consistent standard for case 
evaluation and a standard approach to negotiation. 

Our initial reforms and reorganization have been very successful. During fis- 
cal year 1993, the Trial Division closed 577 cases and opened 519 new cases, 
reducing the overall Trial Division caseload to 1307 cases as of the end of the 
fiscal year. In addition, after an extensive review of Land Court registration 
matters, the Division was able to close over one hundred files, reducing the 
total number of such open matters to below 500. 

In the contract area, the Trial Division opened 55 new cases during the fiscal 
year and closed 46 cases. Judgments against the Commonwealth and settle- 
ments in the 46 concluded cases amounted to approximately $2.5 million less 
than the plaintiffs had claimed. As of the end of fiscal year 1993, the Trial 
Division had approximately 150 contract cases pending, representing a total 
dollar exposure to the Commonwealth of approximately $50 million. 

As in past years, the largest category of contract cases involved construction 
contract disputes. These included bid protests, in which bidders for a sub-con- 
tract or general contract dispute the results of the competitive bid prior to the 
award of the contract, and claims for cost increases, in which contractors seek 
additional compensation due to delays, unexpected site conditions and the 
like. 

Significant construction contract or bid protest cases defended by the Trial 
Division during fiscal year 1993 include Petricca Construction Co. v. 
Commonwealth and E.T. and L. Construction Company v. Commonwealth, in 
which the Appeals Court held that the Commonwealth has statutory author- 
ity to reject all bids if it is in the public interest to do so, and that the 
Commonwealth could consider the price of the bids in determining whether 
to reject all bids. These cases provide the first judicial interpretations of the 
term "public interest" in the public procurement area under Massachusetts 
law. 

In other bid protest litigation, TLT Construction Corporation v. Commonwealth 
and J.T. Callahan Sons, Inc., we successfully defended against a request for a 
preliminary injunction against the award of an $11 million construction con- 
tract to adapt a school into a courthouse complex in Fall River; the plaintiff, a 
losing bidder, claimed that the low bidder's Women's/Minority Business 
Enterprise sub-bidders were not properly qualified to perform the particular 
work. In the first bid protest case arising from the Central Artery/Third Harbor 
Tunnel Project, Bond Brothers. Inc. v. Commonwealth, the Superior Court held 
that the Commonwealth properly disqualified the plaintiff from bidding on a 



P.D. 12 129 

Project contract. 

Two older cases claiming breaches of contract were resolved after trial dur- 
ing fiscal year 1993. In Bonacorso Construction Co. v. Commonwealth, the plain- 
tiff sought damages of $1,295,614 for extra work performed and delay in per- 
formance of a contract for bridge construction. After a bench trial the court 
awarded damages of $57,966. A jury returned a verdict for the 
Commonwealth in the case of Frank /. Shields, Inc. v. Commonwealth, in which 
a construction contractor sought damages of approximately $1.1 million for 
alleged changes in project requirements under a contract with the 
Massachusetts Highway Department for the reconstruction of twelve intersec- 
tions in Longmeadow. 

The Trial Division this year saw an influx of cases arising from contracts for 
the provision of human services. In three such cases, Trial Division attorneys 
successfully defended against requests for preliminary injunctions relating to 
contract awards or terminations. In Integrated Service Associates, Inc. v. Baker, a 
provider of residential and day program services was denied a preliminary 
injunction to prevent the Department of Mental Retardation from contracting 
with new providers after the Department exercised its contractual right to ter- 
minate without cause upon 60 days notice. The plaintiff in Institutes for Health 
and Human Sendees. Inc. v. Baker, an unsuccessful bidder for an incentive-based 
contract to secure federal revenues for the Department of Social Services, 
claimed that the contract procurement process was tainted by conflicts of 
interest and technical violations. Both the Superior Court and the Appeals 
Court denied requests for a preliminary injunction. In ABCD v. ORI, the 
Superior Court denied the request of a provider of employment services for a 
preliminary injunction to prevent the Office for Refugees and Immigrants 
from terminating its contract. 

WesCo Concessions. Inc. v. Metropolitan District Commission presented a 
breach of contract claim in a different context; there the food concessionaire 
at the Franklin Park and Stone Zoos sought $1.3 million in alleged lost profits 
after negotiations on a three year contract broke down. The jury awarded 
damages of $157,000. The Commonwealth's evidence at trial caused WesCo to 
file amended meals tax returns. 

Other contract-related cases arose from orders of the Department of Labor 
and Industries ("DOLl") enforcing bid requirements for public contracts. For 
example, in Town of Plymouth v. Department of Labor and Industries, the 
Superior Court rejected the Town's challenge to DOLI's asserted jurisdiction 
over a proposed ground lease of town-owned property to a private developer. 

In addition to litigation, the Trial Division advises state agencies and offi- 
cials on contract issues, including questions concerning the formation of con- 
tracts, performance, bidding procedures, bid protests, contract contents, con- 
tract interpretation and other miscellaneous matters. The most frequent 
requests received during the fiscal year concerned indemnification clauses, 
procedural matters in employment contracts, and advice in advance of antici- 
pated construction contract litigation. Requests for advice and assistance came 
from the Massachusetts Highway Department, Metropolitan District 
Commission, Executive Office of Transportation and Construction, Board of 
Regents of Higher Education, Department of Mental Health Department of 



130 P.D. 12 

Mental Retardation, Department of Environmental Management, State Lottery 
Commission, Department of Public Welfare, and Division of Capital Planning 
and Operations. 

The Trial Division also reviews contracts, leases, and bonds submitted by 
state agencies for approval as to form. During the fiscal year, the Division 
received a total of 336 contracts to review, approving 305 and rejecting 31, 
some of which were later approved after correction of defects in form. The 
Trial Division consulted with the Comptrollers Office on a new series of uni- 
form contract forms for service contracts, agency use of which reduced the fre- 
quency of rejections. 

The Trial Division worked closely this year with the legal staff at the Central 
Artery/Third Harbor Tunnel Project in the development of an alternative dis- 
pute resolution mechanism to be included in future Project construction con- 
tracts. The terms of the contract provisions are intended to reduce signifi- 
cantly the need for construction contract litigation related to the Project, thus 
avoiding delays and greatly reducing Project costs. 

The Trial Division represented the Commonwealth in a wide range of 
employment related cases during fiscal year 1993, including cases alleging sex- 
ual harassment, wrongful discharge, and other alleged violations of employ- 
ees' rights. In Harrington v. Commonwealth, for example, a terminated 
employee sought $120,000 in lost wages and other damages; we obtained 
summary judgment on the ground that the plaintiff's claim was barred by his 
failure to seek judicial review of an arbitration decision upholding his termi- 
nation. In Propac-Mass. Inc. v. Sarnafil, we obtained dismissal of a claim against 
the Workers' Compensation Trust Fund for benefits paid by the plaintiff- 
insurer to a employee of a company alleged to have fraudulently procured 
insurance coverage. 

Three cases in which the Trial Division represented the Contributory 
Retirement Appeal board ("CRAB") resulted in appellate decisions during fiscal 
year 1993. In Hirshberg v. Newton Retirement Board, the Appeals Court affirmed 
crab's decision permitting a local retirement board to give an employee less 
than full credit toward his retirement allowance for years in which he worked 
part time. In Adams v. CRAB, the Supreme Judicial Court affirmed CRAB's deci- 
sion denying accidental disability retirement benefits to a plaintiff who had 
failed to prove that her duties exposed her to an identifiable condition that is 
not common and necessary to all or a great many occupations; the decision 
clarified this important standard. Finally, in DeLeire v. CRAB, the Appeals 
Court upheld affirmance of CRAB's denial of retirement benefits to the former 
Revere Police Chief, convicted in the "Exam Scam" case, thwarting his 
attempt to avoid the application of the pension forfeiture laws by submitting 
a letter of resignation before action on his application for benefits. 

Trial Division attorneys handled diverse matters involving the real estate 
property interests of the Commonwealth. The vast majority of cases involve 
petitions for the assessment of damages resulting from land acquisitions by emi- 
nent domain pursuant to G.L. c. 79. During the 1993 fiscal year the Division 
disposed of 50 land damage cases, 16 by jury trial and 34 by settlement. The dis- 
position of these cases resulted in savings to the Commonwealth of approxi- 
mately $52 million based on amounts paid compared to amounts claimed. 



P.D. 12 131 

The Commonwealth's agencies acquire land for a variety of purposes, 
including roads, colleges, recreation and parks, landfills, agricultural and con- 
servation restrictions, and easements. Agencies involved in such real estate 
matters include Massachusetts Highway Department, Metropolitan District 
Commission, the Department of Environmental Management, the 
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. 

