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

Public Document 



No. 18001 



@Ilp Commtmtedii] of JHassaduisetts 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1995 



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-1CATION OF THIS DOCUMENT APPROVED BY PHILMORE ANDERSON III, STATE PURCHASING AGENT. 
OCUPRINT-6/97-7000044 Estimated Cost Per Copy 4.05 

Printed on Recycled Paper 



RIM? 



Commonwealth of Massachusetts 

In accordance with the provisions of Section 1 1 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, 1994 to June 30, 1995. 

Respectfully Submitted, 



Scott Harshbarger 
Attorney General 



Fiscal Year 1995 



OFFICE OF THE ATTORNEY GENERAL 

ATTORNEY GENERAL 
SCOTT HARSHBARGER 

FIRST ASSISTANT ATTORNEY GENERAL 
Thomas H. Green 

CHIEF OF STAFF 
Donald L. Davenport 



Assistant Attorneys General: 

Jonathan Abbott 
Richard Allen 
Dorothy Anderson 
Barbara Anthony 
Luz Arevalo 23 
Frederick Augenstem 
Thomas Barnico 
Judith Beals 
Thomas Bean 
John Beling 13 
John Benzan 20 
Steven Berenson 
Edward Berlin 
Anne Berlin 
Cynthia Berliner 
Jean Berke 
William Berman 
Patricia Bernstein 62 
Ann Berwick 
John Bigelow 22 
Crispin Birnbaum 23 
Stacey Bloom 21 
Mark Bluver 58 
Edward Bohlen 
Barbara Boden 
David Bookbinder 75 
John Bo wen 
John Bowman 
Kevin Brekka 8 
Howard Brick 54 
Douglas Brown 12 
William Brownsberger 
James Bryant 



Brian Burke 
David Bums 
John Capin 53 
Eric Carriker 
James Caruso, Jr. 
R.Michael Cassidy 
John Ciardi 
Peter Clark 16 
Edward Colbert 17 
Richard Cole 
Joanna Connolly 
Scott Cooper 
Pierce Cray 
Phyllis Crockett 
Michael Cullen 
Maurice Cunningham 
William Daggett 
Leslie Davies 
Scott Davis 72 
Edward DeAngelo 57, 27 
George Dean 
Beatriz delrio 65 
Emily Den 51 
Stephen Dick 
Carol Dietz 
Michael Dingle 26 
Elizabeth DiTomassi 
J. Leib Dodell 3 
W lliam Duensing 
Deborah Ecker 
Stanley Elchner 
Judith Fabricant 
Michael Fabbri 69 
Barbara Fain 12 
Jennifer Ferreira 



Freda Fishman 
Francis Flaherty, Jr. 
Elizabeth Ann Foley 
Mary Freeley 26 
Cynthia Gagne 
Andree Gagnon 52 
Rosemary Gale 
Rosalyn Garbose 1 8 
Nancy Geary 70 
Susan Gilfix 4 
Salvatore Giorlandino 
I. Andrew Goldberg 
Richard Goldstein 50 
Richard Gordon 24 
Tania Gray 
Thomas Green 
Leslie Greer 
Mary Griffin 
Irene Guild 
Kristin Guyot 
David Hallett 66 
Daniel Hammond 28 

Nancy Harper 

Sarah Hartry 15 

Katherine Hatch 14 

Bennet Heart 

Michael Hering 19 

Virgina Hoefling 76 

Philip Holmes 

Audrey Huang 1 1 

Amy Hudspeth 

Pamela Hunt 

Marsha Hunter 

Marcia Jackson 

Diane Juliar 

Michelle Kaczynski 

Susan Kang 3 

Glenn Kaplan 9 

SeanKealy21 

Stephanie Kelly 9 

Carolyn Keshian 

Michael Kogut 

Pamela Kogut 

Viveca Tung Kwan 64 

Pablo Landrau 

Karen Laufer 2 

Ellyn Lazar 

Macy Lee 

William Lee 

Judy Levenson 



Martin Levin 
Stephen Limon 56 
Anita Maietta 
William Matlack 
Laura Maslow-Armand 
Gregory Massing 
Thomas McCormick 
Walter McDonough 4 
Ellen McGinty 50 
Karen McGuire 
Kristin Mcintosh 22 
Gail McKenna 7 
Paul McLaughlin 
Kristine McMahon 
Kevin McNeely 73 
William Meade 
Marianne Meacham 13 
Elizabeth Medvedow 
Joyce Meiklejohn 
Howard Meshnick 
Nicholas Messuri 
Holley Meyer 
James Milkey 55 
Jonathan Mishara 67 
Daniel Mitchell 
Sarah Morison 52 
Christopher Morog 
Madelyn Morris 
Susan Motika 
Mark Muldoon 
Timothy Mullen 75 
Robert Munnelly 
Kathryn Murphy 
Linda Murphy 
Alexander Nappan 
Kevin Nasca 
Paula Fox Niziak 
Michelle O'Brien 
Thomas O'Brien 
Donna Palermino 
William Pardee 
Margaret Parks 
Robert Patten 
Anthony Penski 
Djuna Perkins 
Mary Phillips 
William Porter 
Cristina Poulter 
Anne Powers 
Frank Pozniak 12 



Edward Rapacki 
Carol Lee Rawn 
Elizabeth Reinhardt 
Shelley Richmond 
Benjamin Robbins 
Beverly Roby 
Anthony Rodriguez 
Joseph Rogers 
Deirdre Rosenberg 
Abbe Ross 60 
Nina Ross 17 
Stuart Rossman 
Linda Sable 68 
Peter Sacks 
Thomas Samoluk 61 
Ernest Sarason, Jr. 
Pasqua Scibelli 
Arlie Scott 
Robert Sikellis 
Jeremy Silverfine 
Eleanor Sinnott 
Myles Slosberg 59 
Eric Smith 
Joanne Smith 
Mark Smith 
Johanna Soris 
Leo Sorokin 1 
Amy Spector 
Susan Spurlock 
Marie St. Fleur 
Carol Starkey 
Kevin Steihng 71 
James Stetson 
Deborah Steenland 
Edmund Sullivan 63 
Walter Sullivan 
Mark Sutliff 
James Sweeney 
Diane Szafarowicz 
Pamela Talbot 
Rosemary Tarantino 
Neil Tassel 
Shelly Taylor 
Jane Tewksbury 5 
Jean Thompson 
Jeffrey Tocchio 74 
Edward Toro 
Bruce Trager 
Margaret Van Deusen 
John Van Lonkhuyzen 77 



Gina Walcott 6 
Lucy Wall 
Beverly Ward 
Rebecca Webb 
George Weber 
Mark Weber 
Joseph Whalen, m 
James Whitcomb 
Douglas Wilkins 
Jane Willoughby 
Howard Wise 10 
John Woodruff 
Norah Wylie - 
Judith Yogman 
Andrew Zaikis 
Catherine Ziehl 
Michael Zullas 12 



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



Brian Burke 






Joshua Krell 






Glenn MacKinlay 






Jean O'Brien 






Patrici 


a Preziosa 






Michelle Fontana 25 






APPOINTMFM DATE 


TERMINATION DATE 


1. 


07/18/94 


50. 


07/01/94 


2 


08/01/94 


51. 


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07/15/94 


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09/30/94 


11 


09/26/94 


60. 


10/11/94 


12. 


10/03/94 


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10/28/94 


13. 


10/17/94 


62. 


11/18/94 


14. 


10/24/94 


63. 


1 1/26/94 


15. 


10/31/94 


64. 


12/27/94 


16. 


11/14/94 


65. 


12/30/94 


17. 


11/21/94 


66. 


01/13/95 


18. 


11/28/94 


67. 


01/20/95 


19. 


12/05/94 


68. 


01/25/95 


20. 


01/19/95 


69. 


01/28/95 


21. 


01/30/95 


70. 


01/31/95 


22. 


02/01/95 


71. 


02/10/95 


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72. 


02/17/95 


24. 


02/27/95 


73. 


02/28/95 


25. 


03/01/95 


74. 


03/31/95 


26. 


03/06/95 


75. 


04/28/95 


27. 


03/13/95 


76. 


05/05/95 


28. 


06/01/95 


77. 


05/31/95 



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BUSINESS & LABOR PROTECTION BUREAU 

The Business and Labor Protection Bureau was created in April 1995 by joining various 
existing divisions and units within the Criminal Bureau to be parts of the new entity. The 
Bureau consists of the Medicaid Fraud Control Unit, the Fair Labor & Business Practices 
Division, the Division of Employment and Training and the Insurance Fraud Division 
(which was separated and transferred from the continuing Economics Crime Division of 
the Criminal Bureau). It brings together these Divisions because they share common 
criminal and civil enforcement responsibilities to establish a level playing field in the 
economic sector for businesses and individuals alike. The Divisions interact extensively 
with public and private insurers, providers, employers, and labor organizations in their 
efforts to achieve this goal. 

The Business and Labor Protection Bureau coordinates the diverse practices of its 
Divisions to target fraudulent business activities. Such activities result in a "fraud tax" 
which unfairly increases the costs and expenses of honest businesses, insurance policy 
holders and taxpayers in Massachusetts. The unscrupulous activities that those who 
break the law pursue in order to fuel this "fraud tax" include casualty and workers 
compensation insurance fraud, failure to pay mandated wages, health care fraud and 
unemployment insurance fraud. 

The new Bureau intends to tap the legal and investigative resources available from all of 
its Divisions, each of which are experienced in the areas of fraud prosecution, in order to 
maximize its overall impact and effectiveness. Investigations of fraud in one area will 
result in further examinations of potential fraud from all angles. Therefore, for example, 
if a complaint is received by the Bureau for a prevailing wage violation, the investigation 
ultimately will include a thorough review of all of the company's payroll and financial 
records to detect and determine whether there has been tax and insurance fraud as well. 

In June, 1995, the Business & Labor Protection Bureau moved all of its Divisions to new 
facilities at 200 Portland Street, Boston. The Bureau also maintains offices for its 
attorneys and personnel in Springfield. 

FAIR LABOR AND BUSINESS PRACTICES DIVISION 

Fiscal Year 1995 was the first full year since the September 1993 Massachusetts State 
Legislature transferred most of the functions once performed by the Department of Labor 
and Industries ("DLI") to the Office of the Attorney General. Within this limited period 
of time, a wide range of challenges have been presented to the Fair Labor and Business 
Practices Division in all areas of its new statutory responsibilities. Many management 
obstacles have been overcome, including originally receiving only one half of the DLI 
enforcement related budget, the fulfilling of office space needs at a new location in 
Boston, the automation of the management information system and the hiring of qualified 
workplace safety personnel and financial investigators who are trained C.P.A.'s and 
accountants. 



11 



The Legislature's financial support in restoring the Division's enforcement related 
funding to the prior DLI level has assisted it in achieving its goals and provided 
opportunities which have enhanced the Division's ability to perform as an efficient, 
effective enforcement agency. Presently, the Division has forty eight members, including 
inspectors, attorneys, managers, support staff, a director of safety and two specially 
trained financial investigators. 



PUBLIC INTAKE. TELEPHONE INQUIRIES: 

The Division continues to receive a very heavy volume of phone calls from the public 
regarding a diverse range of inquiries. The issues presented include holiday pay, 
application of the "blue laws" for Sunday and Holiday work, non-payment of wages, 
overtime pay, minimum wage, vacation pay, child labor, workplace safety, prevailing 
wage, public bidding, bonuses, commissions and a wide range of other related matters. 

The approximate total number of phone calls received is as follows: 

Per Day Per Month Annually 

600 12,000 136,000 



PUBLIC COMPLAINTS SERVICED 

New Complaints Filed: 5,535 

Cases Closed: 6,166 

Complaint Forms Received and Processed: 9,989 



Active Open Cases as of June 30, 1995: 

Cases under active legal review or under investigation by FLBP inspectors: 
4,346 

MONEY COLLECTED AND RETURNED TO INDIVIDUALS: FY 95 
$1,875,138.40 



EMPLOYER WAIVERS GRANTED; 

The Attorney General's Office now has the authority to grant waivers for a variety of 
employer needs. During the year the Division granted 383 waivers of the Massachusetts 
General Laws to employers. These waivers removed obstacles in appropriate 
circumstances for many businesses which would have suffered severe hardships, and been 
less competitive in their respective industries, without the relief provided in appropriate 
circumstances. In addition, waivers granted for sheltered workshops, theatrical endeavors 
and special student worker licenses provided employment opportunities for hundreds of 



12 



teens and supported businesses at the same time. Having the responsibility to grant 
waivers gives the Division notice of variances in normal working conditions which it can 
then monitor through routine site inspections. 

The Division granted waivers during the fiscal year as follows: 



Waiver 
Type of Waiver 

Seasonal Overtime Exemptions 

Special Student Worker Licenses 

Meal Break Exemptions 

7-Day Continuous Operations 

Theatrical Performances-Minors 

4 Ten-Hour Days 

Sheltered Workshops 

Scaffolding Permits 

Minors - Late Hours 

3-Hour Daily Minimum Rule 

TOTALS: 



PUBLIC CONTRACT BID PROTESTS: 

During Fiscal Year 1995, the Division has undertaken an initiative to educate public 
contracting participants (i.e., awarding authorities, contractors, municipal counsel) about 
the laws governing bidding on public works and public building projects in 
Massachusetts. Toward that end, several training seminars have been held in various 
locations throughout the Commonwealth. In addition, the Division has begun to 
disseminate written bid protest decisions to law firms that represent public sector 
contractors. The result of these educational efforts are twofold: 



Number 


Fees Collected 


28 


$2,800 


106 


$5,300 


102 


$10,200 


101 


$10,100 


19 


$1,900 


2 


$ 200 


7 


$ 350 


5 


$ 700 


7 


$700 


6 


$600 


383 


$32,850 



13 



(i) increased awareness of this office's role in public bidding matters, resulting in more 

telephone inquiries; and 
(ii) increased awareness of the proper public bidding procedures, resulting in the 
prevention of potential bid protests. 

During Fiscal Year 1995, this Office also conducted an investigation into the procurement 
of the largest public contract in the history of the Commonwealth. The contract bid 
process, part of the Central Artery /Third Harbor Tunnel Project, was valued at over $378 
million. 

It was investigated by the Division at the request of the Massachusetts Highway 
Department. At the conclusion of the investigation, the Office issued a recommendation 
with respect to the contract award, which was accepted by the parties, and also suggested 
proposed procedures to the agency concerning future conflict of interest controls. 

The Division's Bid Protest Unit instituted procedures for expediting its review and 
response process. With the implementation of these improvements, the Unit generated 
the following statistics for its Fiscal Year 1995 performance: 

Bid Protests Filed 151 

Bid Protests Resolved 1 5 1 

Informational Phone Calls 2,975 



SITE INSPECTIONS/WORKPLACE SAFETY 

In the last fiscal year the Division developed the capacity to dramatically increase all 
types of field activity. This progress has been significantly supported by the hiring of a 
Director of Safety, financial investigators and new intake personnel. 



With the addition of new intake personnel, inspectors are now freed up to do more field 
activity. The inspector's efforts go far beyond site visits to construction projects in order 
to insure compliance with prevailing and other wage obligations. In fact, their field 
activities include attending pre-construction conferences, child labor investigations, 
construction, industrial and manufacturing workplace safety visits, as well as the 
investigation of accidents, including fatalities, on job sites. The investigation of 
workplace injuries, fatalities and child labor violations are coordinated through the 
Director of Safety and supervising inspectors. 

With the efficient use of the limited amount of available resources, the Division has 
accomplished an impressive number of site inspections during Fiscal Year 1995 which 
were initiated either in response to a complaint or through a random selection process: 

Type of Inspection Number of Inspections 

Child Labor Inspections 1,130 

(violations cited 1,21 1) 



14 



Injury Investigations 

(response to report of injury) 58 

Safety Site Inspections 
(Safety check of construction sites 
while on wage inspections) 283 

Other 168 

1,639 



PROPOSED LEGISLATION: 

The Division attempted to increase its ability to provide swift, effective and fair 
enforcement of the wage and employment laws, with the most efficient use of its 
available resources, through the drafting and filing of legislation in FY '95 to empower 
the Attorney General's Office to issue civil citations for violations of the wage laws. 
Included in this legislation is the civil enforcement of prevailing wages, non-payment of 
wages, vacation and overtime. The legislation is intended to remove a majority of these 
disputes from the criminal courts, and place them in a more appropriate civil forum. This 
step will provide for greater efficiency, greater flexibility and quicker responses in 
appropriate cases while permitting the office, and the already heavily burdened criminal 
courts system, to focus its criminal prosecutions on the most egregious cases. 

Prior to filing, the proposed legislation was made available to bar associations and other 
interested parties in business and labor for comment. At the end of the fiscal year, the act 
was pending further consideration in the Legislature. 

LABOR LAW ADVISORIES: 

The Division continues to reach out to the business and labor work force communities by 
way of the issuance of advisories. In Fiscal Year 1995 , the Division issued two 
advisories, with a third being issued at or about the time of the writing of this report. 

A. Advisory on Meal Periods. (1994) 

B. Advisory on the Issue of distinguishing between Employee and 
Independent 

Contractor status. (1994) 

C. Advisory on Sunday Laws and Holiday Openings concerning Sunday 
Openings, Holiday Work, Volunteer and Exemptions. (1995) 



CENTRAL REGISTER PROJECT 

Beginning in March of 1995, the Division began a project through the Central Register to 

notify all Awarding Authorities seeking bids on public works projects that the Attorney 



15 



General's Office is responsible for the enforcement of all prevailing wage and workplace 
safety laws and reminding them of their responsibilities under the applicable statutes. In 
addition, all contractors who request specifications on a project are notified that the 
Division is aware of their request and also reminded of their obligations under the law. 
The Division worked with representatives of the Division of Labor and Industries to 
develop informational brochures outlining the "ABC's" of the prevailing wage law and 
other relevant statutes. To date 1 ,700 letters, with accompanying brochures, have been 
mailed out. 

DEBARMENT FROM PUBLIC BIDDING: 

M.G.L. c. 149 27 provides for an automatic debarment upon conviction of prevailing 

wage violations. The following debarments were obtained by the Division in Fiscal Year 

1995: 

1. R.J. Sanders, Inc/David Sanders, President. 

The corporation was debarred for a period of six months beginning January 18, 1995 
through July 18, 1995, and David Sanders was debarred for a period of two months 
beginning January 18, 1995, through March 18, 1995. 



2. Accurate Paving/John Trainor, President 

John Trainor was debarred for a period of six months beginning November 1, 1994, 
through May 1, 1995. 

3. A.F.B. Forms, Inc/AI Barbaro, President. 

Al Barbaro was debarred for a period of six months beginning October 25, 1994, through 
April 25, 1995. 

4. Miazaga, Inc., Raymond and Brenda Miazga 

Raymond Miazaga, was debarred for a period of three years beginning March 1, 1995, 
through March 1, 1998. 

For additional debarments refer to the Significant Cases Section, infra. (See e.g.; Metric 
Construction, SAC Construction). 



WAGE AND HOUR FINANCIAL AUDITS 

In the five months that the two new financial investigators have been assigned to the 

Division, they have conducted numerous audits which presented varying degrees of 



16 



complexity. Audits were completed for the investigation of non-payment of wages, non- 
payment of overtime, 

prevailing wage as well as for the determination of penal bonds to be filed with the office. 
To date 68 audits have been conducted and a total of $1,681,612.72 has been determined 
to be owed to workers who were improperly denied wages. 

There are 41 cases presently in legal review that also have been identified as having 
workers compensation premium avoidance problems. In five cases, audits have identified 
$1,460,724.03 as money being owed to the insurance companies and insured risk pools of 
the target companies. It is expected that the audits of the remaining 36 companies will 
identify similarly dramatic additional amounts owed to insurers. 

SIGNIFICANT CASES 

The Assistant Attorneys General assigned to the Fair Labor and Business Practices 
Division continue to exhibit professionalism while grappling with large numbers of 
complaints, cases, court dispositions and settlements. Significant cases concluded during 
FY 1995 included: 

1. Commonwealth v. Metric Construction: 

The corporation pled guilty to failure to pay prevailing wage rates and was fined 
$10,000.00, ordered to pay $5,000.00 in restitution and received a six month debarment 
from public works. 

2. Commonwealth v. Gustus: 

Seven non-payment of wage cases in which the defendant , a Wilmington travel agency 
operator, defaulted. On June 2, 1995 a judge entered a continuance without a finding, and 
ordered the payment of $14,619.42 in restitution and victim witness fees over a period of 
three years. 

3. Commonwealth v. Sidney Chikwendu/SAC Construction: 

The defendant was found guilty of failing to pay prevailing wages to iron workers on 
public construction projects on the Massachusetts Turnpike in Worcester County. The 
defendant was debarred for six months. 

4. Commonwealth v. William Harkins/First Eagle Management: 

The defendant was ordered to pay restitution of $6,000.00 to one employee for the back 
wages owed as a result of the non-payment of wages. 

5. Commonwealth v. Jerline Johnson: 



17 



The defendant pled guilty to the non payment of wages owed to four individuals in the 
amount of $13,000. As a result of this plea, and outstanding warrants for other offenses, 
the defendant was committed to the House of Correction for 90 days and her probation 
has been extended to the year 2000. 

6. Commonwealth v. Sundar Sundermeryth/Frontier Technology: 

The defendant was found guilty of non payment of $27,000 in wages to employees and 
was sentenced to the House of Correction for sixty days. 

7. Commonwealth v. IB. Moore: 

The defendant was ordered to pay restitution in the amount of $69,000.00 in back wages 
owed to employees as a result of the non-payment of wages. 



SETTLEMENTS: 

1. Commonwealth v. Videocraft: 

In a case of non payment of wages, an out of court settlement was reached in which 
Videocraft paid restitution in the amount of $39,000.00 to its employees. 

2. Commonwealth v. Scientific Dimensions: 

An out of court settlement was reached in which Scientific Dimensions paid restitution in 
the amount of $60,000.00. for non payment of wages to the employees. 

3. Commonwealth v. Peppy & Sons Woodworking: 

The defendants settled this case out of court by paying six carpenters restitution in the 
amount of $6,000.00 for back wages owed due to the non-payment of the prevailing 
wage. 

4. Commonwealth v. Gold Star Security Inc.: 

The defendants agreed to settle this case by paying $938.64 in back wages to security 
guards employed by the company. The wages were owed as a result of non-payment of 
overtime. 

5. Commonwealth v. Schlumberger Industries: 



18 



Upon allegations of failure to pay prevailing wage because of the misclassifying of 
employees, an out of court settlement was reached in which Schlumberger paid restitution 
in the amount of $72,000.00 and a fine of $10,000.00 that was earmarked for the Attorney 
General's SCORE program. 

DISMISSALS: 

1. Commonwealth v. Richard Fish: 

Twenty Nine non -payment of wage cases were dismissed when the defendant, a Boston 
HVAC contractor, filed in bankruptcy, $32,00.00 eventually was released by the 
Bankruptcy Trustee to pay employees. 

2. Commonwealth v. The Middlesex Corporation et al: 

A criminal complaint for failure to pay prevailing wages to employees of Middlesex, 
which hauled bituminous concrete, was issued by the Woburn District Court. The Court, 
upon motions, dismissed the case. The Commonwealth's assented to Motion to Dismiss 
its Appeal was granted on July 7 by the Appeals Court. 

PREVAILING WAGE INVESTIGATORY HEARINGS: 

The Division's authority to conduct administrative hearings under G.L. c. 30A was 
created at the time of the transfer of its responsibilities to the Attorney General's Office. 
Rather than pursuing a criminal complaint for enforcement of the prevailing wage, the 
Division may decide to conduct a hearing to address allegations of the non payment of 
prevailing wages on construction projects which are in progress. If it is determined that 
prevailing wages are not being paid, the Attorney General may order the job halted and 
prevent further work on the project until a bond is posted by the contractor that will 
insure proper payment to the construction workers. 

1. Commonwealth v. JT Callahan: 

A 30A hearing was held in May, 1995, regarding J.T. Callahan's performance on the 
Mass Turnpike - Interchange A construction of a toll facility project. The contractor was 
found to have failed to pay employees for Saturday work and to have paid steel workers 
at a carpenters rate and was ordered to file a $25,000 bond to prevent the project from 
being halted. 

2. Commonwealth v. Balfour: 

A 30A hearing was held for work which Balfour performed on certain draw bridges in 
Boston, In his decision, the hearing officer found that the contractor failed to pay the 



19 



prevailing rate to its employees. Balfour paid its employees all wages due, as found by 
the hearing officer, totaling $36,668.00. 

3. Commonwealth v. A-Rock Drywall: 

A 30A hearing was held for work done by A-Rock Drywall on a the Murdock School in 
Winchendon. A decision was rendered which found that the contractor failed to pay the 
prevailing rate to its employees. A-Rock walked off the job and J.T. Callahan, the 
general contractor on the project, was ordered to post a bond for the remainder of the 

work to ensure payment of the prevailing rate. 

4. Commonwealth v. Duarte & Perry Plumbing & Heating Inc.: 

A penal bond of $80,000.00 was filed with this office after a 30A hearing determined that 
prevailing wages were not being paid by the contractor. 

5. Commonwealth v. Best Walls Co. Inc.: 

A penal bond of $42,000.00 was filed with this office after a 30A hearing determined that 
prevailing wages were not being paid by the contractor. 

SPEAKING ENGAGEMENT/OUTREACH 

Several of AAG's in the Division attended dozens of speaking engagements and made 

presentations to organizations that represent employers as well as employees. 

DIVISION OF EMPLOYMENT AND TRAINING 

The Division of Employment and Training staff consists of a chief, a managing attorney, 
three assistant attorneys general (one permanently located in Springfield), two 
investigators, an office manager, and two administrative assistants. The Division is 
charged with prosecuting employer tax fraud and the larceny of unemployment benefits. 
Referrals are primarily made to the Division by the Department of Employment and 
Training ("D.E.T."). 

In addition to handling D.E.T. referrals, the Division has independently developed 
actions for criminal prosecution which involve multi-levels of fraud, including 
unemployment insurance fraud, through cross referrals within the Business and Labor 
Protection Bureau. Over the past year, the Division had sixty-three indictments handed 
up by grand juries in three counties. These complex and sophisticated matters involve 
various combinations of prevailing wage, unemployment fraud, and workers' 
compensation violations. 

The productivity level in the Division continues to increase. In FY 1995, the Division 
made 265 court appearances on 567 cases in various courts throughout the 
Commonwealth. 



20 



Seventy-five criminal complaints were issued with a total of 845 counts. A total amount 
of $863,023.71 was collected by the Division in court ordered restitution and returned to 
the Department of Employment and Training. 

Cases which exemplify the Division's commitment to eradicate unemployment insurance 
fraud include the following: 

1 . Commonwealth v. Alvin Snow 

Alvin Snow was charged with one count of larceny over $250 (continuing scheme) for 
fraudulendy obtaining and negotiating unemployment checks totaling $2,986.00 while 
working at Bread & Circus. Snow pled guilty and was sentenced to 18 months in the 
House of Correction, 8 of those months to be served concurrendy with an unrelated 
sentence, the remaining 10 months suspended for 2 years, with full restitution of 
$2,986.00 to be paid to DET. 

2. Commonwealth v. Patrick J. Harrington 

Patrick J. Harrington was charged with one count each of larceny over $250 and forgery 
for fraudulendy obtaining and negotiating two unemployment benefits checks issued to 
his sister, who was incarcerated and therefore ineligible for unemployment insurance 
benefits. Harrington was convicted by a jury of six in West Roxbury District Court and 
sentenced as follows: on the larceny, 2 years in the House of Correction to be served; on 
the forgery, 2 years in the House of Correction, suspended to September 12, 1997; full 
restitution of $1,284 to be paid to D.E.T. 

3. Commonwealth v. Robert DeMarco 

Robert DeMarco was charged with one count of larceny over $250 for fraudulendy 
collecting unemployment benefits totaling $1,155.00 while he was incarcerated at the 
Norfolk County House of Correction. On September 9, 1994, DeMarco pled guilty and 
was sentenced to one year in the House of Correction, 30 days to be served on and after 
the sentence currently being served, balance suspended for one year, with full restitution 
of $1,155.00 to be paid to Department of Employment and Training. 

DIVISION OF EMPLOYMENT AND TRAINING STATISTICS: 

COURT APPEARANCES 





Disposec 


I 


Courts 


Cases 


July, 1994 




3 


18 


27 


August 




4 


17 


31 


September 




12 


24 


73 


October 




18 


31 


67 


November 




14 


28 


53 



21 



December 


8 


21 


40 


January, 1995 


4 


21 


39 


February 


9 


16 


27 


March 


9 


20 


47 


April 


22 


22 


54 


May 


59 


29 


80 


June, 1995 


4 


18 


29 



Totals 166 265 567 

MONIES COLLECTED: UNEMPLOYMENT TAXES OWED TO THE 
COMMONWEALTH OF MASSACHUSETTS AND ITS TAXPAYERS 



July, 1994 


$ 53,970.62 


August 


$ 71,325.40 


September 


$ 52,292.33 


October 


$ 71,169.29 


November 


$147,401.39 


December 


$ 43,865.25 


January, 1995 


$ 53,802.74 


February 


$ 89,246.66 


March 


$ 66,955.85 


April 


$138,803.83 


May 


$ 50,288.20 


June, 1995 


$ 23,902.15 


Total 


$863,023.71 



CASES PENDING AS OF JUNE 30, 1995: 

CRIMINAL EMPLOYEE CLAIMS - 618 

CRIMINAL EMPLOYER - 802 

OTHER* - 35 

TOTAL PENDING CASES - 1455 

includes employer tax and/or employee fraudulent claims cases 

independently developed and/or specially referred. 

CASES ON DEFAULT: DEFENDANTS REMAIN AT LARGE: 
CRIMINAL EMPLOYEE CLAIMS - 1 96 

CRIMINAL EMPLOYER - 555 

TOTAL DEFAULTS - 751 



22 



CASES CLOSED: 

CRIMINAL EMPLOYEE CLAIMS - 120 

CRIMINAL EMPLOYER - 66 

TOTALS - 186 



COMPLAINTS ISSUED: 

CRIMINAL EMPLOYEE CLAIMS - 17 (416 counts) 

CRIMINAL EMPLOYER - 58 (429 counts) 

Totals - 75 (845 counts) 

INDICTMENTS ISSUED: 
TOTALS - 63 

THE INSURANCE FRAUD DIVISION 

Referrals to the Insurance Fraud Division include all types of cases alleging motor vehicle 
insurance fraud, worker's compensation fraud, fraudulent claims under homeowner 
policies, false life 

insurance claims and false claims against the Commonwealth. Defendants include 
doctors, lawyers, industry insiders, employers, repair shop operators, appraisers, vehicle 
owners and employees who work while collecting disability benefits. 

In Fiscal Year 1995, cases were referred to the Division by the Insurance Fraud Bureau of 
Massachusetts, the Governor's Auto Theft Strike Force, the Department of Industrial 
Accidents, the Public Employees Retirement Administration, as well as insurance 
companies, judges, lawyers and concerned citizens. The majority of cases are investigated 
and documented by the Insurance Fraud Bureau of Massachusetts, prior to referral to the 
Division. Additional investigative assistance is provided by the Civil Investigations 
Division of the Attorney General's Public Protection Bureau, Massachusetts State Police 
Troopers, and financial investigators assigned to the Criminal Bureau and the Business 
and 

Labor Protection Bureau. Prosecution assistance has also been provided by AAGs 
throughout the Attorney General's Office who have volunteered to work on insurance 
fraud cases. 

In Fiscal Year 1995, the Division initiated 47 new cases and successfully concluded 42 
cases. Completed criminal prosecutions resulted in restitution orders of approximately 
$297,500. New 



23 



cases charged during Fiscal Year 1995 involve attempted insurance fraud valued at 
approximately $3,500,000. A more detailed breakdown of the new and closed cases 
appears below. 



NEW CASES: 47 
26 Motor Vehicle Cases 
11 Worker's Compensation 
10 Other Cases 



16 Charged in Superior Court 
31 Charged in District Court 



TOTAL RESTITUTION AMOUNT ALLEGED: $ 3,500,000 



CLOSED CASES: 42 

20 Motor Vehicle Cases 

13 Worker's Compensation Cases 

9 Other Cases 

16 Charged in Superior Court 
26 Charged in District Court 



TOTAL RESTITUTION AMOUNT: $ 297,500 



Of the 47 new cases, 41 were referred by the Insurance Fraud Bureau (TFB), 1 was a joint 
referral from the IFB and the Department of Industrial Accidents (DIA), 2 cases were 
referred by the Public Employees Retirement Administration (PERA) and 3 cases came 
from the Governor's Auto Theft Strike Force (GATSF). Of the 42 closed cases, 36 
originated with the IFB, 4 came from the GATSF, 1 was referred by PERA and 1 case 
was referred by the DIA. 

DISPOSED CASES: 

The cases prosecuted to a final disposition included a wide variety of charges and 

criminal schemes. Some of the noteworthy cases include: 

1. Commonwealth v. Matula Jean-Baptiste 



24 



A Cambridge man was sentenced to serve 60 days of a two year jail sentence after he was 
convicted of two counts of perjury in connection with a phony worker's compensation 
claim. The defendant testified during a Department of Industrial Accidents hearing that he 
had never before filed a claim for compensation and had not appeared in a previous DIA 
case. In fact, the defendant had previously filed a claim under a different name. He 
collected benefits in both cases. 

2. Commonwealth v. Duarte, Duarte, Repucci 

Three defendants were convicted in Brockton Superior Court on charges of insurance 
fraud, attempted larceny and conspiracy after they tried to defraud an insurer by means of 
a phony homeowner's claim. Two of the defendants attended a bachelor party at a night 
club, after 

which one defendant fell and injured his arm. He then filed a claim under a homeowner's 
policy, alleging that the injury occurred at the co-defendant's residence. He also enlisted 
his wife's assistance in the scheme. The fraud was uncovered before payments were 
made under the policy. The defendants were sentenced to serve probation for two years 
and to pay $2,500 fines each. 



3. Commonwealth v. Samson Omosefunmi 

A Fall River man was sentenced to serve 2 Vi to 5 years in state prison after he was 
convicted of filing a fraudulent claim under a life insurance policy. The defendant 
submitted a forged death certificate claiming that his wife had died and attempted to 
collect on a $134,000 policy. An IFB investigation revealed the fraudulent claim and the 
defendant was arrested when he appeared to collect the payment check. 

4. Commonwealth v. Davis 

A defendant who operated a scheme to sell bogus surety bonds was convicted of 
larceny and ordered to serve 4 to 5 years in state prison by an Essex Superior Court judge. 
The defendant preyed on minority-owned businesses and obtained more than $88,000 by 
selling non-existent surety bonds. The defendant must also pay $100,000 in fines and 
restitution when he is released from prison. 

5. Commonwealth v Spadorica 

A father and daughter were found guilty in District Court of insurance fraud and 
attempted larceny in connection with a fraudulent insurance claim fraudulent 
insurance claim after a burglary. Police investigators responded when a burglary was 
reported and determined that only a few items were taken. Photographs were taken of 
the interior of the house. When the father returned from a vacation, he submitted an 



25 



insurance claim alleging that thousands of dollars worth of personal property was 
stolen, including many items which appeared in the police photographs taken after the 
burglary. The father enlisted his daughter's assistance in submitting false statements 
to the insurer. The defendants were ordered to serve a period of probation and to pay 
court costs. 

6. Commonwealth v. Kingston 

A former employee of the Boston Housing Authority was convicted of insurance 
fraud and larceny after he was discovered working for the Town of Braintree while 
collecting total disability benefits. The defendant claimed he injured his back while 
working. He collected over $32,000 in total disability benefits while working as a full 
time property assessor in Braintree. He was sentenced to serve 6 months in jail, 
followed by a period of probation during which he must pay restitution to the insurer. 

7. Commonwealth v. Joaquin Ortiz 

A worker's compensation claimant was convicted in Worcester Superior Court on 
charges of worker's compensation insurance fraud and perjury. The defendant gave 
false testimony during a hearing at the Department of Industrial Accidents. He was 
ordered to serve 3 to 5 years in state prison and to pay restitution in the amount of 
$3,049. 

8. Commonwealth v. Rebhan 

A Franklin man was sentenced to serve 30 days of a six month jail sentence and to pay 
full restitution on charges of worker's compensation insurance fraud and larceny. The 
defendant claimed to be disabled after suffering an injury while working for a landscaping 
company. He collected $3,000 in total disability benefits. Despite his claimed disability, 
he began working for a construction company in Rhode Island while collecting benefits. 
After he was charged, the defendant fled to West Virginia. He was tracked down and 
placed under arrest. He served almost a month in custody before being returned to the 
Commonwealth. 

9. Commonwealth v. Fostin 

A Taunton resident was found guilty of insurance fraud and attempted larceny in 
connection with a scheme to have his insurance company pay for a new engine and 
accessories for his boat. The defendant alleged that items were stolen from his boat while 
it was parked in his driveway. An investigation revealed that he had ordered replacement 
parts for his boat two weeks before the alleged incident. When he was confronted with 
the results of the investigation, he withdrew his claim. The defendant was ordered to 
serve a period of probation, to perform community service and to pay the costs of the 
investigation by the insurer. 



26 



MEDICAID FRAUD CONTROL UNIT (MFCU) 

The Medicaid Fraud Control Unit ("MFCU") is one of 45 such Units in the United States. 
Congress continues to fund the Massachusetts MFCU with 75% matching funds because 
of Attorney General Harshbarger' s commitment to prosecute white-collar health care 
fraud in the Medicaid program. In addition to investigating and prosecuting Medicaid 
fraud, the MFCU also remains committed to prosecuting abuse, neglect, mistreatment and 
financial exploitation of residents in long term care facilities. 



During Fiscal Year 1995, the MFCU initiated a variety of enforcement actions in the 
fraud and long term care areas. As reported below, the MFCU investigators and 
prosecutors brought civil and criminal actions against a variety of health care providers 
including doctors, dentists, pharmaceutical companies and clinical laboratories. In 
addition to recovering nearly $750,000 in civil and criminal fines and restitution, the 
MFCU brought 50 individual indictments, convicted a total of 13 individuals and 
completed 16 abuse and neglect prosecutions. 

In addition to the enforcement actions reported herein, the MFCU also continued to take 
leadership role in fighting fraud, waste and abuse in the Medicaid system on a national 
level. During Fiscal Year 1995, Attorney General Harshbarger urged U.S. Secretary of 
Health and Human Services Donna E. Shalala and Congressional leaders to grant the 
Massachusetts MFCU a waiver of the federal regulations which restrict its jurisdiction 
and authority to fraud enforcement within the Medicaid program. In asking Secretary 
Shalala to make the MFCU a two-year pilot program for investigating and prosecuting 
health care fraud perpetrated against all payers — both public and private — the MFCU 
continued on the cutting edge of expanded enforcement jurisdiction in combating health 
care fraud at all levels. 



I. SIGNIFICANT CASES 



1. Commonwealth vs. THRI P.C. and its President, Ronald A. Schwartz, M.D. 

A Fall River-area physician group and its president agreed to be permanently enjoined 
from violating the state's anti-kickback and self-referral laws which apply to Medicaid 
patients. A consent judgment and permanent injunction were filed in Suffolk Superior 
Court by the MFCU. The defendants agreed to stop collecting so-called "gatekeeper 
fees" for recruiting area doctors. They also agreed to stop using its referral fee plan and 
its marketing materials and to pay the cost of the MFCU investigation. The referral 
payment scheme as proposed required each physician member to pay a fixed percentage 



27 



of his or her collected fees into a central fund. Primary care members, who made most 
referrals, would collect back more than twice their original payment. Specialists, who 
depended on referrals for business, would get back less, or none, of their contributions. 
(April 1995) 

2. Commonwealth vs. Byron C. Robinson, D.D.S. 

A Roxbury dentist paid nearly $350,000 in restitution after he allegedly improperly billed 
Medicaid patients for dozens of dental procedures. A consent judgment was filed in 
Suffolk Superior Court by the MFCU in conjunction with a civil lawsuit charging single 
counts of Medicaid provider fraud and breach of contract. The defendant allegedly 
improperly billed Medicaid for anesthesia, x-rays, alveoplasty procedures and emergency 
services. In addition, the defendant's record-keeping practices and office procedures 
allegedly did not conform with Medicaid program regulations. While denying any 
liability or wrongdoing , the defendant settled the claim and agreed to implement a strict 
compliance program in addition to the paying of $347,000 in restitution to the Medicaid 
program. The agreement requires that the defendant now maintain sufficient records, take 
only diagnostic rays, maintain proper records for intravenous anesthesia and 
appropriately bill emergency services and alveoplasty procedures. (April 1995) 

3. Commonwealth vs. Kathleen M. Casey 

A Monson woman pled guilty in Suffolk Superior Court to 40 counts of filing false 
claims to the Medicaid program and two counts of larceny (of approximately $16,000) 
from the Department of Welfare. She was sentenced to serve seven days of a one-year 
sentence at the Suffolk County House of Correction at Bay Cove. The remainder of the 
sentence was suspended and she was ordered to serve a one-year term of supervised 
probation. In addition, the defendant paid $16,000 in restitution to the Medicaid 
program. The charges stem from the MFCU's investigation into Medicaid's personal 
care attendant program which allows disabled individuals to remain in a community 
setting with the aid of personal caretakers. The defendant caused the Department of 
Public Welfare to be billed for personal care services which were never rendered to two 
disabled adults by forging the signatures on official personal care attendant time sheets. 
(November 1994) 

4. Commonwealth vs. Massey Analytical Labs, Inc. 

A Connecticut laboratory paid a total of $100,000 in restitution and fines following a 
guilty plea in the Boston Municipal Court to four misdemeanor counts of provider fraud. 
The corporation admitted that it failed to disclose that it did not have written orders for 
certain lab services it performed for Medicaid beneficiaries. The company was ordered to 
pay $2,500 in fines and $15,000 in restitution. The corporation also entered into an 
$82,500 civil settlement. As part of the civil agreement, the laboratory denied any 



28 



wrongdoing but agreed that it will not apply for Massachusetts Medicaid provider status 
in the future. (June 1995) 

5. Commonwealth vs. Ciba Geigy Corporation, Instacare Pharmacy Services 
Corporation, Rix Dunnington 

A $405,000 settlement was reached with a national drug manufacturer and two of its 
Massachusetts customers over claims that the companies violated Medicaid anti-kickback 
and state and federal discount statutes. In separate settlement agreements, these 
corporations agreed to pay a total of $195,000 in cash to the state Medicaid program and 
to provide another $200,000 in free pharmaceutical goods to be distributed to state 
Medicaid-insured residents. Rix Dunnington, a local pharmacy, paid $10,000 to settle its 
claims with MFCU. Rix Dunnington had purchased products from Ciba Geigy without 
disclosing discounting to the Medicaid program. (July 1 994) 

6. Commonwealth v. Marcia Ford-Besette 

A former bookkeeper and office manager at a Fairhaven nursing home pled guilty to one 
count of larceny over $250. She was sentenced to one year at the Bristol County House 
of Correction, 90 days to serve, and three years of supervised probation. The defendant, 
who was originally hired as a payroll clerk and later promoted to office manager and 
bookkeeper, was responsible for maintaining the residents' trust account. According to 
MFCU investigators, the defendant embezzled nearly $75,000 from the residents' trust 
account she maintained using local automated teller machines. She then altered the 
monthly account bank statements to conceal the fraud. (January 1995) 

7. Commonwealth v. Pauline Edwards 

A Springfield woman admitted to sufficient facts in a case where MFCU investigators 
charged her with abuse and assault and battery of a 67-year-old nursing home resident. 
The defendant's case was continued without a finding for one year and she was ordered to 
surrender her nurses aide license for a year. According to the complaint, the defendant 
allegedly punched the resident in the neck with a closed fist. (July 1994) 

8. Commonwealth v. Marta Sevillano 

A Framingham woman was convicted in Framingham District Court of abusing a 72- 
year- old resident at a local nursing home. She was sentenced to six months unsupervised 
probation. The defendant allegedly struck the female resident across the face while she 
was caring for her. 

9. Commonwealth v. Margaret LeFever, R.N. 



29 



A New Bedford District Court judge found the defendant guilty of one count of patient 
abuse and two counts of assault and battery at a long-term care facility in that area. The 
matter was continued without a finding for one year. The Court also required the 
defendant to perform seventy -five hours of community service and to pay a $60.00 
victim/witness fee. (November 1994) 

10. Commonwealth vs. Patricia Walsh 

A Lawrence woman admitted to sufficient facts on charges of assault and battery and 
patient abuse for the assault on an 86-year-old resident at a Lawrence nursing home, in 
which she kicked the resident in the ankle. The Court continued the case without a 
finding for one year. The defendant also was ordered to continue with counseling and 
attend three elder abuse/elder rights seminars at her own expense. A $50.00 
victim/witness fee was imposed. (December 1994) 

11. Commonwealth vs.Yanick Jean 

A Lynn woman pled guilty to charges of abusing a 44-year-old patient at the Lynn nursing 
home where she worked. The defendant placed the resident in his room and tied the door 
shut. Because he has a closed head injury, the patient was unable to call for assistance or 
exit the room through a connecting door himself. The defendant was sentenced to one 
year of supervised probation. (April 1995) 

II. STATISTICAL SUMMARY 



CRIMINAL FRAUD CASES 

Formal Investigations Initiated 9 

Investigations Completed and Closed 49 

Individual Indictments 50 

Corporate Indictments 6 

Individuals Convicted 13 

Corporations Convicted 1 

PATIENT ABUSE/NEGLECT CASES 

Abuse and Neglect Referrals 742 

Abuse and Neglect Investigations 162 

Total Criminal Complaints and Indictments 12 

Prosecutions Completed and Closed 16 

Individuals Convicted 9 

Pending Prosecutions 14 



30 



CIVIL/CRIMINAL FINANCIAL RECOVERIES 
Civil Overpayments Recovered $676,780.00 
Criminal Restitution Ordered $ 33,221.55 
Other Civil Recoveries $ 30,000.00 

Criminal Fines Imposed $ 2,500.00 

Other Costs Paid $ 4,741.20 

TOTAL: $747,242.75 



31 



CRIMINAL BUREAU 

Assistant Attorneys General in the Criminal Bureau prosecute individuals and 
corporations for violations of the criminal laws in courts throughout the Commonwealth, 
and represent the Commonwealth in appeals from these convictions. In addition, 
attorneys in the Bureau represent the Commonwealth's judges, district attorneys, 
probation, parole, and corrections officers when they are sued civilly in state and federal 
court by prisoners challenging their criminal convictions or the terms of their 
confinement. 

The Bureau is comprised of 44 prosecutors and approximately 20 support staff, including 
secretaries, paralegals, and financial investigators. In addition, a Criminal Investigations 
Division consisting of 25 Massachusetts state troopers is assigned to the Bureau to 
investigate allegations of criminal wrongdoing across the state. 

The Criminal Bureau is organized among five major divisions: the Narcotics and Special 
Investigations Division, the Public Integrity Division, the Environmental Crimes Strike 
Force, the Appellate Division, and the Economic Crimes Division. These five divisions 
are grouped generally by area of practice and type of crime prosecuted. Each division is 
managed by a division chief, who both supervises the work of the attorneys assigned to 
that division and serves as senior prosecutor. The work of each of these divisions during 
fiscal year 1995 is described in the following pages. 

The Bureau is lead by a Bureau Chief and Deputy Bureau Chief, who manage the work of 
the five divisions and advise the Attorney General on law enforcement policy and anti- 
crime initiatives. The position of victim-witness advocate was added to the Criminal 
Bureau in 1994, in order to assist assistant attorneys general in managing multi-victim 
cases, and to advise victims/witnesses of the rights and remedies available to them in the 
Massachusetts criminal justice system. A Director of Financial Investigators was added 
to the Bureau in fiscal year 1995, to supervise the work of the Bureau's eight civilian 
financial investigators, many of whom have backgrounds in accounting, banking, and 
financial services. 

There were two major organizational changes in the Criminal Bureau in fiscal year 1995. 
First, three former divisions of the Criminal Bureau (Fair Labor, Insurance Fraud, and 
Medicaid Fraud) were removed from the auspices of the Criminal Bureau and merged into 
a new Business and Labor Protection Bureau. The goal of the new Bureau is to focus on 
fraud, both civil and criminal, in the insurance, health care, and public contracting 
industries, while freeing up the resources of the Criminal Bureau to focus on its 
traditional mission of combating white collar crime such as public corruption, 
environmental crime, and complex financial crimes. 

Second, two new legal positions were added to the Criminal Bureau in 1995 to assist 
with initiatives not falling squarely within the responsibilities of the five divisions. The 
bureau Attorney for Training and Administration, is responsible for coordinating the 
grand jury, training new assistant attorneys general, and assisting the Bureau Chief with 
administrative and budget matters. The Bureau Attorney for Policy and Legislation, 



32 



spearheads the Criminal Bureau's work on statewide criminal justice policy and 
legislation. 

In addition to the work of its five major divisions, the Criminal Bureau coordinates a 
number of initiatives designed to combat urban violence. Ten assistant attorneys general 
served rotations in the busy Roxbury, Lawrence, and Brockton District Courts during FY 
1995 to assist local district attorneys with escalating numbers of narcotics and firearms 
offenses. As part of the Attorney General's Safe Neighborhood Initiative, two assistant 
attorneys general have been assigned to prosecute violent crimes and narcotics offenses in 
a targeted urban area of Dorchester. The Safe Neighborhood Initiative brings 
prosecutors, police, and community leaders together through a multi-disciplinary 
approach to combating violence. The Safe Neighborhood Initiative has been so 
successful in Dorchester that the Attorney General and the Suffolk County District 
Attorney have agreed to undertake a similar community prosecution project in the Grove 
Hall section of Roxbury, where two assistant attorneys general from the Criminal Bureau 
will be assigned to prosecute crimes of violence beginning September 1, 1995. 

Finally, as part of the Attorney General's role as chief law enforcement officer for the 
Commonwealth, members of the Criminal Bureau are frequently called upon to train 
law enforcement officers and prosecutors across the state on important and emerging 
criminal law issues, to prepare and draft legislation, and to take part in criminal justice 
reform. In fiscal year 1995, members of the Criminal Bureau served on commissions 
created by the legislature to study and propose reforms in the state conflicts Of interest 
law (The special Commission on Ethics)and to enact sentencing guidelines in 
Massachusetts for criminal offenses (The Sentencing Commission). The Criminal 
Bureau published quarterly law enforcement newsletter to advise judges, police officers, 
and prosecutors about statutory and case related developments in the area of criminal 
law. During the past year, the Criminal Bureau drafted legislation relating to firearms 
offenses, juvenile justice, environmental endangerment and forfeiture, pension forfeiture, 
immunity, and statewide grand jury. These proposals are currently before the 
legislature. 

The case descriptions and statistics which follow reflect the intense effort put forth by the 
Criminal Bureau staff in fiscal year 1995, and the Bureau's commitment to making a 
difference for the citizens of Massachusetts by combating private and public sector fraud, 
urban violence, and organized crime. 

APPELLATE DIVISION 

The Appellate Division handles a variety of criminal, federal habeas corpus, state habeas 
corpus and other civil cases which impact criminal prosecutions and the criminal justice 
system itself. The division has a paralegal, and two secretarial support staff. 

The Division handled approximately 747 cases during the course of the year. Over 340 
new cases were opened in FY 1995, and 515 were closed. 



33 



In addition to case work, Division attorneys participate in and present training programs 
both for the Criminal Bureau and office-wide; and work with other Criminal Bureau 
attorneys on a variety of investigative, motion, trial, post conviction, and single justice 
matters. The Division also works closely with the District Attorneys' Offices, especially 
their Appellate Divisions, in identifying and acting as a clearinghouse on issues of 
statewide importance and interest. Additionally, Assistant Attorneys General participated 
in the Urban Violence programs prosecuting cases in Dorchester and Brockton District 
Courts. 

/. SUMMARY OF FY 1995 APPELLA TE DIVISION CASE STA TISTICS 



A. Cases Handled 


Cases 


Cases 


Total Cases 




Opened 


Disposed 


Handled 


A. Federal Habeas 


79 


100 


199 


B. Federal Civil 


33 


43 


71 


C. State Civil 


97 


108 


233 


D. State Habeas Corpus 


33 


38 


75 


E. 211 3 and other 








Single Justice cases 


19 


28 


29 


F. Criminal 


74 


70 


131 


G. Other 





125 







341 


515 


747 



(390) 

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

several years: 

FY FY FY FY FY 

1995 1994 1993 1992 1991 

TOTAL CASES OPENED 341 307 351 222 161 

TOTAL CASES DISPOSED 515 213 282 206 N/A 

TOTAL CASES HANDLED 747 652 649 428 N/A 

The caseload of the Division continues to steadily increase. This year Division attorneys 
handled 747 cases, nearly a hundred more cases than in FY 1994 and FY 1993, and a 
74% increase over the number of cases handled in FY 1992. Despite the large number of 
cases handled, 390 active cases were disposed by Division attorneys, substantially more 
than the 213 cases closed in FY 1994, the 282 cases closed in FY 1993, and 206 cases 
closed in FY 1992. This does not include an additional 125 old cases which were closed 
due to the efforts of paralegal Renee Harbeson. A total of 515 cases were disposed 
during FY 1995. 

One hundred thirty-seven (137) additional cases were referred by the Appellate Division 
to agency counsel at DOC, DMH or the Parole Board, or to the District Attorneys. 



34 



3 


2 


4 


7 


23 


14 


7 


10 








2 





21 


14 


13 


7 


32 


24 


26 


32 


79 


54 


52 


56 


37 


19 


20 


26 


19 


13 


7 


11 


23 


24 


25 


19 



FY 1995 FY 1994 FY 1993 FY 1992 

B. Appellate Briefs Filed 79 54 52 56 

By Court 

U.S. Supreme Court 
Court of Appeals(First Circuit) 
U.S. District Court (Bankruptcy Appeals) 
SJC 
Appeals Court 

By Case Type 

Criminal 
Federal Habeas 
All Other Civil/State Habeas 

The Appellate Division's 79 briefs filed this year is a significant, over 45%, increase over 
each of the last three years. 

Briefs in the United States Court of Appeals (23), a 65% increase over last year, were 
filed in 16 habeas corpus cases and 7 federal civil actions. We were successful in all 
cases that were decided; one case has been remanded for further proceedings in the 
District Court. Each of the three briefs filed in the United States Supreme Court were 
written upon request of the Court in opposition to petitions for certiorari in federal habeas 
corpus cases. Certiorari was denied in all three cases. 

This year the Division's briefs filed in the Supreme Judicial Court increased to 21, a 50% 
increase over FY 1994. Thirteen (13)briefs were filed in criminal cases, and 8 were filed 
in civil matters. They concerned the constitutionality of the "gatekeeper" provisions of 
G.L. c. 278, 33E for murder cases, three cases involving expungement and sealing of 
criminal records, the availability and scope of the prosecutor's ability to prevent 
disclosure of investigatory and work product materials, whether the Parole Board waived 
jurisdiction over fugitive parole violators, the Governor's and Attorney General's ability 
to replace a sheriff under indictment, as well as in a number of criminal appeals. 

The Division wrote 23 briefs filed in the Appeals Court, 24 in criminal cases and 8 in 
civil cases, approximately the same as in previous years, and which were as varied in 
subject matter as the Division's caseload. We were unsuccessful in five cases in the 
Appeals Court. One was modified in the SJC, and two are still pending on further 
review. 

The Division continued its practice of filing amicus briefs on behalf of the Attorney 
General in cases having broad impact and importance to the criminal justice system, 
consistent with the Attorney General's statutory responsibilities as chief law enforcement 
officer of the Commonwealth. We wrote in support of an application for further review 



35 



in a case of the extra territorial arrest of a drunk driver. Amicus briefs were filed in 
support of the District Attorneys in a case involving assessment of costs and attorneys 
fees, and in a challenge to the admissibility of breathalyzer evidence in drunk driving 
cases. In addition, anamicus brief was filed in a case concerning Massachusetts' ability to 
prosecute for murder an individual who kidnapped and sexually assaulted his victim in 
Massachusetts but who then took the victim to New York and murdered him there (Lent). 
In the cases that have been decided, the courts adopted the arguments we made. 

