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Public Document

No. 18001

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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

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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

07/18/94

50.

07/01/94

08/01/94

51.

07/08/94

08/08/94

52.

07/15/94

08/15/94

53.

08/02/94

08/17/94

54.

08/12/94

08/29/94

55.

08/17/94

09/06/94

56.

08/24/94

09/12/94

57.

09/09/94

09/19/94

58.

09/16/94

10.

09/20/94

59.

09/30/94

09/26/94

60.

10/11/94

12.

10/03/94

61.

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

23.

02/06/95

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.

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

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

$2,800

106

$5,300

102

$10,200

101

$10,100

$1,900

$ 200

$ 350

$ 700

$700

$600

383

$32,850

(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)

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

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

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:

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:

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

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.

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

Courts

Cases

July, 1994

August

September

October

November

December

January, 1995

February

March

April

May

June, 1995

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

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

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

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

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.

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

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

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.

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

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

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,

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.

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

Total Cases

Opened

Disposed

Handled

A. Federal Habeas

100

199

B. Federal Civil

C. State Civil

108

233

D. State Habeas Corpus

E. 211 3 and other

Single Justice cases

F. Criminal

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.

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

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

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

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.

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

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.

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

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

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

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

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.

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.

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.

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:

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

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

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:

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

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

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)

$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).

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.

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 25th Anniversary of Earth Day, EPA-New
England recognized the Strike Force's work with the Environmental Merit Award.

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.

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.

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.

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

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

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

After Trial

TOTAL

Convictions

Not Guilty
Dismissal

TOTAL

SEIZURES

Cocaine
Heroin
Marijuana
Pharmaceuticals

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

Firearms

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:

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

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

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

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

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

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

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

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

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

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).

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

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

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

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

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

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

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,

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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.

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.

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?

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.

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.

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.

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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.

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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

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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.

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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

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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.

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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

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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.

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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.

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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

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

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

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.

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

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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.

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.

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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.

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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.

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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.

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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

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.

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

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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

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 26th, 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

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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

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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.

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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.

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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

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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 30th, 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.

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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.

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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

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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.

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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

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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.

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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

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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

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• 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.

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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

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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

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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.

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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.

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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.

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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

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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

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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

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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.

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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:

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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

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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

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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

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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

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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

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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

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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,

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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.

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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

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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.

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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

412

121

350

168

Fair Labor Business Practices

Workers' Compensation Fraud

TOTAL

958

288

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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

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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

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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

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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.

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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.

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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

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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.

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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.

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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

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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

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$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

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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.

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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.

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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

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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.

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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.

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;

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(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.

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.

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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

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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.

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

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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

2The 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).

194

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

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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

3For 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

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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.

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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?

201

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

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, § l15 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.").

210

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.

211

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