Two eminent domain cases resolved in fiscal year 1993 were of particular 
significance. Frank v. Commonwealth involved the largest claim for damages in 
any eminent domain case ever brought in Massachusetts. The case arose from 
the 1988 taking by the Massachusetts Highway Department of the land and 
building at 150 Causeway Street, Boston, adjacent to the Boston Garden, as 
part of the Central Artery Project. The plaintiffs claimed damages of between 
$90 and $104 million. The Commonwealth's highest appraiser testihed to a 
value of $53 million. The trial exposure to the Commonwealth (including 
interest) was approximately $80 million above the amount originally awarded 
by the Highway Department. The jury returned a verdict of $64 million, 
resulting in the plaintiff receiving $24 million over the original payment. 

In New Boston Garden Corp. v. Commonwealth, owners of the Boston Garden 
claimed $52 million in damages from the same 1988 taking of the 150 
Causeway Street parcel, contending that the taking extinguished their ease- 
ment and leasehold rights used for storage and access. Based in part upon an 
appraisal/engineering analysis prepared by the Central Artery/Tunnel Project, 
the parties agreed to settle any present and or future claims arising from the 
demolition of 150 Causeway Street for $15 million. 

Other significant eminent domain cases resolved during the fiscal year 
included: Lyon v. Commonwealth, arising from the Massachusetts Highway 
Department's taking of land in Concord for the widening of Route 2, which 
was resolved by a jury verdict of $54,000, 24% of the $370,000 claimed; 
Wronski v. Commonwealth, in which the Metropolitan District Comission took 
approximately 38 acres in Sterling for conservation purposes, which the jury 
valued at $725,000 ($525,000 less than the plaintiff's claim and $130,000 less 
than his expert's opinion); Sciaba v. Commonwealth, in which the jury valued 
commercial property in Attleboro taken by the Massachusetts Highway 
Department at $36,500 ($40,000 less than the plaintiff's expert appraisal and 
$10,000 above the Commonwealth's appraisal); Island Auto Realty Trust v. 
Commonwealth, involving a taking by the Metropolitan District Commission 
of property in Lynn, resulting in a jury verdict of $310,000, approximately 
$210,000 less than the plaintiff's claim; Giarle v. Commonwealth, arising from a 
Massachusetts Highway Department taking of commercial property adjacent 
to the Orient Heights MBTA Station in East Boston, valued by the jury at 
$105,000, $84,000 less than the plaintiffs claim; Cumminss v. Commonwealth, 
in which the jury returned a verdict of $125,000 for strips of land taken by the 
Massachusetts Highway Department to widen Washington Street in Woburn, 
for which plaintiffs had claimed $430,000; Churchill v. Commonwealth, arising 
from the taking of three parcels in Easton for a road and bridge construction 
improvement project, in which the jury returned a verdict of $30,000 



132 P-D. 12 

($10,000 above the Commonwealth's expert appraisal and $88,000 less than 
the plaintiff's claim; Ackerley v. Commonwealth, involving the taking of an 
advertising billboard by the Massachusetts Highway Department, in which the 
jury returned a verdict of $129,000, $17,000 below the Commonwealth's 
expert's assessment of $146,000 (the Court subsequently allowed an additur to 
raise the damages to $146,000, still $46,000 below the plaintiff's claim); 
Bumham v. Commonwealth, in which the Appeals Court affirmed the denial of 
a request for a new trial made by a plaintiff who, dissatisfied with a jury ver- 
dict, sought to challenge the validity of the taking. 

A category of cases that is rapidly increasing in volume and exposure 
involves claims for alleged environmental damage. An example of such a case 
resolved in fiscal year 1993 is Town of Ashland v. Trimoiint Bituminous v. 
Massachusetts Highway Department, in which the Town of Ashland sued a 
maker of asphalt for alleged contamination of a public well. Trimount joined 
the Massachusetts Highway Department, alleging that state employees who 
were responsible for testing the asphalt had periodically dumped chemicals 
used in that process onto the ground. Trimount agreed to dismiss the claim as 
part of a comprehensive settlement. 

Trial Division attorneys also have responsibility for protecting the 
Commonwealth's interests in all petitions for registration of land filed in the 
Land Court, and for reviewing as to form rental agreements, pro tanto 
releases, general releases, deeds, taking orders, and other conveyance docu- 
ments relating to transfers from or to the Commonwealth as required by 
statute or requested by a state department or agency. 

The Trial Division also defends tort and civil rights cases brought against the 
Commonwealth and its employees. Most of these cases arise under the 
Massachusetts Tort Claims Act, G.L. c. 258, and federal and state civil rights 
statutes. Early in fiscal year 1993 we reviewed existing presentment procedures 
under Chapter 258 and determined that the process did not appear to be as 
effective as it could be in resolving cases at the pre-litigation stage. Working 
with agency counsel the Trial Division prepared new guidelines for present- 
ment practices, encouraging early investigation and, when appropriate, settle- 
ment of claims, so as to reduce the need for litigation. We installed a new 
computer tracking system to monitor the process. 

Two tort cases handled by Trial Division attorneys resulted in reported deci- 
sions of the Supreme Judicial Court in fiscal year 1993. In fean W. v. 
Commonwealth, the Supreme Judicial Court announced its intention to abolish 
the "public duty rule," which it had recognized since 1982 as a bar to claims 
against governmental entities for harm indirectly caused by negligent perfor- 
mance of functions that serve to protect the public generally, in the absence 
of a special relationship between the person harmed and the governmental 
entity. Since the decision the Attorney General's Ofhce has actively partici- 
pated in the development of legislation to preserve the rule. In Economy 
Engineering v. Commonwealth, the Supreme Judicial Court held that where a 
strict liability defendant prevails against a negligent defendant for contribu- 
tion, the contribution statute allows the negligent defendant to have the ben- 
efit of any comparative negligence of the original plaintiff. 

Other signihcant tort cases resolved by the Trial Division during fiscal year 



P.D. 12 133 

1993 included cases arising from motor vehicle collisions, slip and fall inci- 
dents, alleged professional malpractice, and other occurrences. Among motor 
vehicle cases, two resulted in jury verdicts for the plaintiffs: Costello v. 
Commonwealth ($22,500 awarded to driver of vehicle struck by state police 
cruiser); and Eaton v. Commonwealth (jury found the Commonwealth 60% 
liable for plaintiff's total damages of $12,500, suffered when struck by 
Massachusetts Highway Department truck while standing by side of road). 
Two cases resulted in jury verdicts for the Commonwealth: Flannery v. 
Commonwealth (jury rejected claim for injuries suffered while plaintiff was 
under arrest, riding in trooper's cruiser, when cruiser was struck by truck); and 
Agganis v. Commonwealth (jury rejected motorcyclist's claim for injuries suf- 
fered when he crashed into drawbridge gate as bridge was being closed). Five 
motor vehicle cases were dismissed by court order based on legal defects: 
Semenza v. Commonwealth (claim based on skid on icy highway, dismissed for 
failure to comply with thirty day notice requirement of road defect statute); 
Prmdle v. Commonwealth (claim based on inoperative traffic signal, dismissed 
for lack of compliance with statutory notice requirement); Paonessa Co. v. 
Commonwealth (Appeals Court affirmed dismissal of complaint for contribu- 
tion for accident resulting from highway construction, based on failure to 
comply with notice provision of road defect statute); McCarron v. 
Commonwealth (claim of passenger in car struck by second vehicle whose dri- 
ver claimed to have been blinded by water falling from allegedly defective 
drain pipe on state highway); and Khromchenko v. Metropolitan District 
Commission (claim of passenger in car that crashed through temporary barrier 
replacing guardrail on Metropolitan District Commission overpass barred by 
statute granting immunity for defective guardrails). In Murphy v. 
Commonwealth, the family of a deaf state college student, killed by a train as 
he crossed tracks, dismissed the claim voluntarily after investigation by the 
Civil Investigation Division produced conclusive evidence of the decedent's 
own negligence. 

Tort cases involving professional malpractice resolved in fiscal year 1993 
included: Powell v. Massachusetts Defenders Committee, in which the Superior 
Court applied the "ineffective assistance of counsel" standard to grant sum- 
mary judgment against a former criminal defendant claiming legal malprac- 
tice; fones V. Commonwealth, a medical malpractice claim arising from a surgi- 
cal procedure performed at the Lemuel Shattuck Hospital, which was dis- 
missed after the plaintiff's failure to post the bond required by the medical 
malpractice tribunal; and Weaver v. Commonwealth, a medical malpractice 
claim that was resolved by a jury verdict for all defendants, without determi- 
nation of the disputed issue of whether a defendant physician serving as an 
intern at a Department of Public Health hospital was an employee of the 
Commonwealth. 