C. Renditions 

Attorneys from the entire Criminal Bureau, at the request of the Governor's office, review 
the legal sufficiency of applications for Governor's warrants, both at the request of other 
states and those by Massachusetts District Attorneys, and Department of Correction and 
Parole Board. From July 1, 1994 through June 30,1995, 190 different cases were 
reviewed. Whenever a person arrested on a Governor's warrant challenges the validity of 
the warrant, Criminal Bureau attorneys handle the habeas corpus cases in the state and 
federal trial and appellate courts, and coordinate extradition of the fugitive to the 
requesting state. 

//. FY 1995 CASE HIGHLIGHTS 



A. Federal Habeas Corpus 

During the course of the fiscal year, the Appellate Division carried a total of 199 federal 
habeas corpus cases. Seventy-nine(79) new cases were opened and 100 were disposed. 
The Commonwealth is only required to defend cases in which there is an order by the 
federal court to answer the petition. 

The Division is especially proud of its work in federal habeas corpus. In all four cases in 
which District Court judges ordered the writ to issue, the Division has been successful in 
obtaining reversals on appeal. 

Scarpa, a drug trafficking case, was important in establishing the test for prejudice for 
ineffective assistance of counsel claims, and the requirements for exhaustion of state 
remedies in federal habeas corpus. In Matthews, a rape case, the First Circuit reversed an 
order granting the writ where the issue was also ineffective assistance of counsel. 
Beauchamp, a case involving an individual convicted of murder who escaped from 
custody, settled the federal law question concerning credit for time spent in out-of-state 
custody while challenging return to Massachusetts after he was recaptured. In Stewart, a 
murder case, the First Circuit found the evidence of joint venture and knowledge legally 
sufficient to sustain the validity of the conviction in due process grounds, and reversed 
the District Court's grant of the writ. 

In addition, we were successful in having the First Circuit affirm the denial of habeas 
relief to William Gilday, convicted of the murder of a Boston police officer twenty-five 



36 



years ago, and in having the Supreme Court deny certiorari in a number of other murder 
cases, including Ortiz, involving the murder of two Springfield police officers, and Libby. 

This year, the District Court ordered the writ to issue in one case, Rossetti, involving 
conspiracy to commit armed robbery, on grounds that double jeopardy precluded trial for 
conspiracy after petitioner had been previously acquitted for the substantive offense. That 
case is currently on appeal. We were successful in all other habeas corpus cases decided 
during the fiscal year. 

B. Federal Civil Cases 

The Appellate Division handled 71 federal civil matters, which primarily involve civil 
rights actions brought against state judges, prosecutors, probation officers, stenographers, 
and other criminal justice system officials. Several cases involve representation of 
prosecutors who have been subpoenaed to testify or to produce their investigative or trial 
files, or cases where the integrity of state criminal prosecutions were at issue. 

In Souza v. Pina, we defended a District Attorney and three of his employees who were 
sued for allegedly publicly identifying an individual as a serial killer suspect and thus 
causing him to commit suicide. We were successful in having the First Circuit reverse 
the District Court's denial of our motion to dismiss on grounds of qualified immunity. 
We were successful in all federal civil cases except one, in which we were ordered to 
produce certain materials from a prosecution file, most of which had been ordered 
released in another case. 

C. State Civil/State Habeas Cases 

During FY 1995, the Appellate Division handled 75 state habeas corpus actions filed by 
prisoners seeking immediate release from confinement in such matters as attacks on 
commitments to the Treatment Center, challenges to the validity of Governor's warrants, 
challenges to criminal convictions, and claims that parole or probation surrenders were 
invalid. The Appellate Division's civil case load of 233 cases includes public records 
cases, appeals from denial of petitions for release from the Treatment Center, and appeals 
in all cases handled in the trial court by agency counsel at the Parole Board and 
DMH/DOC, but the large majority of state civil cases involve representation of 
prosecutors, judges, public defenders, and other court personnel sued for their official 
actions. 

For the last several years the Division has represented the District Attorneys in cases 
where they are not a party but have been subpoenaed to testify or provide their 
investigative or trial files. This year the Division represented a District Attorney's office 
in Flatley, a case where litigants in a civil case sought personal handwritten notes made 
by an assistant district attorney. We were successful in having the SJC declare that a 
prosecutor need not suffer contempt before challenging an order to divulge privileged 
materials, and in clarifying the privileged nature of information provided by a citizen to a 
prosecutor. These cases have so increased in number that the Attorney General's Office 



37 



determined that after May 15, 1995, the District Attorneys would provide their own 
representation for these cases. The Appellate Division conducted a training program on 
the handling of these cases, and continues to assist the District Attorneys' offices by 
providing advice, coordination, and resources. 

When the first request for jury trial in an SDP 9 case was filed, the Appellate Division 
became directly involved in all the issues that arose for the first time. We have taken an 
interlocutory appeal from a ruling that despite the civil nature of these cases, the court 
intended to instruct the jury their verdict must be unanimous (Sheridan). 

Among the state habeas corpus cases handled by the Division is Hinnant, concerning the 
question of competency to challenge extradition, and Zullo, which involved a claim by a 
parole violator that the Parole Board waived jurisdiction over him by not seeking to 
return him to Massachusetts earlier. 

D. Criminal Cases 

The majority of criminal cases handled by the Appellate Division are appeals from 
criminal convictions in prosecutions by the trial divisions of the Attorney General's 
Criminal Bureau. The number of cases handled this year, 74, reflects the increasing 
number of Criminal Bureau prosecutions. The Division also represents the 
Commissioner of Probation in a number of cases where a former criminal defendant has 
sought expungement of court and probation records. In three cases handled by the 
Division, Balboni, Roe, and Doe, the Supreme Judicial Court resolved that such records 
could not be expunged where the legislature provided only for sealing, and set forth the 
procedure to follow in considering whether they could be sealed. 

The Supreme Judicial Court and Appeals Court affirmed convictions or denial of motions 
for new trial in murder (Schand),perjury (Luna), and criminal contempt (Filos) cases, as 
well as in a number of drug trafficking, tax evasion, and other cases. The appellate courts 
reversed convictions for improper closing argument(Festa & Stephens) and improper use 
of peremptory challenges(Carleton), and denied our request to reinstate a guilty 
verdict(Nettis). Another case (Fallon) is pending on further review. 

E. G.L. c.211, 3 and Other Single Justice Matters 

The Appellate Division handled 19 different cases in the single justice session of the 
Supreme Judicial Court. These matters generally involve representation of the courts and 
judges, but may also include attacks on some aspect of the criminal justice system. One 
case concerned cross-complaints and the ability of a single prosecutor's office to make 
decisions for the appropriate handling of the cross-complaint process. 

///. CRIMINAL JUSTICE INITIA TIVES 

• Assistant Attorney General Pamela Hunt is a member of the Massachusetts Sentencing 
Commission and serves as chairperson of the Commission's Committee on 
Intermediate Sanctions. 



38 



Assistant Attorney General William Duensing serves on the National Association of 
Attorneys General (NAAG) committee on frivolous inmate litigation and was involved 
in drafting model state legislation and similar legislation filed in Massachusetts. 
Assistant Attorney General William Meade is the Attorney General's representative to 
the Criminal Justice Training Council. 

Assistant Attorney General Pamela Hunt serves as the Attorney General's 
representative to the Criminal History Systems Board. 

Assistant Attorneys General Greg Massing and Elisabeth Medvedow and Paralegal 
Renee Harbeson edited and produced the Law Enforcement Newsletter, which 
provides information concerning current legislation, cases and issues impacting the 
criminal justice system and which is distributed statewide to over 2,000 members of 
the law enforcement community and the judiciary. 

Assistant Attorney General Pamela Hunt is a member of the Supreme Judicial Court's 
Standing Advisory Committee on the Criminal Rules. 

The Division provides information to the Parole Board relevant to its consideration of 
pardon and commutation matters and for parole decisions for those serving parole- 
eligible life sentences. 



IV. SAAG SUPERVISION 

A. Parole Board Agency counsel at the Parole Board are designated Special Assistant 
attorneys general ("SAAG") to handle the Board's litigation in the state trial courts. 
Appellate Division attorneys work closely with Board counsel in the defense of these 
matters, and handle all appeals in these cases. The Appellate Division is also involved 
in the many Parole Board cases which require coordination with the Department of 
Correction. Assistant attorneys general from the Appellate Division and the 
Government Bureau defend all cases concerning the Parole Board in federal court. 

B. Treatment Center Litigation Counsel at the Department of Mental Health (and from 
the Department of Correction) have been designated as "SAAGs" to handle all 
sexually dangerous person (SDP) 9 hearings in the Superior Court. Assistant 
attorneys general in the Appellate Division are responsible for all appeals in these 
cases and are involved in supervision and monitoring of the SDP trials. 

Until the Department of Correction took over the running of the Treatment Center, civil 
and state habeas corpus litigation filed by inmates of the Treatment Center was handled 
by attorneys from the Appellate Division and the Government Bureau. The Appellate 
Division continues to defend cases which attack the validity of the original SDP 
commitment or the underlying criminal conviction, and supervise other Treatment Center 
litigation. 

CRIMINAL INVESTIGATIONS DIVISION 

The Criminal Investigations Division continues to provide the Criminal Bureau with an 
experienced group of investigators to carry on Criminal Bureau investigations. The 



39 



police and civilian investigators assigned to this division provide a wealth of expertise 
and experience in matters such as organized crime, narcotics trafficking, public 
corruption, money laundering, securities violations, tax fraud, crimes against the elderly, 
and environmental crime. The Criminal Investigations Division also provides technical 
support and resources to other divisions within the office of the Attorney General, and to 
municipalities within the Commonwealth that lack resources. 

The hallmark of the division continues to be the assistance given to other agencies and 
municipalities, and joint investigations carried on with many federal, state, and local law 
enforcement agencies and police departments. Significant among these investigations are 
the following: 

The Public Corruption unit responded to complaints made by members of a local police 
department regarding the activities of the Chief of that department. It was alleged that the 
Chief was involved in a number of corrupt activities such as the intimidation of a witness 
in a narcotics investigation. The Chief was subsequently arrested and indicted and has 
been removed from the department. 

The Organized Crime and Narcotics Unit, following several months of undercover 
investigation involving several cocaine and crack purchases by Troopers from this unit, 
with the assistance of the Waltham Police Department, arrested 24 individuals, seized 
nine motor vehicles and seized $4,730. The object of this investigation was to saturate 
the city of Waltham with undercover officers. These officers from the Office of the 
Attorney General had made purchases from target individuals and locations, which were 
responsible for most of the cocaine distribution in the city. Three locations were 
identified and search warrants were executed. 

The Criminal Investigations Division continued to coordinate many multi-jurisdictional 
investigations with various municipalities that do not have the resources or expertise to 
manage such complex criminal investigations. 

ECONOMIC CRIMES DIVISION 

I. The Restructuring of the Economic Crimes Division 

The Economic Crimes Division in the Criminal Bureau of the Attorney General's Office 
investigates and prosecutes all types of private sector, white collar and economic crime 
throughout the Commonwealth of Massachusetts. The victims of these crimes take many 
shapes, from the vulnerable elderly individual, to the small business or large corporation. 
During Fiscal Year 1995, the Economic Crimes Division brought charges against 37 
individuals and/or corporations, and received convictions of 55 white collar criminals, 
which included defendants convicted but not charged within Fiscal Year 1995. 

Throughout the past year, the Economic Crimes Division focused on three priority areas: 
insurance fraud, tax crimes, and all types of financial crimes which victimize the 
individual to the corporate entity. 



40 



Economic Crimes Division 

Annual Report 

Indicted Counts by Crime 

FY 96 




Forgery, Uttering, 
Counterfeiting, 
False Entries in 

Larceny over $250, ^^^^^ |PI^~^ Corporate Books 

Larceny by False 30% 

Pretenses, 

Embezzlement, 

Securities Fraud, 

Conspiracy 

33% 



In June of 1995, Attorney General Harshbarger restructured the Economic Crimes 
Division to better focus the Division's efforts and organize it's heavy caseload. Today, 
the Division no longer prosecutes those matters that are unique to the insurance industry, 
in addition to prosecuting all other types of private sector fraud. Rather, now the Division 
investigates and prosecutes matters primarily concerning financial and tax fraud crimes 
that affect the private sector, exclusive of the insurance fraud cases primarily generated by 
an outside agency known as the Insurance Fraud Bureau. The Division may now 
concentrate it's resources on investigations of financial crimes where multiple victims 
have been affected, or where a prosecution will have the greatest deterrent effect on other 
would-be white collar criminals. Therefore, the five attorneys in the Economic Crimes 



41 



Division that were investigating and prosecuting only those cases involving insurance 
fraud, working closely with the Insurance Fraud Bureau, were placed within the newly 
formed Business Labor and Protection Bureau of the Attorney General's Office to create 
the new Insurance Fraud Division. This restructuring allowed the remaining members of 
the Economic Crimes Division, now consisting of six attorneys, in addition to civilian 
financial investigators and state police officers, to concentrate their efforts exclusively on 
financial crimes and tax prosecutions. 

To reflect the new restructuring of the Economic Crimes Division, this report will outline 
and focus on those cases which are now handled by the Economic Crimes Division. The 
Insurance Fraud Division, no longer a part of the Criminal Bureau, will be reporting on 
it's cases for Fiscal year 1995 in a separate report. 

II. Private Sector Fraud: The Financial & Tax Prosecutions Handled By The 
Economic Crimes Division 



A. The Financial Prosecutions 

The Economic Crimes Division receives referrals from both state and federal agencies, as 
well as judges, attorneys, private parties, and police departments throughout the 
Commonwealth. The Division continues to work closely with such offices and agencies 
such as the Board of Bar Overseers, the Criminal Investigations Bureau of the 
Department of Revenue, the F.D.I.C., the Secretary of States Office, and various District 
Attorney's Offices in The Commonwealth. 

Often, the white collar criminal is a professional who has abused his or her position of 
trust, stealing from those who are dependent upon them for their welfare. Throughout the 
prosecution of a white collar case, members of the Economic Crimes Division, be they an 
Assistant Attorney General, Civilian Investigator, State Police Officer, member of the 
support staff, or a Victim Witness Advocate, observe first-hand the aftermath of a 
successful financial crime. In most every case, the harm caused by the white-collar 
criminal touches far more than the intended victim. The impact of a successful private 
fraud reverberates from the single person swindled by, for example, their lawyer, 
physician or financial advisor, causing them to sustain a personal toll that may result in 
the loss of their life savings or home, to a business or corporation that has been crippled 
from the theft of tens of thousands of dollars. Ultimately, the rippling harm of such theft 
is felt throughout the Commonwealth by diminishing jobs, minimizing the effect of 
government programs, and slowly eroding the health of the state's economy. 

The investigations initiated by the Division tend to be difficult, complex white collar 
cases that involve the analysis and review of prolific documentation, tracing an economic 
crime through exposing the "paper trail" of evidence left by the white-collar criminal. In 
order to conduct a thorough investigation of an economic fraud, extensive interviews and 
testimony must be obtained from all people involved or affected by the theft. In addition, 
most cases require the use of an expert witness to aid an Assistant Attorney General or 



42 



Investigator in evaluating the perpetrator's handwriting, the financial formula he 
employed, or the mental state which enabled him to perpetrate his crime. 

B. Tax Prosecutions 

In Fiscal Year 1995, the Tax Prosecution Unit litigated a significant number of cases in 
the criminal courts and conducted several long-term investigations of suspected tax 
crimes. Although each Assistant Attorney General in the Economic Crimes Division 
handles a caseload including tax cases, one Assistant Attorney General concentrates full 
time on this subject area. Many cases were referred to the Office of the Attorney General 
by the Criminal Investigations Bureau of the Department of Revenue, and Investigators of 
that agency actively assisted the Tax Prosecution Unit in investigations and prosecutions 
in FY '95. The analysis, documentation and witnesses provided by The Department of 
Revenue were invaluable to the successful prosecution of these cases. In addition, other 
cases were developed by the Tax Prosecution Unit as a result of referrals from other 
agencies. During Fiscal Year 1995, twenty-one new cases were charged in the Superior 
Courts throughout the Commonwealth, with seventeen pending cases being successfully 
prosecuted to completion. 

IE. The Economic Crimes Division Case Highlights Some of the case highlights 
of the Economic Crimes Division for Fiscal Year 1995 include: 



Commonwealth v. Bernardo Nadal-Ginard, Suffolk Superior Court. 

Until recently, Dr. Nadal-Ginard held the positions of the Chief of Cardiology at Boston 
Children's Hospital, the President of the non-profit corporation known as the Boston 
Children's Heart Foundation, a tenured Professor at Harvard Medical School and a 
Howard Hughes Investigator. In his various positions of authority, Dr. Nadal-Ginard was 
entrusted with hundreds of thousands of dollars that were for the research and treatment 
of children with heart disease and defects. After an investigation by the Economic 
Crimes Division, Dr. Nadal-Ginard was indicted for embezzling and stealing hundreds of 
thousands of dollars from two non-profit foundations for which he either worked or ran. 
At the conclusion of a month-long jury trial in Suffolk Superior Court, Dr. Nadal-Ginard 
was convicted of twelve counts of Larceny. He was adjudicated by the Court as a 
Common & Notorious Thief, sentenced to a year in the House of Correction with three 
years of probation. He was further ordered to complete two full years of community 
service, working full-time for free, and to pay full restitution to the victim foundation. 

Commonwealth v. George C. Shea, Worcester Superior Court. 

This defendant was a lawyer who handled residential real estate closings for a title 
insurance company. An investigation conducted by the Economic Crimes Division 
revealed that he was embezzling money from real estate closing and then using 
subsequent closing to pay overdue mortgage discharge obligations. As a result of his 
conduct, the title insurance company suffered a loss of $387,000. In July of 1994, the 



43 



Defendant plead guilty to multiple counts of larceny by embezzlement. He was sentenced 
to a three to five state prison sentence, suspended for five years, and ordered to conduct 
community service and pay restitution. 

Commonwealth v. William Butterworth, Middlesex Superior Court. 

This defendant was an accountant and chief financial officer for a manufacturing 
company located in Billerica. The company discovered various irregularities in various 
checking accounts and referred the matter to the Economic Crimes Division. An 
investigation revealed that the defendant embezzled nearly $800,000 from the company 
by writing approximately one thousand checks to pay personal bills and expenses of a 
consulting business he operated from his home. In August of 1994, the defendant 
changed his plea to guilty, and was sentenced to a 5 to 7 year state prison sentence, 18 
months to serve in home confinement, the balance suspended by 4 years, with 4 years 
probation. He was also ordered to conduct 1500 hours of community service and pay 
restitution. 

Commonwealth v. Edwin A. Mroz, Suffolk Superior Court. 

This defendant was convicted for twenty counts of failure to account and pay over sales 
tax, and 5 counts failure to file corporate excise tax returns. He was sentenced to nine to 
fifteen years in state prison, with four and one-half years to serve. 

Commonwealth v. Shaun Corcoran, Essex, Suffolk & Middlesex Counties. 

The defendant in this case was a former stockbroker who solicited investment money 
from friends and co-workers. He stole over $140,000 by falsely representing that the 
investors were buying real estate securities. After an investigation by the Economic 
Crimes Division, he was indicted in multiple counties for 13 counts of Larceny, multiple 
counts of fraudulent sale of securities, and filing false tax returns. 

Commonwealth v. Josephine White, Norfolk, Bristol, Essex & Hampden Counties. 

This woman was indicted for running an alleged flimflam scheme, known as the "pigeon- 
drop" scam, targeting elderly women as victims. This defendant has been in federal 
custody, and will be back in Massachusetts in September of 1995 to face the state 
charges. 

IV. Non-case Related Initiatives of the Economic Crimes Division 

At the same time that the Economic Crimes Division commenced investigations resulting 
in indictments and prosecution throughout the Fiscal Year, members of the Division also 
participated insignificant training programs and speaking engagements. A member of the 
Insurance Fraud Division, spoke several times at Suffolk Law School regarding practicing 
criminal law and accepting a career in the public sector. Another Assistant Attorney 
General conducted multiple training sessions within the Criminal Bureau for both new 
Assistant Attorneys General and new Assistant District Attorneys for Suffolk County on 



44 



the topic of District Court practice and procedure. The AAG also coordinated the 
Summer Intern Program for the Criminal Bureau in the beginning of fiscal '95, and 
directly supervised the interns that worked with the Economic Crimes Division during the 
year. 

In addition to the in-house training conducted within the Criminal Bureau, three members 
of the Economic Crimes Division were sent to a seminar conducted by the Massachusetts 
Association of District Attorneys on Trial Advocacy. 

Speaking engagements included a speech conducted by former Chief of the Economic 
Crimes Division, now the new Chief of the Insurance Fraud Division, to the 
Massachusetts Chapter of Certified Fraud Examiners on the elements of financial crimes 
and how those elements are established. The current Chief of the Economic Crimes 
Division spoke to several branches of the Business & Professional Women's Association 
of America, Inc. about domestic violence and financial exploitation of the elderly. She 
also spoke to other retail business associations, women's organizations and nursing 
homes on financial exploitation of the elderly and related economic crimes throughout the 
year. The Chief will be on the World of Law Criminal Panel at Harvard Law School, and 
a team member for the Harvard Law School Trial Advocacy Workshop this fall. 

An Assistant Attorney General briefed and argued several cases in the Massachusetts 
Appeals Court, and another Assistant Attorney General took on several narcotics cases 
which were successfully prosecuted to completion. 

V. New Cases Charged & White Collar Criminals Convicted By the Economic 
Crimes Division 

In Fiscal Year 1995, the Economic Crimes Division commenced over thirty-seven 
criminal prosecutions against those individuals, entities, and corporations that had taken 
advantage of their positions of power in the private sector, hurting not only the vulnerable 
victims who held their trust, but ultimately all of the citizens of the Commonwealth. 
During the same time, over fifty-five convictions were obtained against white collar 
criminals, which included those defendants that were convicted but not charged within 
the Fiscal Year. The attached chart reflects the statistics for the financial and tax 
prosecutions conducted by the Division throughout the Fiscal Year. 

CASES CHARGED BY THE ECONOMIC CRIMES DIVISION FISCAL YEAR 1995 

Date Indicted or Charged Case Description 

7/94 Commonwealth v. Bernardo Nadal-Ginard 

Defendant Description: 

Former Chief of Cardiology at Boston Children's Hospital indicted 

for stealing funds from two non-profit corporations. 

Counties Charged: Suffolk County 

Charges: 22 Counts of Larceny Over $250 

7/94 Commonwealth v. Robert Parker 

Defendant Description: 

Defendant indicted for filing a series of false tax returns while an inmate at 

MCI-Gardner. 



45 



Counties Charged: Suffolk County 
Charges: 22 Counts of Filing False Tax Return 
6 Counts of Larceny Over S250 

6 Counts of Attempt to Commit a Crime 
22 Counts of Presentation of False Claim 
1 Count of Conspiracy 

22 Counts of Forgery 
7/94 Commonwealth v. Lynch 

Defendant Description: 

Indicted for heading a credit card scam by obtaining carbon copies of credit 
card receipts and the unauthorized use of credit card numbers in telephone 
orders for merchandise. 

Counties Charged: Suffolk and Middlesex Counties 

Charges: 

7 Counts of Larceny Over $250 

7 Counts of Unauthorized Use of Credit Card 
1 Count of Conspiracy 
7/94 Commonwealth v. Polito 

Defendant Description: 

Indicted for participating with Defendant Lynch in above crimes. 
Counties Charged: Suffolk and Middlesex Counties 

Charges: 

7 Counts of Larceny Over $250 

7 Counts of Unauthorized Use of Credit Card 

1 Count of Conspiracy 
7/94 Commonwealth v. Stackpole 

Defendant Description: 

indicted for participating with Defendant Lynch in above crimes. 
Counties Charged: Suffolk and Middlesex Counties 

Charges: 

5 Counts of Larceny Over $250 

5 Counts of Unauthorized Use of Credit Card 

1 Count of Conspiracy 

8/94 Commonwealth v. Edward Lee 

Defendant Description: 

Defendant Indicted for Posing as Real Estate Appraiser without a license. 

Counties Charged: Middlesex County 

Charges: 

3 Counts of Larceny Over $250 
1 Count of Posing as Licensed Broker 
9/94 Commonwealth v. Jonathan Gabriel 

Defendant Description: 

Defendant indicted for receiving several pieces of construction equipment 

ranging in value from $8,000 to $15,000 each which were later identified as 

stolen goods. 

Counties Charged: Worcester County 

Charges: 

3 Counts of Receiving Stolen Property 
9/94 Commonwealth v. Joseph Perreira 

Defendant Description: 

Indicted for posing as an attorney, and representing various 

people in legal matters, including conducting a bench trial. In addition, 

the Defendant posed as a real estate attomey/broker/financial planner in 

which a number of victims claimed loss of money. 



46 



Counties Charged: Bristol County 

Charges: 

14 Counts of Larceny Over S250 

1 Count of Unauthorized Practice of Law 
3 Counts of Forgery 

2 Counts of Uttering 

1 Count of Uttering Worthless Bank Bill 

9/94 Commonwealth v. Herbert Arroyo, Jr. 

Defendant Description: 

Indicted for receiving Welfare benefits upon making false claims. 
Counties Charged: Suffolk County 

Charges: 

1 Count of Larceny Over $250 

1 Welfare Fraud 

10/94 Commonwealth v. Fallavolita 

Defendant Description: 

Indicted for participating with Defendant Lynch in Commonwealth v. 
Lynch, noted above. 

Counties Charged: Suffolk and Middlesex Counties 

Charges: 

3 Counts of Larceny Over $250 

3 Counts of Unauthorized Use of Credit Card 

1 Count of Conspiracy 

10/94 Commonwealth v. Linda LaSpina 

Defendant Description: 

Former Comptroller for computer consulting company indicted for stealing 
over $50,000 from her employer. 
Counties Charged: Suffolk County 

Charges: 

2 Counts of Larceny Over $250 

12/94 Commonwealth v. Joseph Valeri 

Defendant Description: 

Former President of Parker-Danner Company in West Roxbury indicted for 
stealing corporate money for personal use valued at $45,000. 
Counties Charged: Suffolk County 

Charges: 

9 Counts of Larceny Over $250 

2 Counts of Fraudulent Entry 

12/94 Commonwealth v. Jose Gomez 

Defendant Description: 

Employee indicted for submitting false payroll information to client of 
Employer to obtain paychecks for non-existent employees. 
Counties Charged: Suffolk County 

Charges: 

1 Count of Larceny Over $250 

4 Counts of False Filing of Tax Returns 

12/94 Commonwealth v. Mark Gauthier 

Defendant Description: 
Indicted for stealing money from ex-wife through false pretenses. 



47 



Counties Charged: Middlesex County 

Charges: 

2 Counts of Larceny Over $250 

2 Counts of Obtaining Signature By False Pretenses 

2 Counts of Forgery 

1 2/94 Commonwealth v. Raymond Shimkus 

Defendant Description: 

Former stock broker indicted for tax evasion and for selling unregistered 
securities. 

Counties Charged: Suffolk County 

Charges: 

1 Count of Larceny Over $250 

1 Count of Sale of Unregistered Securities 

4 Counts Tax Evasion 

1 2/94 Commonwealth v. James June 

Defendant Description: 

Former tax auditor indicted for embezzling significant funds from a 

doctor. 
Counties Charged: Worcester & Suffolk Counties 

Charges: 

1 Count of Larceny Over $250 

3 Counts of Filing False Tax Returns 

12/94 Commonwealth v. Shaun Corcoran 

Defendant Description: 

Former stock broker indicted for stealing money from friends and co- 
workers. 

Counties Charged: Essex, Suffolk, & Middlesex Counties 

Charges: 

13 Counts of Larceny Over $250 

3 Counts of Fraudulent Sale of Securities 

3 Counts of Sale of Securities By Unregistered Person 

2 Counts of Larceny By Fraudulent Check 

4 Counts Filing False Returns 
12/94 Commonwealth v. Doyle Moore 

Defendant Description: 

Indicted for Tax Evasion 

Counties Charged: Suffolk County 

Charges: 1 Count of Tax Evasion 

1/95 Commonwealth v. Richard Tribuna 

Defendant Description: 

Indicted for filing multiple false MA Income Tax Returns based on false 
documentation involving non-existent companies. 
Counties ChargedSuffolk County 
Charges: 

1 Count of Filing False Tax Returns 

10 Counts of Aiding or Assisting the Preparation or Presentation of 

False Returns 

10 Counts of Making a False Claim Against the Commonwealth 

3/95 Commonwealth v. Floyd Patterson 

Defendant Description: 



48 



Indicted for receiving stolen property and counterfeiting registry of motor 

vehicle documents, in addition to possessing a firearm without a license. 

Counties Charged: Suffolk County 

Charges: 

1 Count of Receiving Stolen Property 

1 Count of Counterfeiting Registry Documents 

1 Count of Possession of unlicensed firearm* 

3/95 Commonwealth v. Corwin Johnson 

Defendant Description: 

Former Registry employee indicted for assisting Defendant Patterson noted 

above in stealing from the Registry. 

Counties Charged: Suffolk County 

Charges: 

1 Count of Receiving Stolen Property 

1 Count of Counterfeiting Registry Documents 

1 Count of Possession of unlicensed firearm 

3/95 Commonwealth v. Ross Cerrone 

Defendant Description: 

Indicted for filing false MA Income Tax Returns. 
Counties Charged: Suffolk County Charges: 

1 Count of Filing False Tax Returns 

3/95 Commonwealth v. Jose Gomez 

Defendant Description: 

Indicted for filing false MA Income Tax Returns. 
Counties Charged: Suffolk County 

Charges: 

1 Count of Filing False Tax Returns 



4/95 Commonwealth v. Demetrios Konstantopoulos 

Defendant Description: 

Indicted for filing false tax returns. 

Counties Charged: Suffolk County 

Charges: 

33 counts of Willful Filing of False Meals Tax Returns 
3 counts of Willful Filing of False Income Tax Returns 

4/95 Commonwealth v. John H. Rogers, III 

Defendant Description: 

MA resident who failed to file MA Income Tax Returns. 
Counties Charged: Suffolk County 

Charges: 

3 Counts of False Filing of Tax Returns 

4/95 Commonwealth v. Guido Petrosinelli 

Defendant Description: 
Indicted for filing false meals tax returns. 
Counties Charged: Suffolk County 

Charges: 

1 Count of Failure To Account For & Pay Over Meals Tax 
1 Count Willful Evading & Defeating Meals Tax 
4/95 Commonwealth v. Donuts of Swansea 



49 



Defendant Description: 

Indicted for filing false meals tax returns. 

Counties Charged: Suffolk County 

Charges: 

1 Count of Failure To Account For & Pay Over Meals Tax 
1 Count Willful Evading & Defeating Meals Tax 
4/95 Commonwealth v. Philip H. Smith 

Defendant Description: 

Indicted for filing false sales tax returns. 

Counties Charged: Suffolk County 

Charges: 

1 Count of Failure to Account & Pay over Sales Tax 

4/95 Commonwealth v. Jane P. McNally 

Defendant Description: 

Indicted for failure to file MA Income Tax Returns. 
Counties Charged: Suffolk County 

Charges: 

4 Counts of Failure to File MA Income Tax Returns 

4/95 Commonwealth v. Joseph A. Lombardi 

Defendant Description: 

Indicted for failure to file MA Income Tax Returns. 
Counties Charged: Suffolk County 

Charges: 

4 Counts of Failure to File MA Income Tax Returns 

4/95 Commonwealth v. Phillip Burgess 

Defendant Description: 

Indicted for failure to account for and pay over special fuels tax. 
Counties Charged: Suffolk County 

Charges: 

1 Count of Willful Failure to Account For & Pay Over Special Fuels 

Tax 
4/95 Commonwealth v. C. Thomas Wolpert 

Defendant Description: 
Indicted for filing false sales tax returns 
Counties Charged: Suffolk County 

Charges: 

1 Count of Failure to Account & Pay Over Sales Tax 

4/95 Commonwealth v. Kevin Aliengena 

Defendant Description: 

Indicted for failure to file MA Income Tax Returns. 
Counties Charged: Suffolk County 

Charges: 4 Counts of Failure to File MA Income 

Tax Returns 

4/95 Commonwealth v. Derek Williams 

Defendant Description: 
Indicted for forgery of revenue checks. 
Counties Charged: Suffolk County 

Charges: 

35 Counts of Forgery of Revenue Checks 

35 Counts of Uttering 



50 



1 Count of Larceny Over $250 

5/95 (final hearing Commonwealth v. Fred Dellorfano, Jr. 

on sentencing) 

Defendant Description: 

Former attorney indicted for embezzling funds. 

Counties Charged: Norfolk County 

Charges: 

10 counts Embezzlement by Fiduciary 
1 count Larceny Over $250 
5/95 Commonwealth v. Glenn Essler 

Defendant Description: 

Indicted for filing false MA Income Tax Returns. 
Counties Charged: Suffolk County 

Charges: 

1 Count of Filing False Tax Returns 

2 Counts of Failure to File MA Income Tax Returns 

6/95 Commonwealth v. Edwin Mroz 

Defendant Description: 

Indicted for filing false sales tax returns. 

Counties Charged: Suffolk County 

Charges: 

20 Counts of Failure to Account & Pay Over Sales Tax 
5 Counts of Failure to File Corporate Excise Tax Returns 



CRIMINAL CASES PENDING FISCAL YEAR 1995 CHARGED FISCAL YEAR 1994 

Date Indicted or Charged Case Description 

Commonwealth v. Josephine White 
7/93 - 5/94 Defendant Description: 

Indicted for Pigeon Drop Scam on multiple elderly victims. 
Counties Charged: Norfolk, Bristol, Hampden & Essex 
Charges: 

1 1 Counts of Larceny Over $250 
1 Count Attempted Larceny Over $250 
3 Counts of Forgery 
3 Counts of Uttering 

8/93 Commonwealth v. Robert Dunphy 

Defendant Description: 

Indicted for failure to file MA Income Tax Returns. 
Counties Charged: Suffolk County 

Charges: 

9 Counts of Embezzlement 

9 Counts of Larceny from Bank 

10 Counts of Forgery 

2 Counts of Failure to File Taxes 

10/93 Commonwealth v. Arne Magne Storey 

Defendant Description: 

Indicted for failure to file MA Income Tax Returns. 
Counties Charged: 



51 



Charges: 

3 Counts of Failure to File 

1 1/93 Commonwealth v. Spencer 

Defendant Description: 

Counties Charged: Barnstable County 

Charges: 

17 Counts Larceny Over $250 
1 Count Larceny 

1 1/93 Commonwealth v. Morgan 

Defendant Description: 

Counties Charged: Barnstable County 

Charges: 

1 Count Larceny Over $250 

1 Count Receiving Stolen Property 
3/94 Commonwealth v. Group Benefits Strategies, Inc. 

Defendant Description: 

Indicted for attempt to evade and defeat taxes and filing of false corporate 
excise tax 

Counties Charged: Hampden Superior 

Charges: 

1 Count Willful Attempt to Evade & Defeat Corporate Taxes 

1 Count Willful Filing of a False Corporate Tax Returns 

3/94 Commonwealth v. E. Paul Tinsley 

Defendant Description: 

Indicted for attempt to evade and defeat taxes and filing of false 

corporate excise tax 

Counties Charged: Hampden Superior 

Charges: 

1 Count Willful Attempt to Evade & Defeat Corporate Taxes 
1 Count Willful Filing of a False Corporate Tax Return 

3/94 Commonwealth v. Roland Cassavant 

Defendant Description: 

Attorney who served as the Director of Division of Hearings for the MA 
Department of Public Welfare indicted for tax fraud. 
Counties Charged: Suffolk 

Charges: 4 Counts Willful Attempt to Evade & 

Defeat Income Taxes. 



4/94 Commonwealth v. David S. Porter 

Defendant Description: 
Indicted for failure to pay withholding taxes 
Counties Charged: Suffolk County 

Charges: 

8 Counts of Failure to Account For and Pay Over Withholding 

Taxes 

4/94 Commonwealth v. Steven Derrick 

Defendant Description: 

Indicted for attempt to evade and defeat sales taxes and willful failure to 
account for and pay over sales taxes 



52 



Counties Charged: Suffolk County 

Charges: 

7 Counts Willful Attempt to Evade & Defeat Sales Taxes 
7 Counts Willful Failure to Account For & Pay Over Sales Taxes 
4/94 Commonwealth v. Susan Derrick 

Defendant Description: 

Indicted for attempt to evade and defeat sales taxes and willful failure to 

account for and pay over sales taxes 

Counties Charged: Suffolk County 

Charges: 

1 Count Willful Attempt to Evade & Defeat Sales Taxes 

2 Counts Willful Failure to Account For & Pay Over Sales Taxes 

5/94 Commonwealth v. John Kiley 

Defendant Description: 
Counties Charged: 
Charges: 

3 Counts Filing False Personal Tax 
3 Counts Tax Evasion 

3 Counts False Filing of Corporate Taxes 

5/94 Commonwealth v. Atlantic Broom 

Defendant Description: 
Counties Charged: 
Charges: 

3 Counts False Filing Personal Tax 

1 Count False Sales Tax 



DISPOSITIONS FISCAL YEAR 1995 

Conviction Date Case Description 

7/94 Commonwealth v. Gerald Foley (Tax Prosecution) 

1 year HOC, suspended for 3 years; 3 years probation; 50 hours community 

service; ordered to file taxes on time, $50 V/W fee. 
7/94 Commonwealth v. Margery Fogarty (Arson Prosecution) 8-10 years MCI Cedar 

Junction; suspended for 5 years; remaining charges suspended for 5 years to run 

concurrent; conditions of probation: psychiatric counseling, restitution and 

community service, $50 V/W fee. 
7/94 Commonwealth v. John Gonzales (Arson Prosecution) 3-5 years MCI Cedar 

Junction, suspended with probation and counseling, $50 V/W fee. 

7/94 Commonwealth v. Roland Cassavant (Tax Prosecution) 

1 year probation; $5,000 fine and costs of prosecution, $50 V/W fee. 

8/94 Commonwealth v. Gloria Aparicio (Narcotics Prosecution) 5-7 years MCI Cedar 

Junction, 3 years to Serve, $50 V/W fee. 

8/94 Commonwealth v. Gerald Hardy (Public Corruption & Larceny 

Prosecution) 

1 year HOC, suspended for 2 years; $5,144 restitution and 250 hours of 
community service, $50 V/W fee. 

8/94 Commonwealth v. William Butterworth (Larceny Prosecution) 

5-7 years MCI Cedar Junction, 18 months to serve in home confinement, with 



53 



electronic bracelet monitoring; balance suspended for 4 years, with 4 years 
probation. Remaining charges to run from and after the above sentence with a 
sentence of 4-5 years MCI Cedar Junction, suspended for 3 years 
probation; 1500 hours community service; $485,000 restitution, $50 WW 
fee. 

9/94 Commonwealth v. Robert Maloney & Robert Maloney, Inc. (Tax Prosecution) 

2 years HOC, 4 months to serve; 30 days HOC, concurrent; 30 days HOC, 
concurrent; $28,000 in fines, $50 V/W fee 

9/94 Commonwealth v. Ernest Leonard (Tax Prosecution) 

1 year HOC, 7 days to serve; balance suspended for 2 years HOC with 
probation, $50 V/W fee. 

9/94 Commonwealth v. Edward A. Lee (Larceny & Unlicensed Real Estate 

Appraiser Prosecution) 
CWOF for 1 year HOC; larcenies dismissed. 

9/94 Commonwealth v. Robert Manoukian (Larceny Prosecution) 

2 Vi years HOC, to run from and after 2 years HOC, $50 V/W fee 

9/94 Commonwealth v. George C. Shea, Jr. (Larceny Prosecution) 

3-5 years MCI Cedar Junction, suspended for 5 years with conditions of 
probation; $213,000 restitution and 100 hours of community service, $50 V/W 
fee. 

9/94 Commonwealth v. Charles Kingston (Tax Prosecution) 

2 years HOC, 4 months to serve; $30,000 fine, $50 V/W fee. 

10/94 Commonwealth v. Tyrone Braxton (Tax Prosecution) 

1 year HOC, 3 days to serve; 1 year probation, $50 V/W fee. 

1 0/94 Commonwealth v. Norman Daniel 

4-5 years MCI Cedar Junction, suspended for 1 year; restitution of $100,000; 
remaining charges to run concurrent, $50 V/W fee. 

1 0/94 Commonwealth v. Rudolph Normandin (Larceny Prosecution) 

1 1/94 Commonwealth v. Herberto Arroyo, Jr. (Conflict Prosecution of Welfare Fraud 

and Larceny Charges) 
Restitution of $19,900.52 and $50 V/W fee. 

1 1/94 Commonwealth v. Chester Hall (M/V Theft Prosecution) 

3-5 years MCI Cedar Junction, suspended for 3 years, $50 V/W fee. 

1 1/94 Commonwealth v. Richard Costa (M/V Theft Prosecution) 

Plead guilty and received probation. 

1 2/94 Commonwealth v. Stephen White (Tax prosecution) 

Probation. 

12/94 Commonwealth v. Robert Dunphy (Tax Prosecution) 

40 months committed MCI Cedar Junction, $50 V/W fee. 

12/94 Commonwealth v. Doyle Moore (Tax Prosecution) 



54 



$68,650.00 fine, $50 V/W fee. 

12/94 Commonwealth v. Bianca Procopio (Public Corruption and Larceny 

Prosecution) 

2 years HOC, suspended for 2 years; 100 hours community service and 
restitution, $50 V/W fee. 

12/94 Commonwealth v. William Sampson (Conflict Prosecution) 

1 year HOC. 

12/94 Commonwealth v. Scott Poore (Larceny Prosecution) 

6 years probation and restitution, $50 V/W fee. 

1 2/94 Commonwealth v. Michael Burpee (Larceny of M/V Prosecution) 

Acquittal after trial. 

12/94 Commonwealth v. Bernard Hawkes (Tax Prosecution) 

6 months HOC, suspended; 2 years probation), $50 V/W fee. 

12/94 Commonwealth v. Rogers & Soo Hoo (Public Corruption Prosecution) 

Acquittal after Jury of Six trial. 

1/95 Commonwealth v. Linda LaSpina (Larceny Prosecution) 

1 year HOC, suspended for 3 years; 3 years probation; restitution, $50 V/W 
fee. 

1/95 Commonwealth v. Michelle Kondrat (Larceny Prosecution) 

2 years HOC, suspended for 4 years, all remaining charges to run concurrent; 
restitution, $50 V/W fee 

1/95 Commonwealth v. William D'Orlando (Larceny Prosecution) 

2 years HOC; remaining charges to run concurrent, $50 V/W fee. 

1/95 Commonwealth v. Vaughn Zanoni (Tax Prosecution) 

1 year HOC, suspended for 2 years; conditions of probation to file old 
returns and timely new returns; all other counts concurrent, $50 V/W fee. 

1/95 Commonwealth v. Diane Polito (Larceny Prosecution) 

6 months probation; 50 hours of community service, $50 V/W fee. 

1/95 Commonwealth v. Maureen Fallavollita (Larceny Prosecution) 

6 months probation; 50 hours of community service, $50 V/W fee. 

1/95 Commonwealth v. Michael Stackpole (Larceny Prosecution) 

6 months probation; 100 hours of community service, $50 V/W fee. 

1/95 (Pending) Commonwealth v. Robert Dunphy (Wollaston Credit Union) 

(Misapplication of Bank Funds, Embezzlement by Bank Officer, Larceny by 
False Pretenses, Forgery, Failure to File Income Tax) 
20 months HOC (misapplication); 20 months HOC on and after 
(embezzlement); 4-5 years MCI Cedar Junction, suspended for 3 years 
Garceny); 4-5 years MCI Cedar Junction, suspended for 3 years 
(forgery); 4-5 years MCI Cedar Junction, suspended for 3 years (failure to file). 



55 



1/95 Commonwealth v. Louis Bertucci (Wollaston Credit Union) 

(Larceny by False Pretenses, Embezzlement by Bank Officer, 
Misapplication of Bank Funds, Aiding and Abetting, Forgery, False Written 
Statement) All charges dismissed except 30 months HOC for aiding and 
betting. 

1/95 (Pending) Commonwealth v. Robert Galardi (Wollaston Credit Union) 
(Misapplication of Bank Funds, Larceny by False Pretenses) 
2 years probation (misapplication); 3-5 years MCI Cedar Junction, suspended 
for 2 years (Larceny). 

3/95 Commonwealth v. James A. Maddalena (Tax Prosecution) 

3-5 years MCI Cedar Junction, suspended for 3 years of probation 
and restitution ordered, $50 V/W fee. 

3/95 Commonwealth v. Thomas Hanifan (Tax Prosecution) 

2 years probation; 250 hours community service; costs and fees, $50 V/W fee. 

3/95 Commonwealth v. David Forsyth (Tax Prosecution) 

Acquittal after trial. 

3/95 Commonwealth v. William D' Orlando (Larceny Prosecution) 

2 years HOC, from and after 2 years HOC, from and after 2 years HOC, for a 
total of 6 years HOC; 9-10 years MCI Cedar Junction, suspended for 4 years, 
from and after, $50 V/W fee. 

3/95 Commonwealth v. Jose Gomez (Tax and Larceny Prosecution) 

2 years HOC, 60 days to serve, balance suspended for 3 years; 
restitution. 3 years probation ordered on remaining larceny charges, $50 V/W 
fee. 

4/95 Commonwealth v. Arnold Friedman (Wollaston Credit Union) 

(Embezzlement by Bank Officer, Larceny, Misapplication of Construction 
Loan) 6 months HOC, suspended 1 year, 400 hours alternative punishment 
(larceny); 6 months HOC, suspended 1 year, 400 hours alternative punishment 
(misapplication); embezzlement nolle prossed. 

4/95 Commonwealth v. Derek Williams (Forgery of Revenue Checks) 

1 -5 years MCI Cedar Junction. 

4/95 Commonwealth v. Richard Stadelmann (Tax Prosecution) 

$50,000 in fines and costs, $50 V/W fee. 

4/95 Commonwealth v. Mitchell Benjoya (Larceny & Unauthorized Practice 

Prosecution) 

2 V2 - 3 years MCI Cedar Junction, suspended for 5 years with conditions of 
probation, substance abuse monitoring, 500 hours of community service; from 
and after sentence of 6 months HOC on unauthorized practice charge, $50 V/W 
fee. 

5/95 Commonwealth v. Group Benefits Strategies (Public Corruption Prosecution) 

Guilty of 2 counts of presenting false claims to a municipality. To be sentenced 
9/95. 



56 



DISPOSITIONS FISCAL YEAR 1995 

Conviction Date Case Description 

5/95 Commonwealth v. E. Paul Tinsley (Public Corruption Prosecution) 

Guilty of 1 count of presenting a false claim to a municipality. To be 
sentenced 9/95. 

6/95 Commonwealth v. Bernardo Nadal-Ginard (Larceny Prosecution) 

Guilty after jury trial of 12 larceny charges. Adjudicated a Common & 
Notorious Thief, 1 year HOC, committed; 3-5 years MCI Cedar Junction, 
suspended for 3 years; 2 years of community service; conditions of probation 
and restitution, $50 V/W fee. 

6/95 Commonwealth v. Edwin A. Mroz (Tax Prosecution) 

9-15 years MCI Cedar Junction, 4 Vi years to serve, $50 V/W fee 

6/95 Commonwealth v. Jonathan Gabriel (Theft Prosecution) 

CWOF; 5 years probation; 100 hours community service; restitution, $50 V/W 
fee. 

6/95 Commonwealth v. John Bradley (Wollaston Credit Union) 

(Larceny by False Pretenses, Embezzlement by Bank Officer, 
Misapplication of Bank Funds) 
Not guilty on all counts. 

6/95 Commonwealth v. John Garvey (Wollaston Credit Union) 

(Embezzlement by Bank Officer, Misapplication of Bank Funds, Larceny by 
False Pretenses, Misapplication of Construction Loan) 
6 months HOC, suspended 1 year, 400 hours alternative punishment on 
Embezzlement, other three charges same and concurrent. 

6/95 Commonwealth v. Thomas Garvey (Wollaston Credit Union) 

(Misapplication of Bank Funds, Aiding and Abetting Embezzlement, Larceny 
by False Pretenses) 6 months HOC, suspended 1 year, 400 hours alternative 
punishment (Misapplication), other two charges same and concurrent. 



ENVIRONMENTAL STRIKE FORCE 

/. Making the Government Work to Protect the Environment 

The Massachusetts Environmental Strike Force continued to pull together available 
government resources in the service of enforcing the state's environmental laws. The 
Strike Force, a collaborative effort of the Attorney General, the Secretary of 
Environmental Affairs, Department of Environmental Protection, Environmental Police, 
and State Police, was recognized by the U.S. Environmental Protection Agency for its 
"exceptional work and commitment to the environment in 1994." On April 21, 1995, 
during an award ceremony celebrating the 25 th Anniversary of Earth Day, EPA-New 
England recognized the Strike Force's work with the Environmental Merit Award. 



57 



During Fiscal Year 1995, the Strike Force unit operating out of the Criminal Bureau of 
the Attorney General's Office initiated criminal prosecutions against nine individual and 
corporate defendants, and resolved cases against seven individuals. In addition, the year 
saw the fruition of a number of innovative environmental crimes sentences sought by the 
Strike Force. Finally, the Strike Force continued to examine, and attempt to address, 
systemic issues which gained renewed public attention with the shifting approach taken 
by the United States Congress regarding environmental protection. 

//. Criminal Cases 



A. Cases Initiated in Fiscal Year 1995 



Com. v. American Tissue Mills of Mass., Inc. Com. v. Eugene McGurl Com. v. 
Northeast Waste Services, Inc. Com. v. Pioneer Plastics Corp. 

Two Massachusetts companies, a Maine plastics manufacturer and a waste broker were 
indicted by a Worcester County grand jury for alleged violations of state water pollution 
laws after industrial wastewater was allegedly dumped into the Otter River in Templeton, 
Massachusetts. 

Com. v. Steven J. Colantuno 

A Hyde Park plumber was charged in Maiden District Court for alleged illegal removal 
and disposal of asbestos from a Wakefield home. 

Com. v. Shankar Garg 

A Worcester doctor was indicted by a Worcester County grand jury for allegedly ordering 
the illegal removal and disposal of asbestos from a commercial and residential apartment 
building owned by the defendant. 

Com. v. James Ross 

An Amesbury contractor was indicted by a Suffolk County was indicted by a Suffolk 
County Grand Jury for alleged illegal removal and disposal of asbestos while doing 
contract work at a Massport facility in Charlestown. 

Com. v. Donald Vieira 

A New Bedford lead paint removal contractor was charged in New Bedford District Court 
for alleged malicious destruction of property, larceny, insurance fraud, and hindering a 
state lead paint inspector. 



58 



Com. v. Ralph D. Worsencroft 

A Beverly asbestos removal contractor was indicted by an Essex County grand jury for 
alleged illegal removal and storage of asbestos at a day care center and several residential 
and commercial properties throughout Essex County. 

B. Case Dispositions in Fiscal Year 1995 



Com. v. Steven J. Colantuno 

After admitting to facts sufficient for a guilty finding on charges of illegal asbestos 
removal and disposal, this defendant was given a continuance without a finding by the 
Maiden District Court. The defendant was ordered to pay the town of Milton $1,500 in 
restitution for cleanup expenses, and ordered to perform a plumbing job for the city of 
Maiden as a condition for dismissal of the complaint. 



Com. v. David Cosentino 

After trial, a Worcester County jury found this owner of a Gardner furniture finishing 
company guilty of illegal disposal of hazardous waste in a manner which could endanger 
human health and the environment, transfer of hazardous waste to an unlicensed 
transporter, and failure to use a manifest while shipping hazardous waste. The defendant 
was sentenced to six months in jail, and also given a seven year term of probation, 
ordered to pay full restitution for cleanup costs, ordered to perform 200 hours of 
community service and to hire independent companies for hazardous waste disposal. 

Com. v. Lawrence Frangos 

This defendant, president of an Ohio contracting company, pled guilty in Worcester 
Superior Court to illegal transportation of hazardous waste without a license or manifest. 
The defendant was sentenced to pay a $75,000 fine, placed on two years probation, and 
barred from performing any bridge or repair work in Massachusetts for two years. 

Com v. Paul Kinzer 

This Gardner man pled guilty in Worcester Superior Court to transporting hazardous 
waste without a license and disposing of hazardous waste in a manner which could 
endanger human health and the environment. The defendant was sentenced to one year in 
jail. 

Com. v. Anton Martin 

This New Bedford man pled guilty in Bristol Superior Court to illegally storing hazardous 
waste. He was sentenced to one year of probation. 



59 



Com. v. Albert D. Parker 

This former supervisor of a Lynn-based asbestos abatement company pled guilty in 
Peabody District Court to a charge of illegal storage of asbestos. He was sentenced to pay 
$6,500 in restitution to a self-storage facility in which the asbestos had been abandoned, 
$3,500 in fines, and a two year term of probation. 

Com. v. James Ross 

This Amesbury contractor pled guilty in Suffolk Superior Court to illegal removal and 
disposal of asbestos at a Massport facility in Charlestown. He was sentenced to pay a 
$1,000 fine. 

///. Creative Sentencing 

As may be seen from the above, in some cases the Strike Force succeeded in obtaining 
convictions and jail sentences for individuals charged with environmental crimes. In 
other cases, courts declined to enter a guilty finding on an admission to facts sufficient to 
find guilt, and/or ordered defendants to pay small fines. In light of the uneven treatment 
which environmental crimes still get in the state courts, the Strike Force has formulated, 
in appropriate cases, creative sentencing alternatives. Fiscal Year 1995 saw the fruition 
of some of these efforts. 

For example, in an earlier case against a lead smelting company convicted of illegally 
storing lead dust in a manner which could endanger human health, the company was 
ordered to pay $500,000 to create the Work Environment Justice Fund ("WEJF")under 
the auspices of the University of Massachusetts Foundation. During the past fiscal year, 
the WEJF embarked on its mission to fund proposals intended to improve workplace 
health and safety by awarding $70,000 in grants to eleven Massachusetts non-profit 
agencies across the state. 

In another case, the owner of a furniture manufacturing company had been convicted of 
criminal violations of the hazardous waste laws. He was ordered to place an educational 
notice in a national trade magazine. The following notice appeared in the September 
1994 issue of Furniture Design and Manufacturing, with a circulation of 54,000 in the 
furniture industry throughout the country. 

Finally, as noted above, the Strike Force obtained the conviction of the president of an 
Ohio contracting company which violated hazardous waste laws while repainting state 
highway bridges under a contract with the Massachusetts Highway Department. In 
addition to a substantial fine, the court ordered that the president, and any company with 
which he is associated, are barred from performing any bridge repair work in 
Massachusetts for two years. 



60 



IV. Working for Systemic Improvements 

The Attorney General continued to address larger issues of environmental enforcement by 
sponsoring statewide conferences and legislation designed to assist environmental law 
enforcement, and by opposing efforts to restrict the ability of the state to enforce its 
existing environmental laws. 

In February, the Attorney General sponsored a conference on workplace health and safety. 
The conference was part of the Attorney General's continuing emphasis on environmental 
violations which threaten the health and safety of workers, and explored how various 
state and federal government agencies can better coordinate with each other and with the 
private sector in identifying and addressing work environment health and safety 
problems. The office produced and presented a video illustrating the impact of workplace 
injuries on workers and their families. 

In May, a group of government officials, private lawyers, small and large industry 
representatives, and environmental non-profit organization leaders attended the Attorney 
General's Environmental Enforcement Roundtable. The Roundtable was convened to 
discuss the Attorney General's environmental enforcement efforts and more general 
issues regarding ways in which enforcement can best maximize environmental protection. 