Tort cases raising other types of claims, resolved in the fiscal year, included 
four cases resulting in jury verdicts for the Commonwealth: Baker v. 
Commonwealth (jury rejected plaintiff's claim for damages arising from broken 
leg he claimed had resulted from wheelchair accident on state facility ramp, 
but which investigation disclosed had resulted from later fall on property not 
owned or controlled by Commonwealth); Bertucci v. Commonwealth (jury 



134 P.D. 12 

rejected claim for damages suffered when plaintiff vaulted over retaining wall 
into stairwell); Daifv. Massachusetts Maritime Academy (jury rejected claim of 
injury suffered while plaintiff did repairs on Maritime Academy's Training 
Ship); Mutawakil, Admx. v. Commonwealth (jury found no negligence of 
Commonwealth in death of 6-year-old boy who drowned at Metropolitan 
District Commission swimming pool while participating in summer camp 
program sponsored by City of Boston). Four other cases were dismissed by 
court order: Koe v. Commonwealth (claim of guest of student at University of 
Massachusetts at Amherst alleging negligence in the University's failure to pre- 
vent her sexual assault by a male student); Tarpey v. Department of Public Health 
(claim arising from Department of Public Health's alleged negligence in failing 
to enforce regulations requiring periodic testing of fortification levels of milk 
at dairy, held barred by "public duty rule" ); Rosada v. Conmwnwealth (Appeals 
Court affirmed directed verdict after plaintiff's opening statement, holding 
that no reasonable jury could find that Commonwealth's alleged negligence 
was proximate cause of injuries suffered when plaintiff dove into shallow end 
of Metropolitan District Commission pool); and Pesce v. Methuen (court dis- 
missed claim of negligence arising from issuance of building permits and con- 
struction of sidewalk adjacent to plaintiff's property, based on "discretionary 
function" rule). 

THE 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 eight assistant attorneys general, investigators and support staff. 
During fiscal 1993, the division was responsible for over 500 cases. 

The office litigates a wide range of cases, including tort, contract, eminent 
domain, workers compensation, environmental, consumer protection, civil 
rights, administrative appeals and victims of violent crime compensation. The 
division also prosecutes fraud cases for the Division of Employment and 
Training and the Insurance Fraud Bureau. 

The Western Massachusetts now includes a Medicaid Fraud Control Unit. In 
addition, assistant attorneys general have been appointed to concentrate in 
the areas of consumer protection. Insurance Fraud Bureau prosecution, and 
Victim of Violent Crime compensation. The computer and word processing 
equipment has been recently upgraded, and the telephone system has been 
improved. 

During the upcoming year, the Western Massachusetts Division will con- 
tinue to expand its capabilities with the addition of a State Police unit and an 
assistant attorney general who will specialize in criminal prosecution. The 
Western Massachusetts Division looks forward to its ongoing role as a full ser- 
vice satellite of the Office of the Attorney General, dedicated to providing the 
residents of the Western Massachusetts area access to their state government. 



P.D. 12 135 

ELECTIONS DIVISION 

The Elections 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. 

In fiscal year 1993, the Division was involved in several initiative petition 
related litigations. In Associated Industries of Mass. v. Secretary of the 
Commonwealth, the Elections Division successfully defended the Attorney 
General's certification and summary of an initiative petition entitled "An Act 
to fund cleanup of hazardous waste dumpsites in Massachusetts", as violative 
of Article 48 of the Amendments to the Massachusetts Constitution. Under 
Article 48, initiative petitions cannot make a specific appropriation of money 
from the treasury of the Commonwealth. In rendering its holding, the 
Supreme Judicial Court stated that some deference is to be given to the 
Attorney General's judgment concerning the form and content of the sum- 
mary. The Court further stated that the Attorney General is not required to 
include the legal citation to specific Federal law involved or the fact that the 
initiative refers to Federal law "as amended". However, the summary must 
fairly state the sum and substance of the measure without legal analysis or 
interpretation. On the same issue, the Elections Division was equally as suc- 
cessful before the Supreme Judicial Court in defending the Attorney General's 
certification and summary of an Initiative Petition entitled "An Act pertaining 
to health and tobacco" in Gilhan & another v. Attorney General & another. The 
Division successfully defended the Attorney General's certification of "An Act 
to Promote Packaging Reduction and Recycling" in Thompson v. Attorney 
General where plaintiff challenged the certification on the basis that the opera- 
tion of the petition was restricted to particular districts or localities and was 
therefore excluded from the Initiative Amendment Article 48. Although the 
measure exempts cities and towns in their role as "Packagers", the Court held 
that it did not relate merely to a particular city or town but addressed a matter 
of statewide concern in that it regulated the conduct in all geographic areas 
thus may properly be the subject of an initiative petition. The Division hied 
an amicus brief in Opinion of the Justices to the Senate where the Senate sought a 
judicial opinion on the constitutionality of an initiative petition to limit the 
terms of elected federal and state office holders. The amicus defended the 
Attorney General's summary and certihcation of the petition and supported 
the term limit proposal. The Supreme Judicial Court declined to address the 
constitutionality of provisions in the initiative petition seeking to impose 
term limits on federal ofhce holders but held that the limitation of terms of 
state office holders was not inconsistent with the freedom of the elections 
provision of the Declaration of Rights under the Massachusetts constitution. 

In Citizens For a Competitive Massachusetts et al., v. Secretary of the 
Commonwealth, the Division successfully defended the Secretary's decision to 
place an Initiative Petition on the ballot entitled "An Act to require public 
reporting of corporate tax information and analysis of certain tax expendi- 
tures". Plaintiff sought a declaration that the Petition could not be placed on 
the ballot contending that Article 48 of the Amendments of the Massachusetts 
Constitution prohibited the ballot placement because of the failure of the leg- 



136 P.D. 12 

islative committee on taxation to report on the petition to the general court. 
The Supreme Judicial Court held that the failure of a single legislative commit- 
tee to report on an initiative petition by the deadline specified for the legisla- 
ture to take its roll call vote did not block the Petition from appearing on the 
ballot. In Independent Voters Party v. Michael J. Connolly, plaintiff sought a tem- 
porary restraining order to place the names of certain of its Congressional can- 
didates on the state primary ballot. The Division successfully defended against 
the issuance of the TRO where the candidates were nominated at the plain- 
tiff's convention but failed to file nomination papers containing the appropri- 
ate number of signatures. In denying the plaintiff's TRO the court held that 
the Commonwealth has a legitimate interest in nominating candidates by 
nomination papers which show that the candidates have a certain modicum 
of support. In Independent Voters Party v. Secretary of State, plaintiffs filed suit 
against the Secretary seeking placement on the general state election ballot 
alleging that they were entitled to nominate Congressional Candidates for the 
general election ballot by caucus. The Superior Court denied the injunction 
and the Plaintiffs appealed to the Appeals Court. The Supreme Judicial Court 
ultimately denied the petition pursuant to M.G.L. 211, §3. 

In Limits v. Bulger, where the joint session of the General Court failed to act 
on an initiative amendment filed with the Secretary of State and which con- 
tained sufficient signatures, the Division won a dismissal of plaintiff's com- 
plaint which sought an order compelling the General Court to act on the ini- 
tiative amendment before the end of the legislative session and a declaration 
that the Legislature must take action. In dismissing plaintiff's complaint, the 
Court ruled that the principle of separation of powers expressed in Article 30 
of the Declaration of Rights prohibits the Court form intruding into the power 
and function of another branch of the government. The Division successfully 
defended against plaintiff's suit in Lopez v. Secretary of the Commonwealth. 
There, plaintiffs were unenrolled voters who voted in the presidential primary 
and automatically became enrolled in the party whose ballot they selected, 
pursuant to G.L. c. 53, §37. Plaintiffs were therefore precluded from running 
as unenrolled candidates for state office because they did not satisfy the statu- 
tory disaffiliation period prescribed by G.L. c. 53, §6. Plaintiffs challenged the 
constitutionality of the automatic enrollment statute alleging that it was void 
for vagueness and violated their due process and equal protection rights. The 
Court did not evaluate the Due Process claim under a standard of strict 
scrutiny since "political candidacy" is not a fundamental right. The Court also 
found the statute to be rationally related to a legitimate state interest since the 
statute encourages voters to participate in primary elections. Finally, although 
the statute has different consequences for unenrolled voters and party voters, 
the Court ruled that plaintiffs had no equal protection claim. 

The Elections Division, working with the Government Bureau advised the 
Secretary of State on July 24, 1992 that Chapter 105 of the Acts of 1992, "An 
Act Establishing Congressional Districts", was subject to referendum under 
Amendment Article 48 of the Massachusetts Constitution. 

The Division also brought suit against over 90 Candidates and treasurers of 
political committees who failed to file the required campaign finance disclo- 
sure forms with the Office of Campaign and Political Finance. In January 



RD. 12 137 

1993, the Division sent warnings to all non-filers asking them to file. The 
Elections Division is also responsible for enforcing state statutes that require 
legislative agents (lobbyist) and their employers to file financial disclosure 
statements with the Office of the Secretary of State. 