The Attorney General actively opposed legislative efforts at the state and federal levels to 
create an "environmental audit privilege", which would permit companies to keep secret 
certain information relating to their environmental practices, and other legislation which 
would prevent state enforcement of environmental laws against companies which commit 
environmental violations but promise to remedy any harm caused. 

Finally, the Attorney General sponsored the Environmental Endangerment and Forfeiture 
Act, which would permit felony prosecution of knowing or reckless violations which 
significantly threaten human health, natural resources or private property, and which 
would make polluters pay for environmental enforcement at the state and local levels; 
legislation to improve enforcement against illegal scrap tire stockpiles and to encourage 
the growth of the private market for recycled rubber from scrap tires; and continued to 
support the extension of whistleblower protection legislation to private sector workers 
who cooperate with government efforts to enforce environmental and other laws. New 
Cases 

Com. v. Parker (asbestos) (arraigned 6/15/94) 

Com. v. Colantuno (asbestos) (arraigned 1 1/23/94?) 

Com. v. Ross (asbestos) (indicted 9/21/94) 

Com. v. Garg (asbestos) (indicted 4?/95) 

Com. v. Veira (lead paint) (arraigned 6/14/95) 

Com. v. Worsencroft (asbestos) (indicted 6/28/95) 

Com. v. American Tissue Mills of Mass., Inc. (indicted 6/27/95) 

Northeast Waste Services, Inc. 

Pioneer Plastics Corp. 

Eugene McGurl 



61 



Dispositions 

BENU CORP. 4/28/94 Guilty (HW) $200k fines (imposed) 

BENUCORP. ??????? Guilty (HW) $100k fines (imposed) 

Pemstein 5/24/94 PG (Asbestos) $30k fines, 90 days probation 

Saad 5/24/94 PG (Asbestos) $lk fines, 90 days probation 

Polymerine 6/9/94 PG (HW) $400k fines (imposed) 

Knowles 6/9/94 PG (HW) $ 10k fines, 2 years probation 

Schaeffer 6/14/94 PG (SW) $ 10k fines, 3 years probation 

Martin 7/14/94 PG (HW) 1 year probation 

Plycraft 7/26/94 PG (HW) 

Goldman 7/26/94 PG (HW) $15k fines, $4,300 to place ad in journal, 3-1/2 years 

probation 

Parker 9/9/94 PG (asbestos) $6500 restitution, $3500 fine, 2 years probation 

Colantuno (post 12/94) PSF, CWOF $1500 restitution, ? probation (plumbing job as 

community service) 

Cosentino 1 1/94 convicted (HW) 2-1/2 years in house, 6 mos. to serve, 7 years 

probation, $42k restitution, 200 hrs. community service 

Frangos 2/95 PG (HW) $75k fine, 2 years probation, ordered not to engage in any 

bridge painting or repair work in Mass. for 2 years 

Kinzer 4/95 PG (HW) 1 year house 



Legislation 

Whistleblower 

Envtl. Endangerment & Forfeiture 

Tire Recycling 

Enhanced fines for A&B and Manslaughter 

Opposed state and fed environmental, audit privilege bills 

Other initiatives 

WEJF Grants (post 6/30/94) 
Published article re environmental, enforcement 
Workplace safety conference (3/95) 
Environmental Merit Award 4/25/95 
Environmental Enforcement Roundtable 



NARCOTICS AND SPECIAL INVESTIGATIONS DIVISION 

During fiscal year 1994-1995 the Division continued its efforts to apprehend and 
prosecute organized groups of individuals primarily involved in the illegal distribution of 
narcotics. In addition, a number of cases were prosecuted involving such crimes as armed 



62 



robbery, breaking and entering, arson, larceny, receiving stolen property, obstruction of 
justice, escape by a prisoner, aggravated rape, illegal gambling and firearms offenses. 

During the past year, Operation "Clean Sweep" was successfully launched. That 
initiative is designed to bring additional resources to local police departments to address 
specific problems arising from illegal narcotics distribution and related crimes occurring 
in local neighborhoods. The program was initiated in the City of Waltham during the 
spring of 1995. Undercover state police officers from the division, working in 
partnership with Waltham Police, made over 100 separate purchases of narcotics from 
numerous individuals in that city. The operation focused on repeat drug offenders and 
persons distributing drugs in the vicinity of schools and/or playgrounds. The 
investigation led to the arrest and indictment in Superior Court of 28 individuals. Those 
cases were pending in court at the close of the fiscal year. In addition to criminal charges, 
civil complaints seeking forfeiture of three multi-unit apartment buildings where a 
number of those drug transactions occurred were filed in Superior Court. 

Attorneys and investigators assigned to the division continued their efforts to work with 
other federal, state and local law enforcement agencies including the Federal Bureau of 
Investigation, Bureau of Alcohol, Tobacco and Firearms, United States Customs Service, 
Drug Enforcement Administration, Internal Revenue Service, United States Postal 
Service and various state and local police departments throughout New England. 



July 1, 1994 thru June 30, 1995 

Criminal Cases Initiated 100 

Criminal Cases Disposed 85 



Pre Trial 




64 


After Trial 




21 


TOTAL 




85 


Convictions 




76 


Not Guilty 
Dismissal 




9 


TOTAL 




85 


SEIZURES 






Cocaine 
Heroin 
Marijuana 
Pharmaceuticals 


11,620. grams/144 oz. 
135 grams/4.8 oz. 
873 oz./54.5 pounds 
over 700 tablets 


Firearms 


5 




U.S. Currency 
Vehicles 


$219,486.00 
13 


Stolen Property Recovered: 


Computer equipment and components valued at over $1 million 



Drug Related Civil Forfeiture Cases Initiated: 



35 



63 



Forfeiture Judgments 

U.S. Currency Forfeited $1 18,326.00 (forfeiture judgment in state court) 
$168,641 (federal forfeitures) 
Total $286,967 

Vehicles Forfeited 12 (forfeiture judgments in state court) 

2 (federal forfeiture) 
Total 14 

Real Estate Forfeited: 3 properties (forfeiture judgments in state court) 



PUBLIC INTEGRITY DIVISION 

The Public Integrity Division's role is to investigate and prosecute incidents of public 
corruption throughout the Commonwealth at both state and local levels. The focus of the 
Division's investigations is upon those individuals and businesses that violate the 
criminal laws of the Commonwealth pertaining to ethical conduct. The Division consists 
of six assistant attorneys general, two financial investigators and a team of Massachusetts 
State Police Officers. 

The criminal prosecutions that were initiated in 1995 ranged from charges of bribery of 
public officials to procurement fraud committed upon the Commonwealth. In the past 
five years, the Public Integrity Division has detected the theft of millions of dollars of 
public funds. During the past fiscal year alone, the Division prosecuted criminal cases 
against individuals and businesses that allegedly defrauded or attempted to defraud state 
and local governments out of almost one million dollars in public funds. Furthermore, in 
1995, the Public Integrity Division commenced over twenty criminal prosecutions against 
those offenders that violated the public trust. During the same time period, over thirty 
criminal prosecutions were resolved. 

The Division continued to investigate and prosecute private businesses that attempted to 
defraud the Commonwealth. One business owner and his company are currendy under 
indictment on procurement fraud charges pertaining to contract services with the 
University of Massachusetts. The indictments allege that the business defrauded the 
University out of approximately six hundred thousand dollars for insurance services that 
were not provided. Another business owner was convicted of attempted larceny and false 
claims charges for submitting fraudulent reimbursement charges to the Massachusetts 
Highway Department. The Highway Department's reliance on the fraudulent invoices 
would have resulted in a substantial loss of public funds. 

The Division also brought criminal charges against individuals that violated the political 
campaign finance laws of the Commonwealth. A former corporate chief executive officer 
was convicted of making illegal corporate political contributions. Another corporate 
executive stands charged with illegal campaign contributions in an attempt to evade the 
legal campaign contribution limits. 

The Division also continues to coordinate the Public Integrity Advisory Group, which 
brings together representatives of a wide variety of officials from the various executive 



64 



branches off stage government to discuss joint efforts to detect fraud, waste and abuse by 
government employees. The task force members continued to refer a number of cases to 
the Division. During fiscal year 1995, the Advisory Group summarized ethical 
obligations under current Massachusetts law. These summaries were distributed to state 
employees last fall. Furthermore, as a result of the Advisory Group's recommendation, 
new state employees will now be provided with, and required to acknowledge receipt of, 
copies of the Conflict of Interest and Campaign Finance laws. 

The Division's case activity is summarized below. 

CASES CHARGED BY PUBLIC INTEGRITY DIVISION FISCAL YEAR 1995 

Date 

Indicted 

7/94 Swirbalus, John F. 

1 count interference with witness 

1 count conspiracy to interfere with witness 

2 counts attempt to obstruct justice 

1 count conspiracy to obstruct justice 

7/94 Marshall, Robert M. 

1 count interference with witness 

1 count conspiracy to interfere with witness 

1 count attempt to obstruct justice 

1 count conspiracy to obstruct justice 

7/94 Higgins, William H. Jr. 

1 count interference with witness 

1 count conspiracy to interfere with witness 

1 count attempt to obstruct justice 

7/94 Walsh, James G. 

1 count Operating the Wrong Way 
1 count Operating to Endanger 

8/94 O'Brien, Edward F. 

1 count soliciting bribe (268A, 2) 
1 count conflict of interest (268A, 3) 
1 count conspiracy 
1 count larceny over $250 



65 



8/94 Jorge, John M. 

1 count soliciting bribe (268A, 2) 
1 count conflict of interest (268A, 3) 
1 count conspiracy 
1 count larceny over $250 



CASES CHARGED BY PUBLIC INTEGRITY DIVISION FISCAL YEAR 1995 

Date 

Indicted 

8/94 Schand, Rolando E. 
12 counts false claims 
12 counts procurement fraud 

8/94 Cleckley, John E. 

4 counts larceny over $250 

14 counts false claims 

14 counts procurement fraud 

14 counts false written statements 

10/94 Pilz, Patricia 

1 count making corporate political contribution 
1 count disguising political contribution 

10/94 Williams, Derek V. 

1 count larceny over $250 

1 count passing a bank bill 

35 counts forgery 

35 counts uttering 

1 count counterfeiting a bank bill 

10/94 Barney, Brenda 

3 counts larceny over $250 

1 1/94 Freitas, Albano 

1 count corrupt gifts 

12/94 Triplett, James 

1 count accepting gratuities 

1 count obstruction of justice 

2 counts acting as agent/attorney 
1 count filing false report 



66 



CASES CHARGED BY PUBLIC INTEGRITY DIVISION FISCAL YEAR 1995 

Date 

Indicted 

12/94 Cook, Peter A. 

12 counts disguising contributions 

2 counts making contributions over $1,000 

1 2/94 Allied Steel Corp. of Salem 

6 counts false claims 
6 counts attempted larceny 

12/94 Collier, Milton 

6 counts false claims 
6 counts attempted larceny 

2/95 Essler, Glenn R. (Hampshire County) 

6 counts larceny over $250 
6 counts procurement fraud 
4 counts making false claims 

2/95 Somers, Kitchen, Essler Insurance Agency, Inc. (Hampshire County) 

4 counts larceny over $250 
4 counts procurement fraud 
4 counts making false claims 

3/95 Piscione, Michael A. 

1 count bribery (c. 268A, 2) 

1 count conflict of interest (c. 268A, 3) 

3/95 Holmquist, Stephen 

1 count bribery (c. 268A, 2) 

1 count conflict of interest (c. 268 A, 3) 



CASES CHARGED BY PUBLIC INTEGRITY DIVISION FISCAL YEAR 1995 

Date 
Indicted 

6/95 Somers, Kitchen, Essler Insurance Agency, Inc. (Essex County) 

1 count larceny over $250 
1 count procurement fraud 



67 



6/95 Essler, Glenn R. (Essex County) 

24 counts larceny over $250 
1 count procurement fraud 
1 count forgery 
1 count uttering 

3 counts willful failure to file income tax returns 
1 count willful making and sub-scribing false return 

DISPOSITIONS BY THE PUBLIC INTEGRITY DIVISION FISCAL YEAR 1995 

Marsh, William 

Defendant pled guilty 
Received 2 years HOC, 
20 months to serve 
3 years probation 



Halligan, Christopher 

Defendant pled guilty 
Received 2 years probation 
$9,500 restitution 



Burke, Joseph 

Defendant pled guilty 
Received to 3 - 5 years state prison, 
90 days to serve 3 years probation 
$4,000 in restitution 

Westerbeake, Inc. 

Defendant pled guilty 
$9,500 in restitution 

Swirbalus, John F. 

Defendant found guilty 
Received 60 days HOC 

Marshall, Robert M. 

Defendant found guilty 
Received 60 days HOC 



68 



Barney, Brenda 

Defendant pled guilty 

Received 2 years HOC, suspended 

2 years probation 
Restitution of $17,200 

Wilkins, Brenda R. 

Defendant pled guilty 

2.5 - 3 yrs state prison, suspended 

Joint restitution $29,153 

Probation for 3 years 

Conditions of 6 months house arrest 

Papa Goveia, Alma H. 

Defendant pled guilty 

3 - 5 yrs state prison, suspended 
3 years probation 

Joint restitution $29,153 



Smith, Thomas 

Defendant pled guilty 

3 - 5 yrs state prison, suspended 

10 years probation 

Ordered to pay restitution $200,000 

Borden, Joseph 

Defendant pled guilty 

Received 1 year HOC, suspended 

6 mos. home confinement with bracelet 

6 mos. probation 

Pilz, Patricia 

Defendant pled guilty 
Received 12 months probation 
200 hours community service 

Moore, Doyle H. 

Defendant found guilty on all counts 
Received 2-3 years Cedar Junction, suspended 
Ordered to pay fine of $68,650 plus prosecution costs 



69 



Procopio, Bianca 

Defendant found guilty 

Received 1 year HOC, suspended 2 years (Larceny over $250) 



Walsh, James 

Defendant pled guilty 

Received 3 months HOC, suspended 

$200 fine 



Rogers, Howard 

Acquitted after Jury TrialSoo Hoo, Donna 
Acquitted after Jury TrialCalnen, Diane 
Defendant pled guilty 

Received 6 months HOC suspended for 6 months 
200 hours community service 



Peterson, Louise 

Defendant found guilty on all counts 
Received 6 months HOC, suspended 
$4,000 restitution 
Supervised probation 

Collier, Milton 

Guilty finding on both indictments 

Received 2 years HOC, suspended 

Probation 

Ordered to $40,000 fine and $10,000 surfine on false claims 



Allied Steel Corp. of Salem 

Guilty finding, restitution imposed on owner (above) 

Higgins, William H. Jr. 

Defendant pled guilty to all counts 
Received 1 year HOC, suspended 2 years 
Ordered to perform 100 hours community service 

Jorge, John M. 

Defendant pled guilty to all charges 
Received 1 8 months HOC, and probation 



70 



O'Brien, Edward F. 

Defendant pled guilty to all charges 
Received 18 months HOC, and probation 



Freitas, Albano 

Defendant pled guilty to all charges 
Received 2 yrs probation. 

Group Benefit Strategies, Inc. 

Defendant found guilty on 2 counts of false claims. 
Sentencing pending. 

Dougherty, Joseph 

Defendant acquitted after trial. 

Tinsley, E. Paul 

Defendant found guilty on 1 count of false claims. 
Sentencing pending. 

Walsh, John G. 

Defendant pled to all counts 

Received 3 months probation, suspended 

$200 fine 

Sharry, Carolan J. 

Defendant acquitted after non-jury trial. 



DISPOSITIONS BY THE PUBLIC INTEGRITY DIVISION FISCAL YEAR 1995 

Diterlizsi, Daniel 

Defendant pled guilty to all counts. 
Received 7-10 years MCI, suspended 
2 years HOC committed, and probation 

Stanley, Lorraine 

Defendant plead guilty. 

Sentenced to 2 years house of correction, suspended 



71 



Hardy, Gerald 

Defendant pled guilty to all charges. 
Sentenced to probation and restitution. 



Dormandy, Michael 

Charges dismissed by Court, Commonwealth's appeal is pending. 

CRIMINAL CASES PENDING FISCAL YEAR 1995 

Bogigian, Joseph 

3 counts larceny over $250 (divers dates) 

Lopes, Manuel B. 

2 counts Larceny over $250 
1 count Attempted Extortion 

deRusha, Douglas 

1 count income tax evasion 
Sheehan, James 

Bribery, Receiving Stolen Property, Conspiracy 
Bunk, Leon 

4 counts conflict of interest 



URBAN VIOLENCE STRIKE FORCE 

The Urban Violence Strike Force was organized in the spring of 1991 as part of Attorney 
General Scott Harshbarger's overall commitment to improving the quality of life for 
residents of the Commonwealth's urban communities. Recognizing that there was an 
immediate need for additional resources to combat the increased level of violent crime 
that was blighting many of our urban neighborhoods, Attorney General Harshbarger 
assembled a team of experienced prosecutors and placed them at the disposal of the 
District Attorneys for both Suffolk and Essex counties. Over the course of the next two 
years, these specially assigned assistant attorneys general worked with the local police 
and district attorneys to successfully prosecute well over a hundred cases in both Suffolk 
and Essex Superior Courts. The AAGs on the Urban Violence Strike Force were also 
responsible for the incarceration of a large number of serious felons, including persons 
convicted of assault with intent to murder, assault and battery by means of dangerous 
weapon, distribution of controlled substances and the unlawful possession of firearms. 

Based on the positive results achieved in both Suffolk and Essex counties, the Urban 
Violence Strike Force District Court Rotation Program was started. Assistant attorneys 
general were assigned to the strike force on a rotating basis, and the strike force's efforts 



72 



were expanded to include the prosecution of cases in a number of the Commonwealth's 
busiest district courts. 

In February of 1993, Attorney General Harshbarger continued his strong commitment to 
combating urban violence by establishing the Safe Neighborhood Initiative, an innovative 
prosecution and neighborhood revitalization effort targeting the Fields Corner section of 
Dorchester. Based on the success of the Safe Neighborhood Initiative to date, plans were 
undertaken during fiscal year 1995 to expand the existing SNI and to establish a new SNI 
in the Grove Hall section of Boston. 



SAFE NEIGHBORHOOD INITIATIVE 

The Safe Neighborhood Initiative (SNI) is the outgrowth of a three-year partnership 
between the offices of the Attorney General and the Suffolk County District Attorney. In 
February 1991, the Attorney General's office assigned three full-time assistant attorneys 
general to work with the Suffolk County District Attorney's Office prosecuting major 
violent felonies and gang-related offenses. This unit of attorneys was responsible for 
prosecuting hundreds of cases directly resulting from urban violence. 

While this contribution to existing prosecution efforts and infusion of additional 
resources were helpful, both Attorney General Scott Harshbarger and District Attorney 
Ralph Martin agreed that the problems facing our urban neighborhoods demand a 
comprehensive, multi-disciplinary approach, namely, a collaborative effort between law 
enforcement (police, prosecution, the courts, probation, youth services), human services 
and the community to effectively deal with escalating violence and fear that threaten the 
quality of life in Boston's neighborhoods. 

To accomplish these ends, on February 22, 1993, the SNI was formed as a pioneering 
partnership among community residents, the Attorney General's Office, the District 
Attorney for Suffolk County, the Boston Police Department and the Mayor's Office of 
Neighborhood Services. 

The overall mission of the SNI is to bring law enforcement and community organizations 
together in a coordinated way that will assist in revitalizing a neighborhood plagued by a 
variety of societal problems. The neighborhood designated for this project consists of the 
residential and business areas of Fields Corner, Bowdoin Street, Four Corners and 
Geneva Avenue in Dorchester. This area was chosen as the target area for the SNI based 
on the high incidence of urban crime (gang-related violence and drug distribution), the 
intensive concentration 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 ethnic and racial composition of the SNI area includes many members of different 
immigrant groups. About one-third of the residents were born outside of the United 
States. The population breakdown indicates that approximately 22% of the residents are 
white (not Latino), 50% black (including African- Americans and people of various 
Caribbean ethnicities), 17% Latino, and 5.4% Asian (mostly Vietnamese). 



73 



The area suffers from high rates of poverty and unemployment. The overall poverty rate 
in the district in 1989 was 22.4%; the poverty rate for children was 32.7%. The poverty 
rate for Asian children was 74%. 

While such demographic information suggests a bleak picture of public health in the 
target area, it is critical to realize several points of intervention that may offer substantial 
progress. The SNI aims to discover these important junctures and to address them with 
strategic and concerted effort. 

Specifically, the SNI consists of three core components: 

law enforcement, prevention and treatment, and neighborhood revitalization. To 
implement these three components, the principal offices of the SNI are joined by the 
coordinated efforts of five subcontracted programs throughout the target area. The 
superior and district court targeted prosecution efforts of the Attorney General's are 
supported by several innovative crime-reduction projects under the Area C- 1 1 Boston 
Police Department to make up the law enforcement strand of the SNI. The prevention 
and treatment strand includes the Child Witness to Violence Project, a Boston City 
Hospital-based training and treatment program serving children and families who have 
witnessed community and domestic violence; the Dorchester Youth Collaborative, an 
intervention program for gang-associated youth; and the Holland Community Center, a 
facility providing educational and recreational projects to over 315 residents each 
weekend. The Area C-l 1 Police have also committed a Vietnamese Liaison and 
Vietnamese Youth Worker to prevention and treatment efforts. The SNI's approach to 
neighborhood revitalization includes city service delivery efforts from the Mayor's Office 
and This Neighborhood Means Business!, a local merchant education and loan facilitation 
program. By concentrating on one geographical area, the SNI has demonstrated the 
tangible results achieved when residents, law enforcement and human service 
representatives work together and strategically coordinate their efforts. 

In fiscal year 1995, the SNI prosecution unit screened 1,405 cases. 1,339 cases were 
handled in Dorchester District Court and sixty-six cases were handled in Suffolk Superior 
Court. The full impact of the SNI's targeted prosecution efforts are reflected in the SNI 
prosecution statistics following this section. Two examples of significant cases handled 
by the SNI prosecution unit are highlighted below: 

• One case involved a 14 year old victim who met up with three defendants one 
Sunday morning in Dorchester. When the defendants started acting strange the 
victim became suspicious, ran from the defendants who ultimately caught him, held 
a gun to him and robbed him. After the victim managed to escape he notified the 
police and assisted them in locating the defendants. The victim showed extreme 
courage by agreeing to come to court for the grand jury as well as for trial. As a 
result of his bravery two of these defendants were apprehended and pled guilty to a 
number of offenses that most often are dismissed due to a victim's fear of his 
assailants. Both defendants received prison or House of Correction sentences. 

• Another case involved the shooting at Reverend Eugene River's home at 
approximately 2:00 a.m. as he and his wife and two children were at home asleep. 
Rev. Rivers had previously confronted the defendant when he told him to take his 



74 



drug dealing operation out of Ridley Park which is located near the Reverend's 
home. When the defendant was out with some friends they drove by Rev. Rivers 
home and the defendant fired approximately 3 nine-millimeter bullets into the 
Reverend's home. One of the bullets entered the house and lodged in the ceiling of 
the living room just below his son's bedroom. 

This case involved a three month investigation by members of the Boston Police 
Anti-Gang Violence Unit, the Dorchester District Court probation, the 
Massachusetts Parole Board, the FBI and the AG/DA's offices. The defendant was 
ultimately indicted after numerous witnesses were located and subpoenaed to the 
grand jury. Meanwhile, the defendant fled the Commonwealth and with the 
assistance of the FBI he was located in Georgia where he waived rendition and was 
returned to Massachusetts. As part of the plea negotiations, Reverend Rivers and 
his wife had an opportunity to speak with the defendant who apologized for his 
actions. The defendant was sentenced to state prison. 

SNI law enforcement efforts have also gleaned concrete resources for the target 
community. As a result of a settlement of a case handled by the Office of the Attorney 
General with the Glass Top Lounge located on Dorchester Avenue in the Fields Corner 
area, the proprietors of the lounge are required to pay $12,000 in quarterly payments of 
$1,000 to the Fields Corner Community Development Corporation (CDC)/Safe 
Neighborhood Initiative combined account. These forfeiture monies have supported 
several cultural events and targeted youth activities. 

Several FY 1995 activities of the Attorney General's Office have furthered the success of 
the prevention and treatment strand of the SNI. For example, the Attorney General's 
Office worked with the Boston Police and telephone companies to remove pay telephones 
that have been used as a haven for drug and gang activity within the target area, and has 
worked with local communication companies to remove billboards that depict violence. 
The Attorney General's Office has also continued to work closely with the Safe 
Neighborhood Initiative Advisory Council and community groups, including business 
groups and crime watch groups, to address criminal activity and other community issues. 
Additionally, this office's Student Conflict Resolution Experts (SCORE) program has 
been successfully implemented in the Grove Cleveland Middle School in the target area 
and in Dorchester High School. 

As part of the initiative's neighborhood revitalization efforts in FY 1995, the Safe 
Neighborhood Initiative Unit continued to target abandoned property within the area for 
rehabilitation and re-sale. To date, the Abandoned Housing Task Force has identified ten 
properties within the SNI boundaries as pilot sites for the project. Initial notification 
letters have been sent to the owners of these properties, launching an expedited 
receivership process. The Abandoned Properties Program has generated serious inquiries 
from municipalities outside of Boston, including the areas of Westfield, Lynn, Orleans, 
Haverhill, Pittsfield and Lawrence. 

Many of the accomplishments within the SNI have supported and surpassed the project's 
principle objectives. For example, grants submitted by representatives from the Attorney 
General's Office were successful in receiving a first year MCCJ grant totaling $382, 971 
and second year grant of $ 341, 314. In FY 1995, the Safe Neighborhood Initiative 



75 



received collective accolades from the City of Boston, placing as a finalist for the Boston 
Management Consortium Excellence Award. 

Concrete evidence points to the considerable strides the Safe Neighborhood Initiative has 
made during FY 1995, as the project moves toward its principal objective of revitalizing a 
targeted area. Project participants report that much of the SNI's progress is augmented by 
the development of relationships among SN1 Advisory Council members. Enhanced 
lines of communication between SNI group members have matured into viable 
relationships. SNI groups that earlier may have been lacking in precedent or resources 
began to initiate new project partnerships. Interagency collaborations have positive 
implications for connecting broad sectors of the target community, from families, to 
public agencies, to private businesses. 

Finally, critical decisions made this year ensured that new challenges lie ahead. In April 
of this fiscal year, the principal offices of the SNI agreed to support an unfunded 
replication of the initiative in the Grove Hall area of Roxbury. The Grove Hall project 
has been a significant undertaking and since its inception, it has made impressive 
progress. A Grove Hall working group, comprised of community leaders and top 
management representatives from the SNI principal offices, has organized and meets 
approximately once every other week. The group has defined the specific target area 
boundaries and is working with Roxbury District Court Judges to begin targeted 
prosecution activities on August 14. 

Growth of the SNI was also a focus of great deliberation as the principal offices of the 
SNI agreed to expand the boundaries of the target area to include the Saint Mark's 
community. SNI principals and participants hope that the Saint Mark's expansion will 
not only carry potential for the building of new resources and relationships, but it will 
also challenge the core process of the Safe Neighborhood Initiative. Before the next and 
final year of funding, this growth has become a necessary development toward the Safe 
Neighborhood Initiative's ultimate goal of community ownership. Therefore, the Grove 
Hall and Saint Mark's expansion marks a time that is, in many ways, a stage preparing the 
original target area to function independently as its own SNI. 

The assistant attorneys general assigned to the Safe Neighborhood Initiative efforts during 
the fiscal year were Susan Spurlock, Marcia Jackson, John Benzan, and Neal Tassel. 

GANG UNIT INITIATIVE 

During fiscal year 1995, the Criminal Bureau continued to devote the resources of a full 
time Superior Court prosecutor to the Gang Unit in the Suffolk County District 
Attorney's Office. The mission of the Gang Unit is to target for priority prosecution 
youthful offenders (i.e. individuals ages 17 through 23) who commit violent crimes or 
offenses arising out of gang related activity. In fulfilling this mission, the unit places a 
particular emphasis on the prosecution of individuals who have previously been involved 
with the criminal justice system (as either adults or juveniles), and subsequently commit 
crimes involving the distribution of drugs and/or the use of firearms. 

Given the nature of the offenses involved, the cases handled by the Gang Unit tend to be 
among the most difficult to prosecute. As the victims and the witnesses are often 



76 



members of rival gangs or live in the same neighborhood as the defendant, they are 
generally unwilling or reluctant to cooperate with the prosecution. Moreover, because a 
significant portion of the population from which jurors are drawn are distrustful of the 
police, cases in which the Commonwealth's principal witness is a police officer are more 
likely to result in an acquittal or a "hung jury" than in other counties. For example, in one 
case prosecuted by the assistant attorney general assigned to the Gang Unit in fiscal year 
1995, three Boston Police officers were on routine patrol when they observed a group of 
young men drinking beer on a public sidewalk. As the officers emerged from their 
cruiser to question the young men (some of whom appeared to be underage), one of the 
youths separated himself from the group and started to leave the area in an apparent 
attempt to avoid coming into contact with the police. When the police ordered him to 
stop, the youth frantically removed a handgun from his coat pocket and placed it on a 
nearby wall. Despite the fact that three police officers testified that they saw the 
defendant remove the gun from his pocket and the gun was produced in court, the jury 
was unable to reach a unanimous verdict on the charge of unlawful possession of a 
firearm. 

In fiscal year 1995, the assistant attorney general assigned to the Gang Unit handled over 
fifty Superior Court cases involving a variety of serious offenses, including armed assault 
with intent to murder, armed robbery, assault and battery by means of a dangerous 
weapon, the distribution of drugs and the unlawful possession of firearms. In a number of 
these cases, victims and/or witnesses who initially cooperated with the prosecution 
subsequently withdrew their support by refusing to testify at trial or by recanting their 
earlier statements. Consequently, as often occurs in prosecutions handled by the Gang 
Unit, certain cases assigned to the assistant attorney general ultimately had to be 
dismissed for want of prosecution, or resolved by way of a disposition that was less 
severe than the crime might otherwise have merited. 

Given the difficulties inherent in the cases prosecuted by the Gang Unit, the results 
achieved by the assistant attorney general assigned to that unit are all the more 
impressive. Specifically, of the thirty cases disposed of during fiscal year 1995, nineteen 
resulted in convictions or guilty pleas, and only one in an acquittal after trial. Moreover, 
of the nineteen defendants against whom convictions were secured, fifteen were 
sentenced to incarceration at either the Massachusetts Correctional Institution at Cedar 
Junction, or the Suffolk County House of Correction. The Fiscal Year 1995 Gang Unit 
Statistics follow this section. 

Three examples of significant cases prosecuted by the assistant attorney general assigned 
to the Gang Unit during fiscal year 1995 are as follows: 

• The home invasion and robbery committed by a defendant who had previously been 
prosecuted by the assistant attorney general for similar crimes, but sentenced to a far 
shorter period of incarceration than had been recommended by the Commonwealth. 
At the time he committed the offense, the defendant, a heroin addict with a lengthy 
criminal record, had recently completed an in-patient drug treatment program and was 
serving a probationary sentence imposed in connection with the earlier prosecution. 
Upon his arrest, the defendant was surrendered on his probation and ordered to serve 
four years of the suspended state prison sentence that had been imposed in connection 



77 



with his original offense. Moreover, upon his pleading guilty to the new offense, the 
defendant was ordered to serve an additional eight to twelve years in state prison after 
the completion of the first sentence. 
• The ambush of the member of one gang by three members of another in the course of 
an ongoing gang dispute. The victim of the attack, who was struck in the hip by 
gunfire, was the only witness who could identify the assailants and yet was extremely 
reluctant to testify against the defendants. Nevertheless, because the assistant attorney 
general insisted that he would resort to court process to secure the victim's presence at 
trial, the defendants (none of whom had serious criminal records) were persuaded to 
plead guilty to split house of correction sentences. 

• The prosecution of an individual accused of participating in a number of shootings 
within the Orchard Park housing development. Key witnesses were either reluctant 
to testify against the defendant, subject to impeachment on cross-examination, or 
otherwise unavailable, circumstances which severely hampered the 
Commonwealth's ability to secure a conviction at trial. However, because in one 
instance the defendant had been found to be in possession of several individually 
wrapped packets of cocaine, the assistant attorney general was able to prosecute the 
defendant for possession of cocaine with the intent to distribute. A committed state 
prison sentence was secured in connection with said offense, thereby removing the 
defendant from the housing development. 

Assistant attorney general Paul McLaughlin was assigned to the Gang Unit Initiative 
during fiscal year 1995. 

DISTRICT COURT ROTATION PROGRAM 

The District Court Rotation Program began in October, 1991 as an expansion of the 
Urban Violence Strike Force. The program involves the six month deployment of 
specially trained assistant attorneys general working on loan to the District Attorney's 
offices in Roxbury, Lawrence, and Brockton, three of the busiest district courts in the 
Commonwealth. The program has proved a significant contribution to existing 
prosecution efforts and has been extremely helpful to the Suffolk, Plymouth, and Essex 
District Attorneys Offices. Since its inception, forty-eight assistant attorneys general 
have participated in the program. 

In fiscal year 1995, the assistant attorneys general participating in the Urban Violence 
Strike Force District Court Rotation voiced that their experiences in the urban courts 
prosecuting a variety of challenging cases were extremely beneficial in both a personal 
and professional way. The experience was invaluable in several ways: (1) it provided the 
participants with knowledge about the workings of the criminal justice system; (2) it was 
an excellent opportunity to develop one's trial skills; (3) it sharpened one's negotiation 
skills; (4) it forced the attorney to evaluate cases quickly and decisively under pressure; 
and (5) in a small way, this eye-opening experience provided the assistant attorneys 
general with the opportunity to have a positive impact on the citizens of a community. 

The assistant attorneys general prosecuted a wide range of cases generally found within a 
district court caseload: larceny, operating under the influence of liquor, both simple and 



78 



more complicated drug cases, property crimes (malicious destruction of property, 
breaking and entering, larceny, motor vehicle), gun cases, and a great number of assault- 
related crimes, many of which involved a weapon. 

Assistant attorney general participants in the District Court Rotation Program for FY 
1995 were Shelley Richmond, Glen Kaplan, Djuna Perkins, Carolyn Keshian, Patricia 
Preziosa, Glenn MacKinlay, Carol Lee Rawn, John Bowan, Scott Cooper, and Tom 
O'Brien. 



FAMILY AND COMMUNITY CRIMES BUREAU 

The Family and Community Crimes Bureau is responsible for policy, legislation, training 
and program development in four subject areas: family violence; children and 
youth(including juvenile justice issues); elders and persons with disabilities (in 
conjunction with the Public Protection Bureau); and victims of crime. The Victim 
Compensation and Assistance Division, which is responsible for the provision of 
compensation to victims of violent crime, also is within the Family and Community 
Crimes Bureau. 

A. FAMILY VIOLENCE 

The Family and Community Crimes Bureau is actively involved in the development and 
coordination of a consistent statewide response to the problem of family violence. In 
fiscal year 1995, the Bureau continued to develop programs and policies to 
comprehensively address this serious and complex problem. 

In January, 1995, as part of the Safe Neighborhood Initiative (a partnership between law 
enforcement and community organizations to improve the quality of life in a designated 
geographical area), the Family and Community Crimes Bureau prepared and presented a 
comprehensive training on the early identification, assessment and treatment of domestic 
violence to all staff of the Bowdoin Street Health Center in Boston. The training, which 
involved legal, medical and social service professionals, focused on some of the most 
critical legal and medical issues in domestic violence prevention and protection efforts, 
such as ways of interviewing and assessing family violence victims, the impact of 
domestic violence on children, dealing with the batterer in clinical settings, and legal 
measures to protect victims of domestic violence. In addition, a video on domestic 
violence for health care providers, based on the Bowdoin Street Health Center training, 
has been produced and will be completed and ready for dissemination in September, 
1995, to health care and social service organizations. 

The Bureau also presented the Attorney General's fourth annual statewide Domestic 
Violence Training Conference for police. This training included a presentation on the 
impact of domestic violence on children; a panel on recent developments in domestic 
violence law, covering the new District Court Standards for Judicial Practice, 
implementation of the firearms law, and the application of standard Miranda and search 



79 



and seizure principles in domestic violence cases; and an expert panel, including a victim 
and batterer's treatment specialist, who answered questions from the audience about the 
appropriate police response to specific fact patterns. The importance of effective 
documentation of a domestic violence incident was demonstrated through a mock direct 
and cross examination of a police officer. Finally, there were concurrent workshops 
offered on a variety of topics addressing both the complex legal and psychological issues 
which domestic violence incidents present to law enforcement professionals. 

In addition, the Bureau Chief participated as a member of the Newton Domestic Violence 
Action Committee, as a member of the Newton-Wellesley Hospital Domestic Violence 
Prevention Council, as an advisory committee member of the WATCH (Woman Abuse 
Tracking in Clinics and Hospitals) Project, and as an active member and Legislative 
Committee Co-Chair of the Governor's Domestic Violence Commission. Another staff 
member from the Family and Community Crimes Bureau participated actively in the 
advisory committee meetings of the Pediatric Family Violence Awareness Project (DPH). 

Finally, the Bureau drafted and the Attorney General filed a comprehensive package of 
domestic violence legislation aimed at strengthening domestic violence laws in the 
Commonwealth, including amendments to the stalking, firearms, and abuse prevention 
laws, as well as changes to allow enforcement of out-of-state restraining orders. 

B. CHILDREN AND YOUTH 

The School Superintendent's Advisory Group, chaired by the Attorney General and 
staffed by the Family and Community Crimes Bureau, continued to meet during this year. 
This group discussed school safety issues and the implementation of the education reform 
law, and contributed input to legislative and executive agencies on these issues. 

The Attorney General's Office continued its effort to establish collaborative relationships 
among the Department of Education, local school districts and local law enforcement. 
For the past three years, the Bureau presented a statewide conference on the issues of 
school safety and cooperation between local school officials and law enforcement on 
substance abuse and violence prevention issues. This year marked the first time that the 
Safe Schools Conference was a collaborative effort between the Department of Education 
and the Attorney General's office. The conference, "Keeping Our Schools Safe: 

Comprehensive Approaches," took place in April, 1995. 

The Children's Issues Group, staffed by the Family and Community Crimes and 
Government Bureaus, continued to review issues of concern to children's advocates to 
attempt to achieve resolution short of litigation and to foster a better understanding 
between children's advocates and government. More specifically, in fiscal year 1995, 
members of this group focused upon: (1) the impact of welfare reform on the child 
welfare system, both at the state and federal levels; and (2) the impact of changes in 
school discipline laws on children. 

Bureau staff were also active in reform efforts underway in the areas of expulsion from 
school of disruptive students and study of alternative education programs. In September, 
1994, as a result of extensive study by the Commission on Alternative Education, 



80 



established by statute and chaired by the Attorney General, and the Massachusetts Jobs 
Council, a report was issued making recommendations on alternative education for 
students suspended and expelled under the Massachusetts Education Reform Act. 

In the area of juvenile justice, the Family and Community Crimes Bureau drafted and 
filed bills tightening laws affecting serious juvenile offenders. Among them were bills 
proposing the elimination of trial "de novo" for juveniles, a "Bartley-Fox" gun law for 
juveniles, and legislation to ensure that once a juvenile had been transferred to adult court 
for trial, all future charges against him would be prosecuted in adult court. The Attorney 
General also (filed) (supported) legislation to amend existing laws to create a gun-free 
zone around schools and playgrounds. 

Finally, in collaboration with the Harvard School of Public Health, Family and 
Community Crimes Bureau staff planned and presented the first in a series of working 
luncheons focusing on youth violence. 

C. THE ELDERLY 

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

The Attorney General filed and advocated for legislation toughening elder abuse laws and 
sanctioning elder neglect. More specifically, the Family and Community Crimes Bureau 
filed a bill to provide enhanced felony penalties when: (1) an assault and battery results in 
serious bodily injury to the victim; (2) an assault or an assault and battery is committed 
upon an elder or disabled person; and (3) an assault and battery is committed upon an 
elder or disabled person resulting in serious bodily harm. In addition, the criminal neglect 
provisions of this bill remedy the gap in current law that allows serious neglect of elders 
and disabled persons to go unsanctioned under existing criminal statutes. Finally, the 
Family and Community Crimes Bureau filed a bill to facilitate the protection of the most 
vulnerable — typically, those elders too physically infirm and those individuals with 
disabilities who are unable, without severe hardship, to appear in court to obtain an abuse 
protection order. This legislation provides elders and individuals with disabilities with a 
mechanism for access to protective orders without personally appearing in court. 

In FY'95, the Elderly Protection Project, based in the Family and Community Crimes 
Bureau, provided comprehensive statewide training to improve the law enforcement 
community's response to abuse, neglect and financial exploitation of elders. This project, 
funded through a grant from the Massachusetts Committee on Criminal Justice, received 
national recognition from the Bureau of Justice Assistance, United States Department of 
Justice, as a national model. 

Through the Elderly Protection Project, various types of trainings were conducted, 
including: (1) introductory training for police recruits; (2) two-day advanced training for 
police officers and protective service workers; and (3) training about elder financial 
exploitation. During the past year, the Project presented twelve recruit training programs 
for 750 police recruits, and presented four train-the-trainer courses in which 32 police 
officers were certified as elder instructors. In addition, the Project joined the talents of 



81 



the Executive Office of Elder Affairs, the Executive Office of Consumer Affairs, the 
Massachusetts Division of Banks, and the Massachusetts Bankers Association in order to 
lay the groundwork for future trainings of bank employees about elder financial 
exploitation. The goal of these trainings is to educate financial institutions about how 
they can prevent, recognize, and respond to elder financial exploitation. This 
public/private partnership is known as the "Bank Reporting Project." 

The Elderly Protection Project also presented other training programs and seminars: (1) a 
financial exploitation seminar with an emphasis on scams involving elder citizens where 
58 officers were trained; (2) a four-hour training on elder driving issues where 88 police 
officers were in attendance; and (3) a series of four trainings on elder issues for security 
personnel of the Boston Housing Authority. 

Finally, in FY'95, the Elderly Protection Project and the Alzheimer's Association 
produced a videotape for police roll call training. The videotape addresses how officers 
can sensitively deal with Alzheimer patients who are wandering in the community, and 
how they can access the national Safe Return program, which helps to expand and 
coordinate searches for missing elders. To reinforce and expand upon the information 
presented in the videotape, the Project worked with the Alzheimer's Association to create 
an information booklet to accompany the videotape. 

D. VICTIM ISSUES 

The Attorney General continued to personally chair the Victim and Witness Assistance 
Board, which oversees the Massachusetts Office of Victim Assistance (MOV A). In 
addition to its continued responsibilities for dissemination and oversight of VOCA grants 
to 37 community-based agencies, this year marked MOVA's presentation of its largest 
Victim Rights Conference, attended by over 600 victims rights advocates and other social 
services professionals, in April, 1995. The conference focused on current issues 
including domestic violence, the Federal Crime Bill, sexual assault, "truth in sentencing," 
prevention of teen violence, and a discussion of the different pathways to healing 
experienced by victims of crime. 

With support from the Family and Community Crimes Bureau, MOVA drafted and filed 
major victim rights legislation which passed in May, 1995, and succeeded in gaining 
passage of legislative reforms to increase the collection of victim witness fees. 

MOVA also sponsored a VOCA technical assistance conference; provided a regional 3- 
day training on civil remedies available for victims; and presented four domestic violence 
advocates' trainings throughout the state. 

Finally, the Attorney General filed a major victim privacy bill. 

VICTIM COMPENSATION AND ASSISTANCE DIVISION 

1995 marked the first full year of the Division's operation as an administrative 
agency under G.L. c. 258C, the Victims of Violent Crime Compensation Act. This Act, 
which became effective April 14, 1994, significantly reformed the process by which 



82 



crime victims obtain compensation for crime-related expenses. Essentially, it removed 
the compensation process from the district courts and placed it within the administrative 
responsibility of the Attorney General. 

At the start of the fiscal year, the Division faced two major challenges. First, it 
sought to realize the promise of administrative reform by establishing practices and 
procedures designed to ensure prompt, consistent decision-making on all administrative 
claims. Second, it sought to dramatically reduce a backlog of over 2,000 court-based 
victim compensation cases that remained pending in the district courts under the prior 
court-based system. 

By year end, all major facets of administrative reform were in place. The Division 
issued brochures and application forms designed to clearly inform victims of eligibility 
requirements under the new statute, and to facilitate the prompt gathering of information 
needed to determine claims. These materials were widely distributed to criminal justice 
agencies. The Division provided training in the new law to victim service agencies and to 
district attorneys' offices. Internally, the Division established streamlined procedures 
under which eligibility determinations are made prior to verification of a victim's 
expenses, thereby reducing unnecessary paperwork for both the victim and the Division. 

After holding public hearings and seeking broad public input, the Division issued 
940 CMR 14.00, "Compensation of Victims of Violent Crimes." These regulations, 
promulgated in May, 1995, specify eligibility requirements and the scope of compensable 
expenses under the statute. Highlights of the regulations include: 

* allowance of compensation to the direct victims of violent crime, to family 
members and dependents of homicide victims, and to children who witness 
violence directed toward family members; and 

* expansion of the three-year time period for filing claims in order to 
accommodate child victims and others not immediately able to seek 
compensation for the crime. 

By year end, it was apparent that administrative reform had led to significant 
improvements in the quality of service the Commonwealth provides crime victims. 
Foremost, the time for processing claims was reduced from two to three years under the 
court-based system to approximately six months under the administrative system. In 
addition, the existence of detailed regulations, based on broad public input, ensured that 
decisions on compensation were being made on a consistent, principled basis in 
accordance with the Legislature's intent. Most importantly, the nonadversarial nature of 
the process, as well as the Division's concerted efforts to keep victims apprised of the 
status of their claims and the basis of its decisions, led to far higher levels of victim 
satisfaction. 

In 1995, the Division received 957 administrative applications for crime victim 
compensation. This number is roughly equivalent to the number of claims received in 
previous years under the court-based system. However, due to the Division's training and 
public information efforts, as well as the more accessible nature of the system, the 
percentage of claims approved for payment was significantly higher under the 
administrative system. Whereas the approval rate under the court-based system was 



83 



forty-eight percent (48%), the approval rate under the administrative system was 
approximately seventy percent (70%). The vast majority of denials under the 
administrative system involved eligible crime victims who did not, at present, have 
expenses that are compensable under the statute. 

In 1995, the Division closed 566 administrative claims. Claimants sought internal 
administrative review of the Division's decisions in approximately five percent (5%) of 
these cases. Although claimants are entitled, in addition, to obtain judicial review of the 
Division's decisions in district court, no claimant sought such review. The Division 
attributes this fact to its concerted efforts to explain clearly and specifically the legal and 
factual basis of any denial of a claim for compensation. 

During 1995, the Division's second major challenge involved reducing a caseload 
of 2,059 victim compensation cases that remained pending in the district courts at the 
start of the fiscal year. By year end, approximately sixty percent (60%) of these cases had 
been closed. The Division anticipates that the entire court-based case load will be 
disposed of within the next year. 

Overall, the Division opened 957 claims and closed 1 ,809 claims. By closing 
almost twice as many claims as it opened, the Division achieved a forty-seven percent 
(47%) increase in the case closure rate over the previous year. This marks a major 
reversal from previous years in which the number of pending claims in the Division was 
steadily increasing. 

Increased efficiency in the disposition of claims led to increased financial pressures 
on the victim compensation fund which necessitated a $400,000 supplemental state 
appropriation to the fund. Overall, payments to victims totalled $3,832,520. This 
amount represents a fourteen percent (14%) increase over the previous year and the 
largest expenditure of funds to crime victims in the Division's history. 

This year, the Division also undertook to expand its regional and national 
involvement. It hosted, on a quarterly basis, New England regional meetings of crime 
victim compensation programs, most of which operate under administrative systems. 
These meetings included directors and other representatives of victim compensation 
programs from Connecticut, Rhode Island, Vermont, New Hampshire and Maine. Each 
involved training and policy development on topics including mental health counselling 
policies and outreach to 

special needs populations. The Division also hosted and actively participated in the 
annual conference of the National Association of Crime Victim Compensation Boards 
which was held in Boston in November, 1994. 

Finally, the Division continued to provide a broad range of other services and 
assistance to victims coping with the financial impact of crime, including creditor 
intercession services and assistance in locating service providers. The provision of 
compassionate services to crime victims remains the Division's top priority. 



84 



PUBLIC PROTECTION BUREAU 



BUREAU SECTION 

The Public Protection Bureau (PPB) is comprised of five divisions: Civil Rights, 
Consumer Protection and Antitrust, Public Charities, Regulated Industries, the PPB Chief 
Prosecutor's Unit, and the Civil Investigations Division. Additionally, the Consumer 
Protection Division contains the Consumer Complaint and Information Section and also 
oversees the local consumer fund which provides grants to local community groups to 
mediate and resolve consumer complaints at the local level. 

Bureau personnel also coordinate and staff the Attorney General's innovative 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. 

The role of the divisions in the Public Protection Bureau (PPB) is to bring affirmative 
litigation on behalf of the Commonwealth of Massachusetts, its citizens and businesses in 
the areas listed above. PPB also has brought certain criminal cases in the consumer and 
health care fraud areas. 

The Public Protection Bureau also is responsible for the development and implementation 
of policies and initiatives dealing with health care and elder issues. Some of the 
initiatives undertaken this year are described below: 

Community Benefits Guidelines 

Relying on the statutory powers of the Office over non-profit institutions and the nexus 
between non-profit tax exempt status and charitable purpose, the office developed 
Community Benefit Guidelines for Non-Profit Acute Care Hospitals in 1993-1994. 
These Guidelines were part of an effort to make hospitals more accountable to their 
communities. 

Following those efforts the Office has developed and issued a draft of Community 
Benefit Guidelines for Health Maintenance Organizations. These guidelines will 
encourage HMO's to develop and market products to those not traditionally served by 
their network. 

Patient Confidentiality 

The Bureau began an initiative to focus on maintaining the confidentiality of patient 
medical and mental health records. As these records are more frequently being placed 
onto electronic systems and as these systems expand, there is an increasing fear that 
unauthorized individuals will gain access to them. The goal of the initiative is to develop 



85 



guidelines or perhaps legislation to ensure that security measures and auditing systems are 
implemented at all institutions in possession of medical information. 

Access to Mental Health Benefits 

The Bureau investigated potential barriers to consumers in accessing their mental health 
benefits being imposed by managed care organizations. One result of this initiative was 
that legislation was filed to amend the state insurance information and privacy protection 
act by expanding the definition of companies covered by the act to include companies 
which manage mental health benefits. By protecting the confidentiality of mental health 
information, patients may feel more secure in accessing benefits. 

Division of Registration Referral Protocol 

The bureau established a formal protocol for referral of cases by the various Board of 
Registration to the Office for criminal and civil prosecution. A number of cases were 
referred this year many dealing with the unlicensed practice of professionals including 
chiropractors, nurses and dentists. 

The Attorney General's Guide for Mandated Reporters 

The Bureau, in cooperation with the Executive Office of Health and Human Services, 
published the Attorney General's Guide for Mandated Reporters. This booklet advises all 
persons in the Commonwealth who are designated by law to be mandated reporters on the 
operation of the laws on the subject and on their responsibilities. Mandated reporter laws 
make certain persons responsible for reporting abuse or neglect of persons with 
disabilities, children and elders. Those persons include medical personnel, teachers and 
those in law enforcement. Failure to make reports properly can result in liability for those 
responsible. Since publication, thousands of copies of the Guide have been distributed. 

Eggland's Best, Inc. case 

The Bureau and the Consumer Protection and Antitrust Division successfully settled a 
hotly contested lawsuit against Eggland's, a company the Attorney General had alleged 
was misleading consumers about the dietary and nutritional contents of its egg products. 
The settlement included payment by Eggland's to the Attorney General's Local 
Consumer Aid Fund for benefit of the Attorney General's Student Conflict Resolution 
Expert program the sum of $60,000. Eggland's also agreed to abide by the terms of the 
Federal Trade Commission order regulating the contents of its advertising. 

Institutional Abuse Project 

The Bureau continued its work in the area of abuse and neglect of persons with 
disabilities. Criminal prosecutions were initiated against persons alleged to have abused 
persons with mental retardation. In addition, several investigations were conducted into 
the potential civil liability of companies potentially responsible for abuse and neglect. 
The Bureau continues to work closely with the Executive Office of Health and Human 



86 



Services to train and educate persons who interact with persons with disabilities and is 
planning a conference in early 1996 on a variety of topics in the area. 

Insurance for Domestic Violence Victims 

The Bureau actively supported the successful passage of legislation which would bar the 
practice of certain insurance companies who deny life, health and disability insurance to 
domestic violence victims. 

Nursing Home Regulations 

Bureau personnel continue to be involved in the practical implementation of the new 
nursing home regulations under the Massachusetts Consumer Protection Statute to afford 
nursing home residents greater protection. 

A number of questions by both the facilities and consumers are fielded weekly. 

Failure to Remit Health Insurance Premiums 

As a continuation of the Bureau's effort to protect employees when their health care 
coverage is canceled because of nonpayment to carriers by employers the Office has 
proposed regulations which would require that the carrier provide notice to the employee 
upon termination of their coverage. Cases continue to be brought both civilly and 
criminally against employers who engage in this practice. 

Home Health Care Aides 

The Bureau, in collaboration with the Home Health Care Association, hosted two 
conferences which focused on the hiring of home health care aides, and what to do about 
potential abuse by home health care aides of elder and vulnerable patients. 

The Bureau assisted in the response to the shootings at two women's health centers in 
Brookline. Bureau personnel helped to coordinate advocacy groups and to expand 
security measures which could be implemented in the future to prevent incidents such as 
this reoccurring. 

DIVISION OF PUBLIC CHARITIES 

The Attorney General represents the public interest in the proper solicitation and use of 
all charitable funds and is authorized to "enforce the due application of funds given or 
appropriated to public charities within the commonwealth and prevent breaches of trust in 
the administration thereof." G.L. c.12, sec. 8. The Division of Public Charities was 
established to carry out the Attorney General's responsibilities in this area. 

More than 34,000 charities are registered with the Division, as well as 209 fundraisers 
presently operating in Massachusetts. A public charity 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 charities and fundraisers, the Attorney General is the 



87 



defendant in all proceedings brought in the Supreme Judicial Court to wind up the affairs 
of a public charity. 

Beyond 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 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. 

Recognizing that charities provide vital services in our communities, enjoy certain 
benefits due to their tax-exempt status, and assume certain obligations as a result of these 
benefits, the Division has been involved in a number of initiatives over the past year 
intended to strengthen the charitable sector at large. These efforts have included a new 
Question and Answer Guide for Professional Fundraisers and the Division's annual report 
on charitable fundraising, both published during the Fall giving season; the Attorney 
General's Third Annual Conference for Board Members, which was held in May and 
attended by over 350 volunteer directors and others; as well as implementation of the 
Attorney General's Community Benefits Guidelines for Nonprofit Acute Care Hospitals. 



SOLICITATION OF CHARITABLE FUNDS 

The Attorney General takes affirmative legal action against charities and 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, along with penalties and fees. 

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

Commonwealth v. America's Missing Children and Todd Rampe d/b/a Baystate 
Benefits 

In April, the Attorney General obtained a preliminary injunction against Todd Rampe, a 
Cambridge fund-raiser who does business as Baystate Benefits, enjoining him from 
engaging in deceptive fundraising practices. The deceptive practices complained of 
included falsely leading potential donors to believe that America's Missing Children, the 
Florida charity on whose behalf Rampe was hired to raise money, was a local 
organization; falsely leading contributors to believe that registration with the Division of 
Public Charities implied endorsement by the state; falsely leading contributors to believe 
that they were employees of the charity; and failing to disclose their status as professional 
fund-raisers, as required by law. 

In May, the court enjoined America's Missing Children, which hired Rampe, from 
engaging in the same practices. 

Commonwealth v. Box Office, Inc., Entertainment Productions and Alan Asslestine 



88 



In July, the Division obtained a consent judgment banning Box Office, Inc. and 
Entertainment Productions, two companies based in Sarasota, Florida, from conducting 
any charitable fund-raising activities in Massachusetts through 1996. The ban also 
applies to Alan Asselstine, former president of the companies. Under the terms of the 
judgment, the defendants are also required to pay $10,000 in restitution if they engage in 
fund-raising in the Commonwealth after 1996. 

The Division's complaint alleged that the defendants raised funds by falsely leading 
potential donors to believe that donations would be used by four community groups to 
send 1500 children from each community to ice shows for free. 

Commonwealth v. East West Concert Productions, Inc., Southeastern Productions, 
Inc., et. al. 

In May, the Division filed suit against four professional fundraisers, East West Concert 
Productions, Inc., Southeastern Productions, Inc., Statewide Promotions, and Joseph 
Moses, alleging they deceived the public in the course of fundraising for three local law 
enforcement associations, an association of fire chiefs, and a veterans organization. One 
of the law enforcement organizations, the Police Alliance of Boston, is also a defendant. 

Defendants East West Concert Productions, Inc. and Southeastern Productions, Inc. 
agreed to pay $43,000 to the Attorney General's Local Consumer Aid Fund for the 
purpose of funding local consumer groups or educational efforts in a consent judgment 
filed with the complaint. These fundraisers are also under a permanent injunction 
prohibiting the deceptive business practices which led to the Attorney General's 
complaint. Professional fundraiser Joseph Moses also signed a consent judgment banning 
him from any future charitable fundraising in the Commonwealth and requiring him to 
perform 40 hours of community service. 

Preliminary injunctions were obtained preventing Defendants Police Alliance of Boston 
and Statewide Promotions from engaging in any charitable fundraising while the suit is 
pending. 

In related action, the Lynn Police Association, Massachusetts Police Association, New 
England Association of Fire Chiefs, Inc., and Vietnam Veterans Agent Orange Victims, 
Inc. signed Assurances of Discontinuance and agreed to pay restitution consistent with 
the intentions of donors. Each of these organizations contracted with East West or 
Southeastern to raise money on its behalf and, the Attorney General concluded after 
investigation, failed to adequately oversee the fundraising to ensure members of the 
public received accurate information about who was soliciting them and how their 
donation would be used. 

Commonwealth v. Massachusetts Homeless Foundation, National Telemarketing 
Associates, Inc., Rae Holzman and Robert Aaron 

In August, the Division obtained a consent judgment against Robert Aaron and Rae 
Holzman permanently banning them from raising charitable funds or operating a charity 
in the Commonwealth. As a result of the consent judgment, Robert Aaron divested 



89 



himself of any interest in National Telemarketing Associates, Inc., a fundraising company 
of which he was president, and the Massachusetts Homeless Foundation (MHF) agreed to 
dissolve. 

In a previously filed complaint, the Attorney General alleged Aaron and Holzman 
founded MHF as a fund-raising tool, called Boston area residents and sold them garbage 
bags and baseball caps on behalf of the charity, and then paid out most of the funds in 
salaries and expenses. The complaint also alleged that contributors were falsely told that 
80 to 90 percent of the money raised would be donated used for the homeless, when in 
fact less than 10 percent of the money was used for this purpose. 

Commonwealth v. M&M Advertising Associates, et. al. 

In July, the Division obtained a consent judgment prohibiting M&M Advertising 
Associates and one of its owners, Hugh M. Mayher, from engaging in deceptive 
charitable fundraising practices. The court earlier approved consent judgments for John 
E. MacNeil, another M&M principal, and the Massachusetts Baseball Coaches 
Association and Massachusetts Basketball Coaches Association, two organizations on 
whose behalf M&M raised charitable funds. MacNeil has been permanently banned from 
charitable fundraising in Massachusetts, and he and Mayher are required to pay $30,000 
to the Attorney General's Local Consumer Aid Fund. 

According to the Attorney General's lawsuit, filed in March, 1995, M&M telemarketers 
told businesses from whom it solicited money for the coaches groups that the money 
raised would be used to support high school athletic programs in the towns in which the 
donors lived, when such was not the case. The complaint also alleges that M&M 
solicited advertisements for a magazine it publishes called Senior Citizens Digest, and in 
the course of the solicitations led the people it contacted to believe that the money raised 
would benefit local senior citizen's centers. None of the money benefited senior citizens 
in any way. 

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

In July, the Division obtained a consent judgment permanently prohibiting Saugus fund- 
raiser Marcus Smith from raising money or doing other charitable work in the 
Commonwealth and requiring him to pay $6,000 to the Attorney General's Local 
Consumer Aid Fund. 

The consent judgment was obtained in a case brought by the Attorney General against the 
National Awareness Foundation, a Washington D.C. based charity which raises money 
under the name "Hugs Not Drugs," and it professional solicitors. The complaint alleges 
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. Defendants National Awareness Foundation, 
Bruce Derosier, O'Leary Enterprises, and New Hampshire based Vincent Marchetti d/b/a 



90 



Consult Telecommunications had previously signed consent judgments. Litigation is 
ongoing against the remaining defendant. 

Commonwealth v. Noel Enterprises, et al. 

In February, the Division filed suit against two professional fundraisers who conducted 
charitable fundraising campaigns in Massachusetts for four national law enforcement 
groups. One of the law enforcement groups, The Chiefs of Police National Drug Task 
Force, was also named in the suit. The complaint alleged that the fundraisers falsely 
represented that the solicitation was affiliated with or approved by Massachusetts police 
departments and that individuals who made charitable donations would receive favorable 
treatment by police officers. The complaint also alleged that the telemarketers 
impersonated police officers and engaged in coercive practices, and that they failed to 
disclose their status and the address of the law enforcement organizations, as required by 
law. 

Two of the fundraisers' clients, the International Union of Police Associations and the 
National Association of Retired Police Officers, entered into assurances of compliance at 
the time the complaint was filed, while a third client, the American Federation of Police, 
resolved the matter by way of a consent judgment. These groups have paid $7,500 to the 
Attorney General's Local Consumer Aid Fund and agreed not to engage in deceptive 
fundraising practices. Preliminary injunctions were obtained against the remaining 
defendants prohibiting them from engaging in any deceptive fundraising practices while 
litigation is on-going. 

Commonwealth v. Project Care, Inc., and Thelma Moss 

In January, the Attorney General obtained a consent judgment against Project Care, Inc., 
an organization that professed to raise money for Springfield-area homeless shelters, and 
its founder and operator, Thelma Moss. Under the terms of the judgment, Moss was 
permanently banned from raising money or running a charity in the Commonwealth, and 
agreed to dissolve Project Care. 

The complaint alleged that representatives of Project Care convinced people to make 
donations by implying that local homeless shelters and other organizations serving the 
homeless would receive the funds raised. None of the money raised was used for these 
purposes. The Attorney General also claimed that Project Care failed to file annual 
financial reports with the Division and that its directors violated their fiduciary duties to 
the charity. 

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 affecting charitable trusts. Accordingly, the Division 
continued to handle a large volume of cases in this area involving such matters as 
proposed allowance of accounts, will compromises, sale of real estate, change of purposes 
or beneficiaries of charitable trusts and bequests, amendment of charitable trusts to meet 



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IRS requirements, and termination of charitable trusts under G.L. c.203, 25. For 
example: 

American National Red Cross v. Attorney General 

In December, the petition of the American National Red Cross for deviation from certain 
subordinate terms of the bequest of Emma Ames for relief of the needy of Melrose, 
necessitated by the revocation of the charter of the Melrose chapter of Red Cross, after 
negotiation and assent by the Division, was approved by the Middlesex Probate Court. A 
related case, Fountain, et al v. Attorney General and American National Red Cross, was 
resolved in January 1995, when the Court approved an Agreement for Judgment pursuant 
to which plaintiffs, former officers of the Melrose chapter, were obligated to restore to the 
Ames fund moneys improperly used by them for their legal fees in the proceeding, in 
which they had no standing to object to relief sought by Red Cross and assented to by the 
Division. 

Melrose Visiting Nurse Service, Inc. v. Attorney General, et al. 

In November, after negotiation among the parties, and review and assent by the Division, 
a petition by Melrose Visiting Nurse Service to authorize the transfer to it of the Ames 
Fund held for its benefit by the American National Red Cross, Melrose chapter, 
necessitated by the revocation of the chapter's charter, was approved by the Middlesex 
Probate Court. 

Bavbank, Trustee of the Gertrude S. Geery Trust of 1973 v. Attorney General, et al. 

In January, after briefing and argument by the Division, the Middlesex Probate Court 
rejected the claim by the Receiver of the defunct Massachusetts Osteopathic Hospital for 
the gift to the Hospital under the Trust and ordered further proceedings on alternate 
charitable distribution of the gift. In June, the parties' Agreement for Judgment on such 
alternate distribution was approved by the Court. 

Bradford, Rector of the Parish of All Saints, et als. v. Attorney General. 

Litigation was on-going during the year in this suit filed against the Attorney General by 
church officials seeking a declaration as to the interpretation of a particular donated fund 
held by the church, and as to the authority of the Attorney General to investigate 
expenditures from the fund. The Attorney General filed a counterclaim, alleging that 
certain church officials had made expenditures from the fund for purposes other than 
those specified in the will which established it and seeking an accounting, restitution, and 
the appointment of new trustees of the fund. 

Trustees of Trust under Will of Carolyn Weld Fuller and Fuller Trust, Inc . 

In July 1993, the Division submitted its brief to the Supreme Judicial Court on seven 
questions reserved and reported by the trial judge. Oral argument was heard in January 
1994, and the Court rendered its opinion in July 1994. The case arose out of a $500,000 
settlement obtained by the Division from former trustees of the Fuller Trust. The trial 
judge's Reservation and Report raised issues regarding the Probate Court's jurisdiction to 
examine the former trustees' management and administration of the assets of the trust 



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through charitable corporations, to impose additional liability beyond the amount 
obtained by the Attorney General, and to appoint successor trustees. 

The Court ruled, as the Attorney General had argued, that the Probate Court should fill 
the trustee vacancies, and that the court has the power to require a full accounting from 
the former trustees and to consider further financial recovery from them. The Court also 
ruled, as urged by the Division, that: 

[T]he court should consider further financial recovery from the trustees only if, after 
consideration of potential defenses and of the potential costs to the charity and risks to 
the viability of the intended charitable purpose, the judge concludes that further 
litigation, should it be necessary, will be likely to produce a recovery sufficiently 
above the $500,000 obtained by the Attorney General to render such further litigation 
appropriate to the furtherance of the charitable purpose. 

This year the Attorney General's role has focused on development options for the Fuller 
property. The Attorney General has engaged the pro bono services of Palmer & Dodge to 
evaluate the development proposals in order to select the proposal which best carries out 
the purposes of the charitable trust. 

Metropolitan Springfield Young Men's Christian Association, Inc. v. Attorney General 

In September, the Hampden County Probate Court, after review and assent by the 
Division, approved plaintiffs petition for deviation from subordinate terms of the Horace 
Moses Endowment Fund, permitting temporary borrowing on a revolving basis from said 
fund to allow operation of Camp Weber, serving inner city youth, such borrowing to be 
secured by assignment of all reimbursements receivable from the Commonwealth in 
connection with the operation of the camp. 

Cambridge Trust Company, Trustee under will of George L. Sanborn v. Attorney 
General, Mount Auburn Hospital, Winchester Hospital, The Symmes Hospital, Inc., 
and Lahey Clinic Hospital, Inc. 

In May, after a motion for summary judgment by the Division seeking application of the 
cy pres doctrine, the Middlesex Probate Court ruled that the doctrine applied to the $3 
million Sanborn Trust intended by the decedent to be used to found a Hospital for the 
treatment and cure of cancer in Arlington and that the Trustee did not have discretion to 
substitute an alternative plan of disposition. 

Attorney General v. Schlichte, et al. Trustees under Will of James N. Abbott, Jr. 

In December 1993, the Division filed suit against the trustees of a North Shore charitable 
trust, seeking a declaration by the Court that the trustees had violated their trust by 
improperly excluding students from the Town of Essex and others from eligibility for 
scholarships from the trust, and further seeking removal of the trustees. The trust, created 
to help underwrite higher education for students domiciled and resident in Gloucester, 
Rockport, and Essex, requires that applicants demonstrate their willingness and intention 
to return to Cape Ann after their schooling to contribute their talents and training to the 
area. The trustees, however, maintained that only graduates of Gloucester and Rockport 



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High Schools ere eligible, a requirement not found in the trust. The Division took 
enforcement action when the trustees refused to alter their position. 

In December 1994, the Essex County Probate Court approved an Agreement for 
Judgment pursuant to which the trustees acceded to the Division's position on eligibility 
for scholarships from the trust and close monitoring of the application process for up to 
five years, as well as one time preference for applicants from Essex because of the prior 
improper exclusion of Essex students from eligibility. Essex students have received 
grants in both rounds of awards since the settlement, and monitoring is ongoing. 

Spring, et al, Trustees of the Trust under Will of Hervey A. Hanscom v. Nasson 
College, et al. 

In August, after briefing and argument by the Division, the Middlesex Probate Court 
ruled that the doctrine of cy pres applied to the failed gift to Nasson College. Intervenors 
seeking to be recipients of the fund submitted materials to the Court and the Division 
submitted a Memorandum on Framing a Cy Pres Scheme. The Court heard argument by 
the parties on May 24. At that hearing, a supplementary memorandum from the Division 
was requested by the Court; this memorandum was submitted June 12. In early July, the 
Court ruled that the fund would be awarded to the University of Maine system, adopting 
much of the Division's analytical approach while differing in the weight given certain 
factors and in the recommended recipient. The Division continues to be involved, 
commenting on the form of final order to be entered later in the summer. 

Wigglesworth, et al. v. Cowles, et al. 

In May 1994, the Division argued to the Appeals Court that the attempts of the heirs of 
Roxana Cowles to terminate the charitable trust under her will should be rejected, 
because the right of reverter in favor of the heirs had not been triggered. Instead, the 
trustees had properly carried out the dominant intent of the testatrix in building and 
operating the Stephen Caldwell Memorial Convalescent Home in Ipswich. 

The Attorney General further argued that the Probate Court had correctly exercised its 
authority to ratify, under the doctrines of deviation or cy pres, past actions of the trustees 
in razing and replacing the dwelling house of the testatrix, forming a corporation to carry 
out the trust purposes, and changing corporate articles of organization in order to qualify 
for tax-exempt status. As a charitable trust, the Cowles Trust is to be liberally construed 
and upheld if at all possible. The Attorney General also argued that the claims of the 
heirs were barred by collateral estoppel, laches, and the provisions of G.L. c.260, section 
31A. 

In April, 1995, the Massachusetts Appeals Court upheld the position of the Attorney 
General, and also faulted the heirs for allowing almost twenty years to elapse before 
taking action against the trustees of the nursing home for conduct which the heirs knew 
about at the time it occurred. Further appellate review was denied on June 5, 1995. 

Wills, Trusts, and Other Probate Statistics 

During the past fiscal year, the Division received 2,220 probate citations; received and 
reviewed 1,308 new wills, 1,033 of which contained charitable bequests; and received 



94 



and reviewed 896 interim accounts for executors and trustees, as well as 742 final 
accounts. In addition, the Division received 1,325 miscellaneous probate matters or 
pieces of correspondence in new or existing probate cases, including 70 petitions for 
license to sell real estate and over 31 petitions under G.L. c.203, sec. 25 to terminate 
trusts too small to be administered economically and distribute the trust property to the 
beneficiary, resulting in the availability of more income to the charitable beneficiaries of 
such trusts by reason of elimination of administrative costs. After review and negotiation, 
a total of 782 assents were issued in all categories of probate matters. 

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 
the year, the Division reorganized and updated procedures and the over 1 80 case files 
currently open. This was done in cooperation with the Treasury Department of the 
Commonwealth and the 48 Public Administrators currently serving in the several 
counties of the Commonwealth. Pursuant to these procedures, Public Administrators are 
to send escheated funds directly to the Treasury Department, Unclaimed Property 
Division. In addition, the Division opened files on 42 new intestate estates, 140 estates 
were closed, and 171 other miscellaneous public administration matters were handled. 



CHARITY GOVERNANCE 

The Attorney General's oversight of charitable corporations focuses on stewardship by 
charity boards of directors. The Division can become involved when directors breach 
their individual fiduciary duties of due care and loyalty. Under Attorney General 
Harshbarger, in recent years the Division has obtained a number of governance 
agreements, after investigation, in which charity boards have agreed to reform the manner 
in which they operate. These agreements serve the public interest by establishing 
standards of board conduct and, through governance reform, ensuring that the particular 
charities will continue to their work into the future. This year the Division also took joint 
enforcement action with the Consumer Protection Division in a charity governance 
matter. 

Attorney General v. Adoption Center Inc., and Judith Bailey 

The Division of Public Charities and the Consumer Protection Division filed a civil 
complaint against the nonprofit charitable corporation, the Adoption Center, Inc., and its 
executive director and board member, Judith Bailey, in February 1995. The Division of 
Public Charities alleged that as a executive director and officer of a nonprofit charitable 
corporation, Judith Bailey had breached her fiduciary duties by (1) causing the charity to 
pay her excessive compensation which was in excess of $300,000, (2) wasting corporate 
assets and (3) using charitable money for her personal benefit. 



95 



In April, the Middlesex Superior Court issued a preliminary injunction restraining Ms. 
Bailey from having any involvement in the operations of the charity. A new executive 
director has been hired. The matter is set down for trial in January 1996. 

Cambridge Arts Council, Inc. Governance Agreement 

In February, the Cambridge Arts Council Fund, Inc. (the "Fund"), entered into a 
comprehensive governance agreement with the Division of Public Charities. The Fund is 
a public charity and provides city-wide arts programming together with the Cambridge 
Arts Council ("CAC"), a municipal department. 

Signed by directors of the Cambridge Arts Council and Cambridge Arts Council Fund, 
Inc., the agreement culminated a civil investigation during which the Attorney General 
concluded that from at least 1990, and until February, 1993, a volunteer Board served the 
City in an advisory capacity, but its members failed to act as Fund fiduciaries and failed 
to develop and implement adequate governance policies and procedures, resulting in lack 
of financial oversight and breach of the fiduciary duty of due care. Prior to the 
agreement, two former management employees of the Cambridge Arts Council were 
criminally indictment in Middlesex County after allegedly converting over $250,000.00 
dollars for their own personal use. 

Pursuant to the agreement, an entirely new board of directors for the Fund was been 
elected and the Fund agreed to hire an accountant to design and implement a bookkeeping 
and accounting system with internal fiscal controls. Provisions overhauling the way in 
which the Fund board operates were also contained in the agreement. These included 
creation of a Finance Committee and adoption of by-laws with term limit and board 
education and training requirements. The Fund directors also agreed to file two status 
reports with the Division of Public Charities. 

Community Boating, Inc. Governance Agreement 

In February, Community Boating, Inc., the oldest public sailing program in the country, 
entered into a governance agreement with the Division of Public Charities. Under the 
terms of the agreement, Community Boating agreed to hire an accounting firm to redesign 
its bookkeeping and accounting system and to implement internal fiscal controls. The 
charity also agreed to provide financial reports to its members well in advance of 
meetings and to take measures to prevent the use of its tax identification number for the 
personal benefit of anyone other than Community Boating. Also, in the future, the full 
board of directors will select the organization's chief executive officer. 

Massachusetts Jaycees Governance Agreement 

Four members of the Massachusetts Jaycees, Inc., hired a professional telemarketer to 
raise funds to defray costs associated with their attendance at two national Jaycee 
conventions. The telemarketer allegedly told potential donors that funds raised would be 
used for charitable purposes, and in particular to support Camp Lincoln Hill, a summer 
camp of disabled children. 



96 



The Massachusetts Jaycees' board of directors did not authorize entry into the contract 
and no one from the Massachusetts Jaycees had responsibility for oversight of statewide 
fundraising. 

After investigation, the Division determined that the Massachusetts Jaycees did not have 
mechanisms in place to enable it to properly oversee charitable solicitations done in its 
name. Subsequent to the investigation, the Massachusetts Jaycees entered into a 
Governance Agreement which is a public document. By virtue of the Agreement, the 
Massachusetts Jaycees, Inc., agreed to make restitution to Camp Lincoln Hill in the 
amount of $10,000., the amount which was raised on behalf of charity. The Agreement 
also required the Massachusetts Jaycees to amend their bylaws to include oversight of 
public fundraising. 

Review of Asset Dispositions 

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 charity'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.180, 8 A©. During the year, the Division reviewed 
28 such dispositions. 

Review of For-Profit Conversions 

Massachusetts charitable organizations may not, on their own, "convert" to for-profit 
status. If charitable assets are to be transferred to a for-profit, it must be for fair value, the 
transaction must be necessary and in the best interest of the charity, and the charity board 
must have acted carefully and without influence by conflict of interest. 

At the end of the fiscal year, two acquisitions of nonprofit acute care providers — a 
hospital and an HMO — by for-profit health care chains were pending. The Division is 
reviewing these transactions, and court approval will be required. The issues include: 

1 ) is the for-profit acquisition a transaction that is permitted under general nonprofit 
and charities law? is the proposed disposition of the hospital's assets sufficiently 
necessary to pass muster under state nonprofit and charities law? is the proposed 
disposition the best alternative available to the nonprofit? 

2) was due care followed by the nonprofit in deciding to sell, in selecting the buyer, 
and in negotiating the transaction? 

3) was conflict of interest avoided (including conflict by board members, key 
executives, and counsel)? 

4) will the nonprofit receive fair value for the nonprofit assets? 

5) will the sale proceeds be used for appropriate charitable purposes consistent with 
the non-profit's original purposes, and will the funds be controlled as charitable 
funds independently of the resulting for-profit? 

6) will the transaction adversely affect access to affordable health care by residents of 
affected communities? 



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Charitable Corporation Dissolution Statistics 

In order to cease corporate existence, charitable corporations must dissolve through a 
proceeding in the Supreme Judicial Court. To enforce the public's interest in the 
disposition of charitable assets, the Attorney General is a party to all voluntary 
dissolutions of charitable corporations under G.L. c.180, 1 1 A. After review, negotiation 
of necessary modifications, and assent by the Division, the pleadings are filed by the 
dissolving charity in the Supreme Judicial Court. 

During the reporting year, the Division assented to 62 final judgments dissolving 
charitable corporations pursuant to section 1 1 A. Also, the Division filed 3 Omnibus 
Petitions with the Supreme Judicial Court to dissolve 75 inactive charitable corporations 
under G.L. c.180, 11B. 



SIGNIFICANT DIVISION INITIATIVES 

Attorney General's Guidelines for Nonprofit Acute Care Hospitals 

In June 1994 the Attorney General's Community Benefits Guidelines for Nonprofit Acute 
Care Hospital was published. Under the Guidelines the seventy-seven Massachusetts 
Acute Care Hospitals were to file Interim Community Benefits Reports in February 1995. 
The reports were filed with the Division of Public Charities and are public record. All 
seventy-seven hospitals filed an Interim Report which contained a description of the 
hospital's Community Benefits planning mechanism and the hospital's Community 
Benefits Mission Statement. 

After receiving the Interim Reports, the Division of Public Charities, in consultation with 
volunteers with hospital backgrounds, analyzed each submission. The results of the 
analysis will be shared with each hospital and used at hospital training sessions currently 
planned for Fall 1995. The training sessions will assist hospitals as they prepare their first 
complete report under the Attorney General's Community Benefits Guidelines for filing 
in the next fiscal year. 

Giving Season Public Education Campaign 

In partnership with the Attorney General's Advisory Committee on Public Charities, the 
Division undertook a continuing public education campaign regarding charitable giving 
and charity stewardship. 

In November, a Guide for Professional Solicitors and the third annual Attorney General's 
Report on Charitable Fundraising were published as part of the Attorney General's annual 
"GrVTNG SEASON" public education campaign. Timed to coincide with charitable 
appeals during the holiday season, and in cooperation with the "Give But Give Wisely" 
education program conducted by the Better Business Bureau and other charitable 
organizations, this campaign is a long-term effort to inform individuals and businesses 
about the donating process and how to make sure that their contributions are put to the 
best possible use. 



98 



The 36-page Report on Charitable Fundraising explains how charitable fundraising 
works, including the role that commercial solicitors play, and analyzes the financial 
reports of 245 fundraising campaigns by solicitors. Of the total dollars raised in all 
campaigns, 36.7% went to charity. In solicitation campaigns which involved the 
purchase of an event ticket, product, advertising, or other "premium," the charities 
retained 18.4%, on average, of the gross proceeds. 

The Attorney General's Question and Answer Guide For Professional Fundraisers 
explains the requirements with which professional fundraisers must comply and describes 
the most common types of deception in fundraising reported to the Division by members 
of the public. 

The Division also has available upon request a number of other publications intended to 
assist charities, fundraisers and members of the public including: "Donating Do's and 
Don'ts", "How To Give But Give Wisely", and "Attorney General's Guide for Charities 
Who Fundraise from the Public". 

Third Annual Conference for Non-Profit Board Members 

The third annual conference for non-profit board members, entitled Non-Profit Board 
Members: Meeting the Challenge, was held on Monday, May 8, 1995 at the Westford 
Regency Inn and Conference Center. Hosted by the Attorney General, over 350 attendees 
participated in two of three workshops that addressed how to maintain an effective board, 
recognizing and eliminating board conflict, and how to stay on the right side of the law. 

Financial Accounting Standard No. 117 

Over the course of the year, the Accounting Issues subcommittee of the Attorney 
General's Advisory Committee on Public Charities met to discuss questions raised by the 
implementation by Massachusetts charities of Financial Accounting Standard No. 117, 
recently issued by the Financial Accounting Standards Board. These discussions assisted 
the Division in articulating a position on FAS No. 1 17 and its interplay with G.L. C.180A. 
In early June, the Division released a position statement to provide guidance for 
Massachusetts charities on these issues. Response to the position statement has been 
positive and it appears that the Massachusetts Attorney General's office is the only one in 
the nation to provide such guidance to date. 

Conference and Professional Education Presentations and Publications 

As part of the Division's ongoing public education effort, the Director of the Division and 
other Assistant Attorneys General in the Division spoke to numerous charitable groups 
and served on several continuing professional education panels throughout the year, 
including the Massachusetts Bar Association; Boston Bar Association; Massachusetts 
Treasurers and Collectors Association Annual School; Mass. Society of CPA's; 
Massachusetts Council of Human Service Providers; Cape Cod Funders; Fall River 
Chamber of Commerce; Massachusetts Coalition of Police; New England Nonprofit 
Business Exposition; National Association of Corporate Directors (Mass. Chapter); 
Association of Massachusetts Homes for the Aging; the Episcopal Diocese of Boston; 
John F. Kennedy Library Public Forum; Federal Tax Institute of New England. 



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Uniform Reporting Form 

In an effort to reduce the burden of state-by-state registration for multi-stage charities, the 
National Association of State Charity Officials (NASCO) developed a uniform form for 
charity registration. Massachusetts participated in the development of the form and has 
agreed to accept the form for the registration of out-of-state charities. 



DIVISION ADMINISTRATION 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 3,248 requests to view files in the past 
fiscal year and, in response, approximately 6,838 files were pulled. 

Charitable Organizations: Registration and Enforcement 

From July 1, 1994 through June 30, 1995, the Division processed approximately 12,997 
annual financial reports and annual filing fees totaled $1,257,040. During this period, 
1,869 new organizations were reviewed, determined to be charitable, and registered. 
Each was sent the Division's packet of information about the Division's registration and 
filing requirements. 

As part of an ongoing compliance program, the Division contacted approximately 7,200 
charities whose annual filings were deficient or delinquent to rectify filing deficiencies. 

Issuance of Certificates to Charities Who Fundraise 

Under G.L. c. 68, sec. 19, every charitable organization which intends to solicit funds 
from the public, except religious organizations, must apply to the Division for a 
solicitation certificate before engaging in fundraising. Upon receipt, the Division reviews 
certificate applications for compliance with statutory requirements. Unless there is a 
deficiency in the application, all certificates are issued within a 10-day statutory period. 
This year, 4,492 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 organization, and solicitors must later file a financial return regarding each 
fundraising campaign. 



100 



During the fiscal year ending June 30, 1995, a total of 209 registrations were received and 
approved, resulting in $46,800 in fees to the Commonwealth. Registrations were 
received from 82 solicitors, 105 fund-raising counsel, and 22 commercial co-venturers. 

TABLE I: Money Recovered 
For The Commonwealth Treasury 

A. Charitable Registrations, Certificate Fees, and Fundraiser Registrations 
$1,307,740.00 

B. Other fees, requests for copies, requests for computer information 
$4,962.50 



CIVIL RIGHTS DIVISION 



BIAS MOTIVATED AND OTHER CIVIL RIGHTS ACT CASES 

In fiscal year 1995, the Civil Rights Division continued to uphold its commitment to 
protecting the citizens of the Commonwealth by actively enforcing the Massachusetts 
Civil Rights Act. The provisions of the Massachusetts Civil Rights Act authorize the 
Attorney General to seek injunctive relief on behalf of individuals whose civil rights have 
been interfered with by threats, intimidation, or coercion. 

The Division successfully obtained 7 injunctions against 18 defendants who had 
interfered with the rights of Massachusetts residents on the basis of race, sexual 
orientation, disability, and national origin. The Division also obtained a total of 12 Final 
Judgments of which 8 permanently enjoined the defendants from further acts of bias- 
motivated violence. 

A dramatic example of the Division's effectiveness occurred when the Disability Rights 
Project, located within the Civil Rights Division, was contacted by a woman with a visual 
impairment. The woman complained that, at the end of her cab ride, the cab driver 
reached into the back seat of the cab, pulled out the removable seat and verbally assaulted 
her by shouting anti-disability epithets. The defendant then allegedly threw the seat and 
injured the victim's guide dog. An investigation of the facts revealed that both the victim 
and the guide dog were significantly traumatized by the incident. In fact, the guide dog 
was unable to work effectively as a result. 



101 



Based upon this information, in August of 1994, the Project sought and obtained a 
preliminary injunction which prohibits the cab driver from harassing, threatening or 
intimidating the victim or other individuals with disabilities. 

In another significant case, in November of 1994, the Division obtained a permanent 
injunction against four men who beat and robbed a man who they perceived as being gay. 
Three of the men met the victim at a restaurant and invited him to go out with them. 
After picking up a fifth man along the way, the men drove to a school at which time the 
victim was dragged from the car, beaten with a baseball bat and robbed as the men yelled 
anti-gay slurs and threatened to kill him. The police found the victim bleeding by the 
edge of the road. The injunction prohibits the defendants from harassing, threatening or 
intimidating an individual because of their actual or perceived sexual orientation. 

HOUSING DISCRIMINATION 

The Civil Rights Division has continued its vigorous enforcement of the 
Commonwealth's fair housing laws involving allegations of discrimination on the basis 
of familial status, race, gender, national origin, receipt of a housing subsidy, and 
retaliation for filing complaints with the Massachusetts Commission Against 
Discrimination. In fiscal year 1995, the Division filed 18 new complaints of housing 
discrimination. Of these, one case and eight previously filed cases were settled in which 
affirmative relief was granted and over $69,000.00 was recovered in compensatory 
damages for the victims, including claims of emotional distress, out-of-pocket damages, 
and the waiver of rental obligations. 

In June of 1994, the Division intervened in ten separate housing discrimination suits 
pending before the Massachusetts Commission Against Discrimination. These cases 
involve ten separate real estate agents in the Brookline and Newton area who allegedly 
engaged in a practice of steering tenants with young children away from rental units with 
lead-based paint, thereby shielding landlords from the statutory obligation to delead rental 
units occupied by families with children under six years of age. Between February 1, 
1995, and May 1, 1995, the Division resolved eight of these cases by obtaining Consent 
Judgments in which over $26,000.00 was recovered in compensatory damages and broad 
injunctive relief to the Commonwealth. 

In March of 1993, a Single Justice of the Supreme Judicial Court issued a precedent- 
setting decision granting summary judgment in favor of the Attorney General's Office 
and the Town of Barnstable. The Single Justice ruled that Old King Highway Regional 
Historic District Commission had no authority to litigate a case which had effectively 
halted construction of a 36-unit affordable housing development for low income elderly 
individuals or families in Barnstable. 

On December 14, 1993 the Supreme Judicial Court affirmed this decision and dismissed 
the action brought by the local town committee, however, the individual plaintiffs 
continued to pursue the action. In June of 1995, the Attorney General filed a motion to 
intervene for the purpose of filing a motion to dismiss the action on the grounds that the 
court lacks jurisdiction because the Low Income Housing Act provides for a single 



102 



comprehensive permit process which preempts the local permitting process being 
challenged by the individual plaintiffs. The hearing is scheduled for August 8, 1995. 

In the case of Commonwealth v. Desilets, the Commonwealth alleged that the defendants 
had discriminated against an unmarried couple by refusing to rent an apartment to them 
based upon their marital status. The Superior Court judgment exempted the defendants 
from compliance with the fair housing laws, based upon defendants' claim that their 
religious convictions prevented them from renting to the couple. 

The Attorney General's Office filed an appeal to overturn the Superior Court's ruling, 
arguing that the defendants' voluntary entry into the business of owning and renting 
residential property subjected them to the fair housing law, and that the Defendant's 
practice of religion was not burdened by the application of those laws. 

In July of 1994, the Supreme Judicial Court ruled on the case, holding that the 
Commonwealth must show a compelling interest in eliminating housing discrimination 
against cohabiting couples that is strong enough to justify the burden placed on the 
defendants' exercise of their religion. 

The Court remanded the case to the Franklin Superior Court for a trial on that issue. 
Because, up until the court ruled, it had been accepted that the law prohibited 
discriminating against unmarried couples looking for housing, there was little evidence 
that such discrimination was widespread. The Attorney General determined that it would 
take considerable time to build sufficient evidence of discrimination in housing against 
unmarried couples post-Desilets in order to show the state's compelling interest in 
eradicating the discrimination. Therefore, the Attorney General elected to dismiss the 
case, rather than attempt to make a showing prematurely that was likely to fail. 

In an Appeals Court decision, Commonwealth v. Robert and Florence Dowd, the trial 
court had awarded substantial attorneys' fees to the Attorney General, after he prevailed 
in a claim of housing discrimination based on marital status. The decision was appealed 
and in August of 1994 the Appeals Court ruled that because of limiting language in the 
statute, the Attorney General may not receive an award of attorneys' fees under General 
Law c. 151B. As a result, the Division proposed to amend G.L. c. 15 IB to permit 
Attorney General to obtain attorney fees in housing discrimination cases. 

EMPLOYMENT DISCRIMINATION 

In July 1994, the Division moved to intervene in cases filed before the Massachusetts 
Commission Against Discrimination (MCAD), alleging that Bull HN Information System 
had discriminated against numerous former employees on the basis of their age, in 
violation of the state anti -discrimination act. The MCAD subsequently allowed the 
Attorney General's motion to intervene, which alleges that Bull HN engaged in a pattern 
of age discrimination in employee layoffs conducted since 1990. It is alleged that Bull 
HN has terminated older employees or forced them into early retirement while retaining 
and hiring younger employees. The Attorney General has requested the MCAD to issue 
discovery requests to Bull HN regarding specific statistics involving their reduction of 
force. An investigatory conference is scheduled for July 13, 1995. 



103 



MORTGAGE LENDING DISCRIMINATION 

Since November 1992, Attorney General Harshbarger's Civil Rights Division has been 
involved in a comprehensive attack on fair lending barriers in the home mortgage lending 
industry in Massachusetts. 

In March 1994, in what may serve as a model for fair lending practices, the Attorney 
General and the Massachusetts Bankers Association and 27 banks and mortgage 
companies entered into an unprecedented and far reaching agreement to effect systemic 
reform of the mortgage lending industry in Massachusetts. 

The three year agreement stems from an investigation conducted by the Attorney 
General's Office which was prompted in large part by a 1992 study conducted by the 
Federal Reserve Bank. That study found that black and hispanic applicants were denied 
mortgages at a rate 60 percent higher than whites with similar financial circumstances and 
credit histories. 

Since the signing of the agreement, the MBA has established seven task forces which 
have identified consumer needs, developed action plans, and taken significant steps to 
begin to remedy fair lending and access barriers identified by the agreement. Areas of 
accomplishment include: over 1,300 Massachusetts bankers attended a variety of 
educational conferences focused on fair lending; recruitment and training of minority loan 
specialists which has led to the hiring of 100 students by participating lenders; consumer 
education programs in eight urban areas have been held and materials are being published 
in eight foreign languages; an industry seminar, attended by over 50 lenders, was held in 
order to ensure compensation plays no discriminatory role in mortgage lending; methods 
for reviewing and amending adverse loan decisions were put forth in a conference 
attended by 130 bankers and in a "best practices" guide, including second reviews of 
provisionally declined applications; and in January 1995 over 125 bankers and officials 
participated in a forum promoting the use of self-testing. In another component of the 
agreement, the Attorney General and the MBA announced the appointment of a three- 
member Mortgage Review Panel consisting of banking experts responsible for the review 
of certain minority applications from 24 separate institutions which the Federal Reserve 
identified in its 1992 study as potentially having been denied on an inappropriate basis. 
The Panel completed its review of the minority loan applications and submitted a Final 
Report to the Attorney General and the Massachusetts Bankers Association. Of the 99 
applications examined, the Panel awarded five applicants a remedy of $15,000.00 whose 
loans, if granted, could in fact have been sold into the secondary market. 

POLICE RELATED MATTERS 

In a cooperative effort to assist the police, provide departments with technical assistance 
and reduce their exposure to civil liability, the Civil Rights Division continues to provide 
an extensive amount of civil rights training to municipal and state police departments 
throughout the Commonwealth. Subjects of these trainings have included the 
investigation and prosecution of hate crimes, federal and state civil rights laws, civil 
liability, sexual and racial harassment in the workplace, and the obligation of police 
departments under the newly enacted Americans with Disabilities Act. The Division has 



104 



led or participated in many training sessions throughout Massachusetts including the 
Canton Police Academy, Fall River Police Department, Worcester, Middlesex, Bristol, 
Plymouth, Barnstable, and Norfolk County police recruits, newly appointed sergeants of 
the Boston Police Department, Worcester Police Academy, and Provincetown Police 
Department with representatives from other Cape Cod departments in attendance. 

Also, in response to the Brookline Abortion Clinics shootings earlier this year, the 
Division played an integral part in coordinating efforts to organize statewide training of 
police and clinic staff. 

OTHER SIGNIFICANT DIVISION INITIATIVES 

The Civil Rights Division Chief chairs, and division staff serve as active members of the 
Boston Law Enforcement Civil Rights Task Force which, since November 1992, 
coordinates the resources of local, state, and federal agencies to proactively address civil 
rights issues arising in Boston. The Task Force has addressed civil rights harassment in 
South Boston and responded in a coordinated fashion to reported racial incidents in 
Charlestown housing projects. The Task Force has also met to develop strategies to apply 
civil rights laws to gang-related issues within the Boston Housing Authority projects. 
The Task Force assisted the BHA in developing new internal mechanisms to ensure that 
residents' civil rights are effectively handled by the BHA, with appropriate cases referred 
to outside agencies. The BHA also requested that the Civil Rights Division train its staff 
so that they could better learn to identify potential bias incidents or bias crimes, acts of 
discrimination or harassment. Training of all BHA managerial staff is scheduled for 
August 1995. 

Since August of 1994, the Task Force has also met with school department officials in 
order to develop model civil rights complaint procedures, coordination and cooperation 
among the Boston School Department and other civil rights and law enforcement 
agencies. The Task Force has developed model training and education programs for 
students, faculty and the administration to ensure the identification and proper handling of 
violations of student rights and the protection of students from being victims of civil 
rights violations, including hate crimes, discrimination and religious, racial and sexual 
harassment. In 1995, the Division trained Boston School safety officers, school service 
coordinators, and Administration - Teachers - Parent School Site Councils. 

Through the efforts of the Civil Rights Division, the Massachusetts Bar Association is co- 
sponsoring a program with the Boston School Department to teach sexual harassment and 
bias crimes in every eighth grade class throughout the Boston Public School System. 
MBA lawyers will "teach-team" with eight grade social studies teachers. A curriculum is 
presently being finalized. 

The Chief of the Division participated as an active member of the Supreme Judicial Court 
Commission on Race and Ethnic Bias in the Courts, including involvement in public 
hearings and participation in the drafting and editing of the final report which was issued 
in September of 1994. As a result of the Commission's findings, the Division has taken a 
leadership role in developing an office-wide Task Force to Address Cultural and 
Linguistic Barriers in the Courts. The Task Force's mandate is to define the Attorney 



105 



General's role in addressing barriers to equal justice and to develop action plans. The 
Task Force's four subcommittees include Education and Training, Sentencing, Jury and 
Jury Pools and Cultural and Linguistic Barriers to the Justice System. 

In January of 1994, the Interagency Law Enforcement Hate Crime Task Force was formed 
in order to identify organized hate groups and coordinate federal and state law 
enforcement efforts in order to prosecute hate crimes at both the state and federal level. 
The Task Force includes members of the U.S. Attorney's Office, District Attorneys' 
offices, local and state police, the Federal Bureau of Investigation and is chaired by the 
Chief of the Civil Rights Division. The Task Force released its second issue of "A Law 
Enforcement Resource Manual" in March of 1995 which provides law enforcement 
officials with access to state-wide intelligence on organized hate crimes and hate crime 
activity in Massachusetts. 

The Chief of the Civil Rights Division co-organized the first national National 
Association of Attorneys General (NAAG) Civil Rights Conference held in Boston in 
September of 1994 and the second NAAG conference held in Tuscon, AZ in May of 1995 
with participation from the Department of Justice. 

The Division Chief initiated and led efforts by NAAG to negotiate a historic agreement 
with the Department of Justice to have DOJ and state Attorneys General coordinate and 
cooperate on affirmative civil rights enforcement in the future. As a result of these 
efforts, the Division Chief co-drafted a Memorandum of Understanding and was co-chair 
of NAAG's negotiating team with DOJ. The Division Chief remains co-chair of an on- 
going NAAG implementation Task Force. 

The Civil Rights Division has worked with the leadership of the FaD River Housing 
Authority to develop a comprehensive program of civil rights training of its entire staff 
and to assist them in developing procedures to identify and respond to civil rights 
violations of tenants. On June 9, 1995, the Division sponsored a civil rights training of 
the entire staff of the Fall River Housing Authority. 

The Civil Rights Division met with federal and state juvenile justice officials regarding 
Massachusetts non-compliance with federal and state law regarding juvenile detention 
and lock ups. The Division has advised the Executive Office of Public Safety regarding 
the specific steps needed to be taken by the date to protect against substantial federal 
dollars becoming unavailable to Massachusetts. A work plan was developed to ensure 
that Massachusetts' non-compliance of legal mandates will be ended in the immediate 
future, with the Attorney General using its enforcement protocol if any municipal police 
department fails to comply. 

The Division has been directly involved in oversight of the state disparity study which is 
a legal requirement to maintain minority and women set-aside programs for contracting. 
The Division is also involved in reviewing the legality of statewide set-aside programs for 
the Harbor Tunnel Project. 

The Chief of the Civil Rights Division spoke at the National Fair Housing Conference 
held in Columbus, Ohio in April of 1995. The Chief discussed the success of the 



106 



Attorney General's Office and the Massachusetts Bankers Association in addressing 
mortgage lending discrimination in Massachusetts. 

Members of the Civil Rights Division determined it appropriate for this office to join the 
amicus brief drafted by Oregon arguing against a Colorado constitutional amendment that 
prevents the state and local cities and towns in Colorado from prohibiting any form of 
discrimination against gays and lesbians, including discrimination in employment, 
housing and public accommodations. This office was the first state to join the amicus 
brief and worked actively to solicit support from other states as well. 

In the fall of 1994, the Chief of the Civil Rights Division was invited sit as a panelist at a 
conference co-sponsored by the Anti-Defamation League and the City Solicitor and Town 
Counsel Association entitled "Religion in the Public Sphere: 

The Challenge for School and Municipal Officials". As a panelist, the Chief was asked to 
focus on municipal responses to hate crimes and hate speech as well as to distinguish 
between First Amendment rights versus hate speech. 

DISABILITY RIGHTS INITIATIVES 

Fair Housing Rights 

In January 1995, on behalf of Massachusetts and twelve other state attorneys general, the 
Disability Rights Project filed an amicus brief in the U.S. Supreme Court to assert the 
states' interest in ensuring that local communities do not discriminate against community 
residences for individuals with disabilities. 

The case of City of Edmonds v. Oxford House resulted from enforcement of a zoning 
code which in effect prohibited community residences for individuals with disabilities. 
On May 15, 1995, the Supreme Court held that local zoning family composition rules 
may have a discriminatory effect in violation of the Federal Fair Housing Act. Edmonds 
was the first Supreme Court decision interpreting the FHA since the statute was amended 
to include individuals with disabilities as a protected category. 

Ensuring Access to Private Businesses 

On October 6, 1994 a comprehensive agreement between the Disability Rights Project 
and Stop & Shop Companies, Inc., was entered. Pursuant to the agreement, Stop & Shop 
implemented substantial physical renovations in all newly constructed stores and 
redesigned their architectural prototype for all their future Massachusetts supermarkets to 
ensure full compliance with state and federal disability access laws. The Project's 
agreement grew out of local advocates' complaints that some exterior features and certain 
interior elements of the newly constructed Maiden Stop & Shop did not comply with state 
and federal access codes. 

Under an agreement obtained by the Project, Spooky World, a Halloween theme park, 
reopened on September 30, 1994, featuring rebuilt and renovated facilities and 
amusements which afforded full and equal access for persons with disabilities. Prompted 
by consumer complaints that Spooky World was not fully accessible to persons with 



107 



disabilities, the Project in conjunction with the Massachusetts Office on Disability, 
conducted an in-depth site review of the facilities, which confirmed that many of the 
features did not afford full access. After reviewing the results of the site inspection with 
Spooky World management, they agreed to a rigorous work schedule which ensured that 
all of the necessary renovations would be completed in time for the park's 1994 season. 

The Project received a complaint from an advocate who raised concerns that some 
policies and physical aspects of the Wang Center for the Performing Arts did not fully 
comply with the state and federal disability requirements. Following a series of 
discussions and meetings, the Wang Center agreed to increase access to their theater by 
adding two accessible seats and two companion seats, located in the center of the theater 
to ensure that individuals who use wheelchairs can choose from the same range of seat 
locations as the general public. 

The Wang Center also agreed to install four seats with removable armrests during the 
current fiscal year and after an evaluation period, increase the number the following 
years. They have also modified their advance ticket purchase policy to ensure equal 
access for person seeking to purchase accessible seating. 

Beginning in March 1994, the Massachusetts Office on Disability ("MOD") began to 
work with the Royal Plaza Hotel and Trade Center in an attempt to help them voluntarily 
correct existing access violations throughout the facilities. After the issues were unable 
to be resolved, MOD contacted the Disability Rights Project for assistance. Despite an 
extensive joint effort by MOD and the Project to resolve the access violations informally, 
we were unable to achieve a satisfactory resolution. On March 16, 1995, the Project filed 
a complaint in Middlesex Superior Court against the Royal Plaza Hotel and Trade Center 
for violation of the Architectural Access Board regulations, the Americans with 
Disabilities Act access requirements and the Massachusetts General Law Chapter 93A. 
The complaint cited more than 80 violations of both the AAB and the ADA throughout 
the hotel and trade center facilities. 

The Disability Rights Project received a complaint from a veteran with a mobility 
impairment who had attended a hockey game at the Springfield Civic Center on Veteran's 
Day. He alleged that his seat was often blocked by patrons congregating in front of him, 
making it difficult to view major portions of the game. In a settlement agreement 
obtained by the Project, Centre Management and the City of Springfield agreed to install 
additional accessible seating which is dispersed throughout the arena. 

Higher Education Advisory 

In 1995, the Project learned that several local colleges and universities were making 
preadmission inquiries regarding physical and mental impairments on their applications 
for admission which in violation of Section 504 of the Rehabilitation Act. The Project 
issued an Advisory to all post- secondary educational facilities in Massachusetts to inform 
them of how to best comply with the law. 



108 



Transportation 

With regard to equal opportunity for individuals with disabilities to obtain access to 
public transportation, the Project obtained settlement agreements with four major 
transportation companies. Growing out of allegations that Red Cab Company was not 
picking up passenger with service animals, an agreement was reached between the Project 
and the Red Cab Company, which provided that the company would implement an 
employee education program which would inform all dispatch staff, drivers and all newly 
hired staff as to their legal obligation, as agents of a public accommodation, not to 
discriminate on the basis of a disability. 

In another agreement obtained by the Disability Rights Project, Bonanza Bus Company 
implemented an extensive training program for all of their employees to provide them 
with information concerning customers with disabilities. Peter Pan Trailways entered 
into an agreement with the Project whereby they agreed to reduce the advance reservation 
requirement from three days to 24 hours, and to institute a system for ensuring that 
reservations would not be lost or ignored. 

Municipal Access 

The Project has continued to make significant strides in ensuring access to municipal 
events and services. As a result of complaints received from citizens in the following 
municipalities: Canton, Chelsea, Easthampton, Essex, Provincetown, Southboro, 
Sturbridge, Templeton, Tisbury, Warren, Westport, and Woburn, the Project obtained 
agreements from each municipality ensuring that municipal meetings and programs are 
accessible. 

BIAS MOTIVATED AND OTHER CIVIL RIGHTS ACT CASES 

In fiscal year 1995, the Civil Rights Division continued to uphold its commitment to 
protecting the citizens of the Commonwealth by actively enforcing the Massachusetts 
Civil Rights Act. The provisions of the Massachusetts Civil Rights Act authorize the 
Attorney General to seek injunctive relief on behalf of individuals whose civil rights have 
been interfered with by threats, intimidation, or coercion. If an injunction is violated, 
perpetrators are subject to significant criminal penalties. 

The Division successfully obtained 7 injunctions against 18 defendants who had 
interfered with the rights of Massachusetts residents on the basis of race, sexual 
orientation, disability, and national origin. The Division also obtained a total of 12 Final 
Judgments against 37 defendants of which 8 permanently enjoined the defendants from 
further acts of bias-motivated violence. 

A dramatic example of the Division's effectiveness occurred when the Disability Rights 
Project, located within the Civil Rights Division, was contacted by a woman with a visual 
impairment. The woman, accompanied by her guide dog, complained that, at the end of 
her cab ride in Brookline, the cab driver reached into the back seat of the cab, pulled out 
the removable seat and verbally assaulted her by shouting anti-disability epithets. The 
defendant then allegedly threw the seat and injured the victim's guide dog. An 
investigation of the facts revealed that both the victim and the guide dog were 



109 



significantly traumatized by the incident. In fact, the guide dog was unable to work 
effectively as a result. 

Based upon this information, in August of 1994, the Project sought and obtained a 
preliminary injunction which prohibits the cab driver from harassing, threatening or 
intimidating the victim or other individuals with disabilities. 

In another significant case, in November of 1994, the Division obtained a permanent 
injunction against four men who beat and robbed a man who they perceived as being gay 
in West Barnstable. Three of the men met the victim at a restaurant and invited him to go 
out with them. After picking up a fifth man along the way, the men drove to a school at 
which time the victim was dragged from the car, beaten with a baseball bat and robbed as 
the men yelled anti-gay slurs and threatened to kill him. The police found the victim 
bleeding by the edge of the road. The Barnstable County Superior Court injunction 
prohibits the defendants from harassing, threatening or intimidating the victim or any 
other individual because of their actual or perceived sexual orientation. 

HOUSING DISCRIMINATION 

The Civil Rights Division has continued its vigorous enforcement of the 
Commonwealth's fair housing laws involving allegations of discrimination on the basis 
of familial status, race, gender, national origin, receipt of a housing subsidy, and 
retaliation for filing complaints with the Massachusetts Commission Against 
Discrimination. In fiscal year 1995, the Division filed 13 new complaints of housing 
discrimination in the Superior Court. Also in fiscal year 1995, seventeen cases were 
settled, in which broad injunctive relief was granted and over $95,000.00 was recovered 
in compensatory damages for the victims, including compensation for emotional distress, 
out-of-pocket damages, and the waiver of rental obligations. 

For example, in June of 1994, the Division intervened in ten separate housing 
discrimination suits pending before the Massachusetts Commission Against 
Discrimination. These cases involved ten separate real estate agents in the Brookline and 
Newton area who allegedly engaged in a practice of steering tenants with young children 
away from rental units with lead-based paint, thereby shielding landlords from the 
statutory obligation to delead rental units occupied by families with children under six 
years of age. Between February 1, 1995, and May 1, 1995, the Division resolved eight of 
these cases by obtaining Consent Judgments in which over $26,000.00 was recovered in 
compensatory damages, with comprehensive injunctive relief obtained by the 
Commonwealth. 

In the case of Commonwealth v. Desilets, the Commonwealth alleged that the defendants 
had discriminated against an unmarried couple by refusing to rent an apartment to them 
based upon their marital status. The Superior Court judgment exempted the defendants 
from compliance with the fair housing laws, based upon defendants' claim that their 
religious convictions prevented them from renting to the couple. 

The Attorney General's Office filed an appeal to overturn the Superior Court's ruling, 
arguing that the defendants' voluntary entry into the business of owning and renting 



110 



residential property subjected them to the fair housing law, and that the defendants' 
practice of religion was not burdened by the application of those laws. 

In July of 1994, the Supreme Judicial Court ruled on the case, holding that the 
Commonwealth must show a compelling interest in eliminating housing discrimination 
against cohabiting couples that is strong enough to justify the burden placed on the 
defendants' exercise of their religion. 

The Court remanded the case to the Franklin Superior Court for a trial on that issue. The 
Attorney General determined that considerable investigative time was needed to adduce 
evidence to show the state's compelling interest in eradicating this form of 
discrimination. Therefore, the Attorney General elected to dismiss the case without 
prejudice, rather than attempt to make a showing prematurely. 

An Appeals Court decision, Commonwealth v. Robert and Florence Dowd, related to a 
case in which the trial court had awarded substantial attorneys' fees to the Attorney 
General, after he prevailed in a claim of housing discrimination based on marital status. 
The decision was appealed by the defendant landlord. In August of 1994, the Appeals 
Court ruled that because of limiting language in the statute, the Attorney General may not 
receive an award of attorneys' fees under General Law c. 151B. As a result, the Division 
has filed legislation to amend G.L. c. 15 IB to permit the Attorney General to obtain 
attorney fees in housing discrimination cases. 

EMPLOYMENT DISCRIMINATION 

In July 1994, the Division moved to intervene in cases filed before the Massachusetts 
Commission Against Discrimination (MCAD), alleging that Bull HN Information System 
had discriminated against numerous former employees on the basis of their age, in 
violation of the state anti-discrimination act. In February 1995, the Commission granted 
the Commonwealth's motion to withdraw from these individual cases and to file a 
separate complaint on behalf of the Commonwealth, which alleges that Bull HN engaged 
in a pattern of age discrimination in employee layoffs conducted since 1990. It is alleged 
that Bull HN has terminated older employees or forced them into early retirement while 
retaining and hiring younger employees. 

MORTGAGE LENDING DISCRIMINATION 

Since November 1992, Attorney General Harshbarger's Civil Rights Division has been 
involved in a comprehensive attack on fair lending barriers in the home mortgage lending 
industry in Massachusetts. 

In March 1994, in what may serve as a model for fair lending practices, the Attorney 
General and the Massachusetts Bankers Association and 27 banks and mortgage 
companies entered into an unprecedented and far reaching agreement to effect systemic 
reform of the mortgage lending industry in Massachusetts. 