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 Meeting Law belongs to the Elections 
Division. 

The Division advised state agencies and the public on the requirements of 
the Public Records Law and the Fair Information Practices Act. The Division 
worked with the Supervisor of Public Records in the Secretary of State's Office 
to resolve disputes regarding the responsibility of public agencies to make doc- 
uments 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 several Open Meeting Law disputes, including ones involving the 
Millbury School Committee, the Lynn Development Board, the Northbridge 
Chapter 766 Parents Advisory Committee, the Winthrop School Committee 
and the Sudbury School Committee, without resorting to litigation. 

OPFNIONS 

The Attorney General is authorized by G.L. c. 12, §§ 3, 6, and 9 to render 
formal opinions and legal advice to constitutional officers, agencies and 
departments, district attorneys, and branches and committees of the 
Legislature. Formal, published opinions are given primarily to the heads of 
state agencies and departments. Less formal legal advice and consultation is 
also available. Guidelines to the formal opinions process are available from 
the Opinions Coordinator, as is information about the informal consultation 
process. The questions considered in legal opinions must have an immediate, 
concrete relation to the official duties of the state agency or officer requesting 
the opinion. Hypothetical or abstract questions, or questions which ask gener- 
ally about the meaning of a particular statute, lacking a factual underpinning, 
are not answered. 

Formal opinions are not offered on questions raising legal issues that are the 
subject of litigation or that concern ongoing collective bargaining. Questions 
relating to the wisdom of legislation or administrative or executive policies are 
not addressed. Generally, formal opinions will not be issued regarding the 
interpretation of federal statutes or the constitutionality of enacted legislation. 

Formal opinion requests from state agencies that report to a cabinet or exec- 
utive office must first be sent to the appropriate secretary for his or her consid- 
eration. If the secretary believes the question raised is one that requires resolu- 
tion by the Attorney General, the secretary then requests the opinion. 

During fiscal year 1993, three formal Opinions of the Attorney General were 
issued. An additional 64 written requests were considered and either resolved 
informally or declined. 



138 P.D. 12 

The formal Opinions appear at the end of this annual report. 



July 13, 1992 
Number 1. 

Thomas C. Rapone 

Secretary of Public Safety 

One Ashburton Place, 21st Floor 

Boston, MA 02108 

Dear Secretary Rapone: 

You have asked for my opinion on two cjuestions concerning the authority 
of the State Boxing Commission to regulate boxing or sparring matches or 
exhibitions that are or are claimed to be amateur in nature. You ask whether a 
match' at which an admission fee is charged, or at which promoters, athletes 
or officials receive payments, should be considered "purely amateur within 
the meaning G.L. c. 147, § 35 (1990 ed.), so as to exempt partcipants from the 
licensing requirements of that statute. You also ask whether the Commission 
authorized by G.L. c. 147, § 32 (1990 ed.) to assign or approve the choice of 
officials for amateur matches. Your request arises because the Commission, 
which is established within the Executive Ofhce of Public Safety, see G.L. c. 22, 
§ 12 (1990 ed.), c. 6A, § 18 (as amended by St. 1991, c. 412, § 4), seeks clarifi- 
cation of its authority concerning such matches. 

For the following reasons, I conclude that under G.L. c. 147, § 35, the 
Commission itself must determine in the first instance whether a particular 
match is "purely amateur" in nature, and that in making this determination 
the Commission may properly consider any admission fee charged and any 
payments made to athletes, promoters, or officials. I also conclude that the 
Commission, in exercising its discretion under G.L. c. 17, § 32 to approve 
amateur boxing organizations and to issue special licenses for amateur 
matches, may reserve to itself the power to assign or approve the choice of 
officials for such matches. ' 



G.L. c. 147, § 35 provides that "[n]o person shall act, except in the case of a 
purely amateur luatch or exhibition, directly or indirectly, as physician, referee, 
judge, timekeeper, professional boxer or as manager, trainer or second such a 
boxer, at a boxing or sparring match or exhibition or as a matchmaker there- 
for, unless licensed by the commission . . ." G.L. c. 147, § 35 (emphasis 



Although G.L. c. 147 uses the terms "match." "e.\hibition." and "boul," this opinion uses only the term "match" with the understand- 
ing that e.xhibitions and bouts are also included. 

' You have also indicated that a particular boxing organization questions whether the Commission's power to regulate amateur bo.xing 
has been preempted by the federal statutes concerning the Unites State Olympic Committee and associated amateur sports organiza- 
tions. See ,56 U.S.C. §§ 371-96 (1988). I do not address this question, in accordance with the practice of prior Attorneys General of 
declining to render formal opinions on questions of federal law, e.g.. 1984-85 Op. .Att'y Gen.. Pub. Doc. No. 12 at 93 (Feb.4, 1985), and 
because no specific statutory provision has been identified that might have such preemptive effect. 



P.D. 12 ^^^ 

added). Neither section 35 nor any other provision of chapter 147 defines 
"purely amateur match or exhibition." You ask whether a match would be con- 
sidered "purely amateur" if admission were charged, private promoters received 
a profit, athletes received expense stipends, and/or officials received equip- 
ment-rental income in excess of their expenses. 

1 first note that only participants in "purely amateur" matches are exempt 
from licensing requirements. This indicates that the exemption extends only to 
those matches that are completely free of the influences that, in the view of 
the Legislature, warrant the more stringent statutory provisions applicable to 
professional boxing. The fact that the statute bars unlicensed persons from par- 
ticipating in matches "directly or indirectly" confirms that the scope of the 
prohibition is broad and supports a narrow interpretation of the exemption for 
"purely amateur" matches. 

Second, section 35 defines "professional boxer" as "one who competes for a 
money prize or teaches or pursues or assists in the practice of boxing as a means 
of obtaining a livelihood or pecuniary gain." (Emphasis added.) This indicates that 
in determining whether a particular match is "purely amateur," the 
Commission may properly examine the financial arrangements surrounding 
the match. 

Third, the definition of a "professional boxer" is not limited to those who 
actually box as a means of obtaining a livelihood or pecuniary gain. It also 
encompasses a person who "teaches or . . . assists in the practice of boxing" for 
such purposes. The Commission, as the agency charged with enforcing section 
35 and related provisions of chapter 147, has considerable leeway in interpret- 
ing these statutes, and the Commission's interpretations are entitled to weight 
and deference in the courts. E.g., Cherubino v. Board of Registration of 
Chiropractors, 403 Mass. 350, 358 (1988); Massachusetts Medical Society v. 
Commissioner of Insurance, 402 Mass. 44, 62 (1988). The Commission has the 
discretion, in determining whether a person teaches or assists in the practice of 
boxing as a means of obtaining a livelihood or pecuniary gain, to examine any 
payments received by that person in connection with the match in quesUon.' 

The statutory language just discussed, taken as a whole, indicates that the 
Commission may examine the full range of financial arrangements made with 
respect to athletes, promoters, officials, and other persons connected with a 
match in determining whether the match is "purely amateur." Moreover, 
other provisions of chapter 147 confirm that the financial arrangements sur- 
rounding boxing matches are a legitimate object of the Commission's 
scrutiny. See. e.g., c. 147, § 32 (requiring license for match for a prize or purse 
or at which admission fees are charged directly or indirectly, in the form of 
dues or otherwise); c. 147, § 35 (providing that physicians desiring to officiate 
without charge at amateur matches shall be licensed without charge); c. 147, § 
36 (requiring that fees of referee and other licensed officials be fixed by com- 
mission and paid by licensee prior to match); c. 147, § 43 (prohibiting 
licensees from having financial interest in boxers in specified circumstances). 
These provisions indicate that in determining whether a match is "purely 
amateur," the Commission may properly consider a range of financial issues 



3 My emphasis on the term "professional boxer" should not be taken to suggest that a match that involves no "professional boxer" is ipso 
facto "purely amateur." 1 express no conclusion on this question, which you have not asked me to address. 



140 PD. 12 

going beyond direct compensation to the actual athletes involved. 

You have not asked for guidance on whether the Commission should clas- 
sify any particular match as "purely amateur." Because such a question is 
likely to involve some factual determinations, it is the duty of the 
Commission rather than the Attorney General to make this classification.' 

1 conclude, however, that the Commission could, in its discretion, deter- 
mine that a match at which an admission fee is charged, or from which per- 
sons other than the athletes themselves derive income, is not "purely ama- 
teur," and thus that the personnel involved must obtain Commission licenses 
pursuant to section 35. 

//. 

Your remaining question concerns the Commission's authority under G.L. c. 
147, § 32 and related provisions to assign or to approve the choice of officials 
for amateur matches. Section 32 provides, in pertinent part, as follows: 

No boxing or sparring match or exhibition for a prize or purse, or 
at which an admission fee is charged, either directly or indirectly, 
in the form of dues or otherwise, shall take place or be conducted 
in this Commonwealth except in pursuance of a license granted as 
hereinafter provided by the state boxing commission ... In the 
case of exhibitions or bouts held in accordance with the rules and regula- 
tions of such amateur organizations as may be approved by the 
Commission, the commission may issue special licenses without the 
requirement of a bond as provided in section thirty-four or of pay- 
ment of the annual fee. 