The three year agreement stems from an investigation conducted by the Attorney 
General's Office which was prompted in large part by a 1992 study conducted by the 
Federal Reserve Bank. That study found that black and hispanic applicants were denied 



111 



mortgages at a rate 60 percent higher than whites with similar financial circumstances and 
credit histories. 

On May 25, 1995 the MBA and Attorney General issued a joint progress report on the 
implementation of their fair lending agreement. Since the signing of the agreement in 
March 1994, the MBA has established seven task forces which have identified consumer 
needs, developed action plans, and taken significant steps to begin to remedy fair lending 
and access barriers identified by the agreement. Areas of accomplishment include: over 
1 ,300 Massachusetts bankers attended a variety of educational conferences focused on 
fair lending; recruitment and training of minority loan specialists which has led to the 
hiring of 100 students by participating lenders; consumer education programs in eight 
urban areas have been held and materials are being published in eight foreign languages; 
an industry seminar, attended by over 50 lenders, was held in order to ensure 
compensation plays no discriminatory role in mortgage lending; methods for reviewing 
and amending adverse loan decisions were put forth in a conference attended by 130 
bankers and in a "best practices" guide, including second reviews of previously declined 
applications; and in January 1995, over 125 bankers and officials participated in a forum 
promoting the use of self-testing. 

In another component of the agreement, a three-member Mortgage Review Panel 
consisting of banking experts, completed its review of certain minority applications from 
24 separate institutions which the Federal Reserve identified in its 1992 study as 
potentially having been denied on an inappropriate basis. Of the 99 applications 
examined, the Panel awarded five applicants a remedy of $15,000.00 each. 

POLICE RELATED MATTERS 

In a cooperative effort to assist the police, provide departments with technical assistance 
and reduce their exposure to civil liability, the Civil Rights Division continues to provide 
an extensive amount of civil rights training to municipal and state police departments 
throughout the Commonwealth. Subjects of these trainings have included the 
investigation and prosecution of hate crimes, federal and state civil rights laws, civil 
liability, sexual and racial harassment in the workplace, and the obligation of police 
departments under the newly enacted Americans with Disabilities Act. The Division has 
led or participated in many training sessions throughout Massachusetts including the 
Canton and Worcester Police Academies which includes Worcester, Middlesex, Bristol, 
Plymouth, Barnstable, and Norfolk County police recruits, newly appointed sergeants of 
the Boston Police Department, the Fall River Police Department and the Provincetown 
Police Department, with representatives from a number of other Cape Cod departments 
also in attendance. 

Also, in response to the shootings that occurred earlier this year at Brookline health 
clinics that provide abortion services, the Division played an integral part in coordinating 
efforts to organize and prepare the curriculum and training materials for a statewide 
training of police, held on March 23, 1995. 



112 



OTHER SIGNIFICANT DIVISION INITIATIVES 

The Civil Rights Division chairs a Boston Law Enforcement Civil Rights Task Force 
which, since November 1992, coordinates the resources of local, state, and federal 
agencies to address proactively civil rights issues arising in Boston. The Task Force has 
addressed civil rights harassment in South Boston and responded in a coordinated fashion 
to reported racial incidents in Charlestown housing projects. The Task Force has also 
met to develop strategies to apply civil rights laws to gang-related issues within the 
Boston Housing Authority projects. The Task Force has assisted the BHA in developing 
new internal mechanisms to ensure that residents' civil rights are effectively handled by 
the BHA, with appropriate cases referred to outside agencies. 

Since August of 1994, the Task Force has also met with Boston School Department and 
State Department of Education officials in order to develop model civil rights complaint 
procedures and to develop coordination and cooperation among the Boston School 
Department and other civil rights and law enforcement agencies. The Task Force has 
developed model training and education programs for students, faculty and administration 
to ensure the identification and proper handling of violations of student rights and the 
protection of students from being victims of civil rights violations, including hate crimes, 
discrimination and religious, racial and sexual harassment. In 1995, the Division trained 
Boston School safety officers, school service coordinators, and Administration - Teachers 
- Parent School Site Councils. 

Through the efforts of the Civil Rights Division, the Massachusetts Bar Association 
(MBA) will be co-sponsoring a program with the Boston School Department to teach 
sexual harassment and bias crimes in every eighth grade class throughout the Boston 
Public School System. MBA lawyers will "teach-team" with eight grade social studies 
teachers. A curriculum is presently being finalized. 

The Chief of the Division participated as an active member of the Supreme Judicial Court 
Commission on Race and Ethnic Bias in the Courts, including involvement in public 
hearings and participation in the drafting and editing of the final report which was issued 
in September of 1994. As a result of the Commission's findings, the Division has taken a 
leadership role in developing an office-wide Task Force to address cultural and linguistic 
barriers in the courts. The Task Force's mandate is to define the Attorney General's role 
in addressing barriers to equal justice and to develop action plans. The Task Force's four 
subcommittees include Education and Training, Sentencing, Jury and Jury Pools and 
Cultural and Linguistic Barriers to the Justice System. The Division has also been an 
active leader in three separate bar association task forces whose mandate is to assist in the 
implementation of the recommendations of the Supreme Judicial Court Commission. 

In January of 1994, the Interagency Law Enforcement Hate Crime Task Force was formed 
in order to identify organized hate groups and coordinate federal and state law 
enforcement efforts in order to prosecute hate crimes at both the state and federal level. 
The Task Force includes members of the U.S. Attorney's Office, District Attorneys' 
offices, local and state police, the Federal Bureau of Investigation and is chaired by the 
Chief of the Civil Rights Division. The Task Force released its second issue of "A Law 
Enforcement Resource Manual" in March of 1995, which provides law enforcement 



113 



officials with access to state- wide intelligence on hate crimes in Massachusetts, 
particularly crimes committed by members or associates of organized hate groups. 

The Chief of the Civil Rights Division co-organized the first National Association of 
Attorneys General (NAAG) Civil Rights Conference held in Boston in September of 
1994 and the second national NAAG conference held in Tucson, Arizona in May of 1995, 
with significant participation from the Department of Justice's Civil Rights Division. 

The Division Chief initiated and led efforts by NAAG to negotiate and enter into a 
historic agreement with the United States Department of Justice (DOJ), executed in April 
1995, in which the DOJ and state Attorneys General will coordinate efforts on affirmative 
civil rights enforcement in this country in the future. The Division Chief remains co- 
chair of an on-going NAAG implementation Task Force. 

The Civil Rights Division has worked with the leadership of the Fall River Housing 
Authority to develop a comprehensive program of civil rights training of its entire staff 
and to assist them in developing procedures to identify and respond to civil rights 
violations of tenants. On June 9, 1995, the Division sponsored a civil rights training of 
the entire staff of the Fall River Housing Authority. 

The Boston Housing Authority also requested that the Civil Rights Division train its staff 
so that they could better learn to identify potential bias incidents or bias crimes, acts of 
discrimination or harassment. Training of all BHA managerial staff is scheduled for 
August 1995. 

The Chief of the Civil Rights Division addressed at a national conference sponsored by 
the John Marshall Law School, held in Chicago in September 1994 and a National Fair 
Housing Conference held in Columbus, Ohio in April of 1995. At the conferences, the 
Chief discussed the Attorney General's Office and the Massachusetts Bankers 
Association agreement as a potential model for successfully addressing mortgage lending 
discrimination throughout the country. Subsequently a law review's article by the Chief 
was published by the John Marshall Law Review in the winter of 1995 titled "The 
Attorney General's Comprehensive Program to Reform the Mortgage Lending Industry in 
Massachusetts." 

The Attorney General joined the amicus brief drafted by the state of Oregon and filed in 
the U.S. Supreme Court which argued against a Colorado constitutional amendment that 
prevents the state and local cities and towns in Colorado from prohibiting any form of 
discrimination against gays and lesbians, including discrimination in employment, 
housing and public accommodations. The Division provided assistance to Oregon in 
developing the legal arguments in the brief. This office was the first state to join the 
amicus brief and worked actively to solicit support from other states as well. 

In the fall of 1994, the Chief of the Civil Rights Division served as a panelist at a 
conference co-sponsored by the Anti-Defamation League and the City Solicitor and Town 
Counsel Association entitled "Religion in the Public Sphere: The Challenge for School 
and Municipal Officials". As a panelist, the Chief was asked to focus on municipal 
responses to hate crimes and hate speech as well as to distinguish between First 
Amendment rights versus hate speech. 



114 



LEGISLATION 

The Civil Rights Division helped to draft and supported legislation to provide Attorney 
General authority to seek civil injunctions against unlicensed health or mental health care 
providers who have engaged in sexual misconduct. See G.L. c. 12 1 1L (effective April 
13, 1995). 

Since 1992, the Attorney General has supported a bill to amend G.L. c. 265 39, a 
criminal civil rights law, to include sexual orientation and disability as protected 
categories. The bill also seeks to increase penalties under the statute, with victims able to 
recover three times the property damages caused by the perpetrator. Currently, the bill is 
pending in the Senate in September 1995. It has already passed the House. 

DISABILITY RIGHTS INITIATIVES 

Fair Housing Rights 

In January 1995, on behalf of Massachusetts and twelve other state attorneys general, the 
Disability Rights Project filed an amicus brief in the U.S. Supreme Court to assert the 
states' interest in ensuring that local communities do not discriminate against community 
residences for individuals with disabilities. 

The case of City of Edmonds v. Oxford House resulted from enforcement of a zoning 
code which in effect prohibited community residences for individuals with disabilities. 
On May 15, 1995, the Supreme Court held that local zoning family composition rules 
may have a discriminatory effect in violation of the Federal Fair Housing Act. Edmonds 
was the first Supreme Court decision interpreting the Fair Housing Act since the statute 
was amended to include individuals with disabilities as a protected category. 

Ensuring Access to Private Businesses 

On October 6, 1994, a comprehensive agreement between the Disability Rights Project 
and Stop & Shop Companies, Inc., was entered. Pursuant to the agreement, Stop & Shop 
implemented substantial physical renovations in all newly constructed stores and 
redesigned their architectural prototype for all their future Massachusetts supermarkets to 
ensure full compliance with state and federal disability access laws. The Project's 
agreement grew out of local advocates' complaints that some exterior features and certain 
interior elements of the newly constructed Maiden Stop & Shop did not comply with state 
and federal access codes. 

Under an agreement obtained by the Project, Spooky World, a Halloween theme park, 
reopened on September 30, 1994, featuring rebuilt and renovated facilities and 
amusements which afforded full and equal access for persons with disabilities. Prompted 
by consumer complaints that Spooky World was not fully accessible to persons with 
disabilities, the Project, in conjunction with the Massachusetts Office on Disability, 
conducted an in-depth site review of the facilities, which confirmed that many of the 
features did not afford full access. After reviewing the results of the site inspection with 
Spooky World management, they agreed to a rigorous work schedule which ensured that 
all of the necessary renovations would be completed in time for the park's 1994 season. 



115 



The Project received a complaint from an advocate who raised concerns that some 
policies and physical aspects of the Wang Center for the Performing Arts did not fully 
comply with the state and federal disability requirements. Following a series of 
discussions and meetings, the Wang Center agreed to increase access to their theater by 
adding (two accessible) seats (and two companion seats), located in the center of the 
theater to ensure that individuals who use wheelchairs can choose from the same range of 
seat locations as the general public. 

The Wang Center also agreed to install four seats with removable armrests during the 
current fiscal year and after an evaluation period, increase the number the following 
years. They have also modified their advance ticket purchase policy to ensure equal 
access for person seeking to purchase accessible seating. 

Beginning in March 1994, the Massachusetts Office on Disability ("MOD") began to 
work with the Royal Plaza Hotel and Trade Center in an attempt to help them voluntarily 
correct existing access violations throughout the facilities. After the issues were unable 
to be resolved, MOD contacted the Disability Rights Project for assistance. Despite an 
extensive joint effort by MOD and the Project to resolve the access violations informally, 
we were unable to achieve a satisfactory resolution. On March 16, 1995, the Project filed 
a complaint in Middlesex Superior Court against the Royal Plaza Hotel and Trade Center 
for violation of the Architectural Access Board regulations, the Americans with 
Disabilities Act access requirements and the Massachusetts General Law Chapter 93A. 
The complaint cited more than 80 violations of both the AAB and the ADA throughout 
the hotel and trade center facilities. 

The Disability Rights Project received a complaint from a veteran with a mobility 
impairment who had attended a hockey game at the Springfield Civic Center on Veteran's 
Day. He alleged that his seat was often blocked by patrons congregating in front of him, 
making it difficult to view major portions of the game. In a settlement agreement 
obtained by the Project, Centre Management and the City of Springfield agreed to install 
additional accessible seating which is dispersed throughout the arena. 

Higher Education Advisory 

In 1995, the Project learned that several local colleges and universities were making 
preadmission inquiries regarding physical and mental impairments on their applications 
for admission which in violation of Section 504 of the Rehabilitation Act. The Project 
issued an Advisory to all post-secondary educational facilities in Massachusetts to inform 
them of how to best comply with the law. 

Transportation 

With regard to equal opportunity for individuals with disabilities to obtain access to 
public transportation, the Project obtained settlement agreements with four major 
transportation companies. Growing out of allegations that Red Cab Company was not 
picking up passenger with service animals, an agreement was reached between the Project 
and the Red Cab Company, which provided that the company would implement an 
employee education program which would inform all dispatch staff, drivers and all newly 



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hired staff as to their legal obligation, as agents of a public accommodation, not to 
discriminate on the basis of a disability. 

In another agreement obtained by the Disability Rights Project, 

Bonanza Bus Company implemented an extensive training program for all of their 
employees to provide them with information 

concerning customers with disabilities. Peter Pan Trailways entered into an agreement 
with the Project whereby they agreed to reduce the advance reservation requirement from 
three days to 24 hours, and to institute a system for ensuring that reservations would not 
be lost or ignored. 

Municipal Access 

The Project has continued to make significant strides in ensuring access to municipal 
events and services. As a result of complaints received from citizens in the following 
municipalities: Canton, Chelsea, Easthampton, Essex, Provincetown, Southboro, 
Sturbridge, Templeton, Tisbury, Warren, Westport, and Woburn, the Project obtained 
agreements from each municipality ensuring that municipal meetings and programs are 
accessible. 



CONSUMER PROTECTION AND ANTITRUST DIVISION 

The Consumer Protection and Antitrust Division enforces Massachusetts General Law 
chapters 93 and 93A as well as other state and federal consumer protection and antitrust 
statutes. The Division's case load primarily consists of actions affecting large numbers of 
vulnerable consumers who have been harmed by illegal activities, particularly fraud. 
Additionally, the Division seeks to protect and promote competition so that consumers 
are offered goods and services of higher quality at lower prices. Other efforts include 
regulatory and legislative activities, participating in consumer outreach, and mediating 
individual complaints through the Consumer Complaint Section and the Local Consumer 
Programs. 

In fiscal year 1995, the Division obtained judgments or entered into settlements for the 
following amounts: 

MONEY RECOVERED 

CIVIL PENALTIES/ATTORNEYS' FEES/COSTS $2,264,923 
CONSUMER RESTITUTION $2,546,999 

LOCAL CONSUMER AID FUND $ 512,202 

COMPLAINT SECTION TOTALS: (TO BE PROVIDED BY CCIS) 



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OTHER: 

Blue Cross Blue Shield $750,000 in subsidies 

$3.25 million in 
community benefits 
Directory Publishing $ 15,000 to homeless 

organization 
Rent-A-Center $ 85,000 in products to 

charities 
Horizon Healthcare $ 30,000 for educational 

program 

Jordan Marsh $ 7,500 to homeless shelter 

Reebok $ 1 85 ,000 to public or 

charitable organizations for 

athletic equip, or facilities 
Brooks 125 hours of community service 

ADOPTION SERVICES 

Comm. v. The Adoption Center, Inc. and Judith Bailey 

On February 28, 1995, an action was filed against a Cambridge adoption placement 
agency and its executive director, Judith Bailey, alleging violations of Chapter 93 A in 
connection with the provision of adoption services, and violations of the laws governing 
public charities. The complaint alleged that the Adoption Center had withheld material 
information about the mental and physical health history of adopted children, and had 
otherwise violation regulations governing adoptions; and that the Bailey had paid herself 
an excessive salary and grossly misused charitable funds for personal purposes. 

Comm. v. Cambridge Adoption and Counseling Associates 

On April 26 th , 1995, an action was filed against CACA, and its director Madeline 
Daniels. The case alleges a variety of unfair and deceptive acts such as: misrepresenting 
fees; misrepresenting services; failing to provide services; negligent referral to 
incompetent agents; and withholding final approval of adoptions to collect disputed fees. 

ANTITRUST 

Multistate Insurance Antitrust Litigation 

In October, 1994, the Division entered into a $36 million multistate settlement with 32 
foreign and domestic insurers, reinsurers, brokers and trade organizations. The 
Commonwealth and 19 other states sued the defendants for alleged antitrust violations, 
including engaging in an illegal boycott to remove certain forms of commercial general 



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liability ("CGL") insurance from the market. CGL insurance covers third party property 
and personal injury claims. 

The bulk of the settlement money, $26.2 million, will be used to create a national public 
risk database and to create a risk service institute for public entities. The Commonwealth, 
as one of the lead states in litigating the case, received approximately $675,000 in 
attorneys fees and costs. In the Matter of Baycare Health Partners, Inc. 

On October 20, 1994, the Division filed an Assurance of Discontinuance that resolved 
antitrust issues regarding contract provisions for a proposed physician-hospital 
organization (PHO) in Springfield. The terms of the settlement required the elimination 
of certain contract language and notification to the Attorney General when Baycare 
Health Partners, Inc. intends to modify the structure of the governance board. The parties 
also agreed to pay $2,500 in attorneys' fees and costs to the Commonwealth of 
Massachusetts. 

American Trucking Associations, Inc. 

On November 21, 1994, the Division entered into an agreement with American Trucking 
Associations, Inc. after confronting it with allegations of monopolization of the national 
market for commodities classification services. The agreement requires the ATA to cease 
any efforts to exclude its sole potential competitor in the market described above, and 
institute and maintain a substantial, internal antitrust compliance program. In the Matter 
of Harvard Community Health Plan, Inc. and Pilgrim Health Care, Inc. 

On January 18, 1995, the Division filed an assurance of discontinuance that resolves 
antitrust issues regarding the proposed merger between HCHP and Pilgrim. The terms of 
the settlement required HCHP and Pilgrim to provide $3.25 million in community 
benefits expenditures; provide a $750,000 dues subsidy program to help pay health care 
costs for members who lose their jobs; freeze non-group and small group rates; and 
increase the number of new elderly members in its Medicare risk program. In addition, 
the agreement gives the Attorney General new prior approval rights and new prior notice 
rights over certain contracting and acquisition practices. 

Reebok Multistate Resale Price Maintenance Case 

On May 4, 1995, the Division entered into a nationwide $9.5 million settlement with 
Reebok International Ltd., the manufacturer and distributor of Reebok and Rockport 
footwear. The states alleged that Reebok and Rockport obtained agreements with certain 
retailers to fix prices and coerced other retailers to adhere to the terms of a pricing policy 
in violation of state and federal antitrust laws. 

Pursuant to the settlement agreement, the Commonwealth will receive approximately 
$185,000 to be used for the provision or improvement of athletic facilities, equipment or 
services used by public or non-profit groups. Reebok is also required to pay $2,000 in 
attorneys fees and costs. 

State of Colorado, et al. v. Airline Tariff Publishing Company, et al. 



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On May 10, 1995, the Division entered into a multistate settlement with 8 major airlines 
and their majority -owned commuter carriers for alleged price fixing in the sale of airline 
tickets to government entities. As part of the settlement, Massachusetts governmental 
entities will receive a 10% discount on fares. Additionally, the Commonwealth received 
$100,000 in costs for its role as a member of the 10 state group that investigated the case 
and negotiated the setdement. 

In the Matter of Blue Cross Blue Shield of Massachusetts 

On June 29, 1995, the Division entered into an assurance of discontinuance based on 
allegations that Blue Cross Blue Shield and Berkshire Medical Center entered into an 
agreement to boycott or solicited a boycott of Hillcrest Hospital and/or Harvard 
Community Health Plan. 

In the assurance, Blue Cross agreed to enter into a contract with Hillcrest Hospital for its 
HMO Blue product, and agreed to refrain from anti-competitive exclusive agreements. 
The assurance also provides for Blue Cross Blue Shield to pay $175,000 to the Local 
Consumer Aid Fund and $25,000 in attorneys fees. 

ADVERTISING 

Sara Lee Settlement 

On August 4, 1994, the Division joined with the Attorneys General in 12 states in a 
setdement with the Chicago-based Sara Lee Corporation, Hillshire Farms & Kahn's 
division. As part of the setdement, Sara Lee agreed to: discontinue allegedly deceptive 
advertising for certain products; and pay $10,000 in costs to each of the 13 states that 
conducted the investigation. 

AUTOMOBILE 

Comm. v. Auto Superman 

On July 1, 1994, the Division entered into a consent judgment with Auto Supermart, a 
used car dealership, to address alleged violations of a previously entered consent 
judgment between the office, Auto Supermart and its owner Joseph Sacchetti. The earlier 
consent judgment precluded the defendants from disclaiming warranties, failing to 
provide written warranties where required to do so, failing to disclose material defects 
affecting automobiles, and failing to perform promised repairs in a timely and 
professional manner. 

The 1994 consent judgment requires Auto Supermart to provide $8,913.85 in restitution 
to six Massachusetts consumers and to pay $10,000 to the Attorney General's Local 
Consumer Aid Fund. Comm. v. Sunshine Daily Rentals, et al. 

On July 6, 1994 the Division filed suit alleging the defendants had violated a preliminary 
injunction entered in the case. The case, originally filed in November, 1993 alleged that 
the defendants violated numerous consumer protection regulations by misrepresenting the 
daily rental rate of rental motor vehicles; imposing undisclosed additional charges for 



120 



rental motor vehicles; charging consumers for nonexistent damage to rental motor 
vehicles; making inappropriate charges to consumers' credit cards; misrepresenting the 
condition of motor vehicles for lease and sale; and engaging in as variety of additional 
unfair and deceptive business practices. 

The contempt action was settled with the filing of a consent judgment on November 11, 
1994. The consent judgment requires the defendants to pay $728.72 in restitution, a civil 
penalty of $3,100 and costs of $400. 

The underlying action was settled on April 11, 1995 with filing of a consent judgment. 
The consent judgment requires the defendant to pay $45,000 in restitution and $100,000 
in civil penalties. It also enjoined the defendants from committing the alleged violations 
outlined above. 

Comm. v. Lee Import Cars 

On July 12, 1994, the Division entered into an assurance of discontinuance with Lee 
Import Cars, Inc. The defendants allegedly engaged in unfair and deceptive advertising 
and sales practices in operating its Roll Leasing Program. 

The assurance requires the defendant to pay $21,000 in restitution to consumers and 
$25,000 to the Local Consumer Aid Fund. It also permanently prohibits the unfair and 
deceptive advertising and sales practices alleged against Lee. 

Comm. v. M.J.C. Enterprises, Inc. d/b/a Grand Prix Auto Sales, 

and Mark Colangelo 

On August 3, 1994, the Division entered into a consent judgment with M.J.C. Enterprises, 
Inc. d/b/a Grand Prix Auto Sales, and its owner Mark Colangelo. The judgment 
permanently enjoins Colangelo from owning, operating, or working for a new or used car 
dealership. The judgment requires the defendant to pay $20,000 in restitution and 
$10,000 in civil penalties. The Commonwealth alleged that the defendants used unfair 
and deceptive acts and practices in the sale and repair of used motor vehicles. 

Comm. v. Main Street Auto Sales 

In September, 1994, the Division filed a complaint against John Russell, owner of Main 
Street Auto Sales. Russell sold an automobile to a consumer in June, 1993. When the 
vehicle turned out to be a "lemon" and the dealer could not repair it, a state-appointed 
arbitrator ordered the defendant to repurchase the vehicle for $2,892. The defendant 
allegedly did not comply with the arbitrator's decision. The complaint seeks injunctive 
relief restitution for the aggrieved consumer as well as civil penalties. 

Comm. v. BHPH Leasing Co. d/b/a Harrison Motors 

On December 12, 1994, the Division entered into a consent judgment with BHPH 
Leasing Co. d/b/a Harrison Motors requiring the payment of $7,000 in consumer 
restitution, civil penalties of $15,000 and costs of $2,000. The Commonwealth alleged 



121 



that the defendants led consumers to believe they were buying cars, when, in fact, they 
were leasing the cars. 

Comm. v. Robert Spigel d/b/a/ Car Palace 

On January 26, 1995, the Commonwealth entered into a consent judgment banning 
Robert Spigel from selling automobiles in Massachusetts for three years. The judgment 
also requires Spigel to pay $6,934 in consumer restitution and $1,000 in civil penalties. 
The Commonwealth alleged Spigel misrepresented to consumers the repair history of 
automobiles, failed to disclose to consumers the status of automobiles as salvaged 
vehicles and failed to make a number of required disclosures in the purchase and sale 
agreements used by the dealership. 

Comm. v. Palmer Automotive Center 

On February 15, 1995, the Division filed a consent judgment with Palmer Automotive 
Center, Inc. and its principal, Mark Palmer, requiring the payment of $10,000 in 
restitution and civil penalties. The Commonwealth alleged that Palmer failed to perform 
promised repairs, failed to disclose that vehicles were salvaged or rebuilt and failed to 
honor warranties. 

Used Car Lemon Law Cases 

Comm. v. Fred Higgins d/b/a Waltham Auto Village 

In August 1994, the Division filed a consent judgment with Fred Higgins, owner of 
Waltham Auto Village. Higgins allegedly failed to abide by the decision of an arbitrator 
as part of a Used Car Lemon Law arbitration procedure. The judgment requires Higgins 
to repurchase a consumer's car for $1,296 and permanently enjoins him from failing to 
comply with the Used Car Lemon Law in the future. 

Comm. v. Professional Auto Sales 

In September, 1994 the Division obtained a default judgment against Bernard Joseph and 
Lyonel Manigat d/b/a Professional Auto Sales. The defendants allegedly failed to comply 
with the arbitrator's award in a Used Car Lemon Law arbitration. The judgment enjoins 
the defendants from violating the used car lemon law in the future and requires them to 
pay $6,632.93 in restitution and $927.98 in penalties and costs. 

Comm. v. Noelle Simpson d/b/a Boston Auto Auction 

On November 14, 1994, the Division filed a complaint in Suffolk Superior Court to 
enforce a used car lemon law arbitration award against Noelle Simpson d/b/a Boston 
Auto Auction. The defendant did not respond to the complaint, and a default judgment 
was requested, and on January 20, 1995, granted in the amount of $4,758.58. On March 
27, 1995, the Court issued a Writ of Execution against the defendant in the amount of 
$4,815.33. 



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Comm. v. Scott Pare d/b/a Top Line Motors 

In November, 1994, a default judgment was entered enjoining Scott Pare from violating 
the lemon law and not complying with a previously awarded lemon law arbitrator award. 
The judgment requires Pare to pay $5476.45 in consumer restitution, $500 in civil 
penalties and $219.06 in costs. 

Automobile Advertising Cases 

This series of cases is part of the Division's continuing effort to carry out the Attorney 
General's mandate to clean up automobile advertising. Each case was brought for 
violations of the Attorney General's auto ad regulations that appeared on the face of the 
newspaper ads. Typically, such violations included things such as: the improper use of 
invoice pricing, failure to designate cars as used or to disclose the type of use (i.e. former 
daily rental, former leased car, demonstrator); advertising a price which required that the 
buyer have a special coupon not available to all consumers, or a price which had already 
been reduced by a substantial down payment. 

Each of the cases was resolved by a consent judgment which includes a monetary penalty 
or contribution, and an injunction against further violations. 

Comm. v. Norwood Dodge Sales - civil penalty - $5000 

Comm. v. MZR, Inc. d/b/a President Subaru - civil penalty - 

$5000 

Comm. v. 128 Sales - civil penalty - $41,000 

Comm. v. Daniel J. Quirk, Inc., et al. - $2500 to SCORE and 

$2500 in costs. 

Comm. v. Expressway Motors - civil penalty - $2500 

Comm. v. Boston Mazda/Boston Volkswagen - civil penalty - $5000 
Comm. v. Howard Chevrolet - civil penalty - $2500 
Comm. v. Clair Buick/Clair Toyota - civil penalty - $5000 
Comm. v. North Shore Auto Brokers - civil penalty - $5000 
Comm. v. Herb Chambers - $2500 to SCORE and $2500 in civil 
penalties. 

Comm v. Boch - civil penalty - $2500 

Comm. v. Sentry Ford/Lincoln Mercury - civil penalty - $2500 Comm. v. Showcase 
Isuzu, Inc. and Showcase Nissan Suzuki, Inc. 

• civil penalty - $2500 



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Comm. v. Muzi Motors - civil penalty $4000 

Comm. v. Foreign Auto Import Inc. and Post Motors, Inc. - civil 

penalty - $5000 

Comm. v. Natick Ford - civil penalty - $2500 

Comm. v. Central Dodge - costs - $2500 



DEBT COLLECTION 

Comm. v. Norman Leavitt d/b/a Leavitt Shop At Home 

On November 11, 1994, the Division obtained a consent judgment against Norman 
Leavitt, a door to door salesman of furniture and appliances in the Roxbury, Mattapan 
and Dorchester areas of Boston. The defendant allegedly engaged in threatening and 
harassing debt collection practices and imposed an annual percentage rate in excess of the 
21 percent limit. Under the terms of the judgment, the defendant is required to reduce the 
annual percentage rate to 10 percent for all of his customers; provide credits for finance 
charges in excess of 10 percent; cancel the contracts with customers who complained to 
this office and provide refunds to these customers equal to twice the amount they were 
overcharged; pay a penalty of $5,000 and be enjoined from violating Massachusetts 
consumer protection laws. In the Matter of Citicorp Credit Services, Inc. 

On March 20, 1995, the Division filed an assurance of discontinuance entered with 
Citicorp Credit Services, Inc. to resolve debt collection complaints received by the Office. 
Pursuant to the assurance, Citicorp is required to offer a new consumer complaint 
resolution program to more that 100 consumers who had previously filed complaints 
against Citicorp. The assurance also required Citicorp to pay $90,000 to the Local 
Consumer Aid Fund and $25,000 to the office for investigative costs. 

Comm. v. Debt Locators & Liquidators, Inc. 

On April 1 1 , 1995, the Division obtained a consent judgment against Debt Locators & 
Liquidators, Inc., a Texas debt collection agency which, the Commonwealth alleged was 
attempting to collect debts in Massachusetts without a proper license or bond. The 
defendant is required to pay $3,000 as a civil penalty and is permanently enjoined from 
collecting or attempting to collect any debt from a Massachusetts resident without 
obtaining the required bond and a proper license from the Massachusetts Commissioner 
of Banks. 

American Student Assistance Corporation 

In April, 1995, the Division entered into a letter agreement with American Student 
Assistance Corporation ("ASA") whereby ASA agreed to implement a new consumer 
complaint resolution process. Under the new resolution process, ASA agreed to respond 
to complaints received by the Consumer Complaint and Information Section. 

In the Matter of Chase Manhattan, U.S.A. 



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On June 13, 1995, the Division filed an assurance of discontinuance entered with Chase 
Manhattan, U.S.A. The assurance provides for complaints that are not resolved through 
our normal mediation process to be resolved with the aid of an impartial arbitrator. The 
assurance also prohibits Chase from using unfair debt collection practices in the 
collection of credit card debts and provides for the payment of $1 10,000 to the Local 
Consumer Aid Fund. 

FINANCIAL 

Comm. v. Senior Financial Services, et al. 

On November 18, 1994, the Division obtained a final judgment by default against Senior 
Financial Services, its principal, John Ben Merchant and his associate Richard Anthony. 
The defendants allegedly made misrepresentations to consumers about the benefits of 
living trusts as well about the fact that the American Association of Retired Persons 
(AARP) would pay for a portion of the cost of the living trust. 

The judgment requires the defendants to pay over $82,000 in restitution to Massachusetts 
consumers and civil penalties of $63,000. 

Comm. v. Management Advisory Group, et al. 

On January 5, 1995, the Division obtained a consent judgment against Management 
Advisory Group and its owners, Charles A. Caffarella, Jr., Beverly Whiteway Caffarella 
and James W. Caffarella requiring them to pay $301,942.86 in restitution to affected 
customers. Additionally, the defendants were required to pay $2,500 in costs to the 
Commonwealth, and were permanently barred from engaging in any venture capital 
financing business in the future. 

Comm. v. National Financial Corp. 

On March 2, 1995, a final judgment was entered against the principals in an advance fee 
loan scam. The judgment orders certain defendants to pay $212,385.80 to the 
Commonwealth as restitution, and $100,000.00 as civil penalties. The judgment further 
permanently bars these defendants from accepting payment of fees for the defendants' 
services as loan brokers, soliciting payment of fees for the procurement of loans, and 
entering into any contracts as loan brokers. 

Comm. v. CDM Mortgage Services, Inc. 

On May 26, 1995, the Division entered into an assurance of discontinuance with CDM 
Mortgage Services, Inc. and its president, Thomas D. Blouin. CDM Mortgage Services, 
Inc. and Mr. Blouin allegedly failed to obtain a license to engage in mortgage brokering 
or mortgage lending in the Commonwealth. In addition, the defendants allegedly 
misrepresented or failed to adequately disclose important loan terms. 

The assurance enjoins the defendants from engaging in the business of mortgage 
brokering or mortgage lending in the Commonwealth of Massachusetts, with respect to 
residential property, without first obtaining a license from the Commissioner of Banks. 
The defendants were also required to pay a $2,000 penalty. 



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GENERAL 

Comm. v. Joseph Kessler et al. (JK Liquidators) 

On June 21, 1995, the Division entered into an agreement with four parties affiliated with 
the now-defunct Boston Scandals chain - Joseph Kessler, president; Nancy Dube, 
manager; 

Irma Gross, secured creditor, and Nelson Gross, former president. More than 100 
consumers notified the A.G.'s office about the company's failure to deliver furniture or to 
return deposits. The office then sued to stop Boston Scandals' going-out-of-business 
sale, alleging that the company had failed to comply with state law regulating such sales. 
The Superior Court issued a temporary restraining order and a preliminary injunction 
requiring the company and its agents and employees to comply with the law. 

An action for civil contempt and civil penalties was filed against the defendants for 
allegedly violating the restraining order and injunction by illegally purchasing more than 
800 pieces of furniture for Scandals' going out-of-business sale. 

The settlement enjoins the defendants from engaging in the furniture business in the 
Commonwealth for five years and requires the defendants to pay up to $1 10,000 in 
restitution to eligible consumers. 

Comm. v. Matthew Brooks d/b/a NE Art Expo 

On February 3, 1995, the Division entered a consent judgment with Matthew Brooks, the 
operator of the New England Art Exposition that was held in Woburn in May of 1993. 
Brooks allegedly deceived artists about the fees required to participate in the Exposition, 
never distributed promised prize money and never exhibited and, in some cases, never 
uncrated numerous boxes of artwork. In fact, the New England Art Institute was a newly- 
created entity, with only a mail drop in Boston. 

The judgment requires Brooks to pay $200,000 in restitution to injured artists and 
$414,000 in civil penalties and to perform 125 hours of community service during the 
next six months. Brooks is required to send a letter of apology to the artists who filed 
complaints with the office. 

Jordan Marsh Store Corporation 

On August 5, 1994, the Division entered into an agreement prohibiting Jordan Marsh 
stores from failing to comply with laws governing removal sales. The Division alleged 
that Jordan Marsh failed to comply with certain filing requirements of the Massachusetts 
Consumer Protection Act, which governs store removal sales. 

Under the terms of the agreement, Jordan Marsh is required to comply with the 
requirements of the law and has agreed to contribute $7,500 to the SCORE program, and 
$7,500 to the Lazarus House, a shelter for the homeless located in Methuen. 



126 



Comm. v. Hollywood Model and Talent Showcase Awards 

On September 14, 1994, a complaint was filed against HMTSA, a California talent 
promotion agency, alleging violations of chapter 93 A and violations of an assurance of 
discontinuance that had been entered into previously. HMTSA charged participants $695 
to appear in a talent "Showcase" and promised to produce a portfolio of photos, give 
instruction in the participant's chosen field, and produce a "Showcase" which would be 
attended by the "top" talent agents in the area, and the country. 

The complaint was filed following the "Showcase" because HMTSA failed to fund an 
escrow account that was required by the assurance, and because the photos, instruction, 
and "Showcase" were not provided as promised by HMTSA. In particular, HMTSA 
provided no evidence that any talent agents at all attended the "Showcase". 

A consent judgment was subsequently entered into, but HMTSA violated the consent 
judgment and a complaint for contempt was filed. Before the contempt complaint could 
be served the owner of HMTSA filed for bankruptcy in California. 

Comm. v. New England Marketing Services, Inc. et al. 

On November 17, 1994, the Division filed a complaint (and subsequently obtained a 
preliminary injunction) against the owner/operator of a time share marketing company. 
The defendants allegedly failed to provide deeds, good title, or refunds to more than 100 
consumers who had paid more than $400,000 to purchase time shares at a resort in 
Lenox. 

Delaware v. New York 

On December 12, 1994, the Division entered into a final settlement agreement with the 
States of Delaware, New York and other Intervenor States. The settlement resolves a 
dispute over unclaimed interest and dividends on securities that New York had 
improperly escheated from Massachusetts-incorporated securities brokers. The 
settlement resulted in a total payment of $23.2 million to the Commonwealth. 

Comm. v. Nathan Fisher, et al. 

On January 5, 1995, an amended final judgment was entered against Nathan Fisher 
ordering the defendant to pay $1,897,995.32 in restitution to consumers for the 
defendants unfair and deceptive acts and practices committed in the operation of a public 
warehouse. The judgment also ordered permanent injunctive relief. 

Comm. v. Windsor of Dracut, Inc. et al. 

On January 13, 1995, the Division filed a complaint (and subsequently obtained a 
preliminary injunction) against the owners/operators of Windsor Mills, a Dracut 
restaurant. The restaurant closed its doors in July, 1994, owing consumers more than 
$45,000 in deposits for weddings and other functions. The complaint alleged that the 
defendants failed to disclose to their customers that they were facing foreclosure and that 
they were allowing raw sewage to flush directly into the Merrimack River. 



127 



Comm. v. Carl Simmons and Richard Crance 

On February 2, 1995, a partial final judgment was entered against Richard Crance, one of 
the former owner/operators of a vocational school. The school abruptly closed its doors, 
leaving students in the lurch as to their educational programs, and with the responsibility 
of having to repay their student loans. The judgment permanently bars Mr. Crance from 
the secondary school business in the Commonwealth, and orders his payment of $7,000 to 
the Commonwealth as costs and penalties. 

In the Matter of Gerard Whittemore 

On February 3, 1995, the Division filed an assurance of discontinuance against Gerard 
Whittemore, the provider of an allegedly phony police examination preparation course. 
Whittemore allegedly misled exam candidates by promising his course would help them 
obtain better scores on the police examination. 

The assurance required Whittemore to refund nearly $2,000 to dissatisfied exam 
candidates and required him to stay out of the police review course business in 
Massachusetts. 

In the Matter of ABC Nannies 

On February 24, 1995, the Division filed an assurance of discontinuance ABC Nannies, 
which is operated by Kim Birmingham and Deborah Morse. The defendants allegedly 
failed to properly screen applicants prior to their referrals and placements in homes and 
failed to provide families with background and reference materials on the candidates. 
The agency also allegedly refused to refund money to consumers for services they did not 
perform. 

The assurance requires that ABC Nannies prescreen all applicants in-person, perform 
background checks, and submit complaints to the office to make sure they are properly 
resolved. 

Comm. v. Directory Publishing Services, Inc. et al. 

On March 6, 1995, the Division obtained a consent judgment against the publishers of 
"The Yellow Pages of New England," whose solicitations led some small Massachusetts 
businesses to believe that the directory was the traditional yellow page directory 
published by the local phone company. The judgment prohibits the defendants from 
distributing "yellow pages" in the future and from collecting any debts from 
Massachusetts consumers; it also required the payment of $45,000 in restitution, 
contributions, and costs. The same month, CPAD also asked the Superior Court for 
summary judgment in a related case against the publishers (AmCan et al) of similar 
yellow page directories. 

Comm. v. Authorized Cleaning Services, Inc. and 

Gordon Wayne MacLeod 

This action, against a Winchester cleaning company and its principal was settled with the 
filing of a consent judgment on March 22, 1995. The defendants allegedly used bait and 



128 



switch tactics, charged more than their advertised price and/or the price agreed upon with 
consumers, added unauthorized charges to consumer's credit cards, failed to honor 
guarantees and provide refunds and performed shoddy work. 

Under the terms of the consent judgment, the defendant will refrain from future unfair 
and deceptive acts and practices in marketing and selling of carpet and furniture cleaning 
services, and will reimburse a total of $7,500 to approximately 40 consumers. 

In the Matter of Thorn Americas, Inc. d/b/a Rent-A-Center 

On April 14, 1995, the Division filed an assurance of discontinuance in Suffolk Superior 
Court, with Thorn Americas, Inc. d/b/a Rent-A-Center to resolve allegations that RAC 
failed to sterilize mattresses intended for re-use, as required by Massachusetts law and 
that RAC violated Massachusetts law in its attempts to collect money owed to it by 
consumers. 

The assurance requires RAC to refrain from failing to sterilize mattresses intended for re- 
use and from engaging in unfair collection tactics. RAC also was required to provide 
$85,000.00 worth of merchandise to charitable organizations which serve the 
communities within which RAC has its stores, and to pay $2,679.12 in restitution and 
$5,000.00 toward the Attorney General's costs of pursuing the matter. 

In the Matter of Scott Taylor a/k/a Vermin Supreme 

In May 1995, the Division filed an assurance of discontinuance with Scott Taylor a/k/a 
Vermin Supreme. Mr. Taylor allegedly was using ex-Bruin Bobby Orr's name and a 
false reproduction of his signature in a flyer that urged consumers to send money to a 
"Save the Boston Garden Preservation Foundation." 

The assurance requires Taylor to refrain from distributing the flyer or otherwise soliciting 
money on behalf of the Boston Garden and to refund any money he receives from 
consumers. He is also required to refrain from misrepresenting in any solicitation that he 
is a charity. 

Comm. v. U.S. Photo I.D. 

On May 30 th , 1995, the Division obtained and served a temporary restraining order 
preventing U.S. Photo I.D. from selling fake I.D. cards. U.S. Photo I.D. was a shop in 
Boston that sold false identification cards to college students who reportedly came from 
as far away as Rhode Island and Maine. Allegedly, the store employees would also tell 
the patrons which bars in Boston would accept the I.D's, and which would reject them. 

At the same time, the Criminal Bureau carried out a search warrant that had been 
obtained that same day. The store's photographic equipment, blank I.D. forms, and other 
files were all confiscated. 

Comm. v. Lifetime Nutrition Company, Inc., et al. 

On June 15, 1995, the Division filed a consent judgment with Lifetime Nutrition 
Company, Inc., a direct mail company that mailed solicitations to consumers promising 
an illusory opportunity to earn income at home for stuffing envelopes. The settlement 



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requires that the defendants pay up to $125,000 in consumer restitution, up to $25,000 in 
civil penalties, and permanently prohibits the defendants from accepting payments in 
advance from consumers for home income programs. 

Comm. v. David Misiaszek d/b/a Twin Oaks Firewood 

On June 27, 1995, a consent judgment was entered against David Misiaszek d/b/a Twin 
Oaks Firewood. The defendant operated a firewood business on Cape Cod. He allegedly 
delivered less firewood to consumers than they had ordered and paid for. Several of the 
consumers were elderly and living on lower incomes. 

The judgment requires the defendant to pay over $2,000 in consumer restitution and a 
civil penalty of $1,000. 

GOING OUT OF BUSINESS SALES 

In the Matter of Jewelry Design, d/b/a Lloyd's Diamond and Gold 

On October 12, 1994, the Division entered into an assurance of discontinuance with 
Jewelry Design d/b/a Lloyd's Diamond and Gold. The defendants allegedly failed to file 
inventories of merchandise for a going-out-of-business sale with appropriate authorities 
and moved merchandise from an initial sale to a subsequent sale in violation of state law. 

The assurance enjoins Jewelry Design from future non-compliance with the "going-out- 
of-business" statute and requires the payment of $1,000 to the Local Consumer Aid Fund. 

In the Matter of Back Bay Oriental Rug 

On March 16, 1995, the Division filed an assurance of discontinuance entered with Back 
Bay Oriental Rug, Inc., and its president Zahra Nowrouzi. 

The assurance prevents the defendants from conducting going-out-of-business sales for 
longer than 60 days or conducting such sales when means have been established to 
continue the business after the sale. The assurance also requires the defendants to pay a 
$1,000 civil penalty. 

In the Matter of Boston Oriental Rug 

On June 27, 1995, the Division entered into an assurance of discontinuance with three 
former Boston oriental rug dealers, Arnrik Hendiazad, who conducted business under the 
name Boston Oriental Rug, Boston Rug Gallery, Inc. and ABZ Enterprises, Inc. which 
conducted business under the name Tabar Oriental Rugs. 

The assurance prevents the defendants from conducting going-out-of-business sales for 
longer than 60 days or from conducting such sales when means have been established to 
continue the business after the sale. In addition, the defendants agreed not to ticket or 
advertise merchandise for sale to the public with arbitrary or inflated price comparison 
claims. The businesses were also required to pay a $1,000 civil penalty. 



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HEALTH AND MEDICAL ISSUES 

Comm. v. Escape to Fitness for Women 

In July 1994, consumers began receiving reimbursement checks from an insurer of 
Escape to Fitness for Women. The defendant abruptly closed its doors in August of 1993 
without refunding membership fees already paid by consumers. The Division stepped in 
shortly after the closing and located the insurance company that had issued a $25,000 
bond to the defendant. After months of collecting the necessary proof of loss from nearly 
200 consumers, the Division documented $23,857.43 in losses to the insurance company. 
The affected consumer received reimbursement checks from the proceeds of the $25,000 
bond. 



Comm. v. Brad Kneidl d/b/a/ California Fitness 

On March 7, 1995, the Division filed a consent judgment against Brad Kneidl, the former 
operator of the California Fitness club at the Northmeadow Racquet and Health Club. 
The defendant allegedly deceived consumers about the price of a two-year membership at 
California Fitness, the availability of equipment and services, the opening of additional 
locations, and whether fitness club memberships would be honored for the duration of the 
health club contracts. In addition, Kneidl allegedly failed to maintain the bond required 
for health clubs and refused to honor buyers' rights to cancel their contracts and obtain 
refunds. 

The judgment permanently bans Kneidl from operating a health club in Massachusetts 
and requires him to provide notice to the Division of any new business entities he creates 
during the next five years. He is also required to pay $32,300 in restitution to injured 
consumers and $5,000 in civil penalties. 

Comm. v. Horizon Healthcare d/b/a The Greenery Rehabilitation 

On May 25, 1995, the Division entered into a consent judgment with Horizon Healthcare 
Corporation, which operates seven Greenery Nursing and Rehabilitation centers in the 
state. The Division alleged that the defendant failed to follow a number of important 
procedures for the transfer and discharge of patients. 

The judgment prohibits the defendant from discharging or transferring any resident 
without first complying with state and federal regulations. It also requires the defendant 
to spend up to $30,000 by funding three educational seminars that will provide 
information to members of the long-term health care industry about the proper 
implementation of relevant laws regarding the transfer and discharge of patients. The 
defendant is also required to pay $50,000 in civil penalties. Comm. v. Centro de 
Nutricion Y Terapias Naturales (9/22/94). 

A permanent injunction was obtained against the defendant, a nutrition center operating 
in Boston and Lawrence, for deceptive medical and advertising practices. The injunction 
requires the defendant to include disclaimers in their radio advertisements stating that 



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they are paid commercials and that none of the defendants or their agents are licensed 
physicians. The defendant was further ordered to pay $51,000 in civil penalties. 

Comm. v. Harry Goldsmith 

On February 7, 1995, the Division entered into a consent judgment with Dr. Goldsmith 
prohibiting him from permitting any agent to misrepresent the results or requirements of 
any medical procedure performed by Goldsmith. The Commonwealth alleged that Dr. 
Goldsmith worked with a Texas resident, Barbara A. Devine, to assist in the screening 
and selection of patients for the experimental surgery. Devine allegedly made numerous 
misrepresentations to patients with spinal cord injuries, including exaggerating the results 
that patients could expect to gain from surgery, and misleading individual patients to 
believe they were uniquely qualified to benefit from the surgery. 

The consent judgment also required Dr. Goldsmith to pay $6,500 in attorney's fees and 
costs to the Commonwealth. A consent judgment entered with University Hospital in 
April, 1994 provided for up to $1.5 million in restitution to the affected patients. 

HOME IMPROVEMENT AND MORTGAGE 

Comm. v. Carefree Building Products, et al. 

On July 5, 1994, the Division entered into a partial final judgment with David Haigh, the 
president of Carefree Building Products. The defendant allegedly made deceptive and 
misleading representations to consumers in the sale and financing of home improvement 
services; charged consumers unconscionably high prices for home improvement services 
and falsified information on loan applications to lenders. The partial final judgment 
requires the defendant to pay a total of $75,000 in restitution to consumers. 

On January 27, 1995, the Division entered into a consent judgment that banned Haigh 
from providing home improvement contracting services for a period of four years. 

In the Matter of Building Materials Corp. of Am. d/b/a GAF Materials Corp. 

On August 22, 1994, the Division entered into an assurance of discontinuance with The 
Building Materials Corporation of America, generally known as GAF Materials 
Corporation. GAF had allegedly refused to honor claims presented by home owners 
subsequent to the original purchaser of GAF's roofing materials. The assurance requires 
GAF to honor the terms of its warranty, even for subsequent homeowners, provided the 
new homeowner's claim is made within four years of the installation of the shingles or 
two years from the date they purchased the home. 

Comm. v. B & J Siding and Window, Inc. 

On March 20, 1995, the Division filed a consent judgment with B & J Siding and 
Window, Inc. and its owner, Joseph Ludvigsen. The defendants allegedly took thousands 
of dollars in deposits from homeowners, several of whom were elderly, and failed to 
perform any work. They also allegedly refused to remedy defective workmanship, 
leaving homeowners with leaking roofs and damaged ceilings. 



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The consent judgment requires the defendants to pay up to $19,254.00 in restitution to 
injured consumers and in civil penalties. It also enjoins the defendants from taking 
deposits and failing to perform, refusing to honor homeowners' three-day cancellation 
rights for contracts executed at their homes, failing to perform contracts in a workmanlike 
manner and operating a home improvement contractor business without a license. 

Unregistered Home Improvement Contractors 

Comm. v. Steve Eisnor 

Comm. v. Douglas Valk 

Comm. v. George Ward d/b/a Boston Slate & Copper 

Comm. v. Richard Rainer d/b/a Kitchen and Bath 

Comm. v. Richard Braccialarghe d/b/a Braccialarghe 

Construction 

Comm. v. James Ciaschini 
Comm. v. William James Wareham 
Comm. v. Joan Robinson d/b/a ASTP 

During fiscal year 1995, the Division filed suit against the home improvement contractors 
listed above for doing business without being properly registered with the state Board of 
Building Regulations and Standards. The suits seek to force the contractors into 
compliance with the registration statute and seek civil penalties for home improvement 
work done while the defendants are unregistered. 

On March 7, 1995, the Division received a default judgment against Richard Rainer d/b/a 
Kitchen and Bath. The judgment permanently enjoins the defendant from operating as an 
unregistered home improvement contractor, and requires the defendant to pay a $2,000 
penalty. 

On March 15, 1995, a default judgment was entered against George Ward d/b/a Boston 
Slate and Coppersmith. The judgment ordered the payment of a civil penalty of $20,000. 

On June 15, 1995, default judgments were entered in separate cases against Douglas Valk 
and Steve Eisnor. The defendants were barred from operating as home improvement 
contractors in Massachusetts unless and until they register as required by the home 
improvement contractor law. The contractors were each also ordered to pay a civil 
penalty in the amount of $5,000.00 and $576.00 towards the Attorney General's costs of 
prosecuting the matters. 

Comm. v. The Money Tree, Inc., et al. 

On October 18, 1994, the Division started the trial of its Chapter 93 A action against 
Randolph L. White, n, the former owner/operator of The Money Tree, Inc., a large 
Massachusetts mortgage broker. The trial was interrupted on October 31, 1994 when the 
defendant filed a petition in bankruptcy. However, the Commonwealth obtained relief 
from the automatic stay in Bankruptcy Court and the trial is scheduled to resume on 
September 5, 1995. 

Comm. v. Robert Presti, et al. 



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On December 20, 1994, the Division entered into a consent judgment with Robert Presti, 
the owner and operator of Studio One Kitchens, Inc. The lawsuit alleged that Presti was 
not registered as a home improvement contractor and alleged a variety of violations of the 
Consumer Protection Act including misrepresenting the products that would be delivered 
to consumers, failing to deliver and install kitchens in a timely manner, and installing 
kitchens in a poor and unworkmanlike manner. 

The consent judgment, filed in Suffolk Superior Court, requires the defendants refrain 
permanently from performing any home improvement work without properly registering 
with State authorities, as well as refraining permanently from misrepresenting the 
merchandise that will be provided pursuant to contracts with consumers. Presti and 
Studio One also agreed to pay $6,968.35 in restitution to injured consumers and a 
$2,500.00 civil penalty to the Commonwealth. 

On March 7, 1995, the Division filed a complaint for contempt of the consent judgment 
alleging the defendants failed to pay the sums required under the consent judgment. 
Comm. v. Richard Kivel, et al. 

On April 13, 1995, the Division filed a complaint and obtained a temporary restraining 
order against Richard Kivel, and the businesses he runs, including Advanced Security 
Technologies, Inc., American Home Investments, Inc. and American Home Products, 
from doing further business unless and until they obtain the required professional licenses 
and registrations from three State Boards. 

The Commonwealth alleged that in addition to operating without the required licenses 
and registrations, Kivel engaged in a variety of unfair or deceptive acts or practices in the 
conduct of his businesses, including misrepresenting that he was an authorized dealer of 
certain brand products, encouraging elderly consumers to take out loans to purchase 
expensive products and services that cause the consumers to become indebted beyond 
their limited means and installing home security products in such a shoddy and 
unprofessional manner that they do not work as promised if at all. 

The Court's order, which was subsequently extended to a preliminary injunction, also 
prohibited the businesses from engaging in such practices. 

On June 15, 1995, the Division filed a complaint alleging the defendants had violated the 
preliminary injunction by continuing to perform home improvement contracting work, in 
violation of the preliminary injunction. 

MOBILE HOMES 

Greenfield Country Estate Tenants Association, Inc. v. Deep 

On October 28, 1994, the Division filed an amicus brief in support of the tenants 
association addressing the constitutional challenge to the Manufactured Housing 
Community Act provision creating the tenants' right of first refusal to purchase the park. 

On February 21 , 1995, the court granted summary judgment in favor of the tenants in a 
favorable decision rejecting the constitutional challenge. The owner has appealed this 
decision and is seeking direct appellate review to the Supreme Judicial Court. 



134 



Comm. v. Peabody Rent Control Board 

In this ongoing action against 10 mobile home parks and the City of Peabody, the 
Division already has obtained a freeze on rents previously set in violation of applicable 
laws and the invalidation of illegal park closing notices issued in eight parks. During the 
last year, the Division has successfully litigated defendants' two requests for interlocutory 
review, a request for a report to the Appeals Court, several motions to compel the City to 
hold rent control board hearings in accordance with an earlier order of the Housing Court, 
and a motion for partial summary judgment seeking to dismiss the Commonwealth's state 
antitrust claim. 

After consulting with the City about the procedures for holding the above referenced 
hearings, the Division is monitoring the ongoing rent board hearings while completing 
discovery in preparation for trial. The Commonwealth also likely will seek dismissal of 
an identical declaratory judgment claim recendy filed by defendants. 