G.L. c. 147, § 32 (emphasis added). Assuming that the Commission classifies 
as "amateur" a match for a prize or purse, ar at which an admission fee is 
directly or indirectly charged, you ask whether the Commission may affect 
the assignment of officials at such a match.' 

Section 32 does not expressly confer authority on the Commission to assign 
or to approve the choice of officials at a particular amateur match. Section 32 
does, however, grant the Commission broad discretionary powers in the area 
of amateur matches: the Commission may approve amateur organizations.*^ 
and the Commission may issue special licenses for matches held in accordance 



■* E.g., 1972/73 Op. Att'y Gen. No. 46, Pub. Doc No. 12 at 149 Oune 20, 1973) (stating that question whether particular games were so sim- 
ilar to beano as to come within provisions ol beano statute was for Commissoner of Public Safety rather than Attorney General to 
resolve). 

Your question is not limited to those matches that would be considered "purely amateur" for the purposes of section 35. The 
Commission might conclude that a match involving some form of prize, purse, or admission fee was "purely amateur," so as to exempt 
its various participants from the licensing provisions of section 35, yet by reason of the prize, purse, or admission fee, the match itself 
would still require a license under section 32. 1 do not reach the question whether an amateur or "purely amateur" match that does not 
involve a prize, purse, or admission fee nevertheless requires a license under section 32. 

It appears that the Commission's role is to approve amateur organizations, not those organizations' rules and regulations. It is a "'gen- 
eral rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is some 
thing in the subject matter or dominant purpose which requires a different interpretation."' Byim v. School Committee of Boston. 411 
Mass. 264, 271 (1991) (quoting Moiilton v. Bwokline Rent Control Board, 385 Mass. 228, 230-31 (1982); Driaik v. Board of Health of 
Haverhill, 324 Mass. 129, 133 (1949)). The phrase "as may be approved by the commission" thus is presumed to modify the last 
antecedent, "such amateur organizations," rather than "mies and regulations." The insertion of the word "such" prior to "amateur 
organizations," rather than prior to "rules and regulations," confirms that it is "amateur organizations" to which the modifying phrase 
applies. The distinction may be of little significance, however, because in considering whether to approve amateur organizations, the 
Commission may clearly examine those organizations' rules and regulations. 



P.D. 12 



141 



with the rules and regulations of approved amateur organizations.' The 
Commission exercises these discretionary powers in accordance with the over- 
all purposes of the statutes regulating boxing. 

The Commission may determine that these statutory purposes are best 
served by reserving to the Commission the power to assign or to approve the 
choice of officials at amateur matches. This is an application of the familiar 
principle that "[d]iscretion to deny completely an application includes the 
power to grant less than the full privilege." Fragopoulos v. Rent Control Board of 
Cambridge, 408 Mass. 302, 304 (1990) (approving rent control board's issuance 
of conditional removal permit; citing Goodwin v. Department of Public Utilities, 
351 Mass. 25, 26 (1966). Accordingly, the Commission may decline to approve 
those amateur organizations that are unwilling, in their rules or regulations or 
by agreement with the Commission, to permit the Commission to assign or to 
approve the choice of officials. Alternatively, the Commission may approve 
amateur organizations but decline to issue special licenses for matches held in 
accordance with the rules and regulations of those organizations unless the 
Commission, as an express condition of the license or otherwise, retains the 
power to assign or to approve the choice of officials." 

In sum, 1 answer your first question by concluding that the Commission 
possesses the discretionary authority to determine that a match at which an 
admission fee is charged, or from which persons derive income, is not "purely 
amateur" within the meaning of G.L. c. 147, § 35. 1 answer your second ques- 
tion by concluding that the Commission, in the exercise of its discretionary 
authority under G.L. c. 147, § 32 to approve amateur organizations and issue 
special amateur match licenses, may reserve to itself the power to assign or to 
approve the choice of officials at amateur matches. 

Sincerely, 

Scott Harshbarger 

Attorney General 



^ " The word 'may' in a statute commonly imports discretion." Turnpike Ammement Park, Inc. v. l.kemins Commission of Cambridge, 343 
Mass. 435, 437 (1962). "The word 'may' is one of permission and not of command.'" Cohen v. Board of Water Commissioners, Fire District 
No. 1, Soutli Hadley, 411 Mass. 744, 751 (1992) [quoting Brennan v. Election Commissioners of Boston, 310 Mass. 784, 786(1942)). 

^ This is not to say that the Commission may require officials at purely amateur matches to obtain Commission licenses and pay licens- 
ing fees to the Commission. Section 35 expressly exempts such officials from licensing requirements. But this exemption does not bar 
the Commission from exercising its other powers to regulate the choice of officials, so long as there is no per se exclusion of unlicensed 
persons. 



142 P.D. 12 

October 26, 1992 
Number 2. 

The Honorable John E. Fenton, Jr. 
Chief Administrative fustice 
Trial Court of the Commonwealth 
Two Center Plaza, Room 540 
Boston, MA 02108 

Dear Judge Fenton: 

1 have been asked for my opinion whether the transfer of the Suffolk 
County courthouse facilities from the City of Boston the Trial Court of the 
Commonwealth, pursuant to St. 1988, c. 203, § 15, carried with it the duty to 
pay workers' compensation to certain courthouse employees who were injured 
and who began receiving such compensation prior to the date of the transfer. 
The City has asked the Trial Court to make such payments as of the date of 
the transfer, and the question has arisen whether chapter 203 obligates the 
Trial Court to do so. Although only the Supreme Judicial Court may make 
binding determination on this issue,' for the following reasons 1 conclude that 
the responsibility for these payments remains with the City. 

/. 

On October 1, 1988, pursuant to chapter 203, all right, title and interest in 
the Suffolk County courthouses was transferred from the City to the 
Commonwealth. St. 1988, c. 203, § 15. As part of the transfer, persons who 
were employed "primarily for the operation and maintenance" of the court- 
houses were transferred from the City's employ to that of the Trial Court. Id. § 
21.1 am informed that as of October 1, 1988, twenty-four persons whom the 
City represented as having been employed primarily for the operation and 
maintenance of the courthouses were receiving workers' compensation pay- 
ments from the City based on injuries sustained prior to October 1, 1988. 
Both the City and the Commonwealth are subject to the workers' compensa- 
tion act and are self-insurers. 

//. 

Section 20 of chapter 203 provides, in pertinent part, as follows: 

[1] Expenses, liabilities and income relating to the operation prior 
to acquisition by the commonwealth of buildings and land trans- 
ferred pursuant to section fifteen ... of this act and annual debt 
obligations with respect to such buildings and land which are due 
prior to such acquisition shall be borne and receivable by the [City] 
whether or not billed, incurred or received by [it] prior to such 
acquisition. [2] Expenses, liabilities and income relating to the 



Under St. 1988, c. 203, § 20, the Supreme Judicial Court has the power to determine "|a|ll questions regarding the identification of . . . 
expenses, liabilities, income, contracts, obligations and monies" to be transferred from the City to the Trial Court. I render this advisory 
opinion in the hope that the Trial Court .nd the City will find it unnecessary to request that the Supreme Judicial Court resolve the 
matter. 



P.D. 12 143 

operation of said buildings and land after such acquisition and 
annual debt obligations with respect to such buildings and land 
which are due after such acquisition shall be borne and receivable 
by the Commonwealth. [3] All duly existing contracts and obliga- 
tions of the [City] relating to the operation of said buildings and 
land which are in effect immediately prior to such acquisition shall 
be transferred to the Chief Administrative Justice of the Trial Court 
to be performed in accordance with law. 

St. 1988, c. 203, § 20 (bracketed numbers added). 

Section 20 thus identifies three categories of rights and duties. First, the City 
must pay all "expenses" and "liabilities," and must receive all income, relating 
to the pre-acquisition operation of the courthouses, regardless of when such 
"expenses" and "liabilities" are due or are billed.- Second, the Commonwealth 
must pay all "expenses" and "liabilities," and must receive all income, relating 
to the post-acquisition operation of the courthouses. Third, the Chief 
Administrative Justice must assume all "contracts and obligations" that relate 
to the operation of the courthouses and that were in effect just prior to the 
acquisition. 

Here, the employees in question were injured during the pre-acquisition 
operation of the courthouses, so that the second category is clearly inapplica- 
ble. The question thus reduces to whether workers' compensation payments 
to these employees fall within the first category, i.e., "expenses" and "liabili- 
ties" which must be borne by the City regardless of when due or billed, or 
instead within the third category, i.e., "contracts and obligations," which were 
transferred to and must be performed by you as Chief Administrative Justice. 

In approaching this question it is critical to note that the statute uses very 
different language depending on the nature of the right or duty in question. 
One group of rights and duties — "[ejxpenses, liabilities and income" and 
annual debt obligations" — is spoken of as "borne and receivable" by either 
the City or the Commonwealth. Another group of rights and duties — "duly 
existing contracts and obligations is spoken of as "transferred to the Chief 
Administrative Justice of the Trial Court to be performed in accordance with 
law." In other words, purely financial duties must be "borne" by and court- 
house-related income is "receivable" by, either the City or the 
Commonwealth, depending on whether they relate to pre- or post-acquisition 
operations. Other sorts of "contracts and obligations," in contrast, must be 
"performed" by the Chief Administrative Justice, as distinct from the 
Commonwealth. 

This suggests that the sorts of "contracts and obligations" that are "trans- 
ferred" to be "performed" by the Chief Administrative Justice were not 
intended to include purely financial rights and duties — such as the duty to 
pay workers' compensation, which would involve a payment of money out of 



" I do not interpret section 20 as providing that the City must pay only those expenses and liatjilities "which are due prior to sucli acqui- 
sition." The just-quoted phrase appears immediately following the phrase "annual debt obligations with respect to such buildings and 
land," and thus is presumed to modify only that latter phrase. See Globe Newspaper Co. v. Boston Retirement Board, .^88 Mass. 427, 
432 (1983) (noting "'the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last 
antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation'") (citations 
omitted). Moreover, the phrase "whether or not billed |orl incurred |by the City] prior to such acquisition" confirms that the critical 
question is whether an expense or liability relates to pre-acquisition operations, rather than when the expenses or liability must be 
paid. 



144 P.D. 12 

the City or State Treasury rather than any "perform[ance]" by the Chief 
Administrative Justice.* The Chief Administrative Justice is made responsible 
only for those duties, whether imposed by contract, constitution, statute, or 
regulation, that require some other sort of action to be "performed." 

The next section of chapter 203, section 21, buttresses this interpretation. 
Section 21 provides that where City employees at the courthouses are "trans- 
ferred to and . . . become employees of the Trial Court," their pension and 
retirement allowances "shall be paid by the Commonwealth . . . "Thus, as in 
section 20, where the Legislature chose to shift purely financial duties, the 
Legislature shifted such duties to the Commonwealth, not to the Chief 
Administrative Justice. This is additional evidence that the "contracts and 
obligations" to be transferred to and performed by the Chief Administrative 
Justice were not intended to include purely financial rights and duties.^ Cf. St. 
1988, c. 203, § 4 (adding G.L. c. 211B, § 17, authorizing Chief Administrative 
Justice to charge occupancy fees for use of courthouse facilities, with fee to be 
paid into general fund of Commonwealth). 

It seems clear that a statutory duty to pay workers' compensation benefits 
could properly be termed a "liability." The Supreme Judicial Court has inter- 
preted the term broadly and appears to view it as broad enough to encompass 
responsibilities under the workers' compensation act. Gurry v. Cuniberlaud 
Farms, Inc., 406 Mass. 615, 619, 621 (1990). The term may include a contin- 
gent duty to pay money,' Xtra. Inc. v. Commissioner of Revenue, 380 Mass. 277, 
280 (1980), and a duty to pay money because of a judgment. Boston Elevated 
Railway Co. v. Metropolitan Transit Authority, 323 Mass. 562, 568 (1949)." The 
term may include taxes, id., which, like workers' compensation payments, are 
a creature of statute. 

It might be suggested that, notwithstanding the above analysis, the plain 
meaning of the term "obligations" is broad enough to encompass every sort of 
legal duty, including the duty to pay workers' compensation. Under this inter- 
pretation, the duty to make such payments, as an "obligation," must be "per- 
formed" by the Chief Administrative Justice. 

No doubt the term "obligations," if it stood alone in section 20, could 
encompass the duty to pay workers' compensation. But the term "obligations" 



I do not mean to suggest hat the Chief Administrative Justice acting in his official capacity should be distinguished from the 
Commonwealth or other purposes, e.^., of immunity from or responsibility to comply with certain forms of judicially ordered relief 
such as a money judgment. 1 note the distinction only because the Legislature has used it in chapter 203; the Legislature has identified 
the Commonwealth as the entity that succeeds to certain hnancial rights and duties, and the Chief Administrative Justice as the official 
who succeeds to certain other, non-financial rights and duties. Also, I have not been asked for and do not reach any conclusion regard- 
ing what rights and duties other than the payment of workers' compensation might fall within the category of "duly existing contracts 
and obligations" under chapter 203. 

4 Indeed, if there were any requirement that either the Commonwealth or the Chief Administrative Justice assume responsibility or pay- 
ing workers' compensation for pre-acquisition injuries, one might expect to find it in section 21, which deals at length with the full 
range of rights of transferred employees, rather than in section 20, which does not mention employees at all. Moreover, the silence of 
section 21 on the issue of payment of workers' compensation, especially in light of the express provision that the Commonwealth pay 
pension and retirement allowances, is another indication that the Legislature did not intend to shift the duty to pay compensation for 
pre-acquisition injuries. See Harborview Residents' Committee, Inc. v. Qiiincy Housing Aiithorit); 368 Mass. 425, 432 (1975) (noting principle 
of statutory construction that "a statutory expression of one thing is an implied exclusion of other things omitted from the statute"). 

5 Section 20 of chapter 203 itself expressly provides that the City must bear expenses and liabilities relating to pre-acquisition operation 
of the courthouses, "whether or not billed |or] incurred |by the City] prior to such acquisition." Thus, although at the time of acquisi- 
tion the exact extent and duration of the City's ongoing duty to pay workers compensation benefits were contingent upon future 
events and could not be precisely determined, these contingencies do not prevent that duty rom constituting a "liability" that 
remained with the City after acquisition 

6 1 have not been provided with details regarding whether any of the employees at issue here participated in any administrative or judi- 
cial proceedings in establishing their claims to compensation. The existence of an administrative or judicial decision requiring pay- 
ments would support, but is not necessary to, my conclusion that the duty to make such payments is a "liability" within the meaning 
of section 20. 



P.D. 12 145 

cannot be read without regard for the terms "[ejxpenses" and "habilities" 
appearing twice in this same section 20/ If the term "obligations" were read to 
encompass every duty to pay expenses or to satisfy monetary liabilities, and to 
place such duties on the Chief Administrative Justice, then the separate and 
very different provisions under which some "[e]xpenses" and "liabilities" must 
be borne by the City and others must be borne by the Commonwealth would 
be rendered entirely superfluous and ineffective. 1 reject this interpretation as 
violative of one of the cardinal rules of statutory construction/ Instead, I 
interpret the term "obligations" as not encompassing the duty to pay 
expenses or to satisfy, monetary liabilities. 

It remains to consider whether workers' compensation payments could be 
considered part of a "contract" to be performed by you as Chief 
Administrative Justice. The answer to this question lies not in chapter 203 but 
in the case law governing the nature of workers' compensation payments 
themselves. The cases indicate that the rights and remedies of employees with 
respect to workers' compensation payments arise out of G.L. c. 152 and are 
statutory rather than contractual in nature. See Ahmed's Case, 278 Mass. 180, 
184 (1932) ("The act thus creates rights and remedies and procedure all its 
own, not previously known to the common or statutory law.") Devine's Case, 
236 Mass. 588, 593 (1921) ("The rights of the employee under the act rest nei- 
ther in negligence nor in contract. They rise wholly out of the workmen's 
compensation act."); Opinion of the Justices, 309 Mass. 562, 568-69 (1941)" 

Although the employee may be, in some cases, a beneficiary of a contract of 
insurance between the employer and the insurer, [t]here is no contract 
between the employee and the insurer. Ahmed's Case, 278 Mass. at 183. Here, 
of course, there is not even a contract between the employer and the insurer, 
because both the City and the Commonwealth are self-insurers. Accordingly, 
the duty to pay workers' compensation benefits does not arise out of one of 
the "duly existing contracts" which section 20 requires you to perform. 

In sum, the words of section 20 of chapter 203, together with the caselaw 
governing the nature of workers' compensation, lead me to conclude that the 
duty to pay workers' compensation to courthouse employees for re-acquisition 



Every word or phrase of a statute must be read in context. Attorney General v. School Committee of Essex, 387 Mass. 326, 337 (1982), and 
without overemphasizing its effect on the remainder of the statute. Massachusetts Commission Against Discrimination v. Liberty Mutual 
Ins. Co., 371 Mass. 186, 190-91 (1976). 