REPORTS 

Lottery Report 

In July, 1994, the Division released a report describing the findings of a statewide survey 
of retailer compliance with the law prohibiting the sale of lottery tickets to minors. As 
part of the survey, minors attempted to purchase lottery tickets at stores in communities 
throughout the Commonwealth. They were successful eighty percent (80%) of the time. 
The students who participated in the survey were between the ages of 14 and 17, with the 
exception of one nine year old. Students purchased one, two and five dollar scratch 
tickets, and various number games, including one dollar Megabucks, Mass Millions and 
Mass Cash games. The survey was conducted in 20 different communities throughout the 
Commonwealth. 

In addition to describing the survey methodology and results, the Attorney General's 
report describes steps that retailers can take to minimize illegal sales of lottery tickets to 



Report on Illegal Price Gouging by Licensed Ticket Brokers 

In October 1994, the Division issued a report discussing the results of an undercover 
investigation into price gouging in the ticket broker industry. Investigators from the 
office sold a number of tickets to licensed ticket brokers across Massachusetts. The 
investigators sold the tickets at or very near face values. Other investigators then 
attempted to repurchase exactly the same tickets. Where the investigators were able to 
repurchase the tickets, they paid the price the broker demanded. 

Investigators successfully sold and repurchased tickets to six events with eleven different 
brokers. The overcharges for the tickets ranged from 85% to 438%. 

The Division followed up on this study by entering into consent judgments with the 1 1 
brokers. Those cases are listed in the TICKET BROKERS section. 



135 



Report on Illegal Mail Order Weapons 

In November 1 994, the Division released a report on the results of a survey conducted to 
ascertain whether mail order weapons companies would ship illegal weapons to 
Massachusetts. Representatives of the office obtained mail order catalogues or 
advertisements from a number of mail order merchants. The representatives provided 
Massachusetts addresses to a sample of three merchants, and ordered prohibited weapons. 
All orders except one were filled by the merchants and delivered to the Massachusetts 
address given. 

The Division followed up on these results by entering into consent judgments with the 
three merchants. Those cases are listed in the WEAPONS section of this report. 

Holiday Retail Store Survey and Report 

In December, 1994, the Division surveyed 242 Massachusetts retail stores and found that 
half violated state and federal laws designed to protect shoppers from misleading and 
deceptive practices. The surveyors visited eight major shopping mall or centers and 
checked for compliance with "sale" and price regulations, item pricing, return policy, gift 
certificate, and store credit card laws and regulations. 

Follow-up letters were sent to each of the 122 stores where violations were found 
demanding immediate compliance with applicable law. The retailers were given the 
opportunity to voluntarily come into compliance in order to promptly protect consumers 
for the rest of the holiday season. 

Travel Industry Report 

On February 1, 1995, the Division issued a report titled: 

"Recommendations for Oversight of the Travel Industry in Massachusetts," which 
described the problems consumers encounter most frequently in purchasing travel 
services, sorted through possible solutions, and made specific recommendations for 
change. A public meeting was also held on June 1, 1994 to discuss problems in the travel 
industry. 

TICKET BROKERS 

Comm. v. Out of Town Ticket Agency 

Comm. v. Pats Ticket Center 

Comm. v. Boston Ticket 

Comm. v. BAK Tickets 

Comm. v. Greene's Tickets 

Comm. v. Ticketmania 

Comm. v. Private Postal and Business Service 

Comm. v. Choice Tickets 

Comm. v. Metro South Ticket Agency 

Comm. v. Lexington Ticket Center 

Comm. v. AAA Ticket Connection 



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These eleven ticket brokers were involved in a sting operation, in which investigators 
caught the brokers selling tickets for events for as much as 438% more than they paid for 
them. By law, ticket brokers can only charge $2 more that the face value of the ticket, as 
well as a charge for certain costs of acquiring the ticket. 

The cases were settled with consent judgments whereby the defendants are required to 
pay civil penalties ranging from $1,000 to $10,000 and are prohibited from selling tickets 
in violation of the above referenced statute. 

TOBACCO 

ILLEGAL SALE OF TOBACCO TO MINORS 

The following series of cases arose from an undercover investigation jointly undertaken 
by the Division and the Civil Investigative Division. Each case was brought for 
violations of the Consumer Protection Act stemming from the sale of cigarettes to 
minors. Each case was resolved with an assurance of discontinuance which required the 
payment of a penalty and costs, as well as an assurance against further violations. 

In the Matter of Shaw's Supermarkets 

Filed August 4, 1994 - Penalty - $22,500.00. Costs - $2,000.00. 

In the Matter of Purity Supreme, Inc. 

Filed August 4, 1994 - Penalty - $16,250.00. Costs - $2,000.00. 

In the Matter of Stop & Shop, Inc. 

Filed August 4, 1994 - Penalty - $38,750.00. Costs - $3,000.00. 

In the Matter of Demoulas Supermarkets 

Filed August 22, 1994 - Penalty - $16,250. Costs - $2,000 
In the Matter of Price Chopper Supermarkets 

Filed September 7, 1994 - Penalty - $8,750.00. Costs - 
$1,000.00 

TRAVEL 

In the Matter of EF Institute for Cultural Exchange 

On October 28, 1994, the Division filed an assurance of discontinuance with EF Institute 
for Cultural Exchange. Consumers alleged that EF had: 1) failed to disclose adequately 
the potential for and amount of increases to its published program fees; 2) misled 
consumers as to the period of applicability of its annual registration fee; 3) failed to 
disclose adequately the manner in which its cancellation policy would be applied; and 4) 
billed consumers for optional insurance coverage that the consumers did not wish to 
purchase. In response to the Attorney General's inquiry, EF has made changes to its 



137 



policies in all of these areas, and promised in the assurance not to return to its former 
practices. 

In addition to changing its billing procedures, EF agreed to refund $1,326 to 12 
consumers who complained to the office about unanticipated increases to their tour prices 
which occurred after the consumers had registered tours. 

Comm. v. Outdoor World Corp. 

On February 8, 1995, the Division filed an amended judgment with Outdoor World 
Corporation to address allegations that Outdoor World violated the terms of 1990 consent 
judgment. In 1990, the Office of the Attorney General filed suit against Outdoor World 
for, among other things, deceptive statements and omissions in direct mail solicitations to 
consumers, misrepresenting the prizes to be issued to consumers, and using abusive and 
high-pressure tactics in its sales presentations in order to sell memberships. The 
Judgment entered in 1990 prohibited Outdoor World from continuing to engage in such 
practices. 

Pursuant to the 1995 amended judgment, Outdoor World agreed to pay a civil penalty of 
$100,000.00 to the Commonwealth, and approximately $5,000.00 in restitution to 
consumers. The judgment also imposes restrictions on Outdoor World's business 
practices in addition to those contained in the 1990 Judgment. 

UNAUTHORIZED PRACTICE 

Commonwealth v. Janice Belmore 

On July 25, 1994, the Division filed an assurance of discontinuance against Janice 
Belmore, for allegedly engaging in the unauthorized practice of law. Belmore, who is not 
an attorney, offered legal advice to consumers and threatened to bring suit and commence 
legal actions against third parties. 

Under the terms of the assurance, Belmore agreed to refrain from providing legal advice 
to consumers, drafting or filing legal documents and presenting herself as a qualified 
attorney. She is also required to pay a $350 penalty. 

Comm. v. Dias 

On November 11, 1994, the Division entered into a consent judgment with Jorge Dias, a 
non-lawyer who allegedly was engaging in the unauthorized practice of law in 
Cambridge. Dias was allegedly accepting substantial fees to supply immigration-related 
services to Portuguese-speaking immigrants. Mr. Dias was entirely unqualified to 
provide these services, and many of his "clients" received absolutely nothing of value as a 
result of the petitions Mr. Dias filed with the INS. 

The consent judgment enjoins Dias from engaging in the unauthorized practice of law, 
from holding himself out as an attorney, and from using the trade name International Law 
Services. 



138 



Comm. v. Craig Burns 

On March 28, 1995, the Division entered into a consent judgment with Craig Burns, a 
physical therapist whose license had been revoked, but who continued to practice 
physical therapy in the Commonwealth. The judgment included a permanent injunction 
preventing the defendant from practicing physical therapy or holding himself out as a 
physical therapist in the Commonwealth until reinstated by the Board of Allied Health 
Professionals. The Judgment also requires the defendant to pay $5,000 to the 
Commonwealth as a civil penalty. 

WEAPONS 

Comm. v. South Ordnance, Inc. 

Comm. v. Sonic Technology, Inc. 

Comm. v. Edge Company of Brattleboro, Inc. 

On January 26, 1995, consent judgments were filed with three out-of-state weapons 

companies after the companies were caught sending stun guns, brass knuckles, illegal 

knives and other weapons to Massachusetts residents. The consent judgments require the 

defendants to pay a total of $17,500 in penalties. 

OTHER INITIATIVES 

Food and Drug Administration Rules on Iron Supplements 

Responding to a petition from the Massachusetts Attorney General and other attorneys 
general, on October 5, 1994 the federal Food and Drug Administration announced new 
rules on the packaging and labeling of iron supplements to prevent accidental poisoning 
of children. 

HUD Mortgage Escrow Rules 

On October 26, 1994, the U.S. Department of Housing and Urban Development 
announced new regulations for home mortgage escrow accounts that will return at least 
$1.5 billion to homeowners nationwide and will save new homebuyers an estimated $477 
million a year in closing costs. The regulations reflect the work of the Massachusetts 
Attorney General and other attorneys general who delivered a detailed report on industry 
wide violations of the Real Estate Settlement Procedures Act (RESPA) and who settled 
cases in 1992 and 1993 with GMAC Mortgage Corp. and Fleet Mortgage Corp. regarding 
their mortgage escrow practices. 

Consumer Advisory on Fraudulent Billing Schemes 

In November 1994, the Division and the Massachusetts Hospital Association issued a 
joint advisory warning hospitals about a series of fraudulent billing schemes. 

Telemarketing Activities 

In an effort to protect consumers from telemarketing fraud the office joined other 
members of the National Association of Attorneys General (NAAG) in the drafting and 



139 



submission of comments to the Federal Trade Commission's proposed rules on 
telemarketing. The office also participated in discussions with FTC officials in an effort 
to strengthen the telemarketing rules to protect against telemarketing practices which prey 
upon elderly and other vulnerable consumers. 

In Massachusetts the office supported passage of legislation (S.81) intended to provide 
Massachusetts consumers with greater protection from telemarketing fraud. Such 
protections include providing consumers with three days in which to cancel telemarketing 
transactions and require telemarketers disclose cancellation rights to consumers before 
the transaction is consummated. 

Tobacco Control Presentations 

On March 27 and March 29, 1995, presentations were made to local retailers on the South 
Shore. These presentations focused on the issue of youth access to tobacco and the law 
regarding the sale of tobacco to minors. 

Telecommunications Initiatives 

Throughout the Spring of 1995, the Division was involved in lobbying the U.S. Congress 
and Senate on antitrust and consumer protection issues raised by pending legislation on 
telecommunications reform. 

Consumer Advisory on Fireworks Hazards 

In June, 1995, the Division issued a consumer advisory describing the dangers of 
fireworks and other fourth of July hazards to children including injuries due to toxic 
substances and alcohol. 

Manufactured Housing Task Force 

The Division has established its mobile home task force for 

the purpose of conducting review of park rules and addressing 

inquiries and complaints from consumers, park owners, and state 

legislators. During the past year, the Task Force has reviewed 

and issued reviews of the rules of more than 40 parks, and 

responded to numerous inquiries and complaints from around the 

state. Pamphlets or Other Handouts 

In December, 1994, the Division issued a holiday advisory on safety hazards facing 
children during the holiday season. At the same time, a pamphlet was issued entitled 
"Protect Your Children From Injury During the Holiday Season." 

On May 17, 1995, the Division jointly issued, with the Massachusetts Funeral Directors 
Association, a pamphlet entitled "Protect Yourself - Essential Information For Seniors. 
The pamphlet provides consumer protection information for consumers who have 
recently lost a relative or loved one. 



140 



Other Activities 

Throughout the year, members of the Division participated in numerous panel discussions 
and made presentations on consumer protection related issues. Some of those 
presentations include presentations on problems posed by persons engaged in the 
unauthorized practice of law; the office's enforcement of laws restricting youth access to 
tobacco; and presentations on chapter 93A and general consumer protection tips. 

In addition, one member of the Division worked as a Supreme Court Fellow for the 
National Association of Attorneys General, which included assisting with moot courts for 
Attorneys General arguing to the Supreme Court, and authoring NAAG's Supreme Court 
Reporter and State Constitutional Law Bulletin. 

Local Consumer Programs 

The Local Consumer Programs of the Consumer Protection and Antitrust Division 
administer the Local Consumer Aid Fund and award grants to a network of nineteen local 
consumer programs. These community agencies assist citizens throughout Massachusetts 
in the resolution of consumer problems. The local programs work in cooperation with the 
Office of the Attorney General in this capacity and also function as a resource to identify 
repeat offenders of consumer law. 

Funding 

Monies for the operation of these programs are allocated by the General Court to the 
Local Consumer Aid Fund (M.G.L. c. 12, UG). 

In FY '95 a total of $61 1,733 was used for grants to 19 local consumer programs. During 
fiscal 1995 $605,901 was appropriated by the legislature to the Local Consumer Aid 
Fund, for the Local Consumer Programs and Face-to-Face Mediation programs. Ten 
percent of this appropriation was retained for administrative purposes. 

The local consumer programs, usually found in community action programs or city halls 
handled over 12,000 consumer complaints in FY '95, recovering approximately 
$3,000,000 for Massachusetts consumers. 

CONSUMER COMPLAINT AND INFORMATION SECTION 

The Attorney General's Consumer Complaint and Information Section (CCIS) provides 
services to consumers by mediating individual complaints against merchants and 
businesses; by responding to thousands of requests for information on consumer issues 
and referrals on the CCIS consumer "hot line"; and by identifying potential trends of 
unfair and deceptive trade practices for further investigation and review by the Consumer 
Protection and Antitrust Division. 

During fiscal year 1995, CCIS opened approximately 1,880 consumer complaints for 
mediation and closed 2,293 complaints. As a result of the Section's mediation efforts, 
consumers recovered a total monetary value of ca. $549,100: direct refunds - $250,925; 
savings to individuals - $242,650; and services or goods provided - $55,530. The 



141 



549,100 value recovered for consumers FY '95 represents a $150,000 increase over FY 
'94. 

In addition to the Section's mediation efforts, over 6,000 written complaints and 
correspondence received by OAG were screened and processed for referrals to other 
divisions within OAG (1,040); to appropriate state or local consumer programs (2,690). 
CCIS also processed and answered hundreds of FOIA requests, inquiries, and general 
correspondence sent to the attorney general's office this past year. 

CCIS mediators and consumer information specialists on the "8400 hot line" responded 
to over 120,000 requests and questions during FY '95 by providing consumer rights 
information, educational pamphlets and literature, and referrals to state or federal 
agencies. 

Specific projects and actions during FY '95 continued to reflect the attorney general's 
priorities by identifying and mediating telemarketing and other home improvement and 
financial exploitation scams targeting the elderly. This effort resulted in the recovery of 
$22,000 from telemarketers; $27,00 to consumers whose calls had been switched from 
free 800 number calls to 900 pay-per-calls by an information services company; the 
savings of $179,000 for several senior citizens threatened with the loss of their homes 
through foreclosure proceedings; and the recovery of $70,00 for consumers who had been 
victimized by ethnic affinity and other scams involving travel, insurance, and mortgage 
transactions. 

As part of the attorney general's initiatives to improve government services, in FY '95, 
CCIS implemented a new computer system to track and monitor consumer calls and to 
quickly identify patterns and trends of unfair and deceptive business practices by 
individual merchants and industries. 

FY 95 Mediation Services Department 

• delivered 17 SCORE trainings which resulted in 310 new SCORE mediators and 
added 6 new SCORE Programs in Pittsfield, New Bedford, Lynn, Fitchburg and 
Boston 

• delivered 3 thirty-hour Face to Face Mediation Program trainings for citizen 
mediators in Fitchburg, Lynn and 

Haverhill 

• provided quality control and technical support to 8 Face to Face Mediation 
Programs and 25 SCORE Programs serving 

28 Massachusetts communities 

• organized and supervised 8 Conflict Intervention Teams (CIT's) for schools on the 
verge of or in a serious crisis situation 

• won the prestigious national Innovations in American Government Award after a 
national competition 

• designed and delivered 1 1 skill-building trainings to SCORE, CIT and Community 
mediators/trainers 



142 



• conducted 17 workshops and delivered 14 presentations about peer mediation, 
mediation and violence prevention 

• facilitated 3 AG visits to 1 Worcester and 2 Springfield SCORE Programs and 
coordinated SCORE participation in 2 televised SCORE events 

• represented SCORE and CIT at 6 conferences (state and national) 

• provided two 2 day skill -building trainings in Eastern and Central MA for CIT 
Coordinators and mediators 

• expanded Mediation Services staff by 3 positions, Administrative Assistant, 
Western MA Regional Coordinator and Deputy Director 

• SCORE programs completed 1,800 mediations with 98% reaching a mediated 
agreement 

• Face to Face Mediation programs completed 1 ,362 mediations with 80% reaching a 
mediated agreement 

Overview of Mediation Services Department The OAG Mediation Services 
Department consists of 6 staff members, 1 Director, 1 Deputy Director, 3 Regional 
Coordinators and 1 Administrative Assistant. The positions of Deputy Director, 
Western MA Regional Coordinator and Administrative Assistant were added this 
year. 

There are three major components to the Mediation Services Department (MSD), Face to 
Face Mediation Programs (FTFMP), SCORE (Student Conflict Resolution Experts) and 
the Conflict Intervention Team (CIT). 

Face to Face Mediation Programs (FTFMP) 

Originally started in 1984 with 3 pilot programs in Worcester, Haverhill and Somerville, 
there are now 8 Face to Face Mediation Programs. These programs serve the 
communities of Worcester, Haverhill, Somerville, Brockton, Hyannis, Fitchburg, 
Springfield and Lowell. During FY 95, FTFMP conducted 1,362 mediations with 80% of 
these disputes reaching a mediated agreement. 

The 8 FTFMP programs are part of a statewide network of 30 community mediation 
programs. Mediators serving in community based mediation programs like the FTFMP, 
undergo 30 hours of basic mediation skills training. Upon successful completion of this 
training mediators volunteer their time to mediate court-related matters including small 
claims, housing, probate and juvenile actions as well as community-based disputes 
between friends, neighbors and families. There are over 2,000 volunteer mediators 
currently serving in 30 community mediation programs throughout Massachusetts. 

In addition to the site visits, program monitoring, technical support and training 
assistance from MSD Regional Coordinators, 2 statewide meetings were held with 
FTFMP directors and MSD staff served as lead trainers in three 30 hour FTFMP trainings 
in Fitchburg, Lynn and Haverhill. 



143 



SCORE 

Six new SCORE programs in New Bedford, Fitchburg, Lynn, Boston and Pittsfield 
opened their doors in FY 95 bringing the total number of SCORE programs to 25 schools 
in 15 communities throughout Massachusetts. During the academic period from 
September through June, SCORE programs mediated 1,800 disputes with 98% reaching a 
mediated resolution. 

With the assistance of MSD, 16 SCORE trainings were conducted during the year for 
SCORE programs located in Pittsfield, Springfield, Fitchburg, Dorchester, Taunton, 
Lynn, Haverhill, Lowell, New Bedford, Somerville and Boston. As a result of these 
trainings, 310 students were trained to serve as SCORE mediators (since its inception 
1 100 students have been trained as SCORE mediators). 

Site evaluations were conducted at each SCORE program, including interviews with 
principals, teachers and student mediators. 

In addition to site visits, technical support and training assistance, MSD conducted 3 
regional meetings for SCORE coordinators and represented SCORE in six conferences 
(state and national). 

Conflict Intervention Team (CIT) 

Last year, schools in Lexington, Newton, Granby, Springfield, Hull, Arlington, Whitman 
and Plymouth, requested emergency mediation services from the Conflict Intervention 
Team. In each school, the CIT was faced with tense situations that threatened to build to 
crisis proportions. All but one of these situations involved conflicts based in the 
intolerance of differences. In addition to facilitated discussions to help ease tensions, 35 
mediations were conducted during these interventions with 33 (94%) reaching a mediated 
agreement. Fifty-five community mediators, 12 SCORE (student) mediators and MSD 
staff served on the CIT in FY 95. 

Two CIT trainings were held last year to further develop and strengthen the pool of those 
prepared to serve as CTT mediators and coordinators. One day training was held in 
November to train 12 experienced CIT mediators for service as CIT Coordinators. A 2 
day training was held last April in Boylston to prepare 50 experienced mediators in 
Central and Western Massachusetts for service on the CIT. (A total of 150 mediators are 
now a part of our CIT.) 

Innovations in American Government Award 

The OAG won a prestigious national award from the Ford Foundation for its SCORE and 
CIT programs. The $100,000 award was given following a national competition to seek 
creative programs which provide valuable services to the public. The award will be used 
to 1 ) disseminate information nationally about SCORE and CTT and 2) encourage 
replication of these programs by other Attorneys General and State Departments of 
Education. 

The Attorney General, accompanied by Carrie Smotrich, Barbara Anthony and Kathleen 
Grant, attended the Innovations grant awards ceremony in Washington D.C. Shortly after 



144 



the national awards ceremony, a local tribute to SCORE programs was hosted by the 
OAG to congratulate SCORE mediators and recognize their achievements. 

MSD staff assisted in the planning and coordination of the SCORE tribute. 

During FY 95, MSD efforts to disseminate SCORE and CIT information resulted in over 
2,000 SCORE/CIT information requests. MSD Director, Kathleen Grant, traveled to 6 
states and provided SCORE workshops to AG offices in Louisiana and South Carolina 
and made SCORE presentations at conferences and meetings held in New Jersey, 
Mississippi, California, Virginia and New Hampshire. 

Public Events 

In FY 95, MSD staff participated in 6 public events including 3 visits by the Attorney 
General to SCORE programs in Central and Western MA, 2 television shows on SCORE 
and the SCORE tribute event to celebrate winning the Innovations grant. 

Special Projects 

MSD special projects for FY 95 included the facilitating the monthly meetings of the 
fledgling Association for Massachusetts Peer Mediators and developing an innovative 
pilot project for gang intervention with the Somerville Score program. 

Closing Comments 

FY 95 was a very busy and productive year for the Mediation Services Department. In 
addition to program management, troubleshooting and training support for 33 programs 
(SCORE and FTFMP) MSD provided SCORE, FTFMP, and CIT presentations, trainings 
and workshops to 33 communities throughout Massachusetts and 7 states. 

As we ready ourselves for the challenges of FY 96, we are certain that our efforts to 
undertake strategic program planning this summer will help us to continue to be 
responsive to the many requests for our services and better manage the increasing number 
of demands generated by such successful programs. 

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 automobile and health 



145 



insurance rate setting proceedings. The division also performs a consumer 
protection/insurance laws enforcement function: through The Division's consumer 
hotline and direct mail and telephone communications, the Division receives many 
consumer questions and complaints. Through mediation, negotiation and, if necessary, 
litigation, the Division obtains both restitution and injunctive relief for insurance 
consumers. Finally, the Division engages in non-case related work to advance insurance 
consumer interests, including legislative, regulatory, educational, and other outreach 
activities. 

RATE CASES 

1995 Private Passenger Automobile Insurance: On August 12, 1994, the Automobile 
Insurance Bureau of Massachusetts ("AIB") filed with the Division of Insurance its 
recommendation concerning the 1995 private passenger automobile insurance rates. The 
industry requested a .45 percent increase over the 1994 rates. If approved this request 
would have been equivalent to an average increase in auto insurance premiums for 
Massachusetts drivers of $4 per car or $13 million dollars overall. On behalf of 
Massachusetts consumers, the Division challenged the increase requested by the 
industry. After several days of evidentiary hearings and responsive briefs the 
Commissioner issued a decision on December 15, 1994, fixing and establishing an 
average rate for 1995 which is approximately equivalent to a 6.1 percent decrease over 
the 1994 average rate. The Division's intervention resulted in savings to 
Massachusetts consumers of $126.6 million dollars or an average of $58 per insured 
automobile. 

1996 Private Passenger Automobile Insurance: 

Proceedings concerning the 1996 automobile insurance rates began in April of 1995 with 
notice of the annual hearing called by the Commissioner to determine whether it was 
necessary that the rates for 1996 be fixed and established in accordance with G.L. c. 
175,1 13B. The Division participated in these hearings and took the position that market 
conditions continued to require that rates be set pursuant to G.L.c. 175, 1 13B. In a 
decision issued on June 21, 1995, the Commissioner concurred with the Division's 
position and ordered the 1996 rates to be set in like manner. 

1995 Blue Cross and Blue Shield of Massachusetts Medex Insurance: In October 1994, 
BCBS sought 20 percent increase in premium rates for its Medex Gold product and a 19 
percent increase in its Medex Standard plan. Medex is purchased by seniors to cover 
deductibles,co-payments and services not covered under the Medicare program. On 
behalf of Medex subscribers, the Division intervened in hearings before Division of 
Insurance challenging the proposed rate increase and urging a six month freeze on any 
increases. The Commissioner allowed only a 4.2 percent rate increase for Medex Gold 
and decreased the Medex Standard rate 6.3 percent, but authorized BCBS to refile for an 
increase in six months. As a result of an appeal by BCBS, the Supreme Judicial Court 
reversed this decision and remanded the case back to the Division of Insurance. At the 
close of the fiscal year, no action had yet been taken in the remand proceeding. 



146 



1995 Bankers Life and Casualty Medicare Supplement Insurance: In December, 
1994, Bankers sought approval of rates for Medicare supplement insurance products from 
the Division of Insurance of $48.81 monthly for the Core plan and $146.06 monthly for 
the Medicare Supplement 2 plan. Representing the interests of seniors who may purchase 
this insurance, the Division intervened, resulting in the Commissioner's approval of a 
$139 rate for the Medicare Supplement 2 plan and $46.44 for Core products. The total 
amount saved for consumers was approximately $385,000. 

1995 Kaiser Foundation Health Plan Medicare Product: 

In February, 1995, to comply with Medicare supplement insurance reform laws requiring 
that HMOs with Medicare members offer a drug benefit product, Kaiser sought approval 
of an HMO Medicare product with a drug benefit. The Division participated in 
proceedings before the Division of Insurance to ensure that the proposed rate of $98 per 
month was reasonable. The Commissioner approved a rate of $97 per month. The total 
amount saved for consumers was approximately $14,500. 

1995 Harvard Community Health Plan Of New England Medicare Product: HCHP-NE 
proposed in March, 1995 to offer an IB40 Medicare product with a drug benefit at a 
premium rate of $1 19 per month. The Division participated in hearings at the Division 
of Insurance. The Commissioner approved a $1 12 per month premium. The total 
amount saved for consumers was approximately $34,000. 

1995 Prudential Insurance Company - AARP Medicare Supplement Insurance: 

In April, 1995, the Division participated in hearings to consider Prudential - AARP 
proposed Medicare supplement insurance rates of $39 monthly for the Core plan, $74 
monthly for Medicare supplement 1, and $168 monthly for Medicare supplement 2. The 
Commissioner approved the Core and Medicare supplement 1 proposed rates and a lower 
rate of $158 monthly for Medicare supplement 2. The total amount saved for consumers 
was approximately $282,000. 

1995 ITT Hartford Life Insurance Medicare Supplement Insurance: 

In May, 1995, 111 Hartford requested approval of Medicare supplement insurance rates 
for products offered only to members of two military associations of $76.72 monthly for 
Core. $1 1 1.85 monthly for Medicare supplement I and $187.97 monthly for Medicare 
supplement 2. 

The Division intervened in this proceeding, which resulted in the Commissioner's 
approval of $41 monthly for Core, $74 monthly for Medicare supplement I and $139 
monthly for Medicare supplement 2. The total amount saved for consumers was $92,000. 

1995 BCBS Non-group Insurance: 

In April, 1995, BCBS proposed an 8 percent increase in its Managed Major Medical 
(MMM) non-group insurance product. The Division intervened in proceedings before the 
Division of Insurance in opposition to this rate increase. This case will continue into the 
next fiscal year before it is resolved. 



147 



CONSUMER PROTECTION/ENFORCEMENT 

The Division also engaged in non-rate case related insurance work during fiscal year 1995 
that involved consumer protection issues and/or enforcement of the Commonwealth's 
insurance laws. Representative matters include: 

EMPLOYERS FAILURE TO REMIT HEALTH INSURANCE PREMIUMS 

During the 1995 fiscal year, the Division continued the work of the Workers Health 
Fraud Task Force initiated in the prior fiscal year. 

Investigations 

The Division investigated over eighty employers in response to complaints by employees 
many referred to the Division by the Fair Labor and Business Practices Division, that 
their health insurance had lapsed due to the failure of the employer to pay health 
insurance premiums. Some of these complaints involved one employee only and were 
resolved by payment of the outstanding medical claims by either the employer or the 
insurer. Others resulted in litigation or were resolved by "Business Agreements" with the 
employers. 

LITIGATION 

The Division sued five Massachusetts employers for representing to their employees that 
they were withholding funds for the payment of health insurance premiums and also for 
representing to employees that they were providing health insurance when in fact they 
were not. 

Three employers, Builders Hardware, Park Steel and One Source Computer, entered into 
consent decrees with The Division in which they agreed to pay all outstanding medical 
costs of injured employees, take appropriate action to cure any harm to employees' credit 
rating and make contributions to the Massachusetts Consumer Aid Fund. One employer, 
Barboza Enterprises, Inc. and its various related corporations, all car dealers, after 
initially raising ERISA preemption arguments in a motion for a protective order which 
was summarily denied, agreed to a consent judgment which had not been approved by the 
court prior to the end of the fiscal year. 

Another employer, State Line Snacks Corporation, filed a motion to dismiss based on 
ERISA preemption. Although no ruling was made on the motion to dismiss prior to the 
end of the fiscal year, the motion has since been denied. 

BUSINESS AGREEMENTS 

The Division entered into "Business Agreements" with two employers, Pace Pontiac and 
Consolidated Printing, in which the companies agreed to keep the payments to their 
health insurance plans up to date. In both of these instances, the employers were in the 
process of resolving the problems when contacted by the Office of the Attorney General. 
Accordingly, an agreement to keep premium payments up to date was deemed sufficient 
to protect employees prospectively. 



148 



INTERVENTION IN BANKRUPTCY 

The Division obtained over $100,000 for payment of medical bills of the employees of 
the Andrew Wilson Company. The company had filed for bankruptcy in 1988 and The 
Division had intervened in the bankruptcy at that time. The case was resolved during the 
1995 fiscal year. 

LEGISLATION 

The Division drafted legislation to amend M.G. L. c. 

149 150C. The current legislation simply places liability on corporations for failure to 
remit premiums to commercial insurance companies. The proposed legislation would 
make persons responsible for the failure to make premium payments personally liable for 
any resulting harm to employees as well as making them criminally liable. The 
legislation also expands the scope of the current legislation for failure to remit premiums 
to Blue Cross and Blue Shield and to health maintenance organizations. The legislation 
was filed by Sen. Pacheco and, at the close of the fiscal year, was pending before the 
Commerce and Labor Committee. 

REGULATIONS 

Pursuant to the Attorney General's consumer protection authority under G. L. c. 93 A, the 
Division drafted and proposed regulations to make it an unfair and deceptive act or 
practice for an insurer, including health maintenance organizations, to fail to pay a 
medical claim unless it has first notified subscribers that the coverage has been canceled 
due to nonpayment of premiums by the subscriber's employer. The regulation was 
circulated to interested parties for comment and public hearings were scheduled. 

JOINT INITIATIVE WITH THE DEPARTMENT OF LABOR 

The Division and U.S. Department of Labor entered into an agreement under they 
agreed to proceed jointly against employers that fail to remit premiums for health 
insurance benefits provided to their employees. This joint undertaking, the first of its 
kind in the country, will reduce the ability of employers to seek to evade their 
responsibilities under state and federal laws. 



HOMEOWNERS INSURANCE 

The Division continued its work in the examination of the problems faced by urban 
dwellers in the purchase of homeowners insurance. 

FAIR PLAN RATES 

The Division met with the State Rating Bureau and the Massachusetts FAIR Plan 
regarding FAIR requests for a rate increase. Following these discussions, the Division 
informed the State Rating Bureau and the FAIR Plan that The Division would vigorously 



149 



oppose any request for a rate increase by the FAIR Plan. The Division of insurance 
subsequently rejected, FAIR'S later request for a rate increase. 

TESTIMONY 

The Division prepared testimony for presentation to the U.S. Department of Housing and 
Urban Development in support of mandatory disclosure of underwriting practices by the 
homeowner's insurance industry. The Division also prepared and presented testimony 
to the Massachusetts legislature supporting legislation requiring the insurance industry to 
disclose their writing practices and requiring community reinvestment. The Division 
worked extensively with the Massachusetts Joint Committee on Insurance on a proposed 
bill which was reported out of Committee for passage. The bill requires extensive 
disclosure by the insurance industry and also contains incentives for the voluntary 
insurance market to sell insurance in urban neighborhoods. 



ANALYSIS OF NAIC STATISTICS 

The Division conducted an analysis of the statistics gathered by the NAIC on the sale of 
homeowners policies by some individual companies and by the FAIR Plan in a 
representative sample of zip codes in Massachusetts. Although the NAIC did not gather 
information from all companies writing in Massachusetts, the Division's analysis was 
sufficient to confirm that the insurance industry has, as suspected, abandoned the urban 
areas. This information was included in a comprehensive report of insurance redlining 
subsequently published by The Division. 

LEGAL ACTIONS 

PrePaid Legal Services & American Association of Senior Citizens: 

Following up on an investigation and Assurance of Discontinuance obtained in a prior 
fiscal year against a senior citizen organization, American Association of Senior Citizens 
(AASC) which sold unlicensed legal insurance through Prepaid Legal Services the 
Division participated in a multi-state Attorneys General Task Force which was formed to 
coordinate action against PrePaid. These negotiations resulted in a multi-state consent 
judgment with Prepaid. The consent judgment provided for reimbursement to consumers 
in Massachusetts and other states for the portion of the AASC membership fee which was 
paid to Prepaid. Restitution to consumers is anticipated to be approximately $30,000 
with an additional $5,000 to be paid to the Local Consumer Fund. 

Commonwealth v. Poitras and the Massachusetts Lobstermen's Association: 

In April of 1990, The Division filed a complaint in Suffolk Superior Court against the 
ML A and other defendants alleging that the defendants, without being duly licensed, 
marketed and sold an accident and health insurance plan to fishermen and others in 
Massachusetts; misrepresented that the plan was subject to ERISA; and refused to pay 



150 



valid claims of approximately $3 million. On August 19, 1993, the Superior Court ruled 
that the MLA health insurance plan is not subject to ERISA; that the courts of 
Massachusetts are not preempted from considering the matter; and that the Attorney 
General is not preempted from seeking to apply state insurance law in this case. In June 
of 1995, the Regional Administrative Justice for the Superior Court assigned the case to 
a new session and a new judge. 

Commonwealth v. Theodore Johansson: 

On June 10, 1994, The Division entered into an Assurance of Discontinuance with 
Theodore Johansson, a Framingham insurance agent, who had been actively engaged in 
marketing and selling unauthorized insurance products, particularly those of 
Amalgamated American Employees Association (the "AAEA"), Amalgamated 
American Employees Association Benefit Fund (the "AAEABF'), the American 
Business League (the "ABL"), United Healthcare Benefit Trust ("UHBT"), and United 
Association of Small Businesses (the "UASB"). Pursuant to the Assurance of 
Discontinuance, Mr. Johansson agreed to discontinue selling these products, to pay 
certain civil damages and costs to the Commonwealth, and, at his clients' option, either 
to refund all premiums collected or to pay all medical claims incurred by his clients while 
their policies were in effect. Mr. Johansson subsequently failed to comply with the 
terms of the Assurance of Discontinuance in several material respects, specifically by 
failing to make, or even to offer, full restitution to his clients. The Division served a five- 
day letter upon Mr. Johansson in March. 1995, informing him of The Division's intention 
to bring suit against him pursuant to Chapter 93A. Mr. Johansson has subsequently filed 
for bankruptcy protection, and The Division is currently pursuing its rights against him, 
both in the civil context and as a claim against his bankruptcy estate. 

Commonwealth v. Ernest Gallo: 

In April, 1994, The Division entered into an Assurance of Discontinuance with Ernest 
Gallo, a Leominster insurance agent who was then engaged in the marketing and selling 
of many of the same unauthorized insurance products as Mr. Johansson — specifically, 
products offered by the AAEA, the AAEABF and the A]BL. The Assurance provided 
that Mr. Gallo would discontinue selling these products, would pay certain civil damages 
and costs, and, at his clients' option, either refund all premiums collected or pay all 
medical claims incurred by Ws clients while their policies were in effect. Mr. Gallo, too, 
failed to comply with the terms of his Assurance of Discontinuance and, in February, 
1995, The Division brought suit against him in Worcester Superior Court, seeking a 
permanent injunction, full restitution, and the payment of $10,000 in civil penalties and 
costs. A preliminary injunction enjoining the sale of the unauthorized products was 
entered. The case is ongoing. 

Commonwealth v. Steven Clark : 

Steven Clark, a Medway insurance agent, was likewise engaged in the marketing and 
selling of unauthorized AAEA, AAEABF and ABL insurance products and Mr. Clark, 
too, entered into an Assurance of Discontinuance on May 3, 1994. Mr. Clark also faded 
to comply with the terms of his Assurance, in that he failed to make restitution to his 
clients and failed to pay to the Attorney General the costs of litigation as provided under 



151 



the Assurance. After service of a five-day letter upon Mr. Clark in March. 1995, Mr. 
Clark entered into a consent judgment with The Division, pursuant to which he agreed to 
pay $1,500 to the Local Consumer Aid Fund, in regular installments, and to timely 
provide evidence of restitution to his clients. 

Commonwealth v. Albert Pitts : 

On April 18, 1995, The Division filed a civil complaint against, and entered into a 
consent judgment with, Albert Pitts, a Milford insurance agent, arising out of Mr. Pitts' s 
alleged marketing and sales of unauthorized insurance products to Massachusetts 
consumers. Specifically, Mr. Pitts was alleged to have marketed and sold membership 
in, and health benefit insurance plans of, entities called United Healthcare Association of 
America ("UHCAA") and Atlantic Healthcare Benefit Trust ("AHBT'), premium 
pavements for which were made to National Insurance Consultants, a/Ic/a National 
Investment Consultants ("NIC"); neither UHCAA, nor AHBT, nor NIC was ever licensed 
as an insurer in the Commonwealth. Under the terms of the consent judgment, Mr. Pitts 
has agreed to stop marketing and selling such products to make full restitution to his 
clients; and to pay $500 to the Local Consumer Aid Fund. 

Commonwealth v. Timothy Osborn : 

Timothy Osborn a Pomfret, Connecticut insurance agent, was likewise alleged to have 
sold unauthorized insurance products of UHCAA, AHBT and/or NIC to Massachusetts 
consumers. The Division brought suit against, and entered into a consent judgment with, 
Mr. Osborn on April 20, 1995. Under the terms of the consent judgment, Mr. Osborn has 
agreed: (1) to discontinue all sales and marketing of these products to Massachusetts 
consumers; (2) to pay restitution to all Massachusetts residents who purchased these 
products from him; and (3) to pay $500 in costs to the Local Consumer Aid Fund. 

Commonwealth vs. Retired Home Owners, Inc. et al: 

The Division obtained a permanent injunction against the marketing and sale of an 
unlicensed home care insurance product by a California Corporation and, in addition to 
the hill restitution ($7,045 each) for all Massachusetts elder citizens obtained in a prior 
fiscal year, obtained judgments and contributions of $1,700 to the Local Consumer Aid 
Fund from the agents involved. 

Commonwealth v. Berman: 

The Division issued a 5 day letter to Lawrence Berman, a public adjuster, for violations 
of Chapter 93A and Chapter 93,48 for failure to disclose to a consumer the right to cancel 
agreements within 3 days. The matter was settled without litigation by a $1500 charitable 
contribution and the agreement of the adjuster to comply with the law. 

ASSURANCES OF DISCONTINUANCE 

The Division entered into two Assurances of Discontinuance during fiscal vear 1995 
which resulted in restitution to Massachusetts consumers and contributions to the 
Consumers Aid Fund of approximately $140,000. 



152 



In the Matter of Shawmut Mortgage Company: The Division negotiated and executed an 
Assurance of Discontinuance with the Shawmut Mortgage Company ("the Shawmut") in 
which the Shawmut agreed to stop billing customers for insurance coverage which was 
not provided. 

Under the Assurance, the Shawmut agreed to pay over $135,000, including: over $55,000 
to repair the fire damage to a Dorchester family's home; over $56,000 in refunds to thirty- 
seven customers that had been improperly billed; and $25,000 to aid local consumer 
groups. The Shawmut had collected payments from some of its residential mortgage 
customers, as part of their monthly mortgage payments, for both homeowners insurance 
which had lapsed and for replacement insurance purchased by Shawmut after the 
homeowner's insurance lapsed. These customers were often unaware that the 
replacement insurance purchased by Shawmut provided significantly less coverage than 
their homeowners insurance. 

In the Matter of Family Group Practice: The Division negotiated and entered into an 
Assurance of Discontinuance with the Family Group Practice, a Cambridge physician 
group practice, which had neglected to refund patients with excess reimbursements to 
their patient accounts. The practice refunded all outstanding patient credits and agreed to 
continue to do so in the future. 

CONSUMER COMPLAINTS 

After investigation and intervention, Assistant Attorneys General in the Division were 
instrumental in resolving several matters on behalf of consumers with an estimated 
value to consumers of approximately $300,000. For example: Provident Life & Accident 
agreed to reimburse a consumer over $30,000 after miscalculating disability payments; 
Prudential Life Insurance Company of America agreed to reinstate old policies and 
cancel new policies issued as a result of agent churning; 

Boston Mutual Life reinstated a policy which had lapsed because of incorrect loan 
calculations; American Life & Casualty reinstated a policy which had lapsed during the 
illness of the owner; Penn. Corp. Financial Life, reimbursed premiums of a policy which 
had been sold as a savings plan; three insurance companies returned over $180,000 of 
annuity payments to an elderly consumer who had been misled by agent Christopher 
Boudreau into purchasing the annuities; and Equitable Life Assurance Society refunded 
approximately $50,000 to an elderly consumer who had been misled by an agent into 
purchasing the policy. 

In addition to the many consumer complaints which the Division was able to resolve on 
behalf of consumers, members of the Division explained and worked with many 
consumers to guide them in such matters as: understanding the intricacies of various 
entitlement programs and the interplay between them; the billing practices of their health 
insurers; continuation of health insurance coverage following termination of employment 
or following divorce and the like. While no monetary consumer benefit can be placed on 
these activities, they provide a valuable service to Massachusetts consumers, many of 
whom are elderly or who have no other sources to turn to. 

Consumer Hot-line and Paralegal Resolution of Inquiries and Complaints: 



153 



During the fiscal year, the division received and responded to approximately 1,315 
telephone inquiries an increase of 100 percent over the number of calls in the prior fiscal 
year; 717 written complaints, an increase of 100 percent over the number received in the 
prior fiscal year. An estimated $282,000 in benefits were received by consumers through 
the intervention of the paralegals and volunteer interns, an increase of approximately 65 
percent over the prior fiscal year. 

DISCRIMINATION AGAINST VICTIMS OF DOMESTIC VIOLENCE 

The Division investigated reports of discrimination by insurance companies against 
consumers based on their status as victims of domestic violence. Members of the 
Division contacted and received information from seven carriers who had allegedly 
engaged in such discrimination (Aetna, The Equitable, First Colony, Nationwide, 
Metropolitan, Principal Financial, and the Prudential), as well as several other carriers 
and trade associations, to determine their position on the issuance and renewal of policies 
to victims of domestic violence. 

Following its investigation, the Division prepared testimony which was presented to the 
Massachusetts Legislature's Joint Committee on Insurance. In this testimony, The 
Division pressed the need for legislation that would prohibit insurance companies from 
canceling, refusing to issue or renew, or in any way making or permitting any distinction 
or discrimination in the terms and conditions of any form of insurance, including life, 
health and property, based on a persons status as a victim of domestic violence. 

The Joint Committee on Insurance requested the Attorney General's assistance in drafting 
such legislation. In response to this request, members of the Division drafted legislation 
and worked in cooperation with insurance committee staff to address the concerns of 
concerned parties. The legislation, as drafted by the Division, was enacted as Sections 
152 through 158 of Chapter 38 of the acts of 1996. 

NON-GROUP HEALTH INSURANCE REFORM: 

The Division, as part of the Attorney General's Health Care Task Force, continued its 
efforts to effectuate health insurance reform. Members of the Division drafted legislation 
to reform the non-group insurance market. The legislation was sponsored by 
Representative Barbara Gray. This legislation continues the efforts of the Non-Group 
Health Insurance Reform Commission, convened by the Attorney General in 1992, to 
address both the affordability and availability of non-group insurance. 

In addition to drafting this legislation, members of the Division prepared and presented 
testimony to the Massachusetts legislative Joint Committee on Insurance in support of 
reform. At the request of the Committee, the Division prepared a comparison of the 
various bills before the legislature. 

LONG TERM CARE INSURANCE 

The Division prepared and delivered the Attorney General's testimony in support of H. 
5 1 26, a bill that would set minimum standards for long term care insurance policies sold 
in Massachusetts and regulate the manner in which such policies are marketed. This bill 



154 



has been reported favorably out of the Joint Committee on Insurance and is now before 
the House Ways and Means Committee. 

REGULATORY ACTIVITIES 

In June 1995, the Division presented testimony at a public hearing convened to monitor 
the overall condition of the Massachusetts market for Medicare supplement insurance 
following the reform enacted by the legislature in December, 1993. 

Prosecutor's Rotation 

A member of the Division spent four months of fiscal 1995 in Lawrence District Court as 
a prosecutor with the Essex County District Attorney's Office as part of Attorney General 
Scott Harshbarger's Urban Violence Strike Force. The Division member assisted the 
District Attorney's Office by handling a full criminal case load including trials, motions 
to suppress, arraignments, and other duties. 

Guest Speakers: 

Members of the Division made presentations to several organizations regarding insurance 
and financial exploitation of elderly. Some of these speaking engagements included: a 
cable TV program sponsored by the Elder Conference of Wilmington on services 
available to Seniors: a Conference on Housing Discrimination; presentations to local 
groups on availability of health insurance; a seminar sponsored by the Newton Library, 
on Long Term Care Insurance; the radio show, "The Money Experts" regarding 
MediGap Insurance; several radio shows regarding the proposed regulation on 
notification of cancellation of health care insurance; a presentation to SHINE counselors 
at the request of the Executive Office of Elders Affairs and a presentation on the uses and 
availability of insurance to local merchants as part of the Office's Safe Neighborhood 
Initiative. 

ELDERLY NEWSLETTER 

The Division prepared and distributed, to approximately 2,000 elderly consumers, a 
newsletter explaining the reform of the way in which Medicare supplement insurance 
policies would be sold in Massachusetts and advising them of their options. 

ESTIMATED SAVINGS TO CONSUMERS 

Auto Rate Cases $ 1 26,620,000 

Health Insurance Rate Cases 807,000 

Consumer insurance Matters 296,000 

Consumer Hotline 282,000 

Total $128,005,000 



155 



UTILITIES 

The composition of the Regulated Industries Division's utility workload in fiscal year 
1995 reflected the rapid and dramatic changes underway in the telephone, electric and gas 
utility industries. In contrast to past years, there was very little traditional rate case 
work. Instead, much of the Division's work involved consideration of alternative 
approaches to rate regulation that place greater reliance upon utility performance and 
competitive forces and less on the review of actual utility costs. These efforts involved 
advocating new structures and rules to maximize the consumer benefits from the change 
in regulatory approach and protecting the interests of small residential and business 
customers during the transition to new regulatory frameworks. While some of this work 
occurred in contexts applicable to all three of the public utility industries, most occurred 
either in the context of industry specific administrative rulemaking/fact-finding 
proceedings or in adjudications of specific cases. Examples of the Division's public 
utility work relative to each industry in fiscal year 1995 include: 

Telecommunications 

NYNEX, D.P.U. 94-30. In April, 1994, New England Telephone Company 
(d/b/a/"NYNEX") filed with the DPU a proposal for an alternative approach to the 
regulation of its rates. 

The NYNEX proposal was for a "price caps" approach to rate regulation in general terms, 
this approach to rate regulation companies are allowed/required to increase/decrease the 
average of all of their rates by the amount by which inflation exceeded/was less than the 
level of productivity improvement assumed to occur each year. NYNEX' s proposal 
incorporated a 2.5 percent productivity assumption and allowed the Company to increase 
any particular rate by an amount equal to the inflation rate in any year so long as the 
average rate change was equal to the inflation rate less 2.5 percent. During the course of 
the more than thirty days of evidentiary hearings held in the summer and fall of 1994, the 
Division presented the testimony of its financial analyst to address the unreasonableness 
of the Company's existing rates as a "starting point" for alternative regulation as well as 
that of a nationally recognized expert on telecommunications policy to address the 
deficiencies of the particular "price caps" model of rate regulation proposed by the 
Company. Following extensive briefing, in May, 1995, the DPU rejected the Division's 
arguments that both the Company's overall rate level and its residential basic service rate 
in particular should be lowered prior to the implementation of a new approach to the 
regulation of its rates and, instead, accepted the Company's proposal to freeze residential 
basic service rates through the year 2000. The Department did, however, adopt in large 
measure many of the improvements to the structure of the Company's proposal that the 
Division had argued were necessary to protect the public interest. It ordered stricter 
service quality standards than those proposed by the Company and required the Company 
to pay significant penalties in the form of lower future rates if it fails to meet those 
standards. In addition, it ordered a more than a fifty percent increase in the assumed rate 
of productivity improvement by the Company (from 2.5 to 4.1 percent) that must be 
subtracted from the inflation rate to determine the amount by which it rates will be 
permitted/required to change. As a result of the Division's success on the productivity 



156 



offset and service quality penalty issue, the Company's filing at the close of the fiscal 
year resulted in a $38 million decrease in its rates rather than a $3.4 million increase it 
would have been permitted under it original proposal. 

Commonwealth v. Info Access, et at. In October, 1994, the Division initiated a lawsuit in 
the U.S. District Court for the District of Massachusetts against four companies involved 
in the provision of "pay per call" services over 1-800 telephone numbers: InfoAccess, 
Inc.: MSI Operator Assist, Inc.; Phone I.D., Inc.; and ATI Operator Assist, Inc. This suit, 
which was the first action ever filed by a state Attorney General under the Telephone 
Disclosure and Dispute Resolution Act ("TDDRA") of 1992, was filed in response to 
numerous consumer complaints over changes included in their telephone bills for calls 
purportedly made to 1-800 numbers. The complaint alleged that the defendants' 
provision of "pay per call" services through 1-800 numbers violated the terms of 
TDDRA, the TDDRA regulations promulgated by the FCC and the Federal Trade 
Commission and the Massachusetts Consumer Protection Act. Among others, the 
complaint alleged that the following actions of the defendants were contrary to the 
requirements of TDDRA: advertising and providing pay per call services through 1 -800 
numbers without first securing a valid agreement to pay for such services with the party to 
be billed: failing make appropriate disclosures in advertisements regarding the cost of 
calls to the service: and failing to include the disclosure "preamble" message required by 
TDDRA. The defendants later assented to a motion to amend the original complaint and 
on March 3 filed a motion to dismiss the amended complaint. At the end of the fiscal 
year, the defendant's motions to dismiss had been briefed and oral argument had not been 
scheduled. 

FCC Policies and Rules Implementing TDDRA. Also in October, 1994, the Division 
joined with twenty three other Attorneys General offices and filed comments with the 
FCC in a proceeding to reconsider regulations it had issued earlier to implement 
TDDRA' s prohibition on the provision of pay per call services over 1-800 numbers. 
These comments were filed in response to the thousands of consumer complaints received 
by Attorneys General nationwide. The comments asserted that because consumers expect 
all calls to 1-800 numbers to be free, the practice of using 1-800 numbers to provide pay 
per call service is especially misleading. The comments noted that in its enactment of 
TDDRA, Congress expressed an intention to ensure that such expectations were satisfied. 
Among other things, the Attorneys General requested the FCC to amend its regulations 
to require that agreements between consumers and pay per call service providers 
concerning billing for such services when provided over 1-800 numbers be in writing. 
Moreover, the Attorneys General urged the FCC to adopt a blanket prohibition on local 
telephone companies billing for pay per call services provided through 1-800 numbers. 
No action had been taken by the FCC at the close of the fiscal year. 

FCC Policies and Rules Concerning Unauthorized Changes of Consumer's Long 
Distance Carriers. In December, 1995, the Division joined with nineteen other Attorneys 
General offices and filed comments with the FCC regarding proposed rules governing so- 
called "Letters of Agency" authorizing replacement of a consumers current Inter- 
Exchange Carrier ('TXC") with another. The proposed rules were under consideration to 
respond to the practice of "slamming" which involves consumers having their chosen 



157 



IXC replaced by another purporting to act pursuant to the consumer's request, Among 
other things, the comments urged the FCC to adopt rules requiring that IXC obtain 
written authorization from consumers before requesting the local telephone service carrier 
to change the consumers' designated IXC carrier and to prohibit the inclusion of 
purported authorization language in sweepstakes, rebate, and other promotional 
documents. The comments also urged the adoption of rules setting forth a require format 
for Letters of Agency and requiring that notice of any change in their designated carrier 
be included in their monthly telephone service billing statement. In a ruling issued in 
June, 1995, the FCC promulgated new regulations that did continued to allow IXCs to 
establish authority by means other than written documents but, did require that letters of 
authority meet specified format and disclosure requirements. 

Telephone Competition, D.P.U. 94-185. In January, 1995, the DPU opened an 
investigation to consider the adoption of regulatory mechanisms to encourage and 
develop competition within the Massachusetts local telephone market. Among the many 
issues to be considered in this investigation are: (1) universal service — maintaining 
mechanisms to ensure affordable telecommunications service; (2) number portability - 
allowing consumers to maintain their existing telephone number when they switch 
service providers; (3) intra-LATA toll presubscription - allowing consumers to chose to 
have local toll calls automatically carried and billed by an alternative provider in a 
manner similar to inter-LATA long distance calls; (4) interconnection - allowing 
competing providers, such as NYNEX, AT&T, MCI, Sprint, etc., to interconnect their 
telecommunications networks at reasonable points of presence and at fair prices; (4) 
regulatory safeguards - mechanisms to prevent competitive services (i.e. video dial-tone) 
from being subsidized by noncompetitive services (i.e. plain old telephone service). 
Testimony in this investigation was filed in May and discovery continued through June. 
Hearings had not begun at the close of the fiscal year and are expected to conclude in 
October. 

Petition of Cellular Telecommunication Industry Association. 

In February, 1995 the Division filed conunents with the FCC urging denial of a pending 
petition for a rulemaking filed by the Cellular Telecommunications Industry Association. 
The petition sought the promulgation of a rule that preempt state and local governments 
from enforcing zoning regulations that could effect the siting of commercial mobile radio 
service communications towers. In its comments, the Division argued that the FCC 
lacked authority under the terms of Communications Act to preempt such regulations and, 
in any event, the exercise by state and local governments of control over the siting of 
conununications towers was not in any way inimical to the Congressional goal of 
competitive market in wireless telecommunications services. The FCC had not taken any 
action on this matter at the close of the fiscal year. 

Electricity 

Electric Utility Market Reform Task Force. In July, 1994, the Governor's Electric Utility 
Market Reform Task Force issued it final report in calling for prompt consideration of 
how competition should be encouraged in the Electric Utility Industry. As the Attorney 
General's representative on the Task Force, the Division had participated on in the 



158 



meetings of the Task Force during the spring and early summer of 1994. The report 
concluded that the Commonwealth should encourage competition at the wholesale level 
of the electric utility industry and that the DPU should encourage proposals for 
Performance-based incentive regulatory schemes. As a result of the Division's efforts, 
the final report also concluded that until the full implications for all stockholders of such 
a development were more completely understood, the Commonwealth should proceed 
cautiously with encouraging competition at the retail level. 

Electric Utility Restructuring, D.P.U. 95-30. In February, 1995, the DPU initiated a 
broad investigation into the question of whether and, if so, how the 'Massachusetts 
electric utility industry should be restructured to allow for more competition and 
consumer choice. In comments filed in March and May, 1995 as well as in testimony 
given during public hearings, the Division urged the DPU to adopt a schedule to 
restructure the electric utility industry no later than the year 2000. The Division urged the 
DPU to adopt a regulatory framework that would allow competition and to create 
meaningful choices for all consumers. It argued that the regulatory framework should 
preclude costs being shifted between customer classes during the transition to a 
competitive market and that utilities should not be allowed to condition consumer access 
to alternative power sources upon their customers being forced to reimburse them for 
their past investments. A decision in the restructuring investigation by the DPU was 
pending at the end of the fiscal vear. 

Nantucket Electric Company, D.P.U. 94-7C-1. In February, 1995, the Division entered 
into an agreement with Nantucket Electric Company under which the Company was 
required to refund $100,000 to its customers in settlement of the then pending proceeding 
concerning its operation of it electric generating units during the period from April, 1993 
through March, 1994, The settlement was approved by the DPU in March, 1995. 
Massachusetts Electric Company, D.P.U. 4-102. In 1993, the MB T A, acting pursuant to 
a 1991 enactment by the General Court that allowed it to solicit competitive bids for its 
electric service requirements, awarded Boston Edison a contract to serve as its exclusive 
supplier of power in Massachusetts, thereby replacing MassElectric as its supplier for 
portions of the MBTA's operations located with the Company's service territory. In a 
pending proceeding before the FERC that the Division had intervened in earlier, 
MassElectric was seeking to recoup the amount of its lost net MBTA revenues through 
"wheeling" charges to be collected to transport power from Boston Edison to MBTA 
locations within its service territory. Massachusetts Electric Company, ER94- 129-000. 
In May, 1994, the DPU initiated its own investigation into the impact on Massachusetts 
Electric Company (MassElectric") of the loss of the MBTA as a power sales customer. 
The Division intervened in this proceeding and urged the DPU to address the question of 
whether MassElectric should be permitted to recoup from its remaining customers the 
amount of the net revenues from the MBTA that it was no longer collecting. Hearings in 
this proceeding were deferred pending progress on the FERC case. Both the DPU and the 
FERC proceedings were terminated in the Spring of 1995 without any findings after 
MassElectric and the MBTA submitted a settlement agreement to the FERC specifying a 
level of wheeling charges to be paid by the MBTA that included amounts to be credited 
by MassElectric against costs it otherwise would seek to pass on to its remaining 



159 



customers. Given that MassElectric had agreed that the retail ratemaking issues posed by 
its loss of the MBTA as a sales customer could be raised in the Proceeding to initiated in 
the Spring of 1995 when it sought a base rate increase, the Division did not oppose the 
termination of either the FERC or DPU proceedings. 

MontauP Electric Cooperative, ER94- 1062-000. In December, 1994, we entered into a 
partial settlement agreement with Montaup Electric Cooperative, Eastern Edison 
Company's wholesale supplier of electric power, to terminate a pending FERC rate 
proceeding in which we had intervened in the spring of 1994 on behalf of Eastern's 
customers. Under the terms of the partial settlement, which was approved by the FERC in 
April of 1995, the Montaup agreed to reduce its rates by $14.3 million or approximately 
four percent. The reduction was retroactive to June, 1994 and resulted in more than an 
$8 million annual reduction in the Montaup billings to Eastern which are passed onto 
Eastern's customers. 

IRM Streamlining, D.P.U. 94-162. The Division filed a number of rounds of comments 
with the DPU between January and March, 1995 concerning a proposal by a number of 
the Commonwealth's investor owned electric utilities to amend the DPU's regulations 
governing resource planning and acquisition. While the Division was supportive of a 
number of modifications proposed by the utilities to simplify and reduce the burden 
imposed on all parties by the current regulations, it opposed those modifications that 
would have reduced the Pro-consumer and Pro-competition features of those regulations. 
In a decision issued in June, 1995, the Department agreed with many of the Division's 
positions and indicated that it would consider on a case-by-case basis utility proposals to 
waive certain filing requirements. 

Cambridge Electric Light Company, D.P.U. 95-36/94-101. In March, 1995, Cambridge 
Electric Light Company ("CELCo") sought DPU approval of new tariffs to be apply to 
large industrial customers that installed their own electric power generating equipment 
and thereby become "partial" rather than "total requirements" customers. This filing 
followed a May, 1994 filing by the Massachusetts Institute of Technology ("MIT") 
seeking a DPU order establishing partial requirements rates applicable to the service to 
be provided by CELCO to MIT after it completed construction of its own electric power 
generating unit. The Division as well as the City of Cambridge intervened in the 1995 
proceeding to protect the interests of CELCo' s remaining customers. In 1994, MIT had 
purchased more than ten percent of all the electric power sold by CELCO to end users. In 
addition to tariffs setting forth the charges for partial requirements services provided to 
MIT, CELCo' s 1995 filing also included a proposed exit fee to recoup most of the costs 
which would be "stranded" by MIT's departure, in June, 1995, the Division opposed 
MJT's motion to dismiss the exit fee proposal. At the close of the fiscal year, hearings 
had not yet concluded and the DPU had not yet ruled on MIT's motion. 

Massachusetts Electric Company, D.P. U. 94-40. In March, 1995, Massachusetts 
Electric Company sought DPU approval of either an alternative form of regulation or a 
rate increase of $62 million. Under the terms of the Company's alternative regulation 
proposal, its rates would not be governed by traditional cost of service regulation, but 
would be allowed increase each year by twenty percent of the amount by which its 
average rates are below the average for other Massachusetts electric utilities. If accepted, 



160 



this proposal would result in a $25 million increase in 1995 and $10 million increases in 
succeeding years. The Company proposed to collect $56 million of its proposed $62 
million increase from its residential customers, an increase that would result in a 13 
percent increase for the average residential customer. The DPU held two days of hearings 
in May on the alternative regulation proposal and in briefs filed in June the Division 
urged the DPU to reject the proposal because, among other deficiencies, the proposal did 
not create any incentive to lower rates and, instead, was designed to reward the Company 
for it past decisions Thirteen additional days of hearings were held in June on the 
Company's proposed rate increase, during which the Division presented the testimony of 
an expert witness to challenge the Company's proposed allocation of costs between its 
various customer classes. At the end of the fiscal year, the Department had not yet issued 
a decision on the alternative regulation proposal and briefs had not yet been filed on the 
proposed rate increase. 

Yankee Atomic Corporation, ER95-825-000. In March, 1995, the operator of the retired 
Yankee Rowe nuclear power plant made a filing with the FERC in which it sought a $30 
million increase in the charges its makes to its former utility customers to cover the costs 
of decommissioning the unit. Massachusetts utilities took slightly more than half of the 
output of the plant during its operation and thus would be required to pay approximately 
half of the proposed $30M annual increase, payments that they, in turn, would pass on to 
their customers. The Division intervened in this proceeding on behalf of those utilities' 
customers. At the close or the fiscal year, a procedural schedule had not yet been adopted 
in this proceeding. 

Commonwealth Electric Company/Camhridge Electric Light Company, D.P.U 94-2C- 
1/94-3C-1 . In May, 1995, the DPU approved a settlement that the Division negotiated 
with the two retail electric distribution subsidiaries of the Commonwealth Energy 
System, Commonwealth Electric Company and Cambridge Electric Light Company, 
which terminated a number of generating performance proceedings that were then 
pending. Under the terms of the agreement, both Companies agreed to reduce their rates 
by approximately one percent: $2.7 by Commonwealth and $1.5 by Cambridge. In 
addition Commonwealth agreed to freeze these reduced rates through 1998, to offer, at no 
cost to its other customers, substantial discounts to its large industrial customers who 
agree to give the Company five years notice before they install their electric generation 
equipment or purchase their electricity from another supplier, and to share equally with its 
customers any earnings it achieve in excess of a stipulated profit rate cap of 9.5 percent. 

Nantucket Electric Company INEES, D.P.U. 95-67. In May, 1995, the Division reached 
an agreement with Nantucket Electric Company and the New England Electric System 
("NEES"), the parent company of Massachusetts Electric Company, concerning the 
terms under which NEES would be allowed to acquire Nantucket. Under the agreement, 
NEES agreed to reduce Nantucket's current base rates charged by five percent, effective 
upon DPU approval of the acquisition. NEES also guaranteed that Nantucket's base rates 
would not increase during the first year of the operation of a submarine cable to be 
constructed to connect the island with the New England Power Pool. The DPU initiated 
an investigation into the proposed merger late in June, 1995 and a decision on the merger 
and the proposed settlement are not expected before the fall of 1995. 



161 



Boston Edison Company, D.P.U. 95-IA-l. The Division participated in the DPU's 
review of Boston Edison Company performance of its operation of it electric power 
generating units during the period from November, 1993 through October, 1994. In 
briefs filed in the spring of 1995, the Division urged the DPU to find that actions by 
Boston Edison in operation of its power plant were did not satisfy the pnident operations 
standard. It argued that the Company should be required to make refunds for replacement 
power costs previously collected in regard to nearly twenty days of outages at the Pilgrim 
nuclear plant as well as various outages at the Company's New Boston and Mystic 
generating plants. A decision by the DPU had not been issued at the close of the fiscal 
year. 

Boston Edison Company, D.P.U. 94-IA-l. In June, 1995, the DPU issued its decision in a 
case concerning Boston Edison's operation of its generating units during period from 
November, 1992 though October 1993. In it decision, the DPU adopted many of the 
arguments the Division had raised in briefs filed during fiscal year 1994 and found that 
the Company's imprudence was responsible for 133.5 hours of outages at its Pilgrim 
nuclear plant and another 405.7 hours of outages at its fossil plants. It ordered the 
Company to make refunds of approximately $1.5 million to return the resulting 
replacement power expenses that had already been passed on to its customers. 

Gas 

Bay State Gas Company, D.P.U. 95-52. In April, 1995, Bay State Gas Company sought 
DPU approval of new rates. Bay State claimed its filing was "revenue neutral" — that it 
would not result in any additional revenues but would instead only bring the revenues it 
receives from its various customer classes more in line with the costs it incurs to serve 
those classes and fully, unbundle" the charges its collects from its commercial and 
industrial customers for transportation and gas supply services. At the close of the fiscal 
year, discovery was still being conducted on the Company's proposals and hearings had 
not yet been held. 

Interruptible Transportation and Capacity Release, D.P.U. 

93-1 14. In a DPU proceeding concerning new policies to apply to interruptible 
transportation service provided by local gas distribution companies ("LDCs") as well as 
their sale or "release" of capacity for which they have contractual entitlements on 
interstate pipelines, the Division sponsored the testimony of an expert witness and filed 
comments during the fall and winter of 1994. In its filings, the Division urged the 
Department to require LDCs to offer interruptible transportation service but also argued 
that LDC should collect charges for such service that include a minimum contribution to 
their fixed costs. In regard to LDC sales or releases of their capacity rights, the Division 
took the position that the DPU should provide LDCs with real incentives to minimize 
their costs by careful management of their pipeline capacity entitlements, i.e., to create 
incentives for efficient sales, short and long term, of such capacity. A decision in this 
matter was pending at the end of the fiscal year. 

FERC Order 636 Transition Costs, D.P.U. 94- 1 94. The Division also filed comments in a 
DPU proceeding relating to gas rates involved amounts billed to LDCs by interstate 



162 



pipelines to cover costs incurred by the pipelines as part of the FERC mandated transition 
by pipelines from providing bundled transportation and gas supply service to providing 
unbundled transportation service. In light of existing precedent in other jurisdictions that 
state regulators are generally preempted from rejecting utility attempts to pass on FERC 
Order 636 Transition Costs, the Division did not oppose recovery of these costs by 
Massachusetts LDCS, but filed comments in January 1995 urging the DPU to require that 
all firm LDC customers, sales and transportation customers alike, pay a proportional 
share of such costs. In a decision issue in March, 1995, the DPU agreed and required 
LDC's to recoup such costs through the imposition of volumetric charges. 

Miscellaneous 

Utility Merger Policies, D.P.U. 93-167. Following comments filed by the Division in 
February and May of 1994, on August 3, 1994, the DPU issued its decision in its 
investigation of whether it should change its long-standing policy prohibiting 
Massachusetts consumers from being charged for costs incurred to implement utility 
mergers and acquisitions. The Division had argued against the position taken by some 
utilities in this proceeding that the DPU should abandon its existing policies and adopt a 
rule allowing merging companies to recoup from their customers all "costs" of effecting a 
merger, including any "acquisition premiums." Although the DPU indicated in its 
decision that it would be willing to reconsider its per se prohibition on the recovery of 
merger costs, it rejected the utilities call for a rule either presumptively or automatically 
allowing recovery of such costs. Instead, consistent with the Division's earlier conunents, 
the DPU indicating that the future treatment of such costs would be determined on a case 
by case and only in the context of mergers that would result in clear customer benefits. 

Incentive Regulation, D.P.U. 94-158. In response to a September 20, 1994 notice from 
the DPU seeking comments on twenty specific questions concerning alternative 
approaches to rate regulation, the Division filed conunents with the DPU in November 
and December, 1994 in which it argued that the goal of any incentive plan should be to 
reduce the rates charged to all customers. In particular, the Division argued that the DPU 
should adopt a broad "performance based" scheme of regulation that tied changes in 
utility rates to movements in national averages and should avoid narrow performance 
measures that could create inappropriate incentives. In a decision rendered on February 
24, 1995, the DPU concluded that the increased use of performance based regulation 
could improve the efficiency of utility operations and thereby result in lower rates. It 
agreed with the Division's position that the focus of any incentive plan should be to 
achieve cost and rate reductions. It encouraged all gas and electric companies to devise 
and propose incentive plans and specified the criteria upon which it would evaluate 
incentive proposals. The DPU stressed that incentive plans should provide rewards for 
future actions taken by utilities that reduce costs but should not result in reduced 
customer service, reliability or safety. 

LEGISLATIVE ACTIVITIES 

The Division again prepared draft legislation to amend the terms of G. L. c. 164, 96 to 
clarify the authority of the DPU to review and pass upon the acquisition of any 



163 



Massachusetts public utility by another utility. The bill, H.3339, was filed by the Attorney 
General and Representative Herren, the House Chair of the Committee on Energy, t the 
close of the fiscal year, not action had been taken on the bill. 

The Division provided the consumer advocate's perspective on pending changes in the 
electric utility industry in a briefing session organized for legislators in the Spring of 
1995. In its presentation, the Division stressed the potential benefits for consumers from 
increasing the amount of competition permitted in this industry as well as the potential 
risks to residential and small commercial customers if utilities were not precluded from 
shifting costs among their various classes of customers. 

ESTIMATED SAVINGS FOR MASSACHUSETTS UTILITY CONSUMERS: $51 
Million 



CHIEF PROSECUTOR'S UNIT 



INTRODUCTION 



Beginning in November, 1992 with the creation of the ChiefProsecutor's Unit, the Public 
Protection Bureau has had thecapability to prosecute cases criminally as well as 
civilly .Target areas are health care, economic fraud on elders andmultiple consumers, and 
unauthorized practice of certainprofessions. Patricia Bernstein, who originated the 
chiefProsecutor program, left the office in November, 1994 to jointhe bench. In 
February, 1995, Crispin Birnbaum, formerly ofthe Middlesex County District Attorney's 
office, became the newChief Prosecutor. In addition, William Brownsberger was 
namedDeputy ChiefProsecutor. In late spring 1995 AAG Scott Cooperwas given a half- 
time assignment to the Unit. Numerous otherassistant attorneys general have volunteered 
to handle criminalcases under the Unit's supervision, which has allowed us toincrease 
productivity during the spring and summer 1995. Referrals to the Unit come largely from 
other areas of theoffice. Members of the Unit work closely with staff from theother 
divisions of the Public Protection Bureau and theCriminal Bureau. Cross-bureau training 
has been successful andwill continue to be planned. Civil investigators providesupport 
for the attorneys on a regular basis, with Unavailability of members of the State Police for 
special needssuch as search warrants or arrests.Efforts have been made to improve case 
management timelinesin the Unit from screening referrals to completinginvestigations. 
The Unit has increased its use of the districtcourts as a venue for prosecutions. During 
the past year, theUnit has focused resources on (1) prosecutions of chiropractorsfor health 
care fraud, (2) staff who physically abuse mentallyretarded individuals, (3) home 



164 



improvement contractors whodefraud the elderly, and (4) unauthorized practice of 
variousprofessions, as more particularly described below. 

CASE ACTIVITY 

1. REFERRALS TO THE UNIT(statistics only for February-June 1995): 71 

2. DISTRICT COURT COMPLAINTS OBTAINED 

Comm. v. Jondle (Maiden) alleged unauthorized practiceof chiropractic 
medicine. 

Comm. v. Smith (Somerville) alleged physical abuse ofmentally retarded 
person 

Comm v. Sherman (Chicopee) alleged physical abuse ofmentally retarded 
person 

Comm v. Forgione (Suffolk) alleged larceny of elder 



3. SUPERIOR COURT CASES DISPOSED 

Comm v. Morrison (Middlesex) larcenies of elders by funeral home operator one 

year house of correction 
Comm v. Ristuccia (Essex) larcenies by home improvement 

Comm v. Abora contractors 

Comm v. Swerling suspended sentence plus restitution 

Comm v. Martin (Suffolk) alleged health care fraud acquitted after jury 

trial 
Comm v. Fish (Middlesex) unauthorized practice ofnursing, forgery, 

utteringsix months house of correction suspended 
for twoyears with a $500 fine 
Comm v. McLaughlin (Plymouth) larcenies by home improvement contractor jail 
plus restitution 

OTHER ACTIVITIES 

1 . The Deputy Chief Prosecutor has been active inpreparing proposed changes to the anti- 
kickback health care lawand regulations with the Board of Chiropractors. A 
trainingprogram for chiropractors is also being planned. 

2. The Deputy Chief Prosecutor is working on a criminal justice policy project in which 
offender-based data will bestudied to identify trends and propose changes. 

3. The Chief Prosecutor was an MBA panel member at asession entitled "Representing, 
Opposing and Judging Peoplefrom Linguistic and Cultural Minorities". A related essay 
waspublished separately in the MBA Individual Rights andResponsibilities Section 
News. 

4. The Chief Prosecutor has been invited to teach at theannual Harvard Law School Trial 
Advocacy Workshop 



165 



5. The Chief Prosecutor chairs the Sentencing Subcommittee of the Attorney General's 
Task Force on Racial andEthnic Bias in the courts. 

CIVIL INVESTIGATION DIVISION 

The Civil Investigation Division conducts investigationsprimarily for divisions within 
the following bureaus: PublicProtection, Government, Family and Community Crimes, 
Business andLabor Protection and, on occasion, for the Executive Bureau, orin 
connection with the Criminal Bureau.The major duties of Division investigators are: 
locatingand interviewing victims, witnesses, subjects and others ;obtaining and reviewing 
documentary evidence from numeroussources including individuals, corporations, and 
federal, state,county and municipal agencies; conducting surveillance,background checks 
and asset checks; analyzing financial recordsand performing other forensic accounting 
functions; andtestifying before the Grand Jury and at trial.In fiscal year 1995, the Division 
led 958 investigationsin the following major areas: 

PUBLIC PROTECTION BUREAU 

Consumer Protection and Antitrustlnvestigators continued to perform their traditional 
role byassisting the office in bringing G.L. c. 93A enforcement actionsagainst businesses 
and individuals in major consumer areas suchas automobile sales and repair, travel 
services, retail sales,and advance fee loan scams. Areas also included health 
spas,adoption agencies, the unauthorized practice of law and medicine,phony home 
employment schemes, and numerous issues affecting theelderly such as investments and 
home improvement scams.The Division also initiated several investigations andsurveys to 
determine compliance with existing laws in the ticketresale industry and in the sales of 
cigarettes and mail orderweapons and other areas.Civil RightsThe Division investigated 
"hate crimes," allegations ofpolice misconduct and other violations of the Massachusetts 
CivilRights Act including discriminatory rental practices. Divisionstaff interviewed 
victims, witnesses and, where appropriate, subjects of such investigations. Investigators 
obtained andreviewed police reports, court documents and other 
availableevidence .Public CharitiesThe Division investigated individuals associated 
withorganizations who raised funds from the public in violation ofMassachusetts law. 
Investigators interviewed victims, usuallybusiness people, who made donations to a 
charity based on therepresentations of a solicitor. In some instances, solicitorsposed as 
law enforcement or other public officials or otherwisemisrepresented themselves or the 
charities purpose. Investigatorsworked with local police departments, district attorneys 
andneighboring state attorneys general in locating "couriers" whopicked up donations. 
The Division's financial investigatorsreviewed and audited books, records and financial 
reports of manynon-profit organizations.Regulated Industrieslnvestigators continued to 
work with PPB and RID attorneysas part of the Workers Health Fraud Task Force 
project to reviewand investigate businesses and organizations which withheld 
fromemployees contributions for health insurance premiums, but failedto actually 
purchase the health insurance policy. Other casesinvestigated included the sale of 
fraudulent or costly lifeinsurance and other policies to the elderly, sometimes 



166 



byunlicensed insurers.Division investigators participated in the Working 
Groupassigned to investigate allegations of discriminatory redliningby the insurance 
industry in the sale of homeowners insurance.Bureau Prosecutorlnvestigators worked 
with the Bureau prosecutor on numerouscases which resulted in indictments against 
individuals forviolations of the state's consumer protection, charities andvarious criminal 
laws. Cases included theft against the elderlyby a home health care provider and the 
owner of a funeral home,home improvement rip-offs, auto dealers, illegal charitable 
fundraising, health care fraud by medical providers and othersrelated to the medical 
field.The Division also played a key role in establishing a HumanServices Institutional 
Abuse project within PPB. Protocols forthe referral of cases were established and 
investigationsconducted into those cases identified for action by the office.Investigators 
interviewed victims and witnesses and collecteddocumentary evidence. Indictments 
were issued in one case andcriminal complaints alleging assault and battery on a 
mentallyretarded person have been issued in three others. 

GOVERNMENT BUREAU 

Environmental ProtectionThe Division's role in EPD cases primarily involved 
locatingand identifying assets of potentially responsible parties liablefor paying costs 
incurred by the Commonwealth in the clean-up ofpolluted or hazardous waste sites, 
Investigators also locatedformer employees and officers of defunct companies 
responsible inpart for such violations, and reviewed, evaluated and analyzedfinancial 
documents and prepared ability to pay analyses.TrialThe Division played a major role in 
the investigation of tort actions filed against the Commonwealth which included: the 
alleged abuse, mistreatment and deaths of clients in state care; alleged wrongful 
termination of state employees; and, personalinjuries and other damages which 
occurred on state-owned propertyand/or in accidents on state roads or involving state 
cars. TheDivision also investigated cases involving contract disputes andeminent 
domain proceedings. 

CRIMINAL BUREAU 

Workers' Compensation Fraudln conjunction with the protocols established by 
theAttorney General's Task Force to Reduce Waste, Fraud and Abuse inthe Workers' 
Compensation System, the Division investigatedallegations that state employees or 
employees of self-insuredcompanies were fraudulently receiving workers' 
compensationbenefits. Investigators worked with the Insurance Fraud Bureau 
ofMassachusetts in a joint effort to investigate instances ofpremium avoidance by 
companies attempting to defraud insurers ofpremiums owed for workers' compensation 
coverage. 

Safe Neighborhood Initiative (SNI)The Division continued its assistance to the 
AbandonedProperties project, a program based in the C-l 1 area ofDorchester by 
conducting research on these target propertiesprimarily to determine the status of 
ownership and existingencumbrances of the buildings. 



167 



FAMILY & COMMUNITY CRIMES BUREAU 

Victim Compensation & Assistanceln February 1995, Division investigators began 
assisting theVCAD in disposing of all outstanding, court-based cases. At theclose of the 
fiscal year, 295 cases were completed by Divisionstaff. 

BUSINESS & LABOR PROTECTION BUREAU 

Fair Labor and Business PracticesDivision financial investigators assisted FLBP 
inspectorsand attorneys in the investigation of prevailing wage andnonpayment of wage 
cases, other investigators assisted FLBP byperforming intake and other investigative 
functions.Insurance FraudThe Division's role in investigating allegations 
involvingworkers' compensation fraud, previously conducted in conjunction with the 
Criminal Bureau, will continue under the newly createdlnsurance Fraud Division. 



STATISTICS 

The Division opened 958 investigations in Fiscal Year 95, 

with 288 investigations ongoing as of June 30, 1995. Case 
distribution by division and/or bureau is as follows: 



DIVISION/BUREAU 

Consumer Protection/Antitrust 

Civil Rights 

Public Charities 

Regulated Industries 

PPB/Criminal 

Government 

Environmental Protection 

Trial 

Victim Compensation & Assistance 



OPENED 


ONGOING AS 


DURING FY '95 


OF 6/3/95 


56 


33 


31 


9 


11 


6 


13 


7 


47 


39 


6 


3 


28 


9 


412 


121 


350 


55 



168 



Fair Labor Business Practices 


1 





Workers' Compensation Fraud 


3 


6 


TOTAL 


958 


288 



169 



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 connection with their official functions, particularly in instances where 
such advance consultation may serve to prevent unnecessary litigation. 

As in previous years, the Bureau in fiscal year 1995 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. A meeting with 
all agency general counsel was held in January, 1995. In August, 1994, and June, 1995, 
we published the fourth and fifth issues of the Agency Counsel Newsletter, containing 
reports on legal developments in areas of relevance to agencies of the Commonwealth 
generally. 

Until March of 1995, the Government Bureau consisted of an Administrative Law 
Division and a Trial Division. During fiscal year 1995, four attorneys were assigned 
permanently to work in both divisions, and we continued to assign a sampling of cases 
from each division to attorneys in the other, so as to broaden the exposure of the attorneys 
in both to the full range of cases the two divisions handle. In addition, a number of 
particularly complex and significant cases were handled by teams assigned to both 
divisions. 

Both the Administrative Law Division and the Trial Division initiate affirmative litigation 
on behalf of state agencies and the Commonwealth and submit briefs amicus curiae in 
cases presenting issues of law affecting the Commonwealth's interests. The 
Administrative Law Division defends suits concerning the legality of governmental 
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 performance 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 violations, employment discrimination, and environmental 
damage claims. The Trial Division also reviews certain contracts, leases, bonds, and 
various conveyancing documents submitted by state agencies for approval as to form. 

In March of 1995, the Attorney General moved the Environmental Protection Division 
from the Public Protection Bureau to the Government Bureau. The Environmental 
Protection Division represents the Commonwealth's environmental agencies in 
affirmative litigation to enforce environmental laws and in defensive litigation 
challenging those agencies' regulatory and enforcement activities. This move recognizes 
the significant overlap between the other divisions of the Government Bureau and the 
Environmental Protection Division in substantive legal issues addressed in litigation, the 
nature of the litigation, and interactions with agencies. The reorganization promotes the 



170 



sharing of resources and expertise and the coordination of positions taken in cases among 
Assistant Attorneys General in what are now the three divisions of the Government 
Bureau. In addition, the reorganization makes the substantive expertise of the 
Environmental Protection Division more readily available to other agencies in 
environmental matters. 

Affirmative Litigation 

The Government Bureau maintained an active docket of affirmative litigation in fiscal 
year 1995 to assert and protect the interests of its state agency clients. In Commonwealth 
v. Mayor and Clerk of Boston, we reached an agreement with the City of Boston that 
establishes procedures the City will follow over a three year period to provide a complete 
and accurate list of Boston residents to the state Jury Commissioner each year for use in 
summoning jurors for service in the Suffolk County courts. We had filed the suit in 1993 
to enforce the resident listing requirements of Mass. Gen. Laws c. 234A, 10. In a 
number of other actions, the Government Bureau, working with state agency counsel, 
successfully enforced various state agency orders and regulations in Superior Court. As 
examples, we obtained a substantial civil penalty and remedial orders against a wholesale 
food distributor after Department of Public Health inspectors documented serious 
violations of state laws and regulations on sanitary preparation and storage of food 
products, Commonwealth v. New England Caterers; we obtained a permanent injunction 
to prevent a nurse from continuing to obtain employment after revocation of her license 
by the state Board of Registration in Nursing, Commonwealth v. Hering; and injunctive 
relief was obtained in favor of the state Office for Children to stop the unlicensed 
provision of day care services, Commonwealth v. Sattler. 

In two important cases, the Government Bureau obtained civil relief adjunct to related 
criminal matters. In Attorney General v. Walsh, the Supreme Judicial Court for Suffolk 
County barred the defendant from continuing to serve as a Cambridge City Councilor 
after the Attorney General sought relief in the nature of quo warrant to when the 
councilor was sentenced to prison following convictions for bank fraud and related 
offenses. In National Relocation v. Secretary of Transportation, we settled a countersuit 
against a contractor for submission of false claims for payment of fraudulent invoices 
submitted in connection with the relocation of a major insurance company displaced by 
the Central Artery project. Under the settlement the contractor was permanently barred 
from doing business with state agencies and forfeited most of its $855,000 claim for 
payment for the relocation, receiving only $277,000 which was $238,000 less than the 
contractor had paid its subcontractors. The company's principals also pleaded guilty to 
related federal criminal indictments. 

Important activity also occurred in fiscal year 1995 in affirmative cases involving inter- 
governmental relations. In Commonwealth v. Federal Deposit Insurance Corporation, the 
United States Court of Appeals for the First Circuit resolved a jurisdictional dispute to 
allow the suit, which seeks to recover on behalf of the state Treasurer millions of dollars 
in abandoned bank deposits held by the FDIC as receiver for several failed Massachusetts 
banks, to go forward in the U.S. District Court. In Commonwealth v. U.S. Department of 
Transportation, a federal court rejected the Commonwealth's challenge to a ruling by the 



171 



U.S. Department of Transportation that Massachusetts' requirement that hazardous waste 
transporters post a bond with the state is preempted by federal law. In Treasurer v. 
Middlesex County, we filed suit to resolve a dispute over payment of assessments made 
by the state Treasurer to cover certain costs incurred by the Public Employee Retirement 
Administration in its supervision of the Middlesex County Retirement System. 

In fiscal year 1995, the Government Bureau continued to represent, with the Civil Rights 
Division, state agencies in legal matters related to the development of community 
residential programs for persons with mental illness, mental retardation and AIDS. 
Bureau attorneys were instrumental in resolving disputes that arose in connection with the 
development of a fifty-unit residential project in Boston that will serve persons with 
AIDS and persons with mental illness. In another case handled jointly with the Civil 
Rights Division, Attorney General v. Bull HN, we intervened in proceedings before the 
MCAD alleging that Bull HN engaged in age discrimination in implementing workforce 
reductions. 

Bureau attorneys also took leading roles in developing and implementing a public-private 
program to redevelop and refinance abandoned housing in Boston, Fitchburg and 
Springfield. 

Amicus Curiae Briefs 

The Commonwealth's position was adopted by courts in a number of important cases in 
which Government Bureau attorneys filed amicus briefs. We filed an amicus brief, 
signed by twelve other states, in the United States Supreme Court in City of Edmonds v. 
Washington State Building Code Council; the Court adopted our view that local 
ordinances limiting the number of unrelated persons who may occupy dwellings in single- 
family zoning districts are subject to review under the federal Fair Housing Amendments 
Act of 1988. In Curtis v. Falmouth School Committee, the Supreme Judicial Court 
affirmed the dismissal of a constitutional challenge to the Falmouth School Committee's 
decision to make condoms available to students as part of an AIDS prevention program. 
In Alexander's Restaurant, Inc. v. City of Northampton, the Hampshire Superior Court 
rejected claims that a Northampton Board of Health regulation prohibiting smoking in the 
city's restaurants was beyond the board's statutory authority and preempted by state law. 

In February, 1995, we filed an amicus brief in the United States Court of Appeals for the 
Second Circuit supporting New York's defense of its low emission vehicle program 
against a challenge by automakers; the case raises the same issues involved in pending 
Massachusetts litigation being defended by the Environmental Protection Division. 

Administrative Law Division 

During fiscal year 1995, the Division opened 1,387 cases and closed 1,000 cases. Cases 
handled by Division attorneys resulted in 37 reported decisions of the Supreme Judicial 
Court, 8 reported decisions of the Massachusetts Appeals Court, 2 reported decisions of 
the United States Court of Appeals for the First Circuit, and 4 reported decisions of the 
United States District Court for the District of Massachusetts. In addition, Division 



172 



attorneys were involved in many cases in those courts and in the state trial courts that 
resulted in unpublished decisions. 

1. Defensive Litigation. 
The initiative and referendum process generated a substantial amount of litigation during 
fiscal year 1995. Three significant decisions in such cases were Associated Industries of 
Massachusetts v. Attorney General, in which the Supreme Judicial Court upheld the 
Attorney General's certification under Amendment Article 48 of an initiative petition for 
a law establishing limits on corporate spending in ballot question campaigns; Ash v. 
Attorney General, in which the Supreme Judicial Court upheld the Attorney General's 
certification of an initiative petition for a law to ban the existing form of rent control and 
authorize rent control in a more limited form; and Tobias v. Secretary of the 
Commonwealth, in which the Supreme Judicial Court rejected a challenge to the 
constitutionality of the means by which initiative and referendum questions were 
presented to voters on the November 1994 statewide ballot. 

The Administrative Law Division continued its efforts during fiscal year 1995 to 
terminate or reduce judicial oversight under consent decrees regarding public institutions. 
In King v. Greenblatt, the United States Court of Appeals for the First Circuit ruled that a 
recent amendment to G.L. c. 123 A, transferring responsibility for the Treatment Center 
for the Sexually Dangerous from the Department of Mental Health to the Department of 
Correction, is a change in law warranting modification of a 1974 consent decree 
concerning conditions of confinement at the Treatment Center. 

The Division handled several significant cases in fiscal year 1995 involving health care 
and health insurance rates. In Massachusetts Hospital Association v. Rate Setting 
Commission, the Supreme Judicial Court upheld the Commission's rates for non-acute 
care against a number of challenges under the Medicaid law. In Visiting Nurses 
Association v. Bullen, the United States District Court held that the Commonwealth 
provided insufficient notice and justification for a change in the methodology for setting 
Medicaid rates for home health services. In Blue Cross & Blue Shield of Massachusetts, 
Inc. v. Commissioner of Insurance, the Supreme Judicial Court vacated, as unsupported 
by substantial evidence, the Commissioner's disapproval of proposed rate increases for 
two Medicare Supplement Insurance plans. 

In other insurance cases, the Supreme Judicial Court upheld the constitutionality of two 
statutes governing medical malpractice insurance, in LIFE v. Commissioner of Insurance; 
and the United States Supreme Court denied plaintiffs' petition for certiorari. In 
Automobile Insurers' Bureau of Massachusetts v. Commissioner of Insurance, the 
Supreme Judicial Court upheld the 1995 automobile insurance rates as set by the 
Commissioner. 

The Division also handled a large number of employment and labor relations cases during 
fiscal year 1995. In two such cases, in which unions challenged cost-cutting measures 
under the Contracts Clause of the United States Constitution, the Supreme Judicial Court, 
in NAGE v. Commonwealth, upheld an increase in state employees' health insurance 
premiums but, in Massachusetts Community College Council v. Commonwealth, held 
that the 1991 furlough of state employees effected an unconstitutional impairment of the 



173 



unions' contract rights under their collective bargaining agreements. In another labor 
relations case, Massachusetts Highway Department v. AFSCME Council 93, the Supreme 
Judicial Court recognized a public policy exception to the otherwise stringent standards 
for judicial review of arbitration awards, although the court upheld the particular award at 
issue in that case. In Irvin v. Speaker of the House of Representatives, the Appeals Court 
rejected plaintiffs claim that his discharge as an employee of the House of 
Representatives was in violation of public policy. In Tanca v. Nordberg, an employment 
discrimination case, the United States District Court granted our post-verdict motion for 
judgment, on the ground that the jury's finding of "mixed motives" required judgment for 
the defendant as a matter of law. 

A number of cases involving public employee retirement were handled by the Division 
this year. In Colo v. Contributory Retirement Appeal Board, the Appeals Court held that 
call firefighters, who had developed reasonable expectations of earning retirement credit 
prior to 1964, had a contractual right to receive such credit, despite subsequent legislation 
barring such credit. In Namay v. Contributory Retirement Appeal Board, the Appeals 
Court held that the doctrine of sovereign immunity bars an award of interest on accidental 
death benefits, in the absence of specific statutory authority. In Riva v. 

Commonwealth, the United States District 

Court held that the federal Older Workers Benefit Protection Act does not apply to 
invalidate a provision of the state retirement statute, which causes a person's disability 
retirement benefits to be reduced solely on account of age, as applied to persons who 
received state disability retirement benefits prior to the effective date of the federal law. 

The Division also handled a number of significant tax cases in fiscal year 1995. 
Corporate excise tax cases handled by Division attorneys included A.W. Chesterton Co. 
v. Commissioner of Revenue, in which the Appeals Court rejected the taxpayer's claim 
that its out-of-state activities should not be included in the computation of its excise tax; 
Commissioner of Revenue v. Kelly Springfield Tire Co., in which the Supreme Judicial 
Court held that federal law prohibits Massachusetts from imposing a corporate excise tax 
on an out-of-state company whose only in-state contacts are its solicitation of sales and 
qualification to do business; and Perini Corp. v. Commissioner of Revenue, in which the 
Supreme Judicial Court held that certain provisions of the statute violate the Commerce 
Clause. In a bank excise tax case, Commissioner of Revenue v. South Boston Savings 
Bank, the Supreme Judicial Court affirmed the granting of an abatement to the taxpayer 
savings bank under the savings bank excise statute in force in 1983 and 1984. In a sales 
tax case, Commissioner of Revenue v. V.H. Blackinton, the Supreme Judicial Court held 
that certain pollution control equipment was not exempt from taxation under G.L. c. 64H, 
6(s). In a corporate income tax case, Drapkin v. Commissioner of Revenue, the Supreme 
Judicial Court held that a partner's share of a mortgage company's interest income is 
subject to tax at the higher rate for unearned income. A case involving the bank-excise 
tax, Baybank Middlesex v. Commissioner of Revenue, in which the banks sought $1.4 
billion in tax abatements, was settled for $25 million payable over three years. 

Among the significant utilities cases handled by the Division this year were Boston 
Edison Co. v. Department of Public Utilities, in which the Supreme Judicial Court 



174 



reversed and remanded for further proceedings a DPU decision that deferral of Edison's 
plans to build a power plant based on asserted lack of need did not constitute "truly 
extraordinary circumstances" justifying cancellation of a long-term power contract 
between Edison and the proposed Altresco power plant; Massachusetts Electric Co. v. 
Department of Public Utilities, in which the Supreme Judicial Court struck down, in part, 
the DPU's "environmental externalities" policy, under which environmental impacts must 
be factored into utilities' resource procurement decisions; Plymouth Rock Energy 
Associates v. Department of Public Utilities, in which the Supreme Judicial Court upheld 
DPU's interpretation of its Integrated Resource Management regulations but held that the 
contract price at issue in that case had to be reset to conform to federal law; and Planning 
Board of Braintree v. Department of Public Utilities, in which the Supreme Judicial Court 
held that the Braintree Electric Light Department was a public service corporation, 
exempt from a local zoning by-law. 

The Division also represented state agencies and officials in a variety of cases involving 
environmental and wildlife conservation issues. For example, in Stop the Outfall Pipe v. 
MWRA, the Supreme Judicial Court upheld our argument that the MWRA's proposed 
outfall pipe in Massachusetts Bay is not covered by the Massachusetts Ocean Sanctuaries 
Act, because its terminus is located outside the boundaries of any ocean sanctuary. In 
MSPCA v. Division of Fisheries & Wildlife, the Supreme Judicial Court upheld the 
validity of a regulation permitting the use of padded jaw traps. 

This year, the Division successfully defended a number of decisions by professional 
licensing boards imposing disciplinary sanctions on licensees. For example, in Machado 
v. Board of Registration in Public Accountancy, the Supreme Judicial Court upheld the 
suspension of an accountant's license and the imposition of a fine for professional 
misconduct; and in Daniels v. Board of Registration in Medicine, the Supreme Judicial 
Court affirmed the revocation of a psychiatrist's license to practice medicine on the 
grounds of sexual misconduct. 

Other significant cases handled by the Division that were decided by appellate courts this 
year include Care and Protection of Isaac, in which the Supreme Judicial Court articulated 
a narrow scope of judicial review of decisions by the Department of Social Services as to 
the placement of children in the Department's custody; Murphy v. Department of 
Industrial Accidents, in which the Supreme Judicial Court upheld the constitutionality of 
a filing fee to defray the costs of impartial medical examinations in workers' 
compensation cases; 

Madera v. Weld, in which the Supreme Judicial Court held that individuals whose 
applications for public housing are denied are entitled to an administrative hearing before 
the Executive Office of Communities and Development but that the Housing Court had 
erred in issuing detailed orders as to how the Executive Office of Communities and 
Development and local housing authorities may communicate with each other during the 
appeals process; and Frizado v. Frizado, in which the Supreme Judicial Court upheld the 
constitutionality of G.L. c. 209A, governing abuse prevention orders, against arguments 
that the statute violates defendants' rights under the Massachusetts Constitution to a jury 
trial, not to be compelled to furnish evidence against themselves, and to due process of 
law. 



175 



Municipal Law 

Town by-laws and amendments thereto, home rule charters, charter revisions and charter 
amendments are reviewed by the Attorney General. By-laws and by-law amendments 
must receive the approval of the Attorney General. The review is performed by the 
attorneys in the Municipal Law Unit within the Administrative Law Division of the 
Government Bureau. 

During fiscal year 1995 the Municipal Law Unit reviewed 1,619 by-laws and 30 home 
rule actions from over 300 towns. Eighty-six submissions, 5.3 percent of the total, were 
disapproved in whole or in part. 

The by-laws received this year consist of 747 general by-laws and 872 zoning 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 controversy because they affect what 
landowners consider as their basic constitutional right, i.e., to own, use, and enjoy their 
real property. This year, like last year, saw continuing attempts by municipalities to 
address pressing environmental and growth problems. Many towns adopted groundwater 
or wetlands overlay districts or adopted stand-alone wetlands protection by-laws. 

In April the Municipal Law Unit published the seventh issue of the Municipal Law 
Newsletter, which addressed zoning for group homes, bankruptcy court treatment of real 
estate taxes, the state building code, jury list preparation by towns, and other 
developments in municipal law. 

Opinions 

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 are 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 generally 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 executive office 
must first be sent to the appropriate secretary for his or her consideration. If the secretary 
believes the question raised is one that requires resolution by the Attorney General, the 
secretary then requests the opinion. 



176 



Between July 1, 1994 and June 30, 1995, three formal Opinions of the Attorney General 
were issued. An additional 67 written requests were handled informally. 

The formal Opinions appear at the end of this report. 

Trial Division 

In fiscal year 1995, the Trial Division implemented a number of initiatives to improve the 
efficiency and quality of the legal representation it provides. The Division made a major 
effort to reduce the backlog of old cases. Among other things, the Division placed strong 
emphasis upon early evaluation of cases for settlement, disposition by motion, or full 
litigation. This emphasis has reduced the amount of resources spent on cases that 
ultimately will not go to trial. The Division also compiled statistics to measure progress 
in reducing the proportion of old cases. These efforts were successful, resulting in 
reduction of older cases, so that cases three years and older now comprise only 1 1 % of 
the caseload. 

The Division continued its efforts to provide training and broad experience to attorneys 
and support staff. During the fiscal year, the Division renewed efforts to eliminate 
remaining patterns reflecting the former strict divisions between torts, contracts, and real 
estate. Trial Division attorneys now handle cases in all these areas, with those less 
familiar with any area receiving supervision from more experienced attorneys. Through 
this effort we improve our capacity to assign every new case to attorneys with appropriate 
experience, while providing our attorneys with broader perspective, new skills, and a 
more diverse case load. In further support of this diversification, the Division has 
implemented training programs, most recently in the eminent domain area, to assist 
attorneys whose previous experience has been concentrated in other areas of practice. 

The Division opened 436 cases during the fiscal year and closed 442. At the end of the 
fiscal year, 1,351 cases were pending. The Division received 382 contracts from state 
agencies for approval as to form, of which it approved 356 and rejected 21. 

Cases involving state contracts continued to provide a significant part of the caseload, as 
major public construction projects proceed. At the end of the year, 235 contract-related 
cases were pending, representing a total dollar exposure to the Commonwealth of 
approximately $ 40 million. 

In J.F. White Contracting Company v. Commonwealth, the Commonwealth avoided 
delays and added expense on the Central Artery Project when the Superior Court held an 
expedited trial and declined to require rebidding, even as the Court ordered award of a 
contract to a contractor whom the MHD had deemed not pre-qualified for the job. In 
another construction contract case, Daniel O'Connell's Sons, Inc. v. Commonwealth, in 
the Superior Court, the Appeals Court, and the Supreme Judicial Court Single Justice 
session, we successfully defended against requests for injunctive relief brought by an 
unsuccessful bidder who challenged the Massachusetts Highway Department's authority 
to correct a clerical error in a bid for a construction contract. Division attorneys settled a 
challenge to the Commonwealth's affirmative action program in P.J. Gear v. 
Massachusetts Highway Department. In NAGE v. Registrar of Motor Vehicles, the 
Division defended a suit by employees over the "sick" building housing the Registry of 



177 



Motor Vehicles' main operations and ultimately reported that new health data made it 
necessary to move out of the building. One of the more unusual contract cases involved 
the successful defense in the Superior Court against a claim based upon a Treasurer's 
note issued by the State of Massachusetts Bay in 1779. Also, in Shelby Mutual Insurance 
Co. v. Commonwealth, the Supreme Judicial Court held that amendments to the 
Workers' Compensation Act did not extinguish claims on account of payments made for 
second injuries of workers who had previously been injured. 

In addition to litigation, the Trial Division advises state agencies and officials on contract 
issues, including questions concerning the formation of contracts, performance, bidding 
procedures, bid protests, contract contents, contract interpretation, and other matters. The 
most frequent requests reviewed during the fiscal year concerned compliance with the bid 
laws and rights and remedies of the Commonwealth and other parties in the event of 
failure to perform contractual obligations. Requests for advice and assistance came from 
the Massachusetts Highway Department, Metropolitan District Commission, Executive 
Office of Transportation and Construction, Higher Education Coordinating Council, 
Department of Mental Health, Department of Mental Retardation, Department of 
Environmental Management, State Lottery Commission, Department of Transitional 
Assistance, and Division of Capital Planning and Operations. 

In the area of torts and civil rights, the Division opened 228 cases and closed 227. Most 
186 of the new cases involved allegations of negligence by state agencies or employees. 
Forty-two new civil rights and intentional torts cases were opened. At the appellate level, 
the Division prevailed in Sandler v. Commonwealth, where the Supreme Judicial Court 
reversed a judgment for the plaintiff because of the absence of wanton or reckless conduct 
that would justify tort liability under the recreational use statute, G.L. c. 21, 17C. We 
prevailed in the Appeals Court in Koe v. Commonwealth (alleged negligent supervision 
and failure to provide security against a sexual assault), in Friedman v. Board of 
Registration in Medicine (affirming summary judgment for the Board and its members on 
civil rights claims arising from the revocation of plaintiff s license to practice medicine), 
and in Meyers v. Massachusetts Trial Court (dismissing claims for negligence and civil 
rights violations arising out of a Probate Court proceeding). 

We prevailed at trial in Stevens v. Corbett, where an employee sued his former supervisor 
for defamation. Juries also returned defendants' verdicts in slip and fall cases in Premo v. 
Commonwealth, Manchester v. Commonwealth, and Cunha v. Commonwealth. The 
Superior Court granted summary judgment to a former State Representative who was 
sued for defamation in Benoit v. Bump. In Marsh v. Commonwealth, the Superior Court 
held that sovereign immunity barred a claim for injury due to adverse side-effects from 
DPT vaccine manufactured by the Commonwealth. 

We settled Santiago v. Commonwealth, involving the death of a resident in a state facility 
for persons with mental retardation, for $50,000. A total of $75,000 was paid in 
settlement of a claim that a mental health patient poisoned herself due to inadequate 
supervision or treatment. DePasquale v. Commonwealth. A prison suicide led to a 
$60,000 settlement in Collins v. Commonwealth. 



178 



Two plaintiffs obtained jury verdicts that were reduced to the Commonwealth's 
maximum liability, $100,000. Pasqualino v. Commonwealth (plaintiff mistakenly 
arrested on a state police default warrant); Doe v. Commonwealth (temporary state 
custody of a child obtained based on unsupported allegations of sexual abuse by a parent). 
In Jenkins v. DeTucci, a jury awarded $500,000 for alleged intentional interference with 
the contract between the plaintiff and her employer, a provider of mental retardation 
services; the case is on appeal. Automobile accidents resulted in small plaintiffs' 
verdicts fless than $12,000 each) in Murgo v. Commonwealth, Hunt v. Commonwealth, 
and Johnson v. Commonwealth. 

Employment litigation accounted for 17 new cases. In Tate v. Commonwealth, the 
Supreme Judicial Court affirmed a summary judgment in favor of the Commonwealth in 
an action alleging handicap discrimination and retaliatory discharge. The United States 
Court of Appeals for the First Circuit upheld summary judgment for the 
Commonwealth's officials in a race and age discrimination case, Udo v. Tomes. The 
Massachusetts Appeals Court affirmed a Superior Court decision granting summary 
judgment on claims of federal and state civil rights violations during the investigation of 
sexual harassment complaints against the plaintiff. Padovani v. Mahaney. In Cantave v. 
Criminal History Systems Board, the United States District Court entered judgment for 
the defendant after trial on plaintiffs allegations that she was terminated based on her 
race and national origin. The same Court also entered summary judgment for the state 
defendants in Fratus v. Boston Public Schools on the ground that the state officials' 
alleged regulatory actions were not taken in a capacity as "employer" of a Boston Public 
School employee. 

Trial Division attorneys handled a variety of real estate cases, most of which involved 
petitions for the assessment of damages resulting from land acquisitions by eminent 
domain. Seventy-nine new eminent domain cases were opened in the Division in this 
fiscal year, out of a total of 144 new real estate cases. The Division closed 159 real estate 
cases. During the fiscal year, the Division disposed of 54 land damage cases, 9 by jury 
trial and 45 by settlement. The disposition of these cases resulted in savings to the 
Commonwealth of more than $10 million, which represents the difference between the 
amounts claimed and the amounts paid. 

The Commonwealth's agencies acquire land for numerous reasons, including highway 
construction, recreation and parks, agricultural and conservation restrictions and 
easements. Division attorneys provide advice on these and other real estate matters and 
approve as to form deeds, rental agreements, pro tanto releases, general releases, taking 
orders and other conveyance documents involving the Commonwealth as required by 
statute or requested by a state department or agency. Trial Division attorneys also 
represent the Commonwealth in all petitions for registration of land filed in the Land 
Court. Agencies involved in such real estate matters include the Massachusetts Highway 
Department, Metropolitan District Commission, Department of Environmental 
Management, Department of Environmental Protection, Department of Food and 
Agriculture, Department of Fisheries, Wildlife and Environmental Law Enforcement, and 
Division of Capital Planning and Operations. 



179 



Among the major eminent domain cases that went to trial, the Commonwealth saved 
$1 1.25 million (including interest savings) in Boston Edison Company v. 
Commonwealth, when a jury valued property taken by eminent domain at $13.5 million, 
compared to the plaintiffs appraised value of $21 million and the Commonwealth's 
value of $9.14 million or less. In House of Bianchi v. Commonwealth, we succeeded in 
obtaining a jury verdict of $1.9 million, compared with plaintiffs' valuations in excess of 
$2.5 million and defendant's appraisal of $1 .6 million. We obtained a verdict of $1 
million in Janowitz v. Commonwealth, below the plaintiffs appraiser's figure of 
$1 ,700,000 and much closer to the Commonwealth's appraisal of $740,000. In Boston & 
Maine Corp. v. Commonwealth, the jury returned a verdict of $4.65 million, compared 
with plaintiffs valuation of $8.6 million and the Commonwealth's appraisal of $1.2 
million. In Chicy v. Commonwealth, the jury agreed with the Commonwealth's appraisal 
of $98,000. 

At the appellate level, we prevailed in McCarthy v. Commonwealth, where the Supreme 
Judicial Court held that the plaintiff was not entitled to exclusive use of a wooden plank 
deck, constructed with Commonwealth and local funds. Division attorneys successfully 
argued that the Land Court has authority to expunge a homestead purportedly declared by 
a trustee. Assistant Recorder of the North Registry District of Bristol County v. Spinelli. 
We prevailed on summary judgment in the Superior Court in Wilson v. Commonwealth, 
which challenged the state's denial of permits for protective seawalls for waterfront 
properties in Chatham. In Grasso v. EOEA, the Superior Court rejected a regulatory 
taking challenge to a requirement for providing additional information under the 
Massachusetts Environmental Policy Act. After mediation, in Cohasset Heights, Ltd. v. 
Mass. Highway Dept., the Commonwealth agreed to pay approximately $7.3 million, plus 
ongoing interim disposal costs, out of a total claim in excess of $24 million as a result of 
contamination of water by the Highway Department. 

Environmental Protection Division 

EPD handles the Commonwealth's civil litigation to enforce environmental protection 
programs established by state statutes and regulations, including laws governing air 
pollution, water pollution, water supply, waterways, wetlands, hazardous and solid waste. 
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 administrative proceedings before federal agencies on significant 
environmental issues. EPD also defends lawsuits challenging the actions of state 
environmental agencies and the legality of state environmental laws. 

During fiscal year 1995, EPD handled enforcement proceedings leading to judgments 
requiring payments to the Commonwealth of $2,583,000 in civil penalties and 
$12,733,762 in hazardous material cost recovery, for a total of $15,316,762. Other cases 
resulted in court judgments requiring private parties to undertake costly cleanups — a 
savings of millions of dollars for the Commonwealth. 

1 . Enforcement Litigation 
In the past fiscal year, EPD handled numerous major enforcement cases. Clean Air Act 
enforcement was a priority. For example, in Commonwealth v. Hub Folding Box 



180 



Company, Inc., we reached a settlement with a Mansfield manufacturer of cardboard 
boxes that requires it to pay a total of $650,000, including a $500,000 civil penalty and a 
$150,000 payment to the Massachusetts Environmental Trust, and to bring its facility into 
compliance with the Massachusetts Clean Air Act. We alleged that Hub failed to control 
volatile organic compound emissions, operated without an air permit, and failed to report 
emissions information to the Department of Environmental Protection ("DEP"). 

We obtained judgments against six gasoline service stations barring illegal automobile 
inspections and requiring each to pay penalties of between $5,000 and $8,000. These 
cases, brought pursuant to the state Clean Air Act, alleged that the stations manipulated 
car engines or emissions analyzers to achieve false "pass" results. We coordinated these 
cases with the administrative enforcement efforts of DEP and the Registry of Motor 
Vehicles, which included license and certification suspensions or revocations against 130 
other stations. 

In Commonwealth v. Gentex Optics, Inc., we obtained a $610,000 judgment against a 
Dudley-based eyeglass lens manufacturing company, requiring it to comply with the state 
Clean Air Act. The company allegedly installed equipment without obtaining necessary 
approvals from DEP and failed to comply with permitted emissions limits. In addition to 
complying with the Clean Air Act, Gentex will pay $410,000 in penalties, spend 
$200,000 to study further reductions in its use of chemical solvents, and co-author a 
source reduction case study with the state's Office of Technical Assistance on its switch 
from a freon-based to a water-based lens cleaning process. 