"An intention to enact a barren and ineffective provision is not lightly to be imputed to the Legislature." Mitchell v. Secretary of 
Administration, 413 Mass. 330, 336 (1992) (citations omitted). "'Construing a statute in a way that nullifies one of its provisions is inap- 
propriate if there is a reasonable alternative.'" Ul. (quoting Hen Elfman Sons v. Home Indem. Co., 41 1 Mass. 13, 18 (1991). See also B)nes v. 
School Committee of Boston. 411 Mass. 264, 268 (1991) ("It is an( | elementary rule of statutory construction that a statute should not be 
read in such a way as to render its terms meaningless or superfluous."). 

In Beausoleil's Case, 321 Mass. 344 (1947), which arose at a time when coverage under the workers' compensation act was optional, the 
Supreme Judicial Court indicated that if both employer and employee elected coverage, then the act was read into the employment 
contract and benefits under the act were contractual in nature. Id. at 348. This analysis is inapplicable here; although an employee has 
an election of remedies, see G.L. c. 152, § 24 (Supp. 1991), an employer is now statutorily required to provide workers' compensation 
coverage. Beausoleil's Case, 321 Mass. at 348 n.l; see G.L. c. 152, § 25A (Supp. 1991). This requirement extends to the Commonwealth, 
G.L. c. 152, § 69 (Supp. 1991), and to those public employers, such as the City, that have previously committed themselves to the pro- 
vision of coverage In accordance with section 69. 



146 



P.D. 12 



injuries is one of the "[e]xpenses [and] liabilities" to be "borne" by the City, 
rather than one of the "duly existing contracts and obligations" to be "per- 
formed" by you as Chief Administrative Justice. 

Sincerely, 

Scott Harshbarger 

Attorney General 



January 15, 1993 



DO. TO . P«.NT^«'- """^ ' "! i . rOOT^OTT ON 
. coanRS AS WELL Ai» *» •^ -'" 

P„,H^D ^ P-T or ™c ^ _^ ^^^„ „„„ 

LIBRARIAN OR BY CALU 7 27-2200. 



Number 3. 

The Honorable John E. Fenton, Jr. 
Chief Administrative Justice 
Trial Court of the Commonwealth 
Two Center Plaza, Room 540 
Boston, Massachusetts 02108 

Dear Judge Fenton: 

1 have been asked for my opinion on the proper interpretation of a provi- 
sion of G.L. c. 32, § 65D(b) (1990 ed.), which governs the rate at which judges 
contribute to the Judges Retirement Fund. The question arises because of the 
need to determine the rate applicable to a person who, until his appointment 
as a judge in 1990, worked continuously since 1974 for a state board whose 
employees were not subject to any state retirement system. The specific issue 
is whether such a person should contribute at the rate applicable to persons 
appointed judges on or after January 2, 1975, or, instead, because he did not 
contribute to any state retirement system until his 1990 judicial appointment, 
should be considered to have "entered the service of the Commonwealth on 
or after January 1, 1988," within the meaning of the statute, and thus con- 
tribute at the higher rate applicable to such persons. For the reasons stated 
below conclude that the appropiate contribution rate is the rate applicable to 
judges appointed on or after January 2, 1975. 

I. 

The relevant facts are that, prior to his appointment to the bench, the judge 
in question was continuously employed from 1974 to 1990 in a full-time posi- 
tion by a state board whose employees are not members of a retirement sys- 
tem. In 1990, the judge was appointed to the Trial Court, and at that time he 
became a contributing member of the Judges Retirement Fund pursuant to 
G.L. c. 32, § 65D(a) and (b).' 

;/. 

Whereas the general provisions of the public retirement law, G.L. c. 32 §§ 1- 
28, apply to most other public employees, judges retirement and pensions are 



^ G L c 32 § 65D(a) provides that any judge appointed on or after January 2, 1975, shall be subject to section 65D within 90 days of 
appointment. Section 65D(b) sets forth the rates of contribution applicable to justices of the Trial Court, and provides that amounts so 
deducted shall be deposited into a Judges Retirement Fund. 



P.D. 12 147 

governed exclusively by sections 65A-65G of chapter 32. In particular, section 
65D, which applies to all Appeals Court and Trial Court judges appointed on 
or after January 2, 1975, sets forth the amount of retirement allowance and 
rates of deduction or such judges, and further provides: 

No other retirement provisions shall be applicable to judges first 
appointed on or after January second, nineteen hundred and sev- 
enty-five, except as provided in section sixty-five A in the case of a 
chief justice or an associate justice of the supreme judicial court. 
G. L. c. 32, 65D.- 

The provision at issue here, governing the amount to be deducted from the 
salary of Trial Court judges appointed on or after January 2, 1975, is subdivi- 
sion (b) of section 65D. Section 65D(b) establishes three categories of rates of 
contribution for judges, from lowest to highest, as follows. For judges 
"appointed" on or after January 2, 1975, the contribution rate is seven percent 
of such judges' salaries. For judges who "entered the service of the 
Commonwealth or a political subdivision thereof" between January 1, 1979 
and January 1, 1988, seven percent shall be deducted from the first $30,000 of 
salary earned and an additional two percent, or a total nine percent, shall be 
deducted from salary in excess $30,000. Finally, for judges who "entered the 
service of the Commonwealth or a political subdivision thereof" on or after 
January 1, 1988, eight percent shall be deducted from the first $30,000 salary 
earned, nine percent shall be deducted from salary, between $30,000 and 
$45,000, and ten percent shall be deducated from salary in excess of $45,000.' 

Section 22(1) [h^/z) in turn provides for an additional two percent to 
be deducted from the salaries of any member of any retirement sys- 
tem who entered the service of the Commonwealth or a political 
subdivision thereof on or after January 1, 1979, from the amount 
of such salary over $30,000. The effect of section 22(1) (b^/z), as 
incorporated into section 65D(b), is that judges who entered the 
service of the Commonwealth between, January 1, 1979, and 
January 1, 1988, are subject to a seven percent deduction from the 
first $30,000 earned and a nine percent deduction from that por- 
tion of salary in excess $30,000 . 

For the sake of convenience, the three categories of rates of deduc- 
tion are referred to herein as low or lowest (for judges appointed 
after January 2, 1975) medium (for judges who entered the service 



- Section 65A similarly sets forth the amount at retirement allowance and rates of deduction applicable to Appeals Court and Trial Cotirt 
judges appointed prior to January 2,1975, and to the chief justice and associate justices of the Supreme Judicial Court (regardless of the 
date of their appointment) 

•^ Subdivision (b) provides: _, . . u ^ ^ , i .,.,„►,. 

There shall be deducted and withheld from the salary each judge appointed on or after January second, nineteen hundred and seven v- 
five a sum equal to seven percent of the salary of such judge. There shall be deducted and withheld from the salary of each judge who 
entered the service of the commonwealth or political subdivision thereof on or after January first, nineteen hundred and eighty-eight, a 
sum equal to eight percent of the first thirty thousand dollars salary of each judge, nine percent of such salary between thirty thousand 
dollars and for^-five thousand dollars and ten percent of such salary in excess of forty-five thousand dollars: provided, however, that 
any judge who entered the serv-ice of the commonwealth or a political subdivision thereof between January hrst, nineteen hundred 
anil seventy-nine and January first, nineteen hundred and eighty-eight shall be subject to the additional deduction provided or in para- 
graph (b'-4) of subdivision (1) of section twenty-two. 



148 P.D. 12 

of the Commonwealth between January 1, 1979 and January 1, 
1988), and high or highest (for judges who entered the service of 
the Commonwealth on or after Jauary 1, 1988) 

The amounts so deducted fom judges' salaries are deposited into a Judges 
Retirement Fund, pursuant to section 65D(b). The amount of retirement 
allowance to which a judge subject to section 65D is entitled is set forth in 
subdivisions (c) and (d) of the section and is based on a percentage of the 
salary earned by the judge at the time of retirement. G.L. c. 32, §§ 65D(c) and 
(d). 

Retirement allowances are paid from the Judges Retirement Fund, supple- 
mented if necessary by funds rom the same source from which judges salaries 
are paid G.L. c. 32, § 65D(h). Judges appointed to the bench before January 2, 
1975, are non-contributing members of the judges' retirement system; that is, 
they do not contribute to the Judges Retirement Fund at all, but they are enti- 
tled to receive a retirement allowance, pursuant to section 65A.^ 

The question here relates to the proper rate of deduction under section 
65D(b) for a judge who was continuously employed by the Commonwealth in 
a full-time position (but not as a judge) from 1974 to 1990, and who was 
appointed as a judge of the Trial Court in 1990. In particular, the question is 
whether, under section 65D(b), the determinative date for purposes of calcu- 
lating the amount to be deducted from the judge's salary is the date of his 
appointment as a judge in 1990 or the date he first was employed by the 
Commonwealth in 1974. This issue arises because the language in section 
65D(b) refers to both the date a judge is appointed (for judges appointed on or 
after January 2, 1975) and the date a judge "entered the service of the 
Commonwealth or a political subdivision thereof" (for judges who entered 
such service between January 1, 1979, and January 1, 1988, or on or after 
January 1, 1988). 