We obtained an interim agreement in Commonwealth v. Consolidated Smelting and 
Refining Corp., whereby the company ceased its operations until it modified its pollution 
control equipment to comply with air quality regulations. Consolidated Smelting 
allegedly violated the Clean Air Act by emitting harmful dust from its smelting process 
and violated the Hazardous Waste Management Act by failing to handle its hazardous 
waste properly. 

In Commonwealth v. O'Sullivan, we sued a Lowell contractor for illegally removing 
asbestos without following proper procedures and without the necessary license. We 
obtained a consent judgment requiring the contractor to cease all asbestos removal work 
until he obtains the required license. 

The Clean Air Act required gas stations and other fuel facilities to phase in the use of 
approved fuel vapor recovery systems on their pumps starting on April 1, 1991. These 
requirements, which reduce emissions of volatile organic compounds, cover all but the 
smallest stations as of April 1, 1994. We negotiated settlements with nine gas stations 
that allegedly ignored these laws, requiring the stations to install vapor recovery 
equipment and pay penalties of up to $15,000. 

We filed suit in Commonwealth v. Homart Development Co., against the developer of the 
Natick Mall, Shopper's World, and a Framingham theater complex, for illegally dumping 
more than 80 truckloads of waste containing asbestos in a Shrewsbury residential area, 
and for removing asbestos and failing to use required safety measures during demolition. 
Walsh Brothers, Inc., a contractor involved in the Natick Mall project, agreed to pay a 



181 



$50,000 civil penalty for its part of the alleged violations. A case against Gabe & Sons, 
another contractor, is pending. 

Under the federal Clean Air Act, along with leading non-governmental organizations, we 
served notice of intent to sue EPA to force the agency to act on a petition requiring the 
sale of low emission vehicles in the Northeast. In addition, we intervened to oppose a 
lawsuit filed against EPA by 20 automobile manufacturers, the National Automobile 
Dealers Association, and the Commonwealth of Virginia, challenging an EPA 
requirement that cars sold in 12 northeastern states and the District of Columbia meet the 
stricter low emission standards. 

EPD also brought enforcement actions to prevent water pollution and protect water 
supplies. In Commonwealth v. L.E. Mason, a Hyde Park electrical product manufacturer 
entered into a consent judgment that requires it to pay $250,000 in penalties and to stop 
using solvents. Our complaint alleged that the company discharged water contaminated 
with solvents into a nearby brook and bypassed its pretreatment system before 
discharging into the Massachusetts Water Resources Authority ("MWRA") sewer system 
in violation of the Clean Waters Act and MWRA regulations. 

In Commonwealth v. Wasserman and Alouette Associates, we alleged that the owners of 
Alouette Plaza Shopping Center violated the state Clean Waters Act and Title 5 of the 
state Environmental Code by discharging raw sewage from failed septic systems into the 
ground and a storm drain that empties into Harris Pond, a secondary water supply. We 
seek a court order requiring the defendants to pump the systems to prevent further 
breakouts of sewage, tie into the local sewer system immediately, and pay civil penalties 
of $25,000 per day of violation. In Commonwealth v. Towns of Tisbury and Oak Bluffs, 
we obtained agreements from the two towns to construct new sewage facilities and close 
down septage lagoons that allegedly threatened groundwater. 

We obtained a consent judgment in Commonwealth v. Ultralite Technology Corp. 
requiring an Attleboro jewelry manufacturer to cease alleged releases of electroplating 
chemicals into the water and air in violation of the Clean Waters Act and Clean Air Act. 
Ultralite agreed to pay a civil penalty of $285,000, to install wastewater treatment 
equipment, and to cease unpermitted air emissions. 

In Commonwealth v. Bernardi Family Enterprises, we obtained a consent judgment for 
alleged violations of the Clean Waters Act that requires the company to pay $10,000 in 
penalties and to connect to the sewer system. We alleged that Bernardi Family 
Enterprises discharged sewage and other pollutants from its restaurant and function hall 
into a septic system that lacked capacity adequately to treat the discharge. 

We obtained a consent judgment in Commonwealth v. Town of Cohasset that requires the 
town to evaluate three wastewater treatment options and complete construction of an 
appropriate wastewater treatment system by April, 1999. We alleged that the town's 
existing treatment plant is receiving wastewater in excess of its design capacity. 

We obtained an agreement in Commonwealth v. Lynn Water and Sewer Commission 
requiring the Commission to reduce discharges of sewage into the Saugus River and 
Nahant Bay that in the past periodically forced closure of beaches. The agreement 



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requires the Lynn Water and Sewer Commission to reduce "combined sewage 
overflows," which occur when large amounts of rainwater overwhelm the town sewage 
system and result in the discharge of a mixture of storm water and untreated sewage. 

In response to our Clean Waters Act enforcement action in Commonwealth v. Town of 
Marshfield, the town counterclaimed, alleging that the state's groundwater discharge 
requirements were "unfunded local mandates" under Proposition 2 Vi. The court rejected 
this claim, and our enforcement action remains pending. 

We obtained a consent judgment for a $30,000 civil penalty in Commonwealth v. Federal 
Metal Finishing, Inc. The company allegedly discharged high levels of zinc, chromium, 
and nickel into the MWRA sewer system and diverted a portion of its wastewater from its 
treatment system, in violation of the Clean Waters Act and MWRA regulations. 

In Commonwealth v. Central Engraving Co., we reached a settlement that requires a 
Chelsea printing company to pay a $30,000 administrative penalty to the MWRA for 
allegedly discharging hazardous wastes into the MWRA sewer system and failing to 
submit required reports. In addition, Central Engraving Co. is required to install 
equipment to pre-treat its wastewater. 

We reached a second modified consent decree in Commonwealth v. City of New 
Bedford, requiring the City to complete construction of its secondary wastewater 
treatment facilities and resolve sludge management issues. In 1987, along with the U.S. 
Environmental Protection Agency ("EPA") and the Conservation Law Foundation, we 
had alleged that the City's wastewater treatment plant was violating the federal Clean 
Water Act and state Clean Waters Act. 

EPD also brings lawsuits against responsible parties to remediate contamination caused 
by oil or hazardous materials, and to recover costs incurred by the Commonwealth when 
it undertakes cleanup actions. In addition, EPD brings enforcement actions to require 
proper management, storage, and disposal of hazardous wastes and to collect penalties for 
violations. In the last fiscal year, EPD handled the following major hazardous waste 
cases. 

In Commonwealth v. Modern Electroplating, we obtained a preliminary injunction 
shutting down a Roxbury electroplating plant for chronic violations of hazardous waste 
and water pollution laws. Our complaint alleged that Modern Electroplating illegally 
stored barrels of dangerous toxic waste and discharged highly toxic substances into the 
MWRA sewer system. Since the issuance of the injunction, the Commonwealth's 
Environmental Strike Force, the MWRA, and the City of Boston have worked together to 
secure the site. In April, 1995, EPA agreed to assist in the cleanup of toxic waste hazards 
at the site under the federal Superfund program. In addition, we participated in a 
community meeting in April, 1995 in Roxbury to discuss cleanup plans with neighbors of 
the site and in a panel discussion of the case at the annual conference of the 
Environmental Diversity Forum. 

In Commonwealth v. Charles George Trucking Co., Inc., et al., the First Circuit Court of 
Appeals affirmed two consent decrees requiring cleanup of hazardous wastes at the 
Charles George Landfill in Tyngsborough. These consent decrees provide for payment 



183 



from a number of defendants of $35 million in costs and damages, of which 
approximately $12 million will go to the Commonwealth. 

In Commonwealth v. Parks Corp., we obtained a temporary restraining order and a 
preliminary injunction shutting down a manufacturer of wood-finishing products for 
alleged chronic violations of hazardous waste management, air, and water laws. 
Commonwealth inspectors found more than 500 barrels of waste on the site, illegal 
discharges into a storm drain, and evidence of asbestos releases. We obtained a consent 
judgment with Parks Corporation requiring it to pay $250,000, including $150,000 in 
penalties and $100,000 to the Massachusetts Environmental Trust to fund a program to 
educate the public about the proper handling of household hazardous wastes. 

In Commonwealth v. A.M.F. Reece, et al., along with the United States, we obtained a 
consent decree in Federal District Court requiring the defendants to pay all costs, 
estimated at $7,000,000, of remediating the PSC Resources Superfund Site, a waste oil 
and solvent reclamation facility in Palmer. In addition, we received $319,000 in 
reimbursement for the Commonwealth's past costs in responding to the hazardous waste 
contamination at the site. 

In Commonwealth v. James N. Turtle, Jr., et al., we filed suit against owners of an 
abandoned Medford metal finishing facility, alleging that chemicals used at the site 
contaminated soil and groundwater. We seek over $500,000 in costs incurred by the DEP 
in removing and disposing of more than 300 drums containing substances including 
cyanides and acids, and funds for future cleanup costs. 

We obtained a judgment in U.S. District Court requiring Blackstone Valley Electric 
Company to pay the Commonwealth approximately $5.8 million in cleanup costs and 
interest for the cost of cleaning up a site contaminated with hazardous waste from 
Blackstone' s coal gasification plant in Attleboro. The Court ruled in Commonwealth v. 
Blackstone Valley Electric Co. that the Commonwealth was entitled to recover all of its 
cleanup costs plus interest. The defendant has appealed the judgment to the First Circuit. 

In Commonwealth v. U.S. Dept. of Agriculture, we have brought suit against the United 
States Department of Agriculture ("USD A") alleging that USDA contaminated the North 
Carver Landfill by spraying surplus cranberries dumped in the landfill with kerosene in 
1959. The lawsuit seeks restitution for the costs expended by the Commonwealth in 
responding to groundwater contamination discovered in the area of the landfill in recent 
years. 

We filed suit against owners and operators of the Shaffer Landfill and producers and 
transporters of hazardous materials for alleged hazardous waste contamination at this 
Billerica landfill. The suit seeks recovery of past costs incurred by the Commonwealth in 
connection with investigation and remediation at the landfill. 

We obtained a consent judgment with Cumberland Farms requiring the company to pay a 
$15,000 penalty and to conduct a mandatory educational program for newly hired 
personnel and all Gulf-brand dealers operating in the state. The In re Cumberland Farms, 
Inc., case alleged that Cumberland Farms failed to inform DEP of a release of gasoline, 
thereby allowing accumulation of gasoline vapors at explosive levels in the sewer system. 



184 



In Commonwealth v. Creative Chemicals, Inc., we filed suit alleging that this Palmer 
manufacturer illegally discharged highly acidic industrial wastewater into the Palmer 
sewer system. We filed suit in Commonwealth v. Woodland Products Sales Corp., et al., 
against an Athol casket manufacturer and its successor for alleged violations of hazardous 
waste and air pollution laws. We allege that the defendants illegally stored thousands of 
kilograms of hazardous wastes. 

In Commonwealth v. Souza, we obtained a consent judgment with the owners of Souza's 
Texaco station in Falmouth requiring the station to manage its waste oil properly, to 
install vapor recovery air pollution control equipment, and to pay $315,000 to the 
Commonwealth to reimburse it for the costs of clean-up of a fuel leak from an 
underground storage tank. After Souza's failed to meet the deadlines in the consent 
judgment, the Barnstable Superior Court ordered Souza's to shut down until it installed 
required vapor recovery equipment. 

EPD also brings enforcement actions to protect the Commonwealth's wetlands resources. 
For example, in Commonwealth v. J.M. Cashman, Inc., et al., two construction 
contractors agreed to pay the Commonwealth $125,000 in settlement of allegations that 
they dumped 250,000 cubic yards of fill material in wetlands in violation of the Wetlands 
Protection Act. The defendants removed the fill from the South Harbor site located in 
Lynn. 

We obtained a consent judgment in Commonwealth v. Benevento Sand & Gravel, Inc. 
against this Wilmington company requiring it to restore or replace wetlands and pay a 
penalty of $100,000. Our complaint alleged that Benevento violated the Wetlands 
Protection Act by filling protected wetlands and the Solid Waste Management Act by 
disposing of tires and scrap metal in protected wetlands. 

We filed suit in Commonwealth v. Blackstone-Chicago against this Whitinsville-based 
development company for alleged violations of the Clean Waters Act and Wetlands 
Protection Act, including failure to use necessary erosion controls during the construction 
of subdivisions in Northbridge and Uxbridge. In Commonwealth v. Aguiar, we filed suit 
against a Swansea man who allegedly destroyed a salt marsh on his waterfront property in 
violation of wetlands protection laws. 

In Commonwealth v. Tri-Site Construction Corp., et al., we reached a settlement whereby 
the defendants will clean up the Peabody Brook and pay a $75,000 civil penalty for 
alleged violations of the Wetlands Protection Act. We alleged that during the 
construction of Valley View Estates, the defendants failed to implement adequate erosion 
control measures while installing water and sewage lines, causing discharge of a large 
amount of silt into the Peabody Brook. 

We obtained a final judgment in Commonwealth v. Hayes, requiring the defendant to 
remove fill and pay a $4,500 penalty for alleged violations of the Wetlands Protection 
Act. The suit alleged that Hayes obtained permission from the Saugus Conservation 
Commission to build his house by making false statements and submitting intentionally 
misleading plans to the Commission. 



185 



EPD's actions to enforce solid waste laws include Commonwealth v. Mendes, in which 
we obtained an unusual civil arrest order for an Agawam businessman who had ignored a 
1990 court order to clean up an illegal solid waste dump. The Hampden County Superior 
Court ordered Mendes to post the property as collateral along with a $150,000 bond to 
cover the projected cost of the cleanup, to surrender his passport, and not to leave 
Massachusetts. 

In Commonwealth v. City of Lowell, we obtained judgment requiring the City to 
construct a permanent gas collection system for its landfill and to cap the landfill. The 
Commonwealth originally sued the city in 1977 for alleged violations of the Solid Waste 
Management Act, the Clean Waters Act, and the Clean Air Act. That case was settled in 
1978, but the obligations of the settlement agreement were not fulfilled. In 1992, we 
again sued the city, alleging that it expanded the landfill beyond the boundaries shown on 
plans submitted to DEP, and that potentially explosive concentrations of methane gas had 
been leaking from the landfill since 1980. 

2. Clean State Initiative 

During fiscal year 1995, we monitored the state's progress in implementing the clean 
state initiative, which Governor Weld established in 1993 by Executive Order No. 350, 
after discussions initiated by the Attorney General. The clean state initiative seeks to 
ensure that the state's own facilities are in compliance with environmental laws, and that 
any environmental problems at state facilities are addressed promptly. Pursuant to G.L. c. 
12, 1 ID, we issued an interim report to the Legislature and Governor, focusing on the 
obstacle to our monitoring function presented by the withholding of environmental audit 
materials prepared by Camp Dresser & McKee concerning three hundred high priority 
clean state matters. We were subsequently provided with those materials. 

In connection with monitoring clean state matters, we entered into an agreement with the 
Department of Correction ("DOC") that requires DOC to address sewage overflows into 
Highland Lake from a sewage pipeline that runs from MCI Norfolk, MCI Cedar Junction, 
Bay State Correctional Center, and Pondville Correctional Center to DOC's wastewater 
treatment plant in Norfolk. We also participated in collaborative efforts with the Division 
of Capital Planning and Operations, DEP, a number of community groups, EPA, and the 
City of Boston, resulting in a plan for demolition and remediation of the South Bay 
Incinerator site. State agencies will remove asbestos and solid waste at the incinerator 
site, assess the nature of contamination at the site, and provide necessary remedial work. 

3. Facility Siting and Licensing Proceedings We intervene in facility siting and 
licensing proceedings when necessary and appropriate to protect the public health 
or the environment. In fiscal year 1995, EPD has been involved in ongoing 
proceedings in opposition to the siting of several power plants. 

In 1994, in Commonwealth v. New York State Board on Electric Generation Siting and 
the Environment, et al., the New York State Court of Appeals twice refused to hear an 
appeal by Inter- Power of New York, Inc. of a lower court decision that effectively 
prevented the construction of a 210-megawatt coal-fired power plant just over the 
Massachusetts border in Halfmoon, New York. That decision had resulted from our 
challenge to the New York State Board on Electric Generation Siting and the 



186 



Environment's grant of a certificate to construct the plant. We contended that the plant 
would increase acid rain and otherwise damage air quality in western Massachusetts, and 
that the board had not adequately studied economic issues surrounding the plant. 

In the landmark cases of Attorney General v. Energy Facilities Siting Board and Point of 
Pines Beach Assoc, et al. v. Energy Facilities Siting Board, the Supreme Judicial Court 
vacated two decisions by the Energy Facilities Siting Board that conditionally approved 
the siting of a proposed coal-fired power plant in New Bedford and a proposed gas-fired 
plant in Lynn. We had challenged the siting of these facilities on the ground that the New 
England region currently has an energy surplus. 

In Commonwealth v. Decorative Specialties Int'l., Inc., we intervened in proceedings 
before the Federal Energy Regulatory Commission to propose new licensing requirements 
for the renewal of Decorative Specialties International's ("DSI") hydro-electric plant on 
the Westfield River in West Springfield. As a result of the Commission's adoption of the 
new requirements, DSI will construct upstream and downstream fish ladders and channels 
and also develop monitoring and management plans for the fish passage. This marked the 
first hydroelectric relicensing in Massachusetts in recent years. 

4. Defensive Cases 

EPD defended challenges to state permitting decisions and to the legality of state 
environmental regulations. A particularly noteworthy case in this category presented the 
automakers' challenge to the state's low emission vehicle program, which requires that 
low emitting "California cars" be sold in Massachusetts instead of the dirtier "federal 
cars." In August, 1994, in American Automobile Manufacturers Assoc, et al. v. DEP, et 
al., the United States Court of Appeals for the First Circuit upheld an earlier Federal 
District Court decision denying the automakers' request for a preliminary injunction. As 
a result, the program went into effect for model year 1995 cars, as scheduled. 

In Town of Shrewsbury v. Commissioner of DEP, the Appeals Court affirmed DEP's 
determination that sludge composting operations in Westborough created a condition of 
air pollution that required installation of best available control technology. 

In order to protect wetlands and the Town of Amesbury's water supply, we intervened in 
Haines v. Town of Amesbury, a case brought against the Town seeking the replacement 
of an allegedly defective weir on the Powwow River. In August, 1994, the Superior 
Court ruled in favor of the Commonwealth and the Town and vacated a consent judgment 
entered into by the Town and Haines that required replacement of the weir. Haines has 
appealed this decision. In the related Smiar case, private parties challenged DEP's denial 
of a water quality certification for the weir project. In June, 1995, the Superior Court 
granted the Commonwealth's motion for entry of judgment, upholding DEP's decision. 
In the related case of Belanger, the Superior Court granted the Commonwealth's 
summary judgment motion, resolving essentially the same issues raised in the Haines 
case. The appeal in this case is also pending. 

5. New Legislation 

In June, 1995, the Legislature passed amendments to the state Clean Air Act, bringing it 
into conformance with the requirements of Title V of the federal Clean Air Act. We had 
authored the amendments. 



187 



188 



No. 94/95-1 

August 17, 1994 

Kathleen M. OToole 
Secretary of Public Safety 
One Ashburton Place, 21st Floor 
Boston, MA 02108 

Dear Secretary OToole: 

Your predecessor asked my opinion whether the new mandatory safety belt requirements 

of chapter 387 of the acts of 1993 apply to operators of and passengers in police and fire 

vehicles. The request arose because numerous agencies within the Executive Office of Public 

Safety, including the Registry of Motor Vehicles, the Governor's Highway Safety Bureau, and the 

Department of State Police, have duties under the new law and in order to perform those duties 

must know to whom the mandatory safety belt requirements apply. I had previously advised your 

predecessor that the requirements did not apply to operators of and passengers in police and fire 

vehicles. In the interests of a uniform statewide interpretation of chapter 387, 1 now set forth 

more formally the reasons for that conclusion. 

I. 

Section 1 of chapter 387 of the acts of 1993 inserts a new section 13A into chapter 90 of 
the General Laws, as follows: 



No person shall operate a private passenger motor vehicle or ride in a 
private passenger motor vehicle, a vanpool vehicle or truck under eighteen 
thousand pounds on any way unless such person is wearing a safety belt which is 
properly adjusted and fastened; provided, however, that this provision shall not 
apply to: 

(a) any child less than twelve years of age who is subject to the 
provisions of section seven AA; 



189 



(b) any person riding in a motor vehicle manufactured before July first, 
nineteen hundred and sixty six; 

(c) any person who is physically unable to use safety belts; provided, 
however, that such condition is duly certified by a physician who shall state the 
nature of the handicap, as well as the reasons such restraint is inappropriate; 
provided, further, that no such physician shall be subject to liability in any civil 
action for the issuance or for the failure to issue such certificate; 

(d) any rural carrier of the United States Postal Service operating a 
motor vehicle while in the performance of his duties; provided, however, that such 
rural mail carrier shall be subject to department regulations regarding the use of 
safety belts or occupant crash protection devices; 

(e) anyone involved in the operation of taxis, liveries, tractors, trucks 
with gross weight of eighteen thousand pounds or over, buses, and passengers of 
authorized emergency vehicles. 

Any person who operates a motor vehicle without a safety belt, and any 
person sixteen years of age or over who rides as a passenger in a motor vehicle 
without wearing a safety belt in violation of this section, shall be subject to a fine 
of twenty-five dollars. . . .' 



Section 2 of chapter 387 then states, "The provisions of section one of this act shall apply to any 
municipal, county, or district public employee." It is this language of section 2, in juxtaposition 
with section 1 's insertion into chapter 90 of a safety belt requirement for operators of and 
passengers in the specified motor vehicles, that gives rise to your question. 

n. 

The general rule requiring safety belt use that is set forth in the first sentence of the new 
G.L. c. 90, § 13A, does not apply to all persons or all vehicles; rather, it contains its own set of 
limitations. It applies only to a person who "operate[s] a private passenger motor vehicle or 



'The section continues with additional enforcement and other provisions not relevant here. 



190 



ride[s] in a private passenger motor vehicle, a vanpool vehicle or truck under eighteen thousand 

pounds " Moreover, section 13A goes on to establish five exceptions to the limited general 

rule of the first sentence. These limitations on and exceptions to the general rule requiring 
safety belt use are as much a part of section 13A as the general rule itself and must be given 
equal weight in construing section 13 A. Statutory interpretation requires "giving effect to all 
words in the statute but not overemphasizing any." Massachusetts Commission Against 
Discrimination v. Liberty Mutual Insurance Co. , 271 Mass. 186, 190-91 (1976). 

Thus, when section 2 of chapter 387 states that "[t]he provisions of section one of this act 
shall apply to any municipal, county, or district public employee," i^, that the provisions of 
G.L. c. 90, § 13 A, as inserted by section 1, apply to such employees, section 2 makes both the 
general rule and the limitations on and exceptions to that rule applicable to such employees. In 
other words, if municipal, county, or district public employees are not within the limited bounds 
of the general rule, or are within one of the exceptions, then they are not required by G.L. c. 90, 
§ 13A to wear safety belts. As applied to operators and passengers of police and fire vehicles, 
this analysis yields the following results. 

First, persons operating police and fire vehicles are not operating "private passenger 
motor vehicles." Therefore, such persons are not within the general rule of section 13A 
requiring the use of safety belts. 

Second, persons who are passengers in police and fire vehicles are not passengers in 
"private passenger motor vehicles or vanpool vehicles," but they would nevertheless be within 
the general rule of section 13A requiring the use of safety belts if the police or fire vehicle in 
question were a "truck under eighteen thousand pounds." Even where that is the case, however, 
it is necessary to determine whether any of the exceptions to the general rule of section 13A is 



191 



applicable. One of those exceptions, exception (e), includes "passengers of authorized 
emergency vehicles," a category which is not defined in the General Laws but which by the 
ordinary meaning of the words "authorized emergency vehicles" would encompass police and 
fire vehicles. Thus, viewing section 13A as a whole, even passengers in police and fire vehicles 
would not be required to use safety belts. 

It may be that section 2 was inserted into chapter 387 for the purpose of requiring all 
municipal, county, or district public employees to wear safety belts while operating or riding in 
motor vehicles in the course of their duties. As written, section 2 does not achieve this result as 
to police and fire vehicles. But this interpretation does not render section 2 superfluous, which 
would be contrary to accepted principles of statutory interpretation. See , e.g. , Todino v. Arbella 
Mutual Insurance Co. , 415 Mass. 298, 302 (1993) (statute should not be construed "in a way 
which nullifies a particular provision whenever a reasonable alternative exists"). Section 2 
makes clear, for example, that municipal, county, and district public employees who have 
occasion to operate their own private passenger motor vehicles in the course of their duties 
must (unless within one of the exceptions stated in G.L. c. 90, § 13 A) wear safety belts. In 
other words, section 2 makes clear that although such vehicles may be operated in the course of 
the performance of public duties, they do not lose their private character so as to render the 
safety belt requirement inapplicable. 

m. 

I recognize that section 13 A, after stating the general rule and the exceptions to that rule, 
goes on to provide (with emphasis added) that " lalny person who operates a motor vehicle 
without a safety belt, and any person sixteen years of age or over who rides as a passenger in a 



192 



motor vehicle without wearing a safety belt in violation of this section, shall be subject to a fine 
of twenty-five dollars." Although the second part of the quoted sentence makes clear that a 
passenger who does not wear a safety belt is subject to a fine only if the failure to wear a safety 
belt is "in violation of this section," the first part of the quoted sentence includes no such 
qualifying language, instead subjecting to a fine "any person" who operates "a motor vehicle" 
without a safety belt. This language, if read in isolation, could be interpreted as subjecting 
operators of police and fire vehicles to a fine for not wearing safety belts. I do not accept this 
interpretation, for several reasons. 

First, if "any person" who operates "a motor vehicle" without wearing a safety belt is 
subject to a fine, then the limitations of section 13A's general rule (which, insofar as it applies 
to vehicle operators, applies only to operators of private passenger motor vehicles), and those of 
the exceptions to the general rule that apply to vehicle operators, would be rendered 
meaningless. Such an interpretation would thus violate the principle that a statute should not be 
construed so as to render any of its language superfluous. Todino , 415 Mass. at 302. 

Second, the interpretation essentially turns on a matter of punctuation. Either the addition 
or the omission of a comma in the sentence in question would have made clear that the 
qualifying phrase, "in violation of this section," applied to operators as well as passengers. 2 



2 The addition of a comma would have made the sentence read, "Any person who operates a 
motor vehicle without a safety belt, and any person sixteen years of age or over who rides as a 
passenger in a motor vehicle without wearing a safety beltj in violation of this section, shall be 
subject to a fine of twenty-five dollars." The omission of a comma would have made the 
sentence read, "Any person who operates a motor vehicle without a safety belt[] and any person 
sixteen years of age or over who rides as a passenger in a motor vehicle without wearing a safety 
belt in violation of this section, shall be subject to a fine of twenty-five dollars." Either version 
would have made it clearer that persons who operated a motor vehicle without a safety belt were 
subject to a fine only if they did so "in violation of this section." The mandatory safety belt law 
enacted in 1985 (and subsequently repealed by referendum) followed the first approach, 
providing, "Any person who operates a motor vehicle without wearing a safety belt, and any 



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And it is a general principle of statutory construction that "matters of punctuation are not 
necessarily determinative, . . . and that a literal construction which leads to unreasonable results 
is to be avoided when the language to be construed is fairly susceptible to a construction that 
would lead to a logical and sensible result." Schlesinger v. Merrill Lynch, Pierce, Fenner, & 
Smith, Inc. , 409 Mass. 514, 518-19 (1991) (internal quotations and citations omitted). Because 
it is more logical and sensible to interpret the twenty-five dollar fine provisions as applying 
only to those persons subject to section 13A's general rule and not subject to its exceptions, I do 
not attach controlling weight to the punctuation of the sentence providing for a fine. 

Third, although a twenty-five dollar fine is far from a harsh punishment, it does make the 
statute penal in nature, thus triggering the rule that penal statutes are to be strictly construed 
against the Commonwealth. E.g. , Commonwealth v. Chavis , 415 Mass. 703, 707 (1993). 
Accordingly, and particularly in light of the other factors discussed immediately above, any 
ambiguity in the applicability of the twenty-five dollar fine provision should be resolved in 
favor of those motor vehicle operators who are not within the general rule of section 13 A. I 
thus do not interpret that provision as subjecting operators of police and fire vehicles to a fine 
for not wearing safety belts. 

rv. 

I recognize the strong public policy arguments in favor of the use of safety belts. I also 
recognize that many local police departments have adopted internal policies requiring the use of 



person sixteen years of age or over who rides as a passenger in a motor vehicle without wearing i 
safety belt, who is not subject to the exceptions provided in this section shall be subject to a fine 
of fifteen dollars." St. 1985, c. 416, § 3 (inserting former G.L. c. 90, § 7BB). 



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safety belts, and nothing in this opinion should be read as calling into question in any way the 
legality or desirability of such policies. For the foregoing reasons, however, I conclude that the 
mandatory safety belt requirement of G.L. c. 90, § 13A, as inserted by St. 1993, c. 387, does not 
apply to operators of and passengers in police and fire vehicles. 

Sincerely, 

Scott Harshbarger 



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No. 94/95-2 
September 9, 1994 

The Honorable Michael Joseph Connolly 
Secretary of the Commonwealth 
One Ashburton Place 
Boston, MA 02108 

Dear Secretary Connolly: 

You recently transmitted to me a series of proposed ballot questions and requested my 
opinion whether these questions are ones of "public policy" within the meaning of G.L. c. 53, § 
19 (1992 ed.) and, if so, what simple, unequivocal and adequate form is best suited for 
presentation of these questions on the November 1994 ballot. I have reviewed the proposed 
questions and have concluded that each of them is a public policy question which may appear, 
in the form provided herein, on the November ballot. 

The principles governing my review of proposed ballot questions are well settled, have 
been reviewed in prior Opinions of the Attorney General, and accordingly need not be 
extensively reviewed here. See, e.g. , 1990-1991 Op. Att'y Gen. No. 1, Rep. A.G. , Pub. Doc. 
No. 12 at 78 (1990); 1988-89 Op. Att'y Gen. No. l. Rep.A.G. , Pub. Doc. No. 12 at 102 (1988). 
It is sufficient to say that a question must (1) involve a determination of what governmental 
action is desirable or necessary for the public interest, as opposed to individual concerns; (2) 
relate to an important public matter in which every citizen of the Commonwealth would have 
an interest, even if the direct impact of the question is confined in some way to a specific 
geographic area; and (3) be consistent with the powers of the Legislature and involve a subject 
matter that is fit for legislative action. Each of the questions proposed here meets these 



196 



standards. 

The only proposed question that I believe requires specific discussion is one proposed for 
the Middlesex, Suffolk, and Essex senatorial district that reads, "Shall the state senator from 
this district be instructed not to vote for William M. Bulger of Boston for President of the State 
Senate?" First, this question does involve a determination of what governmental action is 
desirable or necessary for the public interest, as opposed to individual concerns. The Senate's 
choice of its presiding officer is a type of governmental action, and who that presiding officer 
should be depends on considerations of what is desirable or necessary for the public interest. 

Second, the question relates to an important public matter in which every citizen of the 
Commonwealth would have an interest, even if the direct impact of the question is confined in 
some way to a specific geographic area. The Senate President may have a substantial impact on 
the enactment of legislation affecting every citizen of the Commonwealth. The Senate 
President also presides over joint sessions of the House and Senate called for the purpose of 
considering constitutional amendments proposed by initiative petition or by legislators. See 
Joint Rules of the Senate and House of Representatives, Rule 24, Manual for the General Court 
1993-94 at 687; Mass. Const, amend, art. 48, Init., pt. 4, §§ 2, 4, 5. 

Third, the action sought by the proposed question is consistent with the powers of the 
Legislature and involves a subject matter that is fit for legislative action. The Senate is 
constitutionally empowered to choose its own President. Mass. Const, pt. n, c. 1, § 2, art. 7. 
As at least three predecessor Attorneys General have recognized, the fact that a proposed 
question is directed at action that does not amount to the enactment of a law has never been 
thought to disqualify that question from placement on the ballot as a public policy question. 
See , e.g. , 1990/91 Op. Att'y Gen. No. 1, Rep. A.G. . Pub. Doc. No. 12 at 78, 81 n.6 (1990) ("it is 



197 



well established that matters fit for legislative action are not limited to the passage of laws and 
may include both the passage of resolutions . . . and the ordering of the internal procedures of 
the legislature"; citations omitted); 1984/85 Op. Att'y Gen., Rep. A.G. , Pub. Doc. No. 12 at 75, 
76-77, 79 (1984) (approving four questions concerning, inter alia , selection of legislative 
committee chairmen, including proposal that such chairmen be elected rather than appointed by 
House Speaker); 1978/79 Op. Att'y Gen. No. 14, Rep. A.G. , Pub. Doc. No. 12 at 1 19 (1978) 
(approving question concerning various House of Representatives procedures, including 
selection of legislative leadership and committee chairmen); 8 Op. Att'y Gen . 490 (1928) 
(approving question seeking passage of resolution urging President and Congress to take steps 
to repeal 18th Amendment). 

In addition, the fact that a proposed question calls for action by only one of the two 
branches of the Legislature does not render it unfit for the ballot. The three most recent of the 
Opinions just cited approved various questions that called for action by only the House or only 
the Senate. 

The fact that the question proposed here relates to a specifically named person, rather 
than seeking the adoption or enactment of some generally applicable rule or law, does not 
necessarily mean that the question is not one of "public policy." Although a question relating to 
a private citizen with no governmental responsibilities and no significant involvement with any 
issue of public policy might not be appropriate, the person named here presently serves as 
Senate President. 

Moreover, it has long been the rule that "[t]he words 'public policy' should be construed 
broadly. These words, as used in [G.L. c. 53, § 19], are not limited or qualified in any way, and 
therefor[e] it seems to have been the intent of the Legislature that no restricted meaning should 



198 



be given to them." 8 Op. Att'y Gen , at 493 (1928); see, e^g,, 1990/91 Op. Att'y Gen. No. 1 at 
78, 79. Questions approved by prior Attorneys General have frequently sought legislative 
action addressed to a specific situation rather than a generally described class of cases. E.g. , 
1990/91 Op. Att'y Gen. No. 1 at 84 (approving question seeking legislation prohibiting 
Massachusetts Municipal Wholesale Electric Co. from conveying land in Ludlow to 
Commonwealth for purpose of constructing Hampden County Jail); 1986/87 Op. Att'y Gen., 
Rep. A.G. , Pub. Doc. No. 12 at 56 (1986) (approving questions seeking legislation requiring 
New England Telephone Co. to keep specified cities and towns in 617 area code); 1978/79 Op. 
Att'y Gen. Nos. 16, 17, Rep. A.G. , Pub. Doc. No. 12 at 121, 121-22 (1978) (approving 
questions seeking legislation regarding trash incinerator to be built in Town of Amesbury); id. 
No. 18 at 122-23 (approving question seeking legislation regarding moratorium on MBTA Red 
Line extension to Alewife). 

Also, in accordance with precedent, I decline to speculate on the constitutionality of 
actions that might be taken by the Legislature if a public policy question were to be approved by 
the voters. See 1986/87 Op. Att'y Gen., Rep. A.G. , Pub. Doc. No. 12 at 55 (1986). This is 
because the exact form of the action that might be taken by the Legislature cannot be foreseen; 
constitutional questions that might result from one form of action might not be presented if that 
action took another form. 3 Both the courts and prior Attorneys General have long followed a 



3 For example, if the question at issue here were to be approved by a majority of all votes cast 
at the election, so as to be considered an "instruction" to the Senator from the Middlesex, 
Suffolk, and Essex senatorial district under article 19 of the Massachusetts Constitution, see G.L. 
c. 53, § 22 (1992 ed.), the "instruction," if deemed to be binding, might be questioned as 
inconsistent with the constitutional authority of the Senate to "choose its own President 
Mass. Const, pt. 2, c. 1, § 2, art. 7. If, however, the Senate chose to amend its rules to limit the 
number of consecutive terms that any person could serve as Senate President, and to make the 
rule change applicable to terms already served, such action could be viewed as comporting with 
the "instruction" while not raising the same issue of direct popular involvement in matters 



199 



policy of not deciding constitutional questions unless it is necessary to do so, and there is no 
such necessity at this point. Therefore, it is my opinion that the proposed question is one of 
"public policy," appropriate for placement on the ballot. 

In sum, I conclude that each of the proposed questions may appear on the ballot, in the 
district(s) indicated, in the following form, which has been developed in consultation with your 
staff. 



First Berkshire, Second Berkshire, 
Third Berkshire, and Fourth Berkshire Representative 

Shall the state representative from this district be instructed to vote in favor of legislation 
requiring the construction of a Western Bypass Alternative road in Pittsfield with a 
connection to the Massachusetts Turnpike as described in the 1993 Berkshire County 
Transportation Plan? 

Second Franklin Representative 

Shall the state representative from this district be instructed to vote for legislation 
establishing a single payer health care system for Massachusetts, each time such a bill is 
presented? This single payer system would: 

provide the same comprehensive health care coverage to all residents without 
discrimination; 

develop community based, culturally sensitive delivery systems, with consumer 
choice of health care provider; 

increase efficiency by eliminating the overhead and profits of private health 
insurance; 

fund health care by payroll taxes and income taxes based on ability to pay; and 

limit the increase in the total cost of health care in Massachusetts to the rate of the 
growth of the economy. 



entrusted to the Senate as a body. I express no opinion on such questions; I merely note that they 
exist but need not be resolved now. 



200 



Fifteenth Middlesex Representative 

Shall the state representative from this district be instructed to vote for an amendment to 
the Massachusetts Constitution that would allow the people of Massachusetts to vote to 
exercise their right of self-government not only through the United States Congress, but 
also, in international affairs, through a constitutional and representative United Nations 
Global Federation framed with an enforceable Bill of Rights? 



Sixth Plymouth Representative 

Shall the state representative from this district be instructed to vote in favor of legislation 
that would allow casino gambling in Massachusetts? 



First Suffolk, Third Suffolk, 
and Fourth Suffolk Representative 

Shall the state representative from this district be instructed to vote in favor of legislation 
authorizing casino gambling in the City of Boston? 

Berkshire, Hampden, Hampshire, and Franklin Senatorial 
Shall the state senator from this district be instructed to vote in favor of legislation to 
place on the statewide ballot a nonbinding question to determine whether the people 
favor: 

Establishing ongoing gun victim compensation and gun buy-back programs, with 
all guns destroyed after the buy-back, to be financed by an extra sales tax on all 
guns and ammunition, an annual excise tax on guns, and an annual permit fee on 
persons licensed to carry guns; 

Calling upon the United States Congress to prohibit mail-order purchases and 
sales of all guns and ammunition within the United States; and 

Requiring non-residents of Massachusetts, while they are within the state, to 
comply with the same laws for purchase, sale, possession, and use of guns and 
ammunition as apply to residents? 



First Essex Senatorial 

Shall the state senator from this district be instructed to vote in favor of legislation 
repealing the 5% sales tax on telephone and utility bills? 



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First Essex Senatorial, Hampden Senatorial, 

Middlesex, Suffolk, and Essex Senatorial, 

First Middlesex and Norfolk Senatorial, 

Worcester and Middlesex Senatorial, 

and First Worcester Senatorial 

Shall the state senator from this district be instructed to vote for legislation establishing a 
single payer health care system for Massachusetts, each time such a bill is presented? 
This single payer system would: 

provide the same comprehensive health care coverage to all residents without 
discrimination; 

develop community based, culturally sensitive delivery systems, with consumer 
choice of health care provider; 

increase efficiency by eliminating the overhead and profits of private health 
insurance; 

fund health care by payroll taxes and income taxes based on ability to pay; and- 
limit the increase in the total cost of health care in Massachusetts to the rate of the 
growth of the economy. 



First Essex and Middlesex Senatorial 

Shall the state senator from this district be instructed to vote for legislation establishing a 
single payer health care system for Massachusetts, each time such a bill is presented? 
This single payer system would: 

provide the same comprehensive health care coverage to all residents without 
discrimination; 

develop community based delivery systems, with consumer choice of health care 
providers; 

increase efficiency by eliminating the overhead and profits of private health 
insurance; 

fund health care by employer and employee contributions; and 

limit the increase in the total cost of health care in Massachusetts to the rate of the 
growth of the economy. 



202 



Middlesex, Suffolk, and Essex Senatorial 

Shall the state senator from this district be instructed not to vote for William M. Bulger of 
Boston for President of the State Senate? 



* * * 
In accordance with the practice of prior Attorneys General, I have not made any 
independent inquiry whether the above questions meet the additional requirements for public 
policy questions set forth in G.L. c. 53, §§ 19-21 (1992 ed.). These requirements involve 
factual determinations which are more appropriately made by you as Secretary of the 
Commonwealth. I conclude only that the questions are ones of public policy and may, if these 
other requirements are met, appear on the ballot in the form set forth above. 

Sincerely, 

Scott Harshbarger 



203 



No. 94/95-3 

June 6, 1995 

His Excellency William F. Weld 
Governor of the Commonwealth 
State House 
Boston, MA 02133 

Dear Governor Weld: 

You have requested my opinion whether a gubernatorial appointment to fill a vacancy in 
the office of register of probate, pursuant to G.L. c. 54, § 142, 1 3 (1992 ed.), is subject to the 
advice and consent of the Executive Council, established pursuant to the Mass. Const, pt. 2, c. 
2, § 3. The request arises because you recently nominated an individual to fill the position of 
Register of Probate of Essex County, which has been vacated due to the death of the incumbent. 
For the reasons discussed below, it is my opinion that such an appointment does require the 
approval of the Council. 

The Massachusetts Constitution directs the Legislature to prescribe, by general law, for 

the election on a county basis of registers of probate. Mass. Const, amend, art. 19. See also 

G.L. c. 54, § 62 (1992 ed.). Pursuant to G.L. c. 54, § 142, 1 2 (1992 ed.), upon a vacancy in the 

office of register of probate, the governor shall "cause precepts to be issued for an election to 

fill such vacancy at the next biennial state election for which precepts can be seasonably issued 

. . . ." Paragraph 3 of that section further provides: 

Upon a vacancy in the office of district attorney, register of probate or sheriff, the 
governor with the advice and consent of the council may appoint some person thereto 



204 



until a district attorney, register of probate or sheriff is qualified. 4 
G.L. c. 54, § 142, 1 3 (1992 ed.)(emphasis added). 

In 1964, pursuant to the initiative process, Mass. Const, amend, art. 48, a law was enacted 

that repealed certain of the statutory duties of the Council without expressly amending the 

various statutes setting forth those duties. St. 1964, c. 740. 5 Section 3 reads: 

Subject to section two of this act [not here relevant] and except as required by the 
constitution of the commonwealth, so much of each provision of the General Laws ... as 
requires the advice and consent of the council to any appointments in the executive 
department, 
... is hereby repealed. . . . 

St. 1964, c. 740, § 3. That language qualified the effect of the advice-and-consent-of-Council 

language contained in G.L. c. 54, § 142. Opinion of the Justices , 353 Mass. 801, 802 (1968). 

In order to determine whether the qualifying language of St. 1964, c. 740, applies to an interim 

appointment of a register of probate, it is necessary to determine (1) whether the Massachusetts 

Constitution requires the consent of the Council for such an appointment and, if not, (2) 

whether such an appointment is in the "executive department" within the meaning of St. 1964, 

c. 740, in which case the requirement for Council approval has been repealed. 

The only two references in the Massachusetts Constitution to registers of probate are the 



4 This language has remained virtually unchanged since 1913. Compare St. 1913, c. 835, 
with St. 1981, c. 278, §4. 



5 That law is entitled, "An Act Repealing Statutory Powers of the Governor's Council Which 
Interfere with the Efficient Operation of the Executive Department of the Commonwealth." The 
statute appears in the 1965 Acts and Resolves. The Supreme Judicial Court has recognized that 
"[t]he title is in a legal sense a part of the act, and resort may be had to it as an aid in the 
interpretation of the act." Saratov, Inc. v. Deo Unican Corp. , 413 Mass. 627, 632 (1992)(internal 
quotation and citation omitted). 



205 



provision directing the Legislature to prescribe county elections for such office, Mass. Const. 

amend, art. 19, and the amendment prohibiting a register of probate, among others, from 

continuing to hold that office if elected and accepting an appointment as a member of the 

United States Congress. Mass. Const, amend, art. 8. Thus, the Massachusetts Constitution 

does not require the advice and consent of the Council with respect to an appointment to fill a 

vacancy in the office of register of probate. 

As to whether such an appointment is one in the "executive department," within the 

meaning of St. 1964, c. 740, the statute provides: 

As used in this act, the phrase "executive department" shall include, without limitation, 
all departments, divisions, boards, bureaus, commissions, institutions, councils and 
offices of state government and of county government, and any instrumentality or agency 
within or under any of the foregoing, whether or not serving under the governor or under 
the governor and council, and any independent authority, district, commission, 
instrumentality or agency, but expressly excluding therefrom the legislative and judicial 
departments and any instrumentality or agency of a city or town. 6 

St. 1964, c. 740, § 1 (emphasis added). Although the issue is not free from doubt, I conclude, 

for the following reasons, that an interim appointment of a register of probate is in the "judicial 

department" rather than in the "executive department." 7 



6 In light of the structure of this sentence, I conclude that any reading to the effect that the 
exclusion contained in the last clause is confined to the last antecedent or any other portion of 
the sentence, rather than to the entire definition of "executive department," would be contrary to 
the plain meaning of the sentence, which sets forth an expansive definition of "executive 
department" and then carves out certain exceptions. See, e^g., Moulton v. Brookline Rent 
Control Board , 385 Mass. 228, 230-31 (1982). 



7 As an initial matter, I interpret the term "department," as used in St. 1964, c. 740, § 1, in 
connection with the words "executive, legislative and judicial" to be used in the same sense as it 
is used in the separation of powers provisions of article 30 of the Declaration of Rights of the 
Constitution ("In the government of this Commonwealth, the legislative department shall never 

exercise the executive or judicial power "); in amend, art. 87 to the Constitution (referring to 

"the executive department of the government of the commonwealth"); and in G.L. c. 231 A, § 2 
(1992 ed.) (providing that declaratory judgment procedures "shall not apply to the governor and 



206 



By statute, the duties of a register are included generally with the discussion of the courts 
and judicial officers and are set forth specifically in a separate chapter devoted to probate 
judges and registers of probate. 8 See Massachusetts General Laws, Part III ("Courts, Judicial 
Officers and Proceedings in Civil Cases"), Title I ("Courts and Judicial Officers"), Chapter 217 
("Judges and Registers of Probate and Insolvency"). An examination of the duties of a register 
confirms that his or her responsibilities are closely connected with the administration of justice 
in the probate and family court department (the "Probate Court"). 

The register of probate for each county is the register of the division within the probate 
and family court department for that county. 9 The chief justice for the Probate Court also 



council or the legislative and judicial departments"). 



8 This contrasts with the treatment in the General Laws of the other two offices mentioned in 
G.L. c. 54, § 142, 1 3 — sheriff and district attorney. A sheriffs duties are addressed in the 
General Laws, Part I ("Administration of the Government"), Title VI ("Counties and County 
Officers"), Chapter 37 ("Sheriffs"). A district attorney's duties are addressed in the General 
Laws, Part I ("Administration of the Government"), Title II ("Executive and Administrative 
Officers of the Commonwealth"), Chapter 12 ("Department of the Attorney General, and the 
District Attorneys"), §§ 12-30. These captions were enacted by the legislature itself as a part of 
"An Act Consolidating and Arranging the General Statutes of the Commonwealth," enacted at an 
extra session of the 1920 legislature and presented as The General Laws of the Commonwealth 
of Massachusetts (1921). See 1921 Laws and Resolves of Massachusetts at 752 (noting 
enactment and approval of "An Act Consolidating and Arranging the General Statutes of the 
Commonwealth"). Moreover, the Justices have concluded that the office of sheriff is in the 
"executive department" within the meaning of c. 740, § 1. Opinion of the Justices , 353 Mass. at 
802. One of my predecessors has reached the same conclusion with respect to the office of 
district attorney. 1967-68, Op. Att'v Gen'l Pub. Doc. No. 12 at 63 (Aug. 9, 1967). See also 
Burlington v. District Attorney for the Northern District , 381 Mass. 717, 721 (1980) ("district 
attorney, in deciding to act himself or by assistants as prosecutors, was taking executive action"); 
Commonwealth v. Tate , 34 Mass. App. Ct. 446, 447-448 (1993) ("office of district attorney is 
considered as within the executive branch"). 



9 The probate and family court department is divided into divisions, one for each county. 
G.L. c. 215, § 1 (1992 ed.). 



207 



serves as the administrative head of that Court, subject to the general superintendence of the 
Supreme Judicial Court and the administrative authority of the chief justice for administration 
and management ("CJAM"). G.L. c. 217, § 8 (1992 ed.); G.L. c. 21 IB, §§ 1, 6 (1992 ed.). 

The probate courts are described as "courts of record." G.L. c. 215, § 1 (1992 ed.). 
Similar to a clerk of court, 10 a register has the "care and custody of all books, documents and 
papers pertaining to his court , 11 or deposited with ... the registry of probate." G.L. c. 217, § 15 
(1992 ed.)(emphasis added). Compare G.L. c. 221, § 14 (1992 ed.)(general duties of clerks). 
Additionally, a register may file complaints, petitions and applications to the Probate Court and 
may issue orders of notice, summonses and citations "in like manner and with like effect as if 
issued by the judge." G.L. c. 217, § 21 (1992 ed.). A register also may "issue process of 
attachment and of execution, and all other processes and all warrants, letters and licenses 
necessary to carry into effect any order, judgment or decree of the courts." Id. § 22 (1992 ed.). 
The register must prepare and file annually with the chief justice and the CJAM a report of the 
work of the probate court during the preceding court year. Id. § 8 (1992 ed.). Finally, a register 



10 The clerk for the Supreme Judicial Court for Suffolk County, two clerks for the superior 
court for Suffolk County, and one clerk for each of the other counties are elected to office for six 
year terms. G.L. c. 221, § 3 (1992 ed.). Therefore, the fact that registers of probate are elected 
officials does not necessarily place them in the "executive department." No authority suggests 
that clerks are in the "executive department" rather than in the "judicial department." 

11 See also G.L. c. 217, § 15C (1992 ed.) ("The register in each county shall, upon the receipt 
of an inventory, filed in an estate matter being probated in his court , which contains as an asset 
an interest in real estate located in another county, send a certified copy of the will and 
inventory" to the register in the county in which the real estate is located. Id. § 16 ("The register 
shall, . . . send by mail to the commissioner of revenue a copy of every inventory and appraisal 
filed in his court by an executor, administrator or trustee, 

• • • ") 



208 



is required to perform all other duties pertaining to his office prescribed by the judge. 12 Id. § 15 
(1992 ed.). 

A register of probate is also included in various provisions relating to the administration 
of the trial court, as set forth in G.L. c. 21 IB, §§ 1 et seq. For example, a register is included as 
a member of an advisory committee on personnel standards for the trial court, of which the 
CJAM is the chair. 13 G.L. c. 21 IB, § 8 (1992 ed.). Moreover, the chief justice of the Probate 
Court has authority to discipline a register and all other personnel in the office of a register in 
the event of a dispute between a first justice and a register. Id. § 10(i) (1992 ed.). A register 
and other persons aggrieved by any such decision of the chief justice may appeal to the CJAM. 
A register also may submit any dispute that arises between him or her and a first justice 



12 Additionally, the judge for each county exercises various other functions with respect to the 
office of the register. For example, in the event of the death, resignation, removal or absence of 
the register, if there is no assistant register, or if he or she is absent, the judge appoints a 
temporary register to act until a register is qualified. G.L. c. 217, § 13 (1992 ed.). Compare G.L. 
c. 37, § 5 (providing for special sheriff, appointed by sheriff, to perform duties of sheriff during a 
vacancy in the office) and G.L. c. 12, §§ 12-30 (no special provisions relating to vacancies in the 
office of district attorney). Moreover, the judge, rather than the register or any arguably 
"executive department" official, may appoint a first assistant register and assistant registers. G.L. 
c. 217, §§ 23 and 23A (1992 ed.). Compare G.L. c. 37, §§ 3 and 4 (1992 ed.) (sheriff appoints 
deputies and a special sheriff) and G.L. c. 12, § 16 (1992 ed.) (district attorney appoints assistant 
district attorneys). 



13 The committee advises the CJAM who establishes and promulgates standards for the 
"appointment, performance, promotion, continuing education and removal of all personnel within 
the trial court, except judges, clerks and registers of probate." G.L. c. 21 IB, § 8 (1992 ed.). The 
fact that a register, as an elected official, is not subject to the CJAM's authority for the 
aforementioned personnel purposes is not, in my opinion, sufficient to conclude that a register is 
not in the "judicial department" within the meaning of St. 1964, c. 740. Although judges also are 
not subject to such personnel policies and procedures, it cannot be seriously argued that judges 
are not in the "judicial department." The CJAM establishes the job classification and pay plan, 
subject to appropriation, according to which a register's salary is paid by the Commonwealth, out 
of the judiciary's budget. G.L. c. 217, § 35A (1992 ed.). 



209 



concerning the management and administration of the office of the register, the duties, powers 
and obligations of the register or a member of his or her staff, or the interpretation of personnel 
standards under G.L. c. 21 IB, to the chief justice of the department. Id. § 10A (1992 ed.). 
Again, such a decision is appealable to the CJAM. Id. 

Given the totality of these factors and circumstances, it appears that, to the extent that any 
branch of government exercises influence over a register of probate, it is the judiciary. 14 Thus, I 
conclude that an appointment of a register of probate is in the "judicial department" within the 
meaning of St. 1964, c. 740, § l 15 and, therefore, is not exempted from the requirement for 
Council approval under the terms of that statute. 16 

For all the foregoing reasons, I conclude that a gubernatorial appointment to fill a 



14 Admittedly, a register of probate is an elected official, but that does not necessarily mean 
that the office is in the "executive department". Certain clerks of court are also elected (see 
footnote 7 supra .) but there is no authority to suggest that such an office, which also performs 
administrative duties for the courts, is not in the "judicial department". 



15 This conclusion in no way is intended to suggest that a register of probate is a judicial 
officer within the meaning of the Massachusetts Constitution. Mass. Const, pt. 2, c. 2, § 1, art. 9; 
pt. 2, c. 3, art. 1. As the Supreme Judicial Court has recognized, "there is a distinction on the one 
hand, between judicial officers whose function is to determine rights and duties and, on the other 
hand, those officers whose function is to carry into effect decisions, decrees, and orders made by 
the courts." Opinion of the Justices , 353 Mass. at 803 (citation omitted). The Justices have 
determined that a sheriff falls in the latter category and, in dicta, they have further indicated that a 
court clerk does also. Opinion of the Justices , 353 Mass. at 803; Commonwealth v. Connolly , 
308 Mass. 481, 490 (1941). Moreover, the Supreme Judicial Court has held that a district court 
clerk is not a judicial officer. In the Matter of Dugan , 418 Mass. 185, 190 (1994). 



16 Although not dispositive of the issue, I have been informed that the past practice of 
Governors, on four occasions from 1970 to 1990, was to submit to the Council for its advice and 
consent, nominees to fill vacancies in various offices of register of probate, consistent with the 
reasoning in this opinion. See, e.g ., Board of Education v. School Committee of Quincv , 415 
Mass. 240, 243 (1993) ("reasonable and consistent interpretations of statutes, by agencies 
charged with their implementation, are entitled to deference."). 



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vacancy in the office of register of probate requires the advice and consent of the Executive 
Council. 17 

Sincerely, 

Scott Harshbarger 



17 Given this conclusion, it is unnecessary for me to decide whether St. 1981, c. 278, 
"reenacted" the requirement of Council approval of appointments to vacancies in the office of 
register of probate, pursuant to G.L. c. 54, § 142, prior to its qualification by St. 1964, c. 740. 



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