For the reasons set forth below, conclude that a judge (appointed to the 
bench in 1990, and who first entered the service of the Commonwealth in 
1974, is subject to the lowest rate of deduction set forth in section 65D(b). 

The "meaning of a statute must, in the first instance, be sought in the lan- 
guage in which the act is framed ..." Boston Neighborhood Taxi Association v. 
Department of Public Utihties, 410 Mass. 686, 690 (1991) (citation omitted). The 
plain language of the statute indicates that a judge who was continuously 
employed by the Commonwealth from 1974 to 1990 and appointed as a judge 
in 1990 (and thus "appointed on or after" January 2, 1975) is subject to the 
lowest rate of deduction set forth in section 65D(b). The first sentence of sec- 
tion 65D(b) uses the word "appointment" in setting forth the lowest rate of 



4 The judges retirement system differs in several significant respects from the retirement systems applicable to other public employees. 
First, as noted above, to the extent that the amount needed to pay judges retirement allowances exceeds the amount of funds in the 
Judges Retirement Fund, the retirement allowance is paid with funds from the same source as that from which judges salaries are paid, 
see G.L. c. 32, § 6SD(h), in contrast to other public employees, whose retirement allowances are funded separately from sources other 
than the source for payment of their salaries. See G.L. c. 2, 22(3)(b). Second, whereas certain judges (those appointed before January 2, 
1975) are non-contributing members of the judges' retirement system, see G .L. c. 32, § 65A, other public employees who are members 
of a retirement system must have contributed in order to receive retirement allowance. See G .L. c. 32, §§ 3 (2), 32. Finally, the statute 
does not expressly authorize judges, upon their appointment to the bench, to transfer into the Judges Retirement Fund contributions 
they previously made into another retirement system, whereas other public employees may transfer their contributions from one retire- 
ment system to another upon changing jobs from one governmental unit to another unit that has a retirement system. See G.L. c. 32, § 
3(8) (a). 



P.D.12 149 

deduction for judges "appointed on or after" January 2, 1975. The use of the 
word "appointed" in the first sentence clearly refers to date of appointment as 
a judge. A person appointed as a judge on or after January 2, 1975, thus quali- 
fies for the lowest rate of deduction, unless that person also falls within one of 
the other two categories, that is, unless that person "entered the service of the 
Commonwealth or a political subdivision thereof" either between January 1, 
1979. and January 1, 1988, or on or after January 1, 1988. The judge involved 
here, by virtue of his employment for the Commonwealth beginning in 1974. 
"entered the service of the Commonwealth" before either of those two dates, 
and thus does not fall into either the second or third categories. The only cat- 
egory into which this judge falls is the lowest rate of contribution set forth in 
the first category, applicable to judges appointed on or after January 2, 1975. 

I note that, had the Legislature intended to base the medium and high cate- 
gories solely on the date of appointment as a judge (rather than the date the 
person first entered the service of the Commonwealth in any capacity), the 
Legislature could have done so, simply by repeating the word "appointment" 
in defining the medium and high categories. The act that the Legislature did 
not do so is indicative of its intent. Boston Neighborhood Taxi Association, 410 
Mass. at 689 (where Legislature has employed specific language in one para- 
graph of statute, but not in another, the language should not be implied 
where it is not present) (citations omitted).' 

It might be suggested that the phrase "entered the service of the 
Commonwealth," as used in section 65D(b), refers only to "membership ser- 
vice," i.e., service during which the employee was a contributing member of a 
retirement system. Under that interpretation, the particular judge at issue 
would not have entered the "service" of the Commonwealth until 1990, the 
date of his appointment as a judge, because his earlier employment for the 
Commonwealth was for a state board whose employees are not members of 
any retirement system. Thus, under that interpretation, the judge would be 
subject to the highest, rather than the lowest, rate of contribution. 

I reject that interpretation, however, because section 65D(b), in contrast to 
certain other provisions in chapter 32, does not expressly refer to "member- 
ship service." Section 22(1) (b), for example, uses the phrase "member in ser- 
vice of the system" in the course of setting forth the applicable rates of contri- 
bution for members of other retirement systems." 

Similarly, the dehnition section of the statute, section 1, defines "member- 
ship service" as service as an employee in a governmental unit since becoming 



5 My conclusion that the Legislature, in using the phrase "entered the service of the Commonwealth or a political subdivision thereof, 
intended to include service or the Commonwealth in a capacity other than as a judge, is further supported by the fact that judges are 
employees of the Commonwealth, not of anv "political subdivision." Had the Legislature intended to make the deduction rate turn 
solely on the date of a person's appointment as a judge, the Legislature would not have referred to service for a political subdivision. In 
any event it is plain that the judge involved here, having entered the service of the Commonwealth in 1974, did not enter the service 
of the Commonwealth either between January 1, 1979 and January 1, 1988, or on or after January 1, 1988, and thcretore is not within 
the medium or high contribution categories. 

6 Certain decisions by the Contributorv Retirement Appeal Board have been called to my attention that based the rate of contribution for 
other public employees under section 22(1 )(b) on the date membership service and contribution began. Those decisions, however, 
were based on the different provisions of section 22 (l)(b), and involved persons whose previous work for the Commonwealth was 
part-time and/or temporary, thus making it unclear in the first instance whether their previous employment made them "employees 
in "service" as those terms are defined in c. 32, § 1 and used in section 22(l)(b) 

7 Accordingly, my opinion here should not be construed as expressing any view as to the appropriate rates of contribution applicable to 
other retirement systems, which are governed by the different statutory language set forth in (i, l„ c. 32, § 22(1 )fb), and which systems 
differ in several important respects from the judges' retirement system. Sir supra n.4. 



150 P.D. 12 

a member of a system, whereas "service" is defined solely by reference to ser- 
vice as an employee in any governmental unit or which regular compensation 
is paid. G.L. c. 32, § 1. Insofar as section 65D(b) does not contain that lan- 
guage, 1 decline to interpret it as if the Legislature had intended to equate 
"entry of service" with "membership service." My conclusion in this regard is 
based on the established principle that where specific language appears in one 
portion of a statute but not another, the absent language should not be read 
into the provision from which it is missing. Boston Neighborhood Taxi 
Association, 410 Mass. at 689; Beeler v. Downey, 387 Mass. 609, 616 (1982).' 

This interpretation does not lead to an unreasonable result. See School 
Committee of Greenfield v. Greenfield Education Association, 385 Mass. 70, 79-80 
(1982) (statute should be given a reasonable construction). The Legislature 
could reasonably have determined that it was desirable to reward judges for 
service for the Commonwealth prior to January 1, 1979, by affording such 
judges the lowest rate of contribution, even if the service prior to 1979 was 
not membership service as a contributing member of a retirement system, and 
even if such service was in a capacity other than as a judge. Such a determina- 
tion is consistent with the Legislature's decision to exempt judges appointed 
to the bench prior to January 2, 1975 from any contribution to the Judges 
Retirement Fund. In these two ways, the Legislature has decided to treat 
judges more favorably, based on prior public service, than employees subject 
to other retirement systems. Such favorable treatment may have been 
intended to compensate for the fact that, unlike other public employees, 
judges who have prior membership service are not able to transfer contribu- 
tions from another retirement system into the judges' retirement system. See 
supra n.4. 

In sum, the language of section 65D(b) leads me to conclude that a judge 
who was appointed to the bench in 1990, and who entered the service of the 
Commonwealth in 1974 as an employee of a state board whose employees 
were not subject to any state retirement system, is subject to the lowest rate of 
contribution, applicable to judges "appointed on or after January second, 
nineteen hundred and seventy-five." " 

Sincerely, 

Scott Harshbarger 

Attorney General 



I have also been asked my opinion regarding the applicability of a deduction from the judges salary for Medicare, pursuant to 26 U.S.C. 
§ 3101(b). Insofar as the applicability of the deduction for Medicare depends on an interpretation of federal law, however, I express no 
view as to whether such deduction properly applies to the judge in question. See 1985/1986 Op. Atty. Gen. No. 9, Rep. A.G., Pub. Doc. 
No. 12 at 40, 43 n.2 (1986) (noting that Attorney General ordinarily does not issue opinion as to interpretation of federal law); 
1984/1985 Op. Atty. Gen. No. 6, Rep. A.G., Pub. Doc. No. 12 at 89, 93 (1985) (declining to render formal opinion as to whether propose 
state regulations would violate federal antitrust laws); 1979/1980 Op. Atty. Gen. No. 10, Rep. A.G., Pub. Doc. No. 14, at 116, 1 19 1980) 
(declining to interpret federal law governing receipt of federal funds from Department of Health, Education and Welfare). 